HKSAR v. HUNG MAU REALTY & CONSTRUCTION LTD.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.968 OF 1997

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J U D G M E N T

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1. The Appellant was convicted on 23rd December 1997, of being the contractor responsible for a construction site at Siu Sai Wan Shopping Centre where work could not safely be done on or from the ground or part of a building or other permanent structure, and where it failed to provide, place and keep in position for use scaffolds at the first floor of the extended area of the shopping centre which were sufficient, strong and suitable for the purpose, contrary to the Regulations 38B and 68(1)(a) and 68(2)(g) of the Construction Site (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap.59.

2. Regulations 38B of the Construction Site (Safety) Regulations reads :

"Without prejudice to the other provisions of this part, where work cannot safely be done on or from the ground or from part of a building or other permanent structure, the contractor responsible for the construction site concerned shall provide, place and keep in position for use and properly maintain either scaffolds or, where appropriate ladders or other means of support all of which shall be sufficient, strong and suitable for the purpose."

It is conceded by Mr Sham for the Appellant that an offence under Regulations 38B is one of strict liability.

3. The facts were that on 6th December 1996 the Appellant was the contractor responsible for the construction site at Siu Sai Wan Shopping Centre Improvement Works. A worker Tam Kam-fai, employed by a sub-contractor, was engaged in formworking at the first floor. The work was to fix wooden plank to a column at above-head height. He erected an inclined wooden platform out of scrap wood upon which he could stand. As he started to fix the wooden plank onto the column, he stood on the platform; he lost his balance and fell to the ground sustaining a fracture to the right wrist.

4. There was evidence that the whole of the work site was not particularly large and photographic evidence indicates that there were platforms in the general area of the work site. PW1, Mr Tam, who suffered the injury was asked these questions.

"Q. But those platforms were available there for you to use, is that right?

A. There were individual frames but not in the form of a platform.

Q. But did you not earlier tell the court that you in fact had seen 10-odd such steel frame platforms two to three days before the accident?

A. Yes, one or two days before I saw them.

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Q. And is it correct that the reasons why you choose to erect your own wooden platform, as shown in the photograph P3, is because you thought it was safe enough to work on for the column concrete formwork?

A. Because the steel frames were too high to be used in that place as each of them was in 6 feet height.

Q. But the pillar, the column there was about 10.4 feet high, do you agree?

A. In feet?

Q. Yes.

A. Yes, almost around that.

Q. At the time you were required to nail the platform at a place about one foot below the ceiling, is that right?

A. Not below the ceiling, but below the column.

COURT : Below the?

A. One foot below the beam of the ceiling."

The evidence available to the Magistrate was that some days before the offence, there had been steel platforms in the vicinity of the work which was done by PW1, but on the day in question there were individual frames not in the form of a platform. It is common ground that the workman, PW1, was not a scaffolding worker who was permitted to erect scaffolding or make platforms. It is further apparent from the evidence that the frames which were in the vicinity were six feet in height which could be used to construct a platform six feet high which the witness claimed was too high to effectively work at nailing a board 9.4 feet from the ground and one foot below the beam of the ceiling.

5. The first and second grounds of appeal effectively were that the Magistrate was wrong in his finding of fact that no platform was erected where Mr.Tam was to work as platforms and frames were available in the general area and that he erred in holding that the platform had to be at the very position where the work was to be carried out.

6. The Magistrate construed the Reglations. He held that when a worker is to carry out work which cannot be safely done on the ground or from part of a building or other permanent structure, then the contractor responsible for the construction site should provide and place and keep in position for that work a scaffold, ladders or other means of support which would be sufficient, strong and suitable for the purpose. He took that to mean that when Mr Tam went to the column to nail the wooden board at a point one foot below the ceiling beam, it was the duty of the responsible contractor, which it is agreed is the Appellant in this case, to have in position for him to do so at that column the proper scaffolding or support and that they failed to do so.

7. Mr Sham on the other hand argues that the word "place" should be extended to mean somewhere in the work site and not necessarily at the immediate position where the work is to be carried out and further, that there was on the work site, which was not of a very large area as I have said, frame and stands which could have been moved by Mr Tam to the column so that he could safely carry out the work. I cannot agree with his construction. The word "place" must be read in conjunction with the followings words "and keep in position for use". The "use" was the nailing of the board and the "position" must mean the place where the work is to be done. The Magistrate found as a matter of fact that at the place the work was done, no such support was put in place. I cannot disagree with either his construction of the Regulation nor his finding as to fact.

8. Mr Sham further argues that the learned Magistrate erred in law in holding that the duties imposed under Regulation 38C be taken into account in considering the question whether the Appellant was in breach of Regulation 38B when duties imposed by the two Regulations were distinct and different in nature.

Regulation 38C provides :

"The contractor responsible for a scaffold on a construction site shall ensure that no scaffold is erected on the site or substantially added to, altered or dismantled except under the immediate supervision of a competent person and by competent workmen possessing adequate experience of such work."

By reading Regulation 38C in conjunction with Regulation 38B, the Magistrate did no more than find that Mr Tam, the workman, was not a person entitled to erect or alter scaffolding, and that in the absence of proper support being placed at the point where Mr Tam had to work, he was not a competent person to construct his own support. With this, I agree and there is nothing in this ground of appeal.

9. Nor did the Magistrate convict the Appellant upon the basis of Regulation 38C and ground four of appeal which makes this allegation must also fail since his reasons indicate that he was not convicting the Appellant for a breach of Regulation 38C, but that he was making a finding of fact that Mr Tam was not a person competent to alter or erect scaffolding or platforms under that Regulation.

10. The final ground of appeal must also fail, as the learned Magistrate did not convict on the basis of Regulation 38C, it was not incumbent upon him to give an opportunity to the Appellant to recall witnesses or to lead evidence in respect of that Regulation.

11. I am satisfied the Magistrate was correct in his construction of the Regulation and in his findings of fact. This appeal against conviction must fail. The appeal is dismissed.