HKSAR v. CHINA OVERSEAS BUILDING CONSTRUCTION LTD

HCMA434/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.434 OF 2005

(On Appeal From KTS 900128 AND KTS 900129 OF 2004)

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J U D G M E N T

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1. The appellant was convicted after trial of two summonses, KTS900128 and KTS900129.  The charges involved were contrary to regulations 10(3), 10(4) and 20(1) and of the Factories and Industrial Undertakings (Woodworking Machinery) Regulations, Cap.59.  It now appeals against the convictions.

The contention at trial

2. The particulars of the summonses were as follows :

(a)   KTS900128 –

“Chinese Overseas Building Construction Limited, on 2 February 2004, being the proprietor of an industrial undertaking at superstructure works for development of Mongkok West Area 20, Phase 4, Kowloon in which there was no riving knife behind and in direct line with the circular saw.”

(b)   KTS900129 –

“China Overseas Building Construction Limited, on 2 February 2004, being the proprietor of an industrial undertaking at superstructure works for development of Mongkok West Area 20, Phase 4, Kowloon in which the top of the circular saw was not covered by a strong and easily adjustable guard, with a flange at the side of the saw furthest from the fence.”

3. The prosecution case was that during an inspection of a construction site by an Occupational Safety Officer of the Labour Department, a circular saw was found to be in operation without a riving knife and without the top of the circular saw being covered as required by regulations 10(3) and (4).

4. The defence case, on the other hand, was that the circular saw with working bench was in the process of being assembled and not being used.  And as the power supply was off, regulation 18 applied, rendering the circular saw equally safe as it would be if guarded as required by regulations 10(3) and (4).

The evidence

5. Insofar as it is relevant to the present appeal, the following is a summary of the evidence as found in the magistrate’s Statement of Findings :

“4.     The prosecution called one witness, …. an Occupational Safety Officer with the Labour Department ….

….

6.       PW1 .… conducted an inspection at the site at 3.10pm together with the appellant’s Site Manager …. and Safety Officer …. PW1 observed about 30 workers on the site at the time, mainly doing interior decoration work.  In cross-examination PW1 disagreed there was not much work going on as this was the first day after Chinese New Year ….

7.       …. when the three arrived at the 23^rd floor PW1 saw a worker …. cutting a wooden batten with a circular saw making a narrow trench in the batten PW1 referred to photograph P4A showing the circular saw and photograph P4E showing the wooden batten with narrow trench.

8.       In cross-examination PW1 said that the worker was definitely not assembling the working bench. ….

9.       When put the wooden batten shown in photograph P4E was rubbish PW1 disagreed explaining the worker wished to cut the batten shown in P4E into two to become something like the battens shown in the middle of P4F.

10.     PW1 disagreed that having heard the sound of a circular saw he felt unlucky because when he reached the 23^rd floor he did not catch the worker using the saw and therefore made up his story that the worker was using the circular saw to cut the wooden batten.

11.     PW1 told the worker to stop when he was doing.  The worker then put down the wooden batten in the position as shown in photograph P4E.  After cross-examination PW1 said in answer to the court that when he told the worker to stop, the worker pulled out the white plug from the orange extension chord.

12.     …. PW1 was asked why he allowed the worker to remove the plug while the saw was still rotating.  PW1 explained that at the time he did not know where the plug was and that the worker walked over to the side where the plug was and pulled out the plug.  When put it was easier to turn off the on off switch on the saw PW1 explained that this would be very dangerous when the blade was still moving.  PW1 disagreed that the worker never pulled out the plug from the extension chord.

13.     PW1 testified there was no riving knife and no guard on the top of the circular saw leaving the teeth of the blade completely exposed.  PW1 asked the worker why …. The worker replied that he had forgotten to bring them and that they were put in his home.  The worker also said this was the first day he had worked on the site having started at 10.00am.  In cross-examination PW1 disagreed the worker told him this was the first day at work after the Chinese New Year.

14.     When PW1 asked what the wooden battens were used for the worker replied for setting up doorframes.  PW1 asked the worker whether he had cut the wooden battens shown in photograph P4F.  The worker replied that he had earlier used the circular saw to cut two wooden battens into four battens.

