HKSAR v. HIP HING CONSTRUCTION CO. LTD.

HCMA376/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 376 OF 2002

(On appeal from TMS No. 10668 of 2001)

---------------------------

-----------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant company was convicted on 21 February 2002 by Mr Eddie Yip, sitting at Tuen Mun Magistrates' Court, of an offence under Regulation 38B(1) of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap. 59.

2. The particulars of the offence are that on 5 March 2001, the appellant, being the contractor responsible for a construction site at Siu Lam, New Territories, did fail to take adequate steps to prevent a person on the site from falling from a height of two metres or more, namely a worker on the parapet in the basement of Block A. The appellant now appeals against the conviction.

The prosecution's case

3. The victim, PW2, was a formwork worker attached to the site on the day of the accident. Near the time for him to go off duty, he fell down into the side of the parapet. There was nothing to prevent his fall. On the morning in question, the victim was tasked to work at A2-A3. After getting changed in a room on the basement at A5, like other workers, he used the parapet between A1 to A9 for access. At about 6 p.m. he completed his day's work. He fell down the side of the parapet at A5-A6 into the basement 2.71 metres below. He fainted. Shortly afterwards, his colleagues came to his rescue. At the position where he fell, there was nothing to prevent his fall from the parapet into the basement. He did not know the full circumstances of his fall.

Grounds of appeal

4. On behalf of the appellant, counsel relies on four grounds of appeal.

5. The first ground of appeal is that the magistrate did not properly consider the evidence of PW2, PW3 and PW4. Consequently, the magistrate drew an inappropriate adverse inference as regards where and how the worker PW2 fell from the parapet in the absence of evidence on the matter. Counsel's submission is that the injured worker, PW2, in his evidence said that the accident occurred at A2-A3, and that was the last he recalled because he fainted. However, the rest of his evidence on this was that at A2-A3, there were no fences and there were no fences where the low wall was. PW2 was found at A5-A6 and so, in my view, the learned magistrate was entitled to find that PW2 had fallen at A5-A6. In my view, whether the workman fell at A2-A3 or at A5-A6 is not a matter which should affect the safety of the conviction. The particulars of the charge are that he fell on the parapet in the basement of Block A.

6. The second ground of appeal is that the magistrate did not properly analyse the evidence that PW2, when still detained in the hospital, told PW3 that he had climbed the tabular scaffold. The submission on this ground is that when the magistrate gave his oral reasons for the verdict, he said that the defence had not asked for PW2 to be recalled for further examination after PW3 had given evidence about this utterance and therefore this was reversing the burden of proof onto the defence.

7. In fact, when PW2 gave evidence he was asked if he had climbed any scaffolds to get down to one floor below to where the changing room was, and he said that he had not. The evidence by PW3 of this alleged utterance by PW2, in my view, did not cause to create any reasonable doubts in the prosecution's case about the way in which PW2 sustained his fall, bearing in mind also what I shall say about the law relating to this offence.

8. The third ground of appeal is that the magistrate had misunderstood the evidence of PW3 and PW4, and that led him to arrive at a conclusion not based on the evidence.

9. PW3 was the site foreman and PW4 was the superior of the victim. Their evidence on this aspect of the case was by no means clear. I have read the transcript of their evidence again, and it appears that what PW3 said in evidence was that the work on the platforms at A1 to A5 was completed on 2 March 2001 (three days before the accident) and the work on the platforms at A5 to A9 started on 5 March 2001. PW4 said that on 5 March 2001, the work on the fences at A1 to A5 was completed. He said that he did the fencing work where the low wall was. The complaint was really that the magistrate should not have accepted the evidence of PW4 when compared with that of PW3 because the magistrate was of the view that inasmuch as PW4 was the one who actually did the work, PW4 was in a better position than PW3 to know whether or not the fencing work had been done.

10. As I said earlier, the evidence by these two witnesses was by no means clear, but the magistrate was entitled to rely on the evidence of PW2, the injured worker, that there were no fences at the workplace where he fell.

11. The last ground of appeal was that the conviction did not have a sufficient evidential basis and therefore the conviction was unsafe. The evidence by PW2 as regards where he fell was not entirely clear, but looking at the whole of his evidence, he testified that there were no platforms at the parapet and there were no fences at all. As I said earlier on, the magistrate was entitled to rely upon the evidence of PW2 in that respect.

The law

12. As I said in HKSAR v. Chun Wo Building Construction Ltd, HCMA749/1999, what was said by the Privy Council in Gammon (Hong Kong) Limited v. AG [1985] AC 1 and repeated by Bohkary JA (as he then was), in AG v. Fong Chin Yue & Others [1995] 1 HKC 21, was that where the statute was concerned with an issue of social concern and public safety was such an issue, that was the only situation in which the presumption of law that mens rea was required could be displaced. It was also said that the presumption of mens rea stood unless it could also be shown that the creation of strict liability would be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

13. I said in that case that the Factories and Industrial Undertakings Ordinance was enacted to ensure that places of work, including factories and industrial undertakings, should be safe for the people working therein. The regulations made under the Ordinance apply to a number of places including construction sites and to a number of things. I said that the Ordinance was concerned with an issue of public safety and it could readily be said that the creation of strict liability for all offences created under the Ordinance would be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of prohibited acts. I held that the offence in that case, namely a breach of Regulation 19(1) of the Factories and Industrial Undertakings (Electricity) Regulations was one of strict liability.

14. For the same reasons, I find that the offence in the instant appeal is also one of strict liability. The defences available to a defendant charged with the present offence are set out in Regulation 38H which says, inter alia, that it shall be a defence for a contractor charged with an offence under regulation 38B(1) to show that in all the circumstances of the case, it was impracticable to comply with all or any of the requirements of that regulation.

15. In the instant case, at the trial, the defence called no evidence. In my view, it cannot be said that the conviction was in any way unsafe or unsatisfactory, and therefore the appeal is dismissed.