HKSAR v. KADEN CONSTRUCTION LTD AND ANOTHER

HCMA499/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 499 OF 2007

(ON APPEAL FROM ESS16568 & 16569/2006)

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J U D G M E N T

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1.  This is an appeal against conviction by two Defendants who were joint contractors running a construction site.

2.  The prosecution was under Regulation 52(2A) of the Construction Sites Safety Regulations.  The relevant regulation reads as follows:

“The contractor responsible for any construction site where materials are being kept or stored and any contractor who has direct control over any construction work which involves the use of the materials that are being kept or stored in the site shall ensure that they are not insecurely stacked in a place where they may be dangerous to workmen employed at the site.”

3.  The facts giving rise to the prosecution can be very briefly stated for the purpose of these reasons.  On the construction site for which the Appellants were responsible was a bar-bending machine.  Another contractor had direct control of that bar-bending machine and the activities associated with it.  Those associated activities included the stacking up of bundles of reinforcement bars which were some 12 metres in length and which weighed several tonnes, and they were stacked up nearby the machine that bent them and cut them.

4.  An accident occurred.  There was a worker working in the vicinity where the stack was by the machine, and the stack slipped, and the bars fell upon him, trapping his legs.

5.  The evidence called below came from the man who was injured and the supervisor who was present when the last bundle was put on the stack some 10 minutes before the accident.  The supervisor was of the view that it had been stacked securely.

6.  The Magistrate found, as I judge to be inevitable, that the fact that the stack slipped and the bars fell down and trapped the man working below them demonstrated that it could not have been securely stacked.

7.  There are basically three grounds of appeal in the case, we established on the last hearing, though the written grounds of appeal ran into pages.

8.  The first ground was that a Common Law defence of a belief on reasonable grounds of compliance with the Regulations exists to a prosecution under these Regulations, and it is argued that the duty imposed by Regulation 52(2), which I have read out, is a delegable one, and had been in fact delegated to the specialist contractor in this case, who has pleaded guilty to the summons he faced under the Regulations.

9.  The case was before me on 1st April of 2008.  It was then adjourned, with everyone’s agreement, pending the outcome of a similar Magistracy Appeal which I had referred to the Court of Appeal.  That was the case of HKSAR V Shun Tak Properties Limited, HCMA1014 of 2006.  The Court of Appeal held that the Common Law defence had no application in that case, and a reading of the judgment and what they said there in effect revealed that such a Common Law defence, although section specific, had no place in sections or regulations such as the one in that case which was of a similar nature to the one we are dealing with in this case.

10.  So my finding on the first ground of appeal is that there is no Common Law defence to the prosecution under this Regulation.  I also find that the duty is not delegable.  It is argued that it is delegable, for some reason.  I do not understand the basis of that.  The law is clear.  The wording of the Regulations could not be clearer:  the obligation falls on the main contractors as well as the specialist contractor, and it cannot be delegated in law.

11.  The second and third grounds of appeal were based on the facts.  The second ground was, in effect, that the stack was secure, on the evidence of the supervisor, who had been present; and the third ground, which is really another way of putting the second ground, was merely to say that the injured workman was the author of his own misfortune.

12. These factual grounds of appeal can be very shortly disposed of.  The Magistrate was absolutely right in his analysis of what happened, which was along the very sensible lines that how could a man, with either his body weight or his hands, dislodge a stack like this, where the objects were bound in a way that made the individual bundled lengths of bars weigh something to be measured in tonnes, if the stacking had been secure?  Of course, the man who used the crane to drop the last bundle on thought he put it down securely, otherwise he would not have left it - no one suggests that the omission that led to the accident and led to the insecurity of the stack was deliberate - but it follows, of course, it cannot have been.

13. In the course of argument here in front of me on the last occasion it was suggested that the workman might have taken a knife or some scissors or something and cut one of the bands that held together these long bundles of rods.  The Magistrate did not have to deal with that specific allegation because it was never made to the witness below, but in regard to a general sort of allegation that he had done something to bring the bars down upon himself, he said he could not see what that would have been - neither can I - and he said that it just defies common sense that the man could have acted in such a way to put himself in such peril.  I agree with that.

14. So I am against the Appellants on the three grounds that argument distilled and the appeal against conviction is dismissed.

(Submissions on costs)

15. There is an application for the costs of today.  I shall make an order directing that the Appellants pay the costs of today.  I will not make them pay the costs of the last hearing, because the law had not been clarified then, and it needed sorting out.  The order for costs only bites against them on today’s hearing.