HKSAR v. NGO KEE CONSTRUCTION CO. LTD.

HCMA404/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 404 OF 2002

(On appeal from KCS No.7972 of 2002)

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J U D G M E N T

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1. The appellant in this case was convicted after trial of a single offence of failing to take adequate steps to prevent a person on a construction site from falling from a height of two metres or more, contrary to section 38B(1) of the Construction Sites (Safety) Regulations. The appellant now appeals against that conviction.

2. Regulation 38B reads, where relevant, as follows :

"(1) Subject to paragraphs (2), (3) and (4), the contractor responsible for any construction site shall take adequate steps to prevent any person on the site from falling from a height of 2 metres or more.

(2) For the purpose of paragraph (1), 'adequate steps' shall include the provision, use and maintenance of one or more of the following--

(a) working platforms;

(b) guard-rails, barriers, toe-boards and fences;

(c) coverings for openings;

(d) gangways and runs.

(3) Paragraph (1) shall not apply to any opening, corner, break or edge exposed in the course of demolition operations if adequate precautions have been taken to prevent any person from being exposed to the risk of falling therefrom.

(4) Every working platform (other than a suspended working platform), guard-rail, barrier, toe-board, fence, covering for an opening, gangway or run provided for the purpose of paragraph (1) shall comply with the provisions of the Third Schedule applicable to it.

(5) For the avoidance of doubt, it is hereby declared that--

(a) paragraphs (2) and (4) do not prejudice the generality of paragraph (1);

...."

3. The charge did not arise after a fall but following a routine inspection of the site by an Occupational Safety Officer of the Labour Department.

4. The magistrate found that the appellant was the contractor responsible for the site and was therefore required to take adequate steps to prevent any person on the site from falling from a height of two metres or more. He also found that none of the examples of what may constitute adequate steps were taken. These findings are well supported by the evidence and have not been challenged.

5. In circumstances such as these a defence is provided by Regulation 38H :

"(1) It shall be a defence for a contractor charged with an offence under regulation 38B(1) or 38(C) to show-

(a) that in all the circumstances of the case, it was impracticable to comply with all or any of the requirements of that regulation;

(b) that --

(i) the contractor provided suitable and adequate safety nets and safety belts in lieu of complying with those requirements; or

(ii) in all the circumstances of the case, it was impracticable to provide such safety nets and the contractor provided suitable and adequate safety belts in lieu of complying with those requirements; and

(c) that all reasonably practicable steps were taken to ensure the proper use of the safety belts by the persons to whom they were provided.

....

(3) Safety belts shall not be considered as suitable and adequate for the purpose of paragraph (1) unless they-

(a) are attached continuously to a suitable and secure anchorage;

(b) have suitable fittings therefor; and

(c) are of such a design and so constructed and maintained as to prevent injury to persons using them in the event of a fall."

6. The prosecution evidence in sum was that the Occupational Safety Officer saw a worker standing on an air-conditioning sill outside a building under construction. The sill he stood on measured 0.95m x 0.62m. Had he slipped the worker could have fallen 7.5 metres to the 3rd floor below him. There was no guard-rail around the sill, no working platform to stand on and no safety net beneath it. There was a board, 60cm below the sill, but it was only 15cm wide. The worker was wearing a safety belt but it was not attached to anything. An independent lifeline was hanging near the sill. The belt he wore did not have a fall arrester which would have allowed it to be attached to the lifeline. There was scaffolding around the building, enclosed by vertical netting.

7. The appellant called an Assistant Safety Officer at the site to give evidence on its behalf.

8. Regulation 38B requires the contractor to take adequate steps to prevent a fall, and at 38B(2) indicates that such steps include the provision, use and maintenance of one or more of the items listed and they are working platforms, guard-rails, barriers, toe-boards, fences and others. The learned magistrate agreed with the defence witness that rails, barriers, toe-boards and fences could not practicably be erected on the sill, but he did not accept that it was impracticable to erect a working platform.

