HKSAR v. ADRIAN ENGINEERING LTD AND ANOTHER

[English Translation – 英譯本]

HCMA 561/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 561 OF 2007

(ON APPEAL FROM ESS NOS. 37009 & 37011 OF 2006)

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JUDGMENT

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1. The 1^st appellant Adrian Engineering Limited (hereinafter referred to as “Adrian”) and the 2^nd appellant Cedar Construction Company Limited (hereinafter referred to as “Cedar”) were summonsed for the following offences:

1^st appellant: On 12 June 2006, being the contractor responsible for a construction site, the 1^st appellant failed to take adequate steps to prevent any person on the site from falling, contrary to regulation 38B(1) of the Construction Sites (Safety) Regulations and other regulations; and

2^nd appellant: On 12 June 2006, being the contractor who had direct control over construction work, the 2^nd appellant failed to take adequate steps to prevent any person on the place where the construction work was being carried out from falling, contrary to regulation 38B(1A) of the Construction Sites (Safety) Regulations and other regulations.

2. The two appellants were convicted after trial of the offences respectively in the Eastern Magistracy on 8 May 2007. The 1^st appellant was fined $15,000 and the 2^nd appellant $12,000. Mr. Tsang Kam Hung, Counsel for both appellants in this appeal, also represented them at trial.

3. The two appellants now appeal against conviction.     

4. The work referred to in the summonses concerned the 10-Year Extended Landslip Preventive Measures Project Phase 6, Package B and the place was located at Hong Kong Island with Slope Registration No. 11SW-A/CR8.

5. At trial, pursuant to section 65C of the Criminal Procedure Ordinance, Cap. 221, both parties agreed that the 1^st appellant Adrian was the contractor responsible for the work site and that construction work was being carried out on the site on the day in question, i.e. 8 May. Adrian was responsible for the subcontractor undertaking the work on the site. The 2^nd appellant Cedar was the contractor who had direct control over the soil nail and relevant work on the site.

6. At trial, the prosecution’s evidence mainly came from a Mr. Wan, an Inspector of the Labour Department. On the day in question, he inspected the site in the company of a Mr. Fan, an Assistant Project Manager of the 1^st appellant, and a Safety Officer. He saw three workmen working on a slope at that time. He took a number of photographs at the scene, four of which were produced in court as evidence, marked as P6-A to D. Photos A and D clearly showed that there were three workmen on the slope who had not fastened any safety belts and that the slope was not erected with any fall prevention fences.

7. The second prosecution witness was Mr. Fan, an Assistant Project Manager of Adrian. He said that he did not accompany the first prosecution witness (“PW1”) to inspect the slope work on the material day. His evidence did not help either the prosecution or the defence case.

8. The 1^st appellant did not call any witness. The 2^nd appellant called a foreman, a Mr. Yim, to testify. He said that it was already near the time of knocking off when the inspection on the slope took place on that day. He was instructing those working on the slope to pack up the tools. The workmen shown in the photographs were merely labourers and were not required to carry out any erection of scaffold or tower crane.

9. The magistrate found that PW1 was an honest and reliable witness and ruled that there was not any important or material inconsistency in his evidence. In short, the magistrate found that on the day in question, several workmen were carrying out work on the slope on the site, and at the material time no fall prevention facilities or system as specified in regulation 38B(2) were in place on the slope. Nor was the slope provided with fall prevention fences. As a result, he found both offences proved.

10. The magistrate interpreted the term “any person” in the Regulations as follows:

… The ingredients of the offences stipulated in regulation 38B(1) and (1A) are that the responsibility to prevent falling on the site or on any place where work is being carried out relates to ‘any person’. There is no stipulation as to who those people are or what they do on the work site. In my judgment, the capacity, role or the job of the people on the work site are not ingredients of the offences. I further rule that even if the people on the site were criminals, or taking the present case as an example, the person was an inspector of the Labour Department, the contractors would still have the responsibility to provide fall prevention safeguards to prevent them from falling from a height of 2 metres or more. I rule that the protection afforded under this fall prevention regulation is afforded to ‘any person’. (See Reasons for Verdict, paragraph 21.)

Grounds of appeal

11. Mr. Tsang has put forward three grounds of appeal. First, the magistrate misunderstood the meaning of “any person” in the regulation. Second, the magistrate failed to amend the particulars of the offences charged in the summonses pursuant to section 27 of the Magistrates Ordinance before the prosecution had finished adducing evidence or closed its case. Third, there was inconsistency between the oral reasons for verdict delivered by the magistrate and his written Reasons for Verdict.

Ground 1

12. Regarding the first ground of appeal, Mr. Tsang relied on the view expressed on a point of law by Chan J (as he then was) in R v. Tsui Wai Ping [1993] 2 HKC 675 at page 684I:

… What sort of safety measures are required depends on a number of factors. These include the nature and type of work to be undertaken, what sort of dangers are reasonably foreseeable, the risk of such dangers, the consequences of such dangers, the number of workers exposed to such dangers and the expense and trouble needed to alleviate such dangers and to minimize the risk involved.

