HKSAR v. EASTIME ENGINEERING LTD.

HCMA82/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.82 OF 2000

(ON APPEAL FROM SPS 4766 - 4768 OF 1999)

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J U D G M E N T

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1. The appellant company was prosecuted in respect of two summonses, firstly, failure to provide and maintain a system of work for telescoping a tower crane, so far as was reasonably practically safe and without risks to health and secondly, a failure to provide information, instruction, training and supervision as was necessary to ensure as far as was reasonably practicable to health and safety at work of all persons employed by the appellant at the industrial undertaking. Both of these offences were contrary to the Factories and Industrial Undertakings Ordinance. On 13 September 1999, the company was acquitted of both charges.

2. The defence made an application for costs which was rejected by the magistrate. In his oral reasons for rejecting the application for costs, the magistrate said this :

"Your counsel applied for costs on your behalf. Being the proprietor and contractor of a construction site, you have a duty to take reasonable practical step to ensure no accident occurs. By allowing a fatal accident to occur in your construction site, you brought suspicion upon yourself."

In his written reason for refusing the costs, the magistrate said this :

" The appellant company applied for costs under the Costs in Criminal Cases Ordinance on the ground that the appellant company had not brought suspicion upon itself.

The appellant company was the proprietor of an industrial undertaking. It had a duty to take reasonable practicable steps to ensure the health and safety at work of all persons employed by him at the industrial undertaking. By allowing a fatal accident to occur at its industrial undertaking the appellant company brought suspicion upon itself. The application for costs was refused."

3. In his reasons for acquitting the appellant, the magistrate came to the conclusion that he was unable to determine how the accident occurred and the responsibility for it. He was also unable to be sure that the company had not provided sufficient training and instruction as required under the Ordinance. Given the reasons that the magistrate gives for refusing the costs, an appellant would be unable to determine what it was in his conduct that brought suspicion upon itself. A magistrate has a duty to set out in his reasons, where he exercises a discretion, sufficient material to indicate that the discretion has been exercised in a judicial manner. Whilst lengthy reasons are not required, some indication in these sort of circumstances is necessary to set out the suspicious acts of an appellant. By saying that the actus reus which gave rise to the prosecution occurred and that was sufficient is not enough for an appellant to determine where it had brought suspicion upon itself.

4. In all the circumstances, the appeal is allowed. The order is set aside, and an order made that the appellant is to have its costs in the court below, to be taxed if not agreed. I further order that the appellant is to have the costs of this appeal, to be taxed if not agreed. This matter is certified as fit for counsel both here and below.