HKSAR v. FREIGHT TRANSPORTATION CO LTD

[English Translation - 英譯本]
HCMA 399/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 399 OF 2013

(ON APPEAL FROM TWS 5536, 5537 & 5538 of 2012)

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JUDGMENT

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1.  The appellant was convicted after trial before Special Magistrate Mr So Kai Cheung (the magistrate) of the following three charges:

(1) being the proprietor of the industrial undertaking at DHL Central Asia Hub, 6 South Perimeter Road, Hong Kong International Airport, Lantau, Hong Kong, did fail to provide and maintain a system of work for clearing goods at the junction between conveyor belts that were, so far as was reasonably practicable, safe and without risks to health of the person(s), known as Chan Tsz Hong employed at the industrial undertaking, contrary to sections 6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap. 59;

(2) being the proprietor of the industrial undertaking at DHL Central Asia Hub, 6 South Perimeter Road, Hong Kong International Airport, Lantau, Hong Kong, did fail to provide such information, instruction, training and supervision as was necessary to ensure, so far as was reasonably practicable, the health and safety at work of the person(s), known as Chan Tsz Hong employed at the industrial undertaking, contrary to sections 6A(1), 6A(2)(c) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap. 59; and

(3) being the person responsible for the workplace at DHL Central Asia Hub, 6 South Perimeter Road, Hong Kong International Airport, Lantau, Hong Kong, where a platform located within the workplace could be a danger to the safety of persons, did fail, without reasonable excuse, to ensure that the platform was securely fenced to a height of 900mm (measured from the upper surface of the platform), contrary to sections 6(1)(a) and 6(3) of the Occupational Safety and Health Regulation made under section 42 of the Occupational Safety and Health Ordinance, Cap. 509.

2.  The magistrate fined the appellant $63,000 in total in respect of the three offences. The appellant appeals the convictions.

Brief facts of the case

3.  The present case took place at DHL Central Asia Hub, 6 South Perimeter Road, Hong Kong International Airport (“the Hub”).  PW1, Mr Chan Tsz Hong (“Mr Chan”), has been assigned by the appellant to work as a warehouse attendant at the Hub.  On 26 October 2011, Mr Chan fell from height while working at the Hub and lost consciousness, and the appellant was then prosecuted.

4.  The admitted facts revealed that the Hub was a goods handling facility at the Hong Kong International Airport.  There was a power-driven system consisting of many conveyor belts in the Hub used for handling goods.  DHL Express (H.K.) Ltd. (“DHL”) carried on the business of the said industrial undertaking.  The appellant was a contractor of DHL at the said industrial undertaking, responsible for providing human resources to DHL.

5.  On the day of the accident, a staff member of DHL notified Mr Chan by a walkie talkie that some goods were jammed at the conveyor belt of location BL/12, causing the belt(s) to stop and goods to be accumulated, and requested Mr Chan to clear the goods in order to bring the conveyor belt to normal.  Hence, Mr Chan went through a ladder of about one storey high up to the triangular platform in question so as to clear the goods jammed at the belt.  After finishing the clearing work, Mr Chan notified DHL staff by a walkie talkie that he had already cleared the goods.  At this very moment, a staff member of the engineering department came up through the ladder, Mr Chan gave way to that staff member and hence moved one or two paces backwards, subsequently stepped on the air and fell from the triangular platform onto the ground.  He got injured and lost consciousness.

6.  The occupational safety officer from the Labour Department opined that the triangular platform in question was in fact a machine cover which was not suitable for people to stand on, coupled with the absence of fence, it, regardless of its size, was not a proper place for people to stand on to work.  In his view, in formulating a safe system of work, there must be prior risk assessment and identification of the work activities of the staff, problems they faced, solutions of such problems, safety measures available and so on.  Finally, he concluded that the appellant did not have a safe system of work at the time of the accident, the workers had not received adequate safety instructions, and there was no supervision, leading to the development of unsafe practices at the scene in question, which resulted in this accident.

7.  On the basis that DHL was a proprietor of the industrial undertaking and the person responsible for the workplace, the Labour Department issued five summonses against DHL in respect of this accident, and DHL has admitted all the charges.

Grounds of appeal

8.  The main ground advanced by the appellant both at the trial as a defence and in this appeal hearing was that the appellant is not a “proprietor of the industrial undertaking” as defined in the Factories and Industrial Undertakings Ordinance (in respect of the first and second charges) or “the person responsible for the workplace” as defined in the Occupational Safety and Health Ordinance (in respect of the third charge).  The appellant contended that its contractual liability was only limited to providing manpower to DHL and since it had no power of control whatsoever over the operation of the Hub, it should not bear the criminal liability under the relevant ordinances.