9. The burden of establishing that it was impracticable to comply with the requirements of Regulation 38B was on the defence and they had to discharge that burden to the civil standard as the magistrate repeatedly acknowledged.

10. The appellant's contention that because at one stage the magistrate used the phrase "even on the civil standard" and at another "even on the balance of probabilities", he was thereby requiring a higher standard from the appellant than was appropriate does not stand up to a reading of the magistrate's Statement of Findings. He says on more than one occasion that the appellant's burden is the civil standard and clearly approaches the evidence on that basis. Mr Halkes has not pursued this contention with much vigour today.

11. The magistrate considered the evidence concerning the absence of a working platform and dealt with it in his Statement of Findings. The defence witness had given his evidence about this, most notably, at page 52 of the transcript, but had not explained to the magistrate's satisfaction why a platform could not be erected. The magistrate, on the evidence before him, was entitled to take that view and, consequently, whilst accepting that there might have been difficulties in erecting such a platform was not satisfied that it was impracticable to do so.

12. The magistrate then proceeded to consider the defence provided in Regulation 38H. I have earlier listed the salient parts of that Regulation. In summary, and so far as this case is concerned, it provides that if compliance with all or any of the requirements of 38B are impracticable, then suitable and adequate safety nets and safety belts should be provided instead, and if it is impracticable to provide such nets, then suitable and adequate safety belts should be provided, and all reasonably practicable steps should be taken to ensure the proper use of such belts.

13. At paragraph (3), the Regulation indicates three requirements needed before the belts can be considered as suitable and adequate.

14. The Regulation therefore envisaged a number of steps, and the magistrate considered that in this case, the appellant failed at every stage.

15. He was not satisfied that it was impracticable to provide a safety net; he was not satisfied that the safety belt provided was, as it stood and without a fall-arrester, suitable and adequate; and he was not satisfied that all reasonably practicable steps had been taken to ensure the proper use of the belt by the worker in question.

16. The appellant challenges these findings and has advanced 10 grounds of appeal which Mr Halkes has ably addressed this morning.

17. The first maintains that the magistrate applied the wrong standard of proof for the appellant. I mentioned that a short while ago. The magistrate clearly applied the criminal standard when concluding that the appellant was the contractor responsible for the site, that the worker was working at a height of two metres or more, that it was for the appellant to take adequate steps to prevent a fall and that it had not done so. This was correct. The prosecution had to establish these matters to the criminal standard. He then applied the civil standard when considering the statutory defence. In this, also, he was correct. He repeated more than once that he considered the evidence to that standard and a reading of the transcript shows that this in fact is what he did. This ground fails.

18. The second ground of appeal alleges that the magistrate was wrong to find that a working platform could practicably have been provided. The appellant maintains that their evidence at the trial on the subject was largely unchallenged and that the magistrate, in making his findings, necessarily placed himself in a position of an expert. What the magistrate said about this was as follows :

" Evidence of impracticability to comply with the requirements of Regulation 38(B)2 came solely from the only Defence witness. I accepted his view that it would be impracticable to erect guard-rails, barriers, toe-board or fences on the sill. It was obvious even to a layman. The Defence witness also maintained that it was impracticable to erect working platform (sic). However, the justifications he put forward were so flimsy that I did not find myself satisfied, even on the civil standard, that it was impracticable in all the circumstances of the case to comply with this requirement. There appeared to be sufficient space to erect one. I had not been assisted by any evidence to explain why a working platform could not have been erected. It appeared to me that it might have been cumbersome but I was not convinced by the evidence before me that it had been impracticable to do so, bearing in mind the requirements as set out in the Third Schedule and cost effectiveness."

19. This should be read along with the evidence he had just heard. A reading of the transcript supports the magistrate. It is quite apparent that the defence witness failed to give cogent reasons why a working platform could not practicably have been installed. It was for the defence to establish the impracticability on the balance of probabilities and the magistrate was quite entitled to find on the evidence before him that they had not done so.

20. Much of the argument presented by the appellant is based on the premise that the evidence was of :

"... technical matter(s) that were beyond his levels of understanding. ...."

