HKSAR v. LEIGHTON-CHINA STATE JOINT VENTURE

HCMA430/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 430 OF 2002

(ON APPEAL FROM KTS15803 OF 2001)

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J U D G M E N T

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1. This is an appeal against the decision of Mr Ken Ng Kin-man sitting at Kwun Tong Magistrates Court when, having acquitted the Appellant of a charge of being the contractor responsible for a construction site, it had failed to take adequate steps to prevent a person on the site from falling from a height of 2 metres or more, contrary to Regulation 38B(1), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations, he refused to award the Appellant the costs of its defence.

2. The background to the charge was an accident on 20 March 2001 which befell Mr Lam Chun-fai, a worker at a construction site which was part of the Tseung Kwan O Station tunnel, then under construction, for which the Appellant was responsible. He fell from a height of about 4 metres when "flame cutting" an iron beam which was on the wall inside the tunnel and had been the temporary support for the wall of the tunnel while it was under construction. He was standing on the beam at the time. The accident occurred when one of the metal brackets used to support the beam suddenly fell down. He had used an aluminium ladder to gain access to the beam.

3. The charge alleged that the Appellant had not taken adequate steps to prevent any person on the site from falling from a height of 2 metres or above.

4. By virtue of Regulation 38B, it is provided that:

"Adequate steps' shall include the provision, use and maintenance of one or more of the following:

(a) working platforms."

5. The prosecution case depended on the evidence of the injured workman, whose evidence was that there was no safety net under the iron beam and that, although he was wearing a safety belt, there was no point on which he could anchor the belt, nor was there any working platform or scaffold erected for him on which to do the work.

6. The basis of the Appellant's case, supported by expert evidence, was that there was a scaffold-like structure (referred to as a "tung ga") within 10 metres of the location of the accident which, subject to some minor adjustments which the injured workman was capable of performing himself, the injured workman could and should have used to perform the work. The Appellant produced a not very clear photograph taken on the day of the accident which had not previously been disclosed to the prosecution, allegedly showing the presence of such a scaffold.

7. The factual basis of the Deputy Magistrate's acquittal of the Appellant appears to have been the defence's production of this photograph which, despite the absence of evidence of its exact measurements or detailed structure, he found "just sufficient to cast doubt on the prosecution case".

8. Rightly or wrongly, he appears to have taken the view that section 18 of the Factories and Industrial Undertakings Ordinance Cap. 59 only imposed an evidential, rather than a legal, burden on the Appellant to prove that it had taken "adequate steps", and that ultimately the prosecution had failed to prove the failure of the Appellant to take "adequate steps" beyond reasonable doubt.

9. The learned Deputy Magistrate was aware of the relevant principles for the award of costs to an acquitted Defendant. They were repeated by the Court of Appeal in R v Kwok Moon-yan and Lok Ma-chiu [1989] HKLR 396. They are that the power to award costs is in the unfettered discretion of the court, but the normal practice is that an order should be made for the payment of the costs out of public funds unless there are positive reasons for making a different order. Positive reasons would exist (1) where the appellant's own conduct had brought suspicion on itself and it had misled the prosecution into thinking that the case against it was stronger than it was; or (2) where there was ample evidence to support a conviction but it was quashed on a technicality which had no merit.

10. The Deputy Magistrate found that the situations in both (1) and (2) existed in this case.

11. It is not necessary for me to consider (2) (acquittal on the grounds of "technicality") as I found the Deputy Magistrate had ample grounds for concluding that the case fell within situation (1).

12. This was an accident at a major construction site for which the Appellant company was responsible. It employed a Safety Officer at the site. Photographs of the scene of the accident were taken on its behalf the day after the accident, including the one which ultimately caused the Magistrate to acquit.

13. Under the terms of Regulation 17 of the Factories and Industrial Undertakings Regulations Cap. 59, and section 13, Occupational Safety and Health Ordinance Cap. 509, the Appellant was obliged, in the event of an accident causing serious bodily injury, to file an oral or written report to an Occupational Safety Officer within 24 hours. The purpose of this provision must be to enable the Labour Department to conduct an investigation of an accident scene before the scene has undergone significant change. The report should state "the name of the person, the nature of and the time, place and circumstances of the accident". (My emphasis.) There was no dispute that the accident had caused serious injury to the workman.