Apart from these considerations, I think it is also implicit in the regulation that what is required to be done by a contractor or principal contractor to make and keep the place of work safe must be something which can be lawfully done. It is clearly not the intention of the legislation to require or expect the contractor or principal contractor to do something unlawful or impossible in order to comply with the regulation. It must be something which is within the power and control of the contractor or principal contractor to do. …

13. The judgment quoted above cannot support the argument advanced by Mr. Tsang in support of the first ground. What Chan J held was that the regulation did not require a contractor to take safety measures which were absolutely foolproof for the protection of any worker. The measures or facilities to be taken or provided by a contractor depended on the nature, location and types of work. The responsibility to take safety measures must be carried out under lawful and practicable circumstances. The point of law stated above is not relevant to the interpretation put forward by Mr. Tsang of the term “any person” in the regulation.

14. In the same judgment, Chan J said at page 684A:

… Since a principal contractor is also treated as a contractor responsible for a construction site by virtue of reg 2(2), I do not think it can be argued that the protection offered by reg 38A(b) is restricted only to the employees of the principal contractor or that ‘person’ working on the site refers only to employees of the principal contractor. If it were so, the principal contractor would be under no responsibility at all if all he did was to sub-contract to other contractors. He would then have no person employed by him and would not be caught by these regulations. This would defeat the purpose of the legislation. In my view, it is the clear intention of these Regulations to cast upon the contractor undertaking the work, as well as the principal contractor responsible for the construction site, the burden of ensuring industrial safety for any person who is working on the site, irrespective of who his employer is. If the sub-contractor himself works on the site, he is also within the protection of the safety measures required by the statute. … 

15. Although Tsui Wai Ping was an appeal directed against regulations 38A(b) and 38P(1) of the Construction Sites (Safety) Regulations, Chan J’s interpretation of the term “any person” is also applicable to regulation 38B(1) and (2) which is involved in the present appeal.

16. Mr. Tsang suggested that if there were other types of workers, such as cleaning or kitchen workers, who by reason of their work nature were not required to work on the slope, they would not fall within the scope of “any person” under regulation 38B(1) and (1A), and the two defendants would not have the responsibility to provide fall prevention safeguards or take other safety measures for their protection under the statute.

17. The relevant wording in regulation 38B(1) is:

… to prevent any person on the site from falling from a height of 2 metres or more.

My understanding of the literal meaning of “any person” certainly refers broadly to any person working on the site. The statute does not stipulate that different types of workers would be afforded different levels of protection. Furthermore, “construction site” under regulation 2(2) means:

a place where construction work is undertaken and also any area in the immediate vicinity of any such place which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work.

The slope shown in the photographs produced in the present case must be a part of the site. There is no room for argument on this point.

18. The relevant wording in regulation 38B(1A) is:

… shall take adequate steps to prevent any person on any place where the construction work is being carried out from falling from a height of 2 metres or more.

The interpretation of “any person” in this regulation should be no different from that in regulation 38B(1).

19. At trial, both the prosecution and defence admitted that there was construction work being carried out on the site on that day. “Any person” certainly included the workmen who were on the slope as appeared in the photographs. Since they were workmen employed by the 2^nd appellant, they should be given the protection offered by the statute.

20. Mr. Tsang also criticized the magistrate for extending the scope of “any person” to cover criminals who enter the site to commit crime. This showed, he argued, that the magistrate had misunderstood the legal definition of “any person”. In my judgment, it was indeed not the best example when the magistrate quoted criminals as an example of “any person”. However, the magistrate was definitely correct when he found that “any person” covered the workmen shown in the photographs produced in court. As a result, the two appellants must provide to them the fall prevention facilities and protection required under the statute. The first ground of appeal as advanced by Mr. Tsang must fail.

Ground 2

21. The second ground of appeal raised by counsel is that the magistrate’s failure to amend the particulars of the offences charged in the summonses pursuant to the Magistrates Ordinance was unfair to the two appellants.

22. At trial, the 1^st appellant did not call any defence witness or adduce any defence evidence. The 2^nd appellant called a defence witness Mr. Yim to testify, but his evidence was not accepted by the magistrate. The magistrate had clearly identified the elements of the two offences which the prosecution was required to prove. The type of work of the workmen was not one of the elements which the prosecution had to prove. The defence should also have been clearly aware of this. It is beyond my comprehension why the magistrate should, as argued by Mr. Tsang, amend the particulars pertaining to the type of work in the summonses after having heard and seen the evidence adduced by the prosecution. In my judgment, the second ground of appeal must also fail.

Ground 3

23. The third ground of appeal is that while the magistrate did not make a finding in his oral reasons for verdict as to what job the workers in the photographs were doing at the material time, he found in his written judgment (paragraph 20(2)) that the workers were moving the metal pipes used for the erection of metal scaffold to a path when PW1 was doing the inspection at the slope on the site. Counsel argued that the oral reasons were contradictory to the written judgment, thereby rendering the convictions unsafe.

24. In my judgment, the magistrate correctly held, on the basis of the evidence of PW1 and the photographs produced, that the prosecution had proved beyond reasonable doubt that there were several workers working on the slope at the material time and the photographs showed that the place was not provided with any fall prevention or other safety facilities. This is an irresistible finding of fact. The type of work of the workers is immaterial. Besides, the statutory roles of the 1^st and 2^nd appellants were never in dispute. The workers shown in the photographs were employed by the 2^nd appellant. The magistrate had precisely dealt with the salient ingredients which the prosecution was required to prove and had made clear and correct findings both in his oral reasons for verdict and his judgment. None of the three grounds of appeal raised by the appellants is substantiated.

25. For the above reasons, I dismiss the appeal of the two appellants and affirm their convictions of the two offences.