HKSAR v. GAMMON CONSTRUCTION LTD AND ANOTHER

HCMA 5/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 5 OF 2014

(ON APPEAL FROM KTS NOS. 1281-1282 OF 2013)

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JUDGMENT

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Introduction

1. The appellants were convicted after trial of the respective summonses, KTS 1281/2013 for the 1st appellant, and KTS 1292/2013 for the 2nd appellant, by Mr Chan Ping-chau, a Deputy Magistrate sitting at Kwun Tong Magistrates Court on 5 December 2013.

2. The summonses each allege the following:  that on 19 August 2012, which was a general holiday, at the construction site West Kowloon Terminus Approach Tunnel South, Jordan Road, Kowloon, MTR C Express Rail Link Contract No 811B, which was situated within a designated area, did cause to be carried out construction work prescribed for the purpose of section 6(2) of the Noise Control Ordinance, Cap 400, namely hammering and handling of wood, otherwise than in accordance with Condition 4 of the Construction Noise Permit No GWREO657-12 in force, the non-compliance being that no prescribed construction work is allowed contrary to section 6(2)(b) and 6(5) of the Noise Control Ordinance, Cap 400.

3. Each of the appellants was duly fined $120,000 and they now appeal against their conviction.

The Facts Alleged

4. On 19 August 2012, a Sunday, environmental protection inspectors observed that a worker at a construction site was striking a steel girder with a hammer for about five minutes.  This could be heard clearly.  They also observed a worker use a crowbar to remove a wooden board from a trench and some of the workers moving wooden boards from one place to another on a concrete platform.  PW1 used binoculars to observe this and had a clear, unobstructed view.  The persons doing those acts were never identified and their status was never known to the court below.

5. Mr Reynolds, on behalf of both appellants, has very many points of attack on the prosecution case but, as events have unfolded, I shall deal with one line of attack which he submits to be a stand alone point fatal to the prosecution case.  I should make the point here that I do refer to the persons doing acts upon that building site as ‘workers’ for the sake of convenience.

6. The Learned Magistrate in his statement of findings draws the following inference, “that these workers were employed either by the defendant company or by any subcontractor.”  At the original hearing, the prosecution was required to answer five questions relating to the summonses, the second of which was this:  is it alleged that any person who carried out the prescribed construction work was an employer/employee and, if so, by whom was that person or persons employed.

7. As I understand the importance of this matter, it is an attack on the essential ingredient of “did cause to be carried out construction work”.  Being fair to the prosecution, their position, as put forward by counsel at the trial, was that the prosecution did not need to prove this so it was not part of the prosecution case.  That remained so throughout and was never amended. This clearly, and as put forward by Mr Reynolds, had a profound effect on the conduct of the defence in that it believed it was not an issue that the defence needed to address.  Also, the prosecution conceded and agreed that they could not identify the so-called workers and Miss Mok very fairly also conceded that this was a weakness in the prosecution case.  I view this as a very, very serious lacuna.

8. The concept of “did cause” is to be given its ordinary and commonsense meaning (HKSAR v Paul Y ITC Construction Limited [1998] 2 HKLRD 35).

9. The Learned Magistrate, in drawing the inference that he did, which was adverse to the defence case and outside the scope of the prosecution case, also ruled out the possibility that the persons were trespassers.  Whilst I have not viewed any images of the action on that day, I am content to assume that the dress and acts of those persons were consistent with them being workers.  This is as far as I can go.

10. The Learned Magistrate gave no sound reasons for ruling out the possibility of those persons being trespassers and, indeed, no sound reasons at all to explain why he drew inferences that they were employees of the joint venture company or its subcontractors.  The possibilities, I do note, without cogent proof are many.  Indeed, they could have had that status but, equally, they could have been workers who had strayed onto the wrong site by mistake; workers not employed by the joint venture or its subcontractors, there being no evidence of exclusive control or operation of that site; they could have been pranksters; or even they could have been potential thieves.

11. Should the persons be anything other than workers under the control and direct authority of the joint venture company, the joint venture company could not then have caused the work to be carried out, that is the construction work.  It is clear from the Magistrate’s findings that he too recognised the need for this nexus in order to convict.  However, it is an illogical and unexplained inference that he drew and contrary to the prosecution case.  The net effect was that this was misleading to the defence.

12. In my findings, I accept the submission by Mr Reynolds that this point is fatal to the prosecution case.  The conviction, therefore, I rule to be unsafe and unsatisfactory on this point and this point alone, and therefore I allow this appeal to the extent the convictions are overturned and set aside.