R. v. PING ON FOUNDATION (PILING) CO. LTD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 879 OF 1995

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J U D G M E N T

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1. This was an appeal against a conviction for failing to provide and maintain plant and systems of work for the erection of sheet piles that was, so far as was reasonably practicable, safe and without risks to the health of all persons employed at the industrial undertaking, contrary to ss.6A(2)(a) and 6A(3), Factories and Industrial Undertakings Ordinance, Cap.59.

2. The facts were that on 16th June 1994 the appellant company was the proprietor of an industrial undertaking in Kwai Chung. On that day, three riggers, including the deceased Yung Lai Kwai, were working preparing for the sheet pile installation of a pile cap. In the course of the operation, the sheet pile toppled over, and the deceased fell to the ground from a height of 9.4 metres, with fatal results. It was not in dispute that the method used by the deceased on that occasion was not safe. Nor was it in dispute that the safe method of sheet piling is what is called the portal/frame method. It was accepted by both parties that the equipment necessary for the use of the portal/frame method was on site, and available, but was not used on this occasion. The two workers who were working with the deceased on this occasion (the deceased being described as an experienced man) both said that the method used by the deceased that day was wholly exceptional, and that they had never seen it used before when they worked with him. No one could tell why the deceased, on this occasion, departed from the use of the safe method, and used a method he had never used before.

3. The Assistant Site Foreman gave evidence that he had only ever seen the deceased used the guide/portal frame system and had never found it necessary to give him instructions.

4. It seemed to me clear from the evidence that at some time or another the deceased had been told that the method he should use was the portal/frame method, because that was the method he invariably used. There can be no doubt but that the appellant company had provided this safe method of working, and that the equipment necessary to use this system was present on the site on that occasion, as it always had been. The appellant company had seen the deceased used that system on each and every occasion on which previously he had installed sheet piles. That was a safe system. On the occasion in question, the deceased, for reasons known only to himself, chose not to use it. It was my view that the appellant company had taken all reasonably practical steps to ensure that a safe system of work was used. It was not reasonable to expect the appellant company to constantly be on hand to supervise each and every occasion when sheet piling was carried out. It was reasonable for them to assume that the safe system of work, always used by the deceased in the past, would be used by him.

5. I did not agree with the learned Magistrate's conclusions that the prosecution had proved the essential elements of this offence and I allowed the appeal.