15.     The Site Manager and Safety Officer told the worker to dismantle the circular saw.  PW1 said this was not to be done, because he needed to take photographs and measurements.

16.     In cross-examination PW1 confirmed that before and during the taking of the photographs he did not touch or try to clean the blade of the saw, the surface of the bench or any of the woodworking machinery, including the accessories, skirting, wires and plugs nor did the Site Manager or Safety Office or the worker after he had stopped the saw.

17.     Mr. Lau cross-examined PW1 on requirements relating to the safety of woodworking machinery.  PW1 agreeing that the law requires a skirting covering the legs of the bench and therefore the teeth of the circular saw explained that as the lower part of the saw was covered as shown in photograph P4A this was acceptable.  PW1 agreed there was no emergency stop button on the working bench.

18.     Mr. Lau …. questioned PW1 about hidden screws (also called black screws), which were used to hold the saw in position when installing the circular saw in the bench and that when the saw was finally fixed through screws would be used.  PW1 disagreed by looking at photograph P4A that there was no fixed screws saying that it was possible the screws may be covered by the piece of wood on the bench next to the saw as shown in the photograph.

….

19.     The defence called one witness only, Mr. TAM …. the Senior Safety Officer and representative of the appellant company, who was not present …. during the inspection ….

20.     Mr. Tam explained in court the operation of a circular saw by reference to the model (exhibit D1) together with photographs (D2 (1-9)) and by producing in court the saw installed in the working bench on the 2^nd February (exhibit D3).  Mr. Tam explained the on off switch, the adjustable protective guard beneath the board and where the screws would be placed for securing the saw to the bench.

21.     Mr. Tam produced a delivery note (exhibit D4) in respect of delivery of architraves to the site and the contract between his company and the subcontractor (exhibit D5 with the relevant parts extracted as D5(a)) highlighting the different sizes of architraves.  Mr. Tam explained the architraves were the same as the wooden battens shown in photograph P5 (19), which were used to seal door frames.

22.     Mr. Tam explained the architraves were made to order and that there were different sizes as shown on the delivery note and that four which were half the width of other architraves were possibly the four shown in the middle of photograph P5(19).

23.     In cross-examination Mr. Tam said his knowledge of the delivery note and contract was told to him by the company quantity surveyor.  Mr. Tam agreed he had limited knowledge how construction work was carried out.  In answer to the court Mr. Tam said he had no idea why there was a cut down the middle of the wooden batten shown in photograph P5(14) (which is the same photograph as  P4E).”

The verdict

6. In the end, the magistrate convicted the appellant and gave full reasons for so doing :

“24.   I carefully considered all the evidence.  I was satisfied so I was sure PW1 was a credible witness on whose evidence I could safely rely.

25.     In reaching my verdict I carefully considered the submissions of Mr. Lau, in particular as to the credibility of PW1 and the inconsistencies in his evidence for example as to the absence of sawdust on the working bench and on the teeth of the circular saw and that he only mentioned that the worker stopped the saw by unplugging the socket when asked by the court at the end of his evidence.

26.     I found these inconsistencies more apparent than real and not material.  PW1 disagreed there was no sawdust shown on the bench as seen in the photographs and explained the sawdust comprised of very small granules which could not be seen on the photographs.  When shown a close up (photograph P5(5) PW1 explained when the worker was sawing the batten the sawdust generated was in powder form and the angle of the photograph looking down on the saw made it look as though there was no sawdust.

27.     PW1 agreed that when the circular saw was used to cut the batten heat and static would be generated resulting in sawdust attaching to the teeth of the saw.  PW1 explained it was not surprising that photograph P5(5) did not show any sawdust on the teeth of the saw because once the saw was stopped the sawdust would fall off the saw.

28.     I accepted PW1’s explanations under cross-examination with regard to there being no sawdust shown on the photographs.

29.     The fact PW1 only told the court he unplugged the socket at the end of his evidence (see paragraphs 11 and 12 above) did not in any way cause me to doubt his evidence that he saw the worker using the saw to cut a narrow trench in a wooden batten.  I noted PW1 was not asked either in-chief or under cross-examination how the worker stopped the saw.