14. Notwithstanding the fact that the Appellant appears to have investigated the accident and taken photographs the day after the accident, no report of the circumstances was made to an Occupational Safety Officer within 24 hours as required by Regulation 17(1) of the Factories and Industrial Undertakings Regulation and section 13(1) of the Occupational Safety and Health Ordinance. As the Magistrate commented, the matter did not come to the notice of the relevant division of the Labour Department until four months later, and that this time lapse had effectively precluded any investigation. The relevant division appears to have received notification via another division of the Labour Department to whom a form 2 for the purposes of Employees' Compensation had been submitted. By this time, any investigation by the Labour Department would have been pointless.

15. Yesterday, the day before the date fixed for the handing down of the judgment in this appeal, the Appellant, by letter, sought leave to adduce by way of additional evidence an affidavit of Mr Mark Stephen Manning, the Commercial Manager of Leighton Contractors Asia Limited. Mr Manning exhibited to that affidavit a form 2 Notice of an Accident to an Employee under the Employees' Compensation Ordinance Cap. 282, sent by the Appellant to the Employees' Compensation Division at the Labour Department on 22 March 2001. He said that in his own experience and that of safety officers with whom he had spoken, it was the usual practice in the Hong Kong construction industry to inform the Labour Department of accidents causing serious injury in such a manner, and that the recipient in the Employees' Compensation Division would usually notify other departments or offices within the Labour Department. He was not aware of the Labour Department ever having objected to receiving notification in this way.

16. Since it was clear to me that the contents of that affirmation would not affect my decision in the appeal, and with a view to saving time and costs, I decided to take into account the contents of the affirmation without hearing objections from the Respondent as to its admissibility. Even if it is correct - and I have not received evidence from the Labour Department on this matter - that in practice, the Employees' Compensation Division of the Labour Department has, in the past, notified other relevant divisions on receipt of the form 2, and that the Labour Department has not complained about being so notified, both Regulation 17(1) of the Factories and Industrial Undertakings Regulations Cap. 59 and section 13 of the Occupational Safety and Health Ordinance Cap. 509 make it clear that as a matter of law, the submission of a form 2 cannot be a substitute for the obligation to make a report to an Occupational Safety Officer within 24 hours under Regulation 17(1) and section 13(1).

17. If the Appellant had observed its legal obligations, then the relevant division of the Labour Department would have been aware of the accident within 24 hours. Instead, it was not aware until some four months later.

18. In any event, Regulation 17 makes it clear that the proprietor of the industrial undertaking has an obligation not merely to report that an accident resulting in serious bodily injury has occurred, but also a positive obligation to report "the circumstances of the accident".

19. In this particular case, where a worker fell from a height of more than 2 metres, the reason why he was not prevented from doing so, bearing in mind the duty imposed by Regulation 38B of the Construction Site Safety Regulations, is a "circumstance" of the accident. While it might not necessarily in itself have been a breach of section 17(1) not to disclose that particular circumstance, failure to disclose that circumstance is a relevant matter that may be taken into account when considering whether to award costs following an unsuccessful prosecution such as in this case. Even in the form 2 submitted by the Appellant there is no reference to the injury having resulted at least partially from the worker's failure to use a working platform which was provided.

20. In this case, the Appellant failed in its legal obligation to make a report to an Occupational Safety Officer within 24 hours. In the report that the Appellant did make in the form 2 to the Employees' Compensation Division of the Labour Department, it makes no reference to the circumstances of how the workman was not prevented from falling from such a height, namely by his failure to use the "tung ga". When the Appellant's Safety Officer, Mr Lee Yuk-heng, was interviewed on 26 July, and the possibility of prosecution must have been apparent, he did not disclose the presence of the "tung ga" or the photograph in question. The Appellant continued to withhold the information and the existence of the photograph after the prosecution was commenced and until trial, when the photograph was first produced to the injured workman in cross-examination.

21. In such circumstances, there is ample justification for the Deputy Magistrate to refuse the Appellant's application for costs. It would have been quite wrong for the public purse to have met the costs of the defence in these circumstances.

22. I dismiss the appeal.

(Discussion re costs)

23. I order that the Respondent's costs of the appeal, including costs of today, be borne by the Appellant. I make an order that costs be taxed if not agreed.