SECRETARY FOR JUSTICE v. HONG DAU CONSTRUCTION CO LTD AND ANOTHER

HCMA 499/2017

[2019] HKCFI 231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 499 OF 2017

(ON APPEAL FROM ESS NOS 39858 AND 39863 OF 2013)

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REASONS FOR DECISION

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1.  This is an application for a Certificate to the Court of Final Appeal under section 32 of the Court of Final Appeal Ordinance.  At the conclusion of the hearing, I dismissed the application.  I now provide the reasons.

Background

2.  This case is in relation to a fatal industrial accident in a building maintenance construction site at West Carpark, Paradise Mall, Heng Fa Chuen, Hong Kong (“Site”).  On 23 May 2013, two scaffolders of the 2^nd Applicant were erecting truss‑out bamboo scaffold outside the external wall of the carpark at level 3 of the Site.  One of the scaffolders was Mr Kong (“PW1”).  The other one was Mr Chin (“the deceased”). When the deceased intended to return from the external wall to the carpark, he lost balance and fell to ground floor.  He later died. 

3.  There is no dispute that Regulation 38E of the Construction Sites (Safety) Regulations (“reg. 38E”) requires that both Applicants shall ensure that no scaffold is erected except by workmen who are adequately trained and under the “immediate supervision” of a “competent person”.  It was not disputed that both the deceased and PW1 were competent person.  The main issue at trial was whether they could be under the “immediate supervision” of each other when they were both engaged in the erection of the scaffold.

4.  The trial of 9 summonses in respect of the accident was heard on 21 - 24 and 28 December 2015.  The trial Magistrate (‘the Magistrate”) acquitted all 9 summonses and awarded costs to the 1^st and 2^nd Applicants on 1 February 2016.

5.  The Respondent applied to review under section 104 of the Magistrates Ordinance, Cap 227 the acquittal and costs orders of only two of the summonses: ESS 39858/2013 & ESS 39863/2013 in relation to the breach under reg. 38E.

6.  The review was heard by the Magistrate on the 1 November 2016 and decided on the 30 November 2016.  The Magistrate dismissed the review for both ESS 39858/2013 & ESS 39863/2013 and awarded costs of the review to be taxed if not agreed to the 1^st and 2^nd Applicants.

7.  The Respondent further appealed the summonses ESS 39858/2013 & ESS 39863/2013 by way of Case Stated under section 105 Magistrates Ordinance, Cap 227.  The Respondent raised two questions of law:

(1)   Did the magistrate err in holding that under regulation 38E, workmen can be under the immediate supervision of a competent person who is engaged in the erection of scaffold?

(2)   If the answer to (1) is “No”, were the magistrate’s findings that there were reasonable doubts that each of PW1 and the deceased was under the immediate supervision of the other perverse?

8.  I heard the appeal and gave judgment on 7 September 2018 with affirmative answers to the two questions, and allowed the appeal with orders that:

(i)  The acquittals of the 1^st Applicant for ESS 39858/2013 and the 2^nd Applicant for ESS 39863/2013 be reversed and convictions entered against them accordingly;

(ii)  The costs order against the Respondent in respect of ESS 39858/2013 and ESS 39863/2013 should also be rescinded; and

(iii)  The two summonses be remitted back to the Magistrate for mitigation and sentence.

9.  The 1^st and 2^nd Applicants both applied for a certificate under section 32 of the Court of Final Appeal Ordinance, Cap 484.  In the Notice of Motion by both the 1^st and 2^nd Applicants dated 4 October 2018, they listed two identical points of law of great and general importance involved in the decision.

The points of law sought to be certified

10.  The two points of law said to be of great and general importance involved in the decision are as follows:

“Ground 1

1. The meaning of “immediate supervision” under regulation 38E of the Construction Sites (Safety) Regulations (Cap. 59I), specifically:

a) whether workmen can be under the “immediate supervision” of a competent person who is himself at the same time engaged in erection, substantial addition, alteration or dismantling of any scaffold;

b) whether a workman can be under the “immediate supervision” of a competent person who may also be engaged in other duties, including supervision of other workmen.

Ground 2

2. The extent a Court on appeal by way of case stated is entitled to look into (part of) the evidence as opposed to the findings of the first instance court in determining whether a conclusion that there were reasonable doubts to the prosecution case perverse.”

