R. v. HSIN CHONG CONSTRUCTION (ASIA) LTD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 864 OF 1996

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J U D G M E N T

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1. This is an appeal from Miss Livesey, sitting in Kwun Tong, who convicted the appellant company, a contractor responsible for a construction site in a substation, of a breach of Regulation 38P of the Construction Sites (Safety) Regulations, Cap.59.

2. The facts are very brief. On 19 August, cleaning work was in progress at a new substation belonging to China Light and Power and the appellant company was the contractor responsible. There was going to be an inspection carried out by the Fire Services Department on the next day, and a wooden covering had been placed over a hole to facilitate the Department's inspection since the opening underneath was part of the fire compartment to be examined. Prior to this, the hole had had a railing around it.

3. What happened is difficult to know with precision, because a cleaning lady went to clean the floor of this part of the substation and unfortunately fell into the hole and died. The hole itself came within the provisions of Regulation 38P, because a person was liable to fall a distance of more than two metres. The requirement, therefore, on the company was two-fold : either to provide a suitable guard-rail of adequate strength, or alternatively to provide a covering so as to prevent the fall of persons. And if it was a covering, the covering should be clearly and boldly marked to show its purpose or to be securely fixed in position. There had been, as I said, a guard-rail which had been moved, and therefore the company provided a covering. As the covering was not securely fitted into position - it was a moveable covering - the statutory obligation, therefore, on the company, was to provide a covering so constructed as to prevent the fall of persons, in other words, it had to be of sufficient strength so that if a person stepped on it, they did not fall into the hole. Secondly, the covering should be clearly and boldly marked to show its purpose, and the purpose indeed was the purpose of covering a hole.

4. The company did provide a covering and evidence given by the factory inspector was that he agreed that a wooden board was sufficient to cover a hole of this size, and he agreed, that if it had been placed properly, no one should fall. So the case as presented by the factory inspector really was that the warning was not a sufficient warning to satisfy the Regulations. The warning had the words in Chinese character "Damgerous" written on it and some more words which might have been difficult to read because, presumably, of the dirt or building materials that one finds in these construction sites.

5. A cleaner gave evidence that she would have understood the character "dangerous" as meaning that she should take care and keep away from it.

6. The issue for the magistrate, in my judgment, can be simply stated. It may have been difficult to decide, but the issue for the magistrate to decide was whether or not the covering that was placed over this hole was clearly and boldly marked to show its purpose. She, however, convicted on a different basis, because she found that whatever words had been on the board, she did not consider that this was a suitable covering for this hole. That was indeed her finding. In my judgment, that is contrary to the evidence which was produced. The board was a suitable covering for the hole, the issue really was whether or not the words placed on it was sufficient to convey to the sort of person that would be in that place, its purpose, namely to cover up a hole.

7. In my judgment, the word "dangerous" in bold characters would have given that impression to a worker and this is what the Regulations are looking to. A worker who would have been in that place would have known by the word "dangerous" printed on it, that he or she was in a situation where danger would be caused if that would be moved. It is unnecessary to put on the words "do not move". It may, on reflection by the company, be a better matter to put on it, although in my judgment, the word "dangerous" in itself connotes danger.

8. The magistrate, at any rate as I hold, convicted on basis that was contrary to the evidence and therefore the appeal should succeed on that basis. I have considered whether or not I should send this back. I do not consider it right. It is a stale case in one sense, but looking at the matter as neutrally as one can in these cases where someone unfortunately dies, there has been no breach by the company of the Regulations. The appeal therefore is allowed.