30.     I carefully considered Mr. Lau’s submission that the working bench was incomplete and therefore more likely than not the bench was in the process of being assembled as opposed to the circular saw being used.  This submission did not in anyway cause me to doubt PW1’s evidence he saw the working using the circular saw to cut a narrow trench in a wooden batten.  Furthermore I accepted PW1’s evidence he believed that the sawdust on the floor under the circular saw was because of the cutting of the wooden battens.  In cross-examination PW1 disagreed that the sawdust was because of the assembly of the working bench and not from cutting battens.

31.     I found as a fact, inter alia, that when PW1 inspected the site together with the Safety Officer and Site Manager of the appellant company:

(i)	he saw a worker cutting a wooden batten with a circular saw;
(ii)	there was no riving knife as required by Regulation 10(3); and
(iii)	there was no strong and easily adjustable guard, with a flange at the side of the saw furthest from the fence covering the top of the circular saw required by Regulation 10(4).

….

33.     Mr. Lau submitted that Regulation 18 applied by reason of the fact the saw was not in operation at the time and therefore with the power turned off the circular saw was rendered equally safe as if guarded in the manner specified in the regulations.  I rejected the case put in cross-examination that the circular saw was only being assembled and not being used.

34.     Furthermore in my view Regulation 18 only applies when the circular saw is being used and other safeguards are provided and maintained which are equally safe and that the on off switch of the circular saw is not a safeguard provided and maintained as envisaged by this regulation.

35.     I found that there was no other safeguards provided and maintained which rendered the circular saw equally safe as it would be if guarded in the manner specified in Regulations 10(3) and 10(4).

….

37.     I carefully considered the evidence of Mr Tam, the Senior Safety Officer and representative of the appellant company, who I noted was not present at the time of the inspection.  Nothing said by Mr Tam caused me to doubt the findings I made.

38.     I reminded myself of the burden and standard of proof and that the burden was on the prosecution throughout.  I was satisfied so I was sure that the prosecution had proved all the elements of both offences beyond reasonable doubt, each summons being considered separately.”

The present appeal

7. Before me, the appellant has through counsel advanced three grounds.

8. Ground (1) states that, in respect of both charges :

“In finding that the circular saw in question was in operation at the time of the inspection by PW1, the learned magistrate failed at all, or satisfactorily, to resolve inconsistencies and inherent improbabilities arising from the evidence of PW1 and DW1, and alternatively failed to proper weight to their respective evidence.”

9. Counsel then goes on to particularize their complaint under seven sub-headings.  There is no better way to understand them than to set them out as originally written :

“(a)    the learned Magistrate wrongly accepted that PW 1 had satisfactorily explained why no saw dust could be seen on the working bench and why there was no saw dust on the saw teeth;

          [AB 19 – 20 paras. 25 – 28; AB 70C – G; AAB 107H – 108I]

(b)     the learned Magistrate wrongly accepted PW 1’s evidence that he saw the workman in question unplugging the circular saw was credible by failing to give any weight or any sufficient weight to the fact that PW 1 had not disclosed this evidence in a timely fashion;

          [AB 69C – J; AAB 108Q – 115M, 117R]

(c)     the learned Magistrate failed to resolve the discrepancy between PW1’s evidence in cross-examination that the working bench in question would be safe without skirting and PW 1’s later evidence that it would not be safe for the workman to reach under the working bench to stop the circular saw by pushing the on/ off button;

          [AB 69K – Q; AAB 100G – R, 121O – U]

(d)     the learned Magistrate failed to resolve the inconsistency in PW 1’s evidence that although PW 1 said he saw the workman in question unplugging the circular saw, PW 1 also said he would not have allowed the workman to do so;

          [AB 20 para. 29; AB 69R – T; AAB 119M – 123F]

(e)     the learned Magistrate failed to resolve the inherent improbability that the working bench in question was so incompletely constructed that any use of it to cut the architrave in question would possibly cause the circular saw to drop from the working bench to the floor under the vibration that the operation of the saw would cause;

          [AB 20 para. 30; AB 70I – S; AAB 103Q – 104J]