9.  According to the interpretation in section 2 of the [Factories and] Industrial [Undertakings] Ordinance, “proprietor” is defined as:

“in relation to any industrial undertaking includes the person for the time being having the management or control of the business carried on in such industrial undertaking and includes a body corporate and a firm and also the occupier of any industrial undertaking and the agent of such occupier”

10.  In considering whether the appellant was a “proprietor of the industrial undertaking” as defined in the Factories and Industry Undertakings Ordinance, the magistrate made the following analysis:

“26. Although the business of the Hub is handling goods transportation, in my view the definition of the industrial undertaking should not be confined to only the mechanical operation of and running the conveyor belts, but should also include all businesses carried on for the purpose of handling goods transportation within the industrial undertaking.

27. It is an undisputable fact that the business of the appellant company on the day of the accident was providing human resources to DHL at the industrial undertaking so that DHL had sufficient manpower to maintain effective operation of the conveyor belts. Therefore, the supply of human resources by the appellant company in the industrial undertaking on the day of the accident was also business carried on for the purpose of handling goods transportation.

28. According to the evidence given by PW1 and PW2, every day before PW1 started to work, the appellant company would brief him and direct him where to work on that particular day. No matter whether the appellant company made deployment of manpower according to the requests of DHL or not, every day PW1 started his work by going to the specific post as directed by the appellant company. Even if PW1 had other commitment and could not go to work, he had to notify the appellant company so that arrangement could be made on deployment. Therefore, it can be seen that the appellant company, on the business carried on at the industrial undertaking, namely deployment of human resources, did make decisions in respect of management and control.

29. In the light of the above analysis, I find that the appellant company was a proprietor of the industrial undertaking on the day of the accident.”

11.  Counsel for the appellant has referred to the case of HKSAR v Chun Wo Building Construction Ltd[1], arguing that a proprietor of an industrial undertaking should be the person having the management or control of the business.  It is contended that the magistrate was wrong in equating “having management of and control over deployment of human resources” with having the power of management of or control over the industrial undertaking or in the workplace.

12.  As to the definition of “proprietor”, Ms Lam, Senior Public Prosecutor, Counsel for the respondent cited the case of the Court of Final Appeal Paul Y General Contractors Ltd & Anor v HKSAR[2], and contends that an industrial undertaking may have more than one proprietor at the same time.  Therefore, while DHL was a proprietor, the appellant might also be a proprietor, of the Hub.

13.  Regarding Ms Lam’s submissions, Mr Poon has no objection.  However, after all, what the court has to consider remains whether the role of the appellant met the definition of “proprietor” in the ordinance.  In this regard, we may refer to the judgment of the Court of Final Appeal[3]:

“(4) The definition of proprietor in the Ordinance was wide and included the person for the time being having the management or control of the business carried on in such industrial undertaking. ‘Industrial undertaking’ covered a wide variety of activities and included any construction work. There was no doubt a person who had the management or control of a business that was carried on at a construction work could be a proprietor for the purposes of ss 6A and 13.

(5) There could be more than one proprietor at an industrial undertaking, such that when there was a chain of contracts each contractor in the chain was a proprietor of its own business and could be charged individually in respect of its own employees under s 6A.  Ka Shing, the aluminium cladding sub-contractor, was the proprietor of its aluminium cladding work and as such could be prosecuted under s 6A in respect of its failure to ensure the safety of its employees.  Paul Y as the proprietor of the carcass construction work, which included the aluminium cladding work, could be charged under s 13 in respect of Ka Shing’s contravention of s 6A. That was because Paul Y’s business encompassed the business of CKMC.  The definition of proprietor was wide enough to cover such situation, and it was the obvious intent of s 13 …”

14.  The Court of Final Appeal in Paul Y General Contractors Ltd considered the responsibilities of various contractors (including the principal contractor) in the construction site.  The Court finds that the definition of “industrial undertaking” in the ordinance is very wide, and various contractors have to be responsible for the safety of their workers with respect to the scope of work under their management.  It is not difficult to understand this conclusion because in general, contractors of construction work enter the site according to their respective types of work and working procedures, and hence in respect of the type of work or working procedures under their respective contracts, they no doubt have certain power of management or control.

15.  In the present case, the appellant’s role in the Hub is very much different from that of DHL, and also different from that of contractors in general contracts.  The appellant played no role in the procedure of goods transportation at the Hub and was only responsible for providing human resources.  After entering the Hub, the workers provided by the appellant had to follow DHL’s orders to work, and the appellant would not give any work order to the workers at the Hub.  In respect of the working procedures of goods transportation at the Hub as a whole, the appellant can hardly be described as having power of management or control over any aspect.