The appellant has continuously sought to elevate a perfectly straightforward case into one requiring expert evidence. The question of expertise does not come into it. A tribunal of fact may require an expert's help in respect of a specialized area, but in this case it can hardly be said that an expert witness was required to do what the magistrate did. The evidence was straightforward and no particular expertise was needed, he was entitled to find as he did. This ground fails.

21. Grounds three and four both concern the non-provision of safety nets.

22. Ground three is caught by the same flaws as ground two. The appellant appears to state that if his witness tells the court the provision of nets is impracticable, then the court is bound to accept that statement unless it is challenged by the prosecution -- otherwise, contends the appellant, the magistrate is putting himself forward as an expert. Once again, it seems to me that there is nothing in the evidence which requires the assistance of an expert. In any event the argument, it seems to me, misses the point. It was for the appellant to establish that it was impracticable to provide safety nets and the only evidence relating to this which I have been referred to appears in the transcript, at page 52 :

"Q.	Is it usual or possible in these type of circumstances to install netting to catch people if they fall?
A.	Well, because, as affected by the work, I think it can't be installed."

And the witness' attention was then deflected to the provision of handrails. The magistrate was to conclude from the bald assertion "as affected by the work, I think it can't be installed", without more, that it was impracticable to install nets? Plainly not. Nor can the appellant make good this lack of evidence by general assertions about an overall view of the evidence. These grounds fail.

23. Grounds five to ten cover very much the same area : the provision of lifelines, fall arresters and safety belts.

24. The contractor had provided lifelines, fall arresters and safety belts. The belts are, by Regulation 38H(3), not to be considered suitable and adequate for the purposes of 38H(1) unless they :

"(a)	are attached continuously to a suitable and secure anchorage;
(b)	have suitable fittings therefor; and
(c)	are of such a design and so constructed and maintained as to prevent injury to persons using them in the event of a fall."

25. The belt worn by the worker in this case was attached to nothing -- it was simply worn at his waist. Moreover, it had no fall arrester and could not in that condition be used with one of the lifelines. The contractor is required to show that all reasonably practicable steps had been taken to ensure the proper use of the safety belts by persons to whom they were provided. The worker in this case was not using the belt properly. The defence witness was responsible for training him and had shown him how to use the equipment, but provision of the equipment and ensuring its correct use was left to the sub-contractor. The magistrate did not criticize that but he did query the supervision of the sub-contractor by the contractor. The defence witness told the court that he patrolled the site but could not remember if he had done so on the day in question, and there was thus no evidence of a patrol on that day. The magistrate may have gone too far in making a finding that in fact there was no patrol on the day in question, but he was entitled to take into account the vague nature of the evidence when considering whether or not the contractor had exercised proper supervision over his sub-contractor. He also noted that no record was kept of the distribution of equipment to individual workers.

26. On the question of supervision, the respondent has today drawn my attention to an exchange between the prosecution and defence witnesses, at page 63 of the transcript :

"Q. So, Mr Fu, when the worker went up -- when this -- when that worker in the photo went up to his working position on that day, was there anyone to supervise his work?

A. Well, as far as I know, he had a foreman, a foreman to -- who distributed work to them.

Q. So, will you check the safety equipment ....

MR CHAN: Sorry.

Q. It was -- will the foreman, will the foreman, check the safety equipment of the worker when we went up to work?

A. Well, I'm not sure about this because he's not someone from our company; I'm not sure.

Q. Thank you, Mr Fu."

27. The magistrate was entitled, on all the evidence before him, to conclude that all reasonable steps had not been taken by the appellant to ensure the proper use of the belt by the worker. It matters not how many lifelines, fall arresters and belts are provided if the contractor does not ensure that they are properly used. Grounds five to ten are dismissed.

28. In my judgment, the magistrate properly directed himself as to the law and had carefully applied it to the evidence before him. He was entitled on the evidence to come to the conclusions he did. This appeal is dismissed.