HKSAR v. HIP HING - KUMAGAI JOINT VENTURE

HCMA984/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 984 OF 1998

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J U D G M E N T

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1. The Appellant company was tried and convicted before a Magistrate for breaching Regulation 38P(1) of the Construction Site (Safety) Regulations made under the Factories and Industrial Undertaking Ordinance.

2. The summons alleged that the Appellant company, being the contractor responsible for a construction site, failed to ensure that an opening on the floor level through which a person on the site was liable to fall was provided with either a suitable guard of adequate strength or covering so constructed as to prevent the fall of persons, materials and articles and such covering being clearly and boldly marked to show its purpose or be securely fixed in position.

3. The accident occurred on 25 December 1997 when Mr Grung Lab Kumar ("PW3") fell through the floor opening at floor Level B1 of a building under construction. The witness was an odd job worker at the site and at the time of the accident, he was instructed by his foreman to clear up some rubbish on the floor of Level B1. The opening in question was covered by a wooden board. As he was walking across it, he stepped on the wooden board which flipped over and as a result of which he fell through the opening. It was his evidence that before he stepped onto the wooden board there was nothing to block his way by means of any guardrail or safety signs warning him of the potential danger.

4. At the time of the accident, PW3 was accompanied by his fellow workmate Mr Angbuhang Netrajang who appeared at the trial as the 2nd Defence Witness ("DW2"). His evidence at the hearing was somewhat confused. He told the Court firstly he was not aware of any floor opening, however, later in his testimony he said he saw the opening before his friend fell through it. According to him it was PW3 who applied pressure on the board and tried to lift it up and in so doing, he fell through the opening.

5. There was no dispute that there was an opening of 85 cm x 85 cm at B1 level of the site. The size of the wooden board cover was measured at 108 cm x 88 cm with a thickness of 1.5 cm. The distance of fall between Level B1 and B2 is 3 metres.

6. In the way in which the regulation was worded, the statutory requirement under section 38P(1) can be complied with by one of two ways. Firstly, an opening could either be fenced-off with a suitable guardrail of adequate strength to a height between 900 mm and 1,150 mm, or alternatively it could be covered by a covering so constructed as to prevent the fall of a person or materials and such covering should be clearly and boldly marked to show its purpose or be securely fixed in position.

7. After the accident, PW1, who was an Occupational and Safety Officer from the Labour Department inspected the site. His inspection revealed that the opening had been covered by a piece of wooden board and there were two metal railings of sufficient height in the vicinity. However, as PW1 only arrived at the site after the accident he was not in a position to say how the railings and the wooden board were positioned immediately prior to the accident.

8. PW2, another Occupational and Safety Officer from the Labour Department, did not take the prosecution case any further.

9. The 1st Defence Witness, one Mr Lam Hung Wing, was the superintendent of the site. He told the Court the area where the opening was located was fenced off with guardrails. He last inspected the site two days before the accident but he was unable to tell the Court as to what had happened to the guardrails between the 23rd and the date of the accident.

10. The third Defence witness was the on-site foreman. On 25 December, he instructed PW3 and DW2 to clear up the debris on the B1 Level. His evidence was that there were guardrails surrounding the area where the opening was located. In order for PW3 to go near the floor opening, he had either to remove the fences or cross over them. The evidence of this witness suggested that it was PW3 who displaced the guardrail and approached the area where the floor opening was, and hence he was the author of his own misfortune.

11. The learned Magistrate at the trial had quite correctly identified that the only issue before her was whether or not there was an effective barrier by means of the guardrails to fence off the floor opening and if not, whether the wooden board was securely fixed to cover the floor opening with appropriate markings.

12. There are two main grounds of appeal. The first ground is the conviction is unsafe and unsatisfactory in that the learned Magistrate failed to evaluate all the evidence and to resolve fundamental inconsistencies and contradictions in the evidence in favour of the Appellant. The second ground is the learned Magistrate had confused the law and the relationship between the statutory requirements relating to fences and covering.

13. The learned Magistrate accepted the evidence of PW3, the injured person, and rejected the evidence of DW2, his workmate and DW3, the foreman.

14. The point remains whether the floor opening was adequately fenced off by the guardrails or whether there was a floor covering of sufficient strength in position with adequate warnings given to the workers. Having rejected the evidence of DW2, the learned Magistrate accepted the account of PW3. She found on the evidence that there was no fence or guardrail surrounding the floor opening and that the board provided by the Appellant was not of sufficient dimension to prevent the fall of persons through the opening. She also found that the covering had not been properly and clearly marked to show its purpose nor was it securely fixed in its position.

15. This is not a case where no guardrail or floor covering had been provided. There were in fact some precautionary measures undertaken by the Appellants but the learned Magistrate found that those installations, whether they be guardrails or floor covering, were insufficient under the circumstances for the purpose of guarding against the inherent danger posed by the opening on the floor. It was opened to the Magistrate, based on the evidence, to come to the findings as she did. In the course of so doing she had dealt with the inconsistencies in the evidence adequately.

16. I cannot say that the criticism levelled at the learned Magistrate by Counsel for the Appellant is justified under the circumstances. There is noting to suggest that the conviction is either unsafe or unsatisfactory.

17. For the reasons given, the appeal is dismissed.