The Respondent’s position

11.  The Respondent opposes the application. Mr Sean for the Respondent submits that Ground 1(a) and Ground 2 are not reasonably arguable.  In respect of Ground 1(b), the proposed point of law was not involved in the decision and therefore does not arise from the appeal.  In any event it is not reasonably arguable.

Discussion

12.  To succeed in their applications, the 1^st and 2^nd Applicants must first satisfy this court that a point of law of great and general importance is involved in this case.  Before certifying a question as being of the requisite importance, I should also consider whether the point of law is reasonably arguable. 

Ground 1(a)

13.  This question is basically the same as Question 1 of the Case Stated.

14.  I answered the question in paragraphs 32 to 42 of my judgment.  I disagreed with counsel for the Applicants that reg. 38E only aims at making sure that the scaffold is structurally safe and not at the safety of the scaffolders.

15.  In the hearing of this application, Mr Lo for both the Applicants (not counsel at the appeal hearing) is essentially putting forward the same argument.  He submits that my ruling would mean that a supervising competent person has to be provided for each and every scaffolding worker, which cannot be the intention of the legislature.  Counsel also submits that there is a potential injustice where the Applicants were acquitted of the summonses in relation to failing to provide a safe system of work and failing to take adequate steps to prevent fall from height.

16.  In my judgment, the scaffolding work falling within reg. 38E is highly dangerous work.  A worker performing the work must pay most of his attention to his own work and safety.  A worker engaged in the erection of scaffold cannot be said to be under the immediate supervision of another worker who is also engaged in the erection of the scaffold.  It could not have been the intention of the legislature that two scaffolders can simultaneously perform scaffolding work and perform immediate supervision on each other for the purpose of protecting their safety (see para 42 of my judgment).

17.  I also do not see any prejudice to the Applicants for the fact that they have been acquitted of other safety offences.  Each of the offences, with different elements of offence, that they were summonsed for had to be decided on the evidence separately.  The offences do not stand or fall together.

18.  In my view, Ground 1(a) is not reasonably arguable.

Ground 1(b)

19.  Ground 1(b) was not argued at the appeal, nor was it involved in my decision.  It is also much wider than is necessary for the decision in this case.  This ground must fail.

Ground 2

20.  As Mr Sean rightly pointed out, the law is well settled in this area. In Criminal Procedure (Trial on Indictment) by Mr Andrew Bruce SC, paras [405]-[450] states :

“…The case should be complete in itself. However, in rare cases, it may be necessary to refer to the transcript of proceedings, in which case they should be annexed to the case stated although annexures are to be discouraged. ...”

21.  The authorities for the proposition are: AG v Leung Chi-kin [1974] HKLR 269; AG v Yau Ka-ping [1977] HKLR 76; AG v Li Nai-ho [1980] HKLR 792 and AG v Yau Ka-ping [1977] HKLR 76.

22.  In his written submissions, Mr Lo submitted that this Court “went beyond the stated case and looked into (part of) the evidence to come to the conclusion that the Magistrate’s findings were perverse”. The criticism appears to be that I had referred to the transcript of evidence of PW1. At the hearing, Mr Lo properly concedes that I could look at the transcript of evidence of PW1.  However, he complains that I have substituted my own finding of fact as to whether there was supervision. 

23.  I should first point out that the transcript of evidence of PW1 was ordered to be included in the appeal bundle by the Magistrate, it was clearly intended to be part of the stated case to be considered by the higher court. It was indeed a proper thing to do when the higher court was asked to consider whether the Magistrate’s findings were “perverse”. There was also no objection by either the 1^st or 2^nd Applicant at the appeal.  In any event, the evidence of PW1 that I quoted in my judgment was only an extract of the evidence of PW1 quoted by the Magistrate in his stated case.  Moreover, the evidence of PW1 was also not in dispute.

24.  The contention at the hearing that I went beyond the stated case because I substituted the Magistrate’s finding with my own finding of fact is misconceived.  It is true that in an appeal by way of case stated, the Court of First Instance is solely concerned with questions of law.  It is not the function of the court to make its own findings of fact. However, a magistrate’s making an error of fact which no magistrate acting judicially could have made is an error of law.  An appellate court can correct such a mistake.

25.  The second point of law sought to be certified does not give rise to any point of great or general importance.  The ground put forward is also not reasonably arguable.

CONCLUSION

26.  For the above reasons, the 1^st and 2^nd Applicants’ application for certification of the two proposed points of law was refused.