(f)      the learning Magistrate misdirected himself that in cross-examination PW 1 disagreed that the saw dust on the floor was caused by the assembly of the working bench when the evidence of PW 1, whom the learned Magistrate had accepted as a credible witness, was such that the said saw dust could possibly be caused by the assembly of the working bench;

          [AB 20 para. 30; AAB 100E – F]

(g)     the learned Magistrate misdirected himself that nothing said by DW 1, a witness whom he had not rejected, would cause him to doubt his findings in this regard when DW 1’s evidence is such that the architrave that the workman in question was alleged to have been cutting at the time of the inspection did not conform to the measurement of architraves ordered for the site in question; and

          [AB 21 – 22 para. 37; AB 71D – G, 71U – 72F; AAB 89S, 132U – 137R, Exhibit D4a at AB 62; Exhibit D5a at AB 65]

(h)     the learned Magistrate further failed to give any or any sufficient weight to DW 1’s evidence that the defendant company had ordered four architraves that were possibly those shown in photograph exhibited as P5 (19) and there would therefore be no need for the workman in question to halve any architraves at the time of the inspection.

          [AB 21 – 22 para. 37; AB 70T – 71C; AAB 105P – R; 135 – N; Exhibit D4a at AB 62; Exhibit P5 (19) at AAB 173]”

10. In my judgment, this ground has no merit.

11. In my judgment, matters under sub-heading (a) has been sufficiently dealt with by the magistrate in paragraphs 26 to 28 of his Statement of Findings. 

12. True, it has been pointed out to me that at one point, PW1 did express the belief that a lot more battens had been cut, which, to him, explained the substantial amount of saw dust on the floor, and which, if true, should mean that heaps would also appear on the workbench, not just the very small granules.  What fell on the floor must also have fallen on the workbench — that is the logic of counsel. 

13. The fallacy of that argument, however, is that it turns PW1’s conjecture into truth.  The fact is, PW1 saw only one cutting.  He did not know what other objects had been put to the saw; or, if they were in fact battens, at what intervals they had been cut; or, if there were indeed intervals, whether someone had wiped the workbench and the saw during those intervals.

14. Equally, I find the matters under sub-heading (b) to have been adequately dealt with in paragraph 29 of the Statement of Findings.

15. I have read the part of transcripts where PW1 conceded that nobody including himself had touched any part of the saw after he had stopped the worker from sawing the batten.  I have also read the part where he conceded that photographs taken after that point showed the saw to be unplugged.  Between them, there were 12 pages of cross-examination where everything but anything connected to these seemingly inconsistent concessions was asked.  It was only when the magistrate started to raise specific questions that PW1’s attention was properly directed to them, who promptly explained that the worker had pulled the plug upon being told to stop sawing.

16. Given the circumstances, I see nothing wrong with the magistrate giving weight to PW1’s explanation.   

17. This brings me to sub-heading (c).  Here, the complaint is that upon hearing PW1’s explanation about the unplugging, defence counsel had put to him that it was in fact safer for the worker to turn off the saw by using the underside on/off switch, which PW1 disagreed on the basis that the saw was still running.  This contradicts his earlier evidence that the underside of the saw was covered and safe, and the contention now is that unresolved by the magistrate, this contradiction throws doubt on PW1’s credibility.

18. I disagree.

19. In effect, what PW1 was asked to do here was speculate on why the worker would adopt one course of action and not another.  Trying to come up with an answer, PW1 had obviously forgotten about what he had said earlier no doubt because it was asked in a totally different context.  I do not see how this would become a discrepancy that should cause the magistrate any concern.

20. Likewise, the complaint in sub-heading (d) is unsubstantiated.

21. PW1’s evidence on the point was quite simply this — as an officer with the Labour Department, he had a duty to ensure that the worker or workers was or were not endangered by his action.  But the fact remains that once he asked the worker at the saw to stop working, the latter “walked over to that side and pulled [the plug].  That’s all.”

22. Clearly, what took place took place within seconds.  The photographs also show that the worker needed only move a few feet to unplug the saw.  There was no inconsistency as such in PW1’s evidence.