16.  From the evidence of PW2, Mr Suen (transliteration) who is the head of the Operation Department of the appellant, the appellant did not have the authority to deploy workers to work at different posts in the Hub, and instead only informed workers of the decisions of DHL and told them to work at the posts decided by DHL.  While the magistrate said that the appellant in “deployment of human resources, did make decisions in respect of management and control”, I do not agree.

17.  Undoubtedly, the appellant was not an “occupier” of the Hub.  In my view, the appellant only played the role of providing manpower to DHL, and merely providing manpower was not sufficient to make the appellant a “proprietor” of the Hub under the ordinance.  While the business carried on by the Hub was goods transportation, the business carried on by appellant tends to be something more like consultation on human resources.  According to the interpretation of “proprietor” in the ordinance, a proprietor includes “the person for the time being having the management or control of the business carried on in such industrial undertaking”.  The business carried on in the Hub at that time was goods transportation and not anything else.

18.  In my judgment, the appellant was not a proprietor under the Factories and Industrial Undertakings Ordinance.

19.  I also noticed that both parties and the magistrate understood the “industrial undertaking” involved in the first and second charges to be the Hub, however, according to what was stated on the summonses and the particulars of offences referred to by the magistrate, the “industrial undertaking” in the charges refers to “Freight Transportation Company Limited”, namely the appellant itself.  Obviously, the one who drafted the particulars of offences had misunderstood the meaning of “industrial undertaking”.  Nevertheless, no one has taken issue on this point at the trial or in the appeal, and I have found that the appellant was not a proprietor within the definition in the ordinance, I therefore do not intend to take this point any further.

20.  As to whether the appellant was the “person responsible for the workplace” within the definition in the Occupational Safety and Health Ordinance, the magistrate had the following to say:-

“30. As to the argument on the second issue, it is an undisputable fact that at the time of the accident, PW1 was working in that industrial undertaking, which must be PW1’s workplace. Although on the face of it, PW1 at that time seemed to be working for DHL, he was actually also working for the appellant company in its discharging the duty of providing human resources to DHL. According to the evidence given by PW1 and PW2, the daily work post of PW1 was assigned and specified by the appellant company. No matter PW1 was working at that workplace as an employee or as a self-employed person at that time, and no matter DHL was the owner of the Hub or not, the appellant company, as the subject that assigned PW1 the work post at that Hub, still has to bear certain liabilities in respect of PW1.

31. Basing on the above analysis, I find that the appellant company was the person responsible for the workplace of PW1 at the Hub on the day of the accident.” [emphasis added]

21.  Sections 6(1)(a) and 6(3) of the Occupational Safety and Health Regulation expressly provide that:

“If a platform, pit or opening located within a workplace could be a danger to the safety of persons, the person responsible for the workplace must ensure that the platform, pit or opening (a) is securely fenced to a height of 900 mm (measured from the upper surface of the platform, or of the edge of the pit or opening) ……”

22.  According to the interpretation of “the person responsible” in section 3(2) of the Occupational Safety and Health Ordinance:

“For the purposes of this Ordinance, the person responsible for a workplace is the employer of the employees who are employed to carry out work there, or if the employer does not exercise any degree of control over the relevant part or aspect of the workplace, means the occupier of the workplace.”

23.  According to section 3(1), an “occupier” in relation to any premises or workplace, includes a person who has any degree of control over the premises or workplace and, in particular, includes a person to whom subsection (5) or (6) applies. Subsection (5) or (6) applies to a person who under a lease or contract has an obligation for the maintenance or repair of premises.

24.  From the above interpretation provisions of the person responsible, it can be seen that one who is merely an employer does not mean that he is the person responsible referred to in the ordinance.  If the employer has no power of control over the workplace, he is not to be regarded as the “person responsible” unless he is an “occupier” of that workplace.

25.  As to the workplace, i.e. the Hub, it can be said that the appellant had no power of control at all.  As stated above, the evidence showed that the appellant’s role was only limited to providing human resources to DHL.  The appellant had no authority to give any opinion on the use of the place or in any other regard.  Even if the appellant found any room for improvement on the safety of the facilities of the Hub, it had no authority to proceed, and it could at most persuade DHL to accept its advice of making improvement.

26.  Obviously, the appellant was not “the person responsible” under the Occupational Safety and Health Ordinance, not to mention “the occupier”.

27.  The magistrate did not analyse the definition of “the person responsible” in his statement of findings.  He seemed to suggest that the appellant had to bear the liabilities under the relevant ordinances because he had deployed Mr Chan to work at the Hub.  I cannot agree.

28.  For the above reasons, the appeal is allowed, and the convictions and orders for fine are set aside accordingly.