R. v. KAI TAI CONSTRUCTION ENGINEERING CO. LTD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO. 1123 OF 1995

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J U D G M E N T

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Duffy, J.:

1. This was an appeal against a conviction for failing to take all reasonable steps to ensure that workmen did not remain in a dangerous place without wearing safety belts provided to the workmen.

2. This case was brought as a result of an accident which occurred when two workmen who worked for Honest Scaffold General Contract Company fell to their deaths from the 22nd floor of a building site on Ap Lei Chau on 12th December 1993. They had been erecting scaffolding outside a flat on the 22nd Floor, which was already occupied, in order that repairs could be done to some installations there. It was not in dispute that when they began to erect the scaffolding, they were not using safety harnesses or safety lines. They both fell to their deaths when the scaffolding they had erected collapsed.

3. In the course of the trial, for reasons which remain obscure, the Crown called Mr Yeung Yuen, who was a foreman of Kai Tai Construction Company the Appellant company. Not unnaturally, he was at great pains, and took every opportunity, to tell the Court that he had reminded the deceased workers of the need for safety harnesses, and the need to comply with the Safety Regulations. Why he was called as a Crown witness is difficult to understand. However, he did fall short of saying that he had waited on site until he saw that the deceased were in fact wearing safety harnesses and were attached to a safety line. It was argued by the Appellant that by ensuring that he had reminded them of the Safety Regulations and having regard to the fact that the deceased had told him that they would take their own safety precautions, and that these were experienced men in the field, the Appellant therefore had taken all reasonable steps to ensure that the men remained in this obviously dangerous place without wearing safety belts.

4. Had I not allowed this appeal on another ground I would have rejected that argument. I was satisfied that reasonable steps had to include staying on site until the scaffolding operators were seen to be wearing safety belts and attached to a safety line. If thereafter the scaffolding workers had removed the safety belts and had an accident, then indeed the Appellant could have said that it had taken all reasonable steps to ensure that they were wearing them. However, in the circumstances I felt that the reasonable steps required of the Ordinance had not been taken.

5. However, there was a material irregularity in the course of this trial. The Crown called as an expert witness and a witness upon whose opinion the magistrate heavily relied, Mr Chan Ho Wah, a divisional factory inspector of the Labour Department. Objection was taken by Mr Beaumont at the trial as well as at the appeal to the calling of Mr Chan as an expert witness. It was Mr Beaumont's submission that Mr Chan being a member of the Labour Department could not possibly be an independent witness, in the sense that an expert ought to be when giving evidence in a trial, the prosecution of which was organised by the Labour Department. He referred me to my own decision in R. v. Manfield Building Contractors Limited, Mag. App. No.499 of 1991. In that appeal I had said this :

"In support of the first charge, the Crown called a number of witnesses including Wong Wing-yau, a Divisional Factory Inspector of the Labour Department. There was an application by the Crown that he be treated as an expert witness. The magistrate qualified him as such and he gave evidence in relation to the collapse of the working platform and his opinion as to why that had happened. However, this witness was the officer in charge of the investigation of this case, as he admitted in his own evidence.

Not unnaturally, this was the main ground of appeal advanced by Mr Tang on behalf of the appellant. It could not be said, he submitted, that a man who was in charge of the investigation of a case could prima facie be seen to be impartial and independent in relation to that case. I agreed. It was at least undesirable that the Factory Inspector, himself in charge of the investigation into the fatal accident in this case should be also called as an expert witness. I thought it was fatal to the conviction. For that reason, the appeal in relation to the first count had to succeed."

6. Mr Chan who appeared for the Crown on the appeal sought to distinguish the present case on the basis that the inspector called by the Labour Department was not a member of the prosecution team. With respect to him there was no evidence as to that. The only evidence given in relation to Mr Chan's position was that he was at the time of the trial, i.e. two years after the events, no longer working in the section dealing with accident of this sort. It seemed to me that in a place such as Hong Kong, with a very large construction industry, there would be many persons available to give evidence of an expert sort in relation to matters such as those dealt with in this case. It could not be right for the Labour Department, which was responsible for the prosecution of these matters, to call its own officers as expert witnesses to give opinion evidence to the Courts about the reasons for the accident. My decision in R. v. Manfield Building Contractors Ltd. did not deal with the wider issue of any Labour Department Officer, and not just one involved in the prosecution, giving expert evidence in a representation brought by the Labour Department. Common sense alone would militate against such a course. It was my view, therefore that the learned Magistrate was wrong to have placed any reliance on the evidence of Mr Chan, because he could hardly have been described as an independent and impartial witness. For that reason and that reason only I allowed this appeal.