23. I turn now to sub-heading (e).

24. This is the point on whether the circular saw was temporarily held onto the workbench by “black” screws or more permanently fixed onto it by “through” screws, and the ensuing question of whether it could have been stable enough for cutting.  It is complained that PW1 was speculating when he remarked that there might be “through” screws under the wooden block on top of the workbench.

25. Having read the transcripts, I am satisfied that what PW1 did was simply respond to a challenge that no “through” screws could be seen in the photographs exhibited.  He was simply saying that there might be some under the wooden block.

26. In any event, PW1 had never admitted that the saw would fall off if only “black” screws were used :

“Q:	I was putting to you that this circular saw was only held in position by the black hidden screws and not any through screws.
A:	Possible.
Q:	… Now I’m also putting to you if the workman had used this circular saw on this bench, the vibration of the cutting would have caused this circular saw to drop onto the ground.
A:	Not necessarily.
Q:	You mean possible?
A:	Possible.
Q:	Now, let’s ask you something else …”

27. This is evidence that the magistrate was entitled to consider in the prosecution’s favour, though not necessarily openly in his Statement of Findings.

28. In essence, sub-heading (f) claims that the magistrate’s misquoting of PW1’s answer as to whether the sawdust on the floor could have been caused by the assembly of the workbench is so important that the entire basis of the magistrate accepting PW1 as a credible witness should be overturned.

29. Quite simply, this suggestion has no merit.  It is common sense that woodwork causes sawdust.  PW1 could not have fairly disagreed with the proposition that the assembly of the workbench was a possible cause of the sawdust on the floor.  I do not see how the magistrate’s conclusion on PW1’s credibility could have been different if he had not misdirected himself on this minute point of evidence.

30. For sub-headings (g) and (h), all that needs to be said in my judgment is that PW1 saw the worker cutting a “narrow trench” down the middle of a batten.  It is unclear for what purpose but obviously it had nothing to do with making architraves.  The rest of PW1’s evidence about other battens being cut was but his own conjecture.  In the circumstances, I can perfectly understand why the magistrate said that nothing DW1 said caused him any doubt on his findings.

31. I turn now to Ground (2).

32. Ground (2) states that, in respect of both charges :

“The learned magistrate erred in finding that regulation 18 of the Factories and Industrial Undertakings (Woodworking Machinery) Regulations, Cap 59G only applies when the circular saw is being used and other safeguards are provided and maintained which are equally safe in that:

(a)    the learned magistrate had given no reason or no adequate reason to support his finding; and

(b)    on proper construction of regulation 18, the disconnection of the circular saw from its power supply would render the machine equally safe as it would be if guarded in the manner specified in regulation 10 of the same Regulations.”

33. I do not think there is anything to this ground either.

34. Whether or not the magistrate gave adequate reason for his construction of regulation 18, it is the correctness of his conclusion that matters.  The failure to do so — assuming there be such a failure — will not render this appeal successful.

35. As regards regulation 18, this is how it reads :

“Regulations 10, 13, and 14(2) and (3) shall not apply to a woodworking machine in respect of which it can be shown that other safeguards are provided and maintained, which render the machine equally safe as it would be if guarded in the manner specified in these regulations.”

36. In my judgment, the magistrate was right to say that “regulation 18 only applies when the circular saw is being used”.

37. That was said in response to the defence submission that turning the power off was a kind of “other safeguards” envisaged in the regulation (see para.33 – 35 of the Statement of Findings).  That interpretation is impossible with the words “provided and maintained”.  These words suggest that the “other safeguards” must be extrinsic to machine and disconnecting its plug is simply not what the regulation envisages in my judgment.

38. Furthermore, pulling the plug of a machine means the machine cannot be used and if a machine cannot be used, there is really no need for safeguards.  If it carries that kind of meaning, regulation 18 will simply be stating the obvious, hence completely otiose.  It is like having a law to say that a car without wheels does not have to have working headlights.  Such a proposition needs only to be stated to show its ridiculousness.  

39. Finally, one must not forget that as a matter of finding, which I uphold, the circular saw in question was in fact plugged in and running when PW1 appeared.  That must remove the factual basis of Ground (2) once and for all.

40. Ground (3) claims that in all the circumstances of the case, the conviction is unsafe and unsatisfactory.  I disagree.

Judgment

41. The appeal is dismissed.