HKSAR v. CHINA MERCHANTS CONTAINER SERVICES LTD.

HCMA 597/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 597 OF 2001

(ON APPEAL FROM TWS 16355/2000)

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J U D G M E N T

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1. The Appellant company was summonsed and convicted under Regulations 15B(1) and 19 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, made under the Factories and Industrial Undertakings Ordinance, Cap. 59. It appeals now against that conviction.

2. The information stated that the Appellant, being the owner of a lifting appliance, a loader, where the person operating the lifting appliance did not have a clear and unrestricted view of its vicinity, and such view was necessary for the safe working of the appliance, failed to appoint and station such persons as might be necessary to give effective signals to the person operating the lifting appliance to ensure its safe working.

3. The loader in question was used to load and unload containers for truck drivers at the container depot run by the Appellant. The container depot was designed on a simple grid pattern with avenues between stacks of containers. Checkers directed truck drivers to the place where they were to collect containers. Ordinarily the drivers need not get out of their trucks and were told not to do so. The checkers directed the movement of the loaders via walkie-talkie.

4. On 26 April 2000 about mid-day, a man who was later identified as a truck driver, was found dead at the entrance of one of the avenues, apparently having been run over by a vehicle. Blood stains were later found on loader No. 16 (to which the summons relates), but the driver (PW3) was unaware of any collision, or impact in respect of the accident. Another truck driver (PW5) had seen the deceased get out of his truck and walk towards the checker's office. He said the drivers frequently alighted from their trucks and he did not notice them being asked by the staff to return to their trucks. It was common ground that truck drivers were not supposed to get out of their trucks and there were signs at the depot warning of the danger in doing so.

5. The loader was similar to a truck with an enclosed cab. At its front were two telescopic masts. A spreader could travel up and down the two masts by the operation of lifting cylinders and the spreader would lock on to the 4 top corners of the container to be moved. When the spreader was extended fully it was 40 feet long; it was 20 feet long when not extended. There were rear mirrors on both sides of the loader, but they would not help the driver to see the areas obscured by the two masts in front of him. On top of the driving cabin was a flashing and rotating warning light, but the loader did not have a warning alarm that operated when it moved forward.

6. PW1, an Occupational Safety Officer of the Labour Department, examined the loader and confirmed that its safe working load was 38 tons for a maximum of 10.0m fork height. It was 7.3 meters in length. He confirmed that the driver would have a restricted view to the front. He found that the 3 reflective mirrors mounted on the loader (1 in the cabin, 2 on the exterior), only enabled the driver to see what was behind him and no device was installed to avoid the blind spots at the front. A sketch by PW1, after conducting blind spot checks, showed the direction and angle of the blind spots (Exh. P.4). From the height of the deceased, the position of his body and its distance from the container stacks, PW1 concluded that most of his body would have been in the driver's blind spots.

7. No tests were done to measure the noise level of the vehicle. PW10, a Senior Mechanical Engineer with the Labour Department, gave evidence that the engine of the loader made a lot of noise, although at a slow speed, the noise was only slightly louder than an ordinary vehicle.

8. At trial, a number of witnesses concentrated their attention on measures to avoid dangers inherent in the existence of the blind spots. The question was whether it was sufficient that this be done with mirrors, or whether human signallers were required to signal the loader operator. There was no conclusive agreement on measures that could, or should, be taken to combat the problem of the blind spots and whether or not signallers were necessary. It was not usual practice to have signallers for this kind of loader in Hong Kong, according to another expert witness, a Safety Officer of the Labour Department, (DW2).

9. The Assistant Manager of the Appellant, (DW1), said that post-accident she had a discussion with Labour Department staff about the improvement of safety measures on site, but the Labour Department did not suggest employing signallers. There were worries that signallers would be in danger, because to operate effectively they would have to move around inside the depot "streets" at ground level. DW2 considered that walkie-talkie would be the best means of communication, but only if signallers could give effective signals. He suggested safety measures other than signallers.

10. The focus of the defence case and of the appeal was whether providing a signaller for a loader operator was practical, and whether or not the regulation under which the Appellant company had been summonsed applied to the type of loader concerned in the incident.

11. There were a number of grounds of appeal. The first was that the Magistrate erred in holding the Appellant's loader was a crane and therefore a lifting appliance, for the purposes of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, Cap. 59, and in particular Regulation 15B(1), under which the Appellant was convicted.

12. The second ground relates to the interpretation of Regulation 15B(1) which states that:

"where a person operating a lifting appliance does not have a clear and unrestricted view of, inter alia, its vicinity and such view is necessary for the safe working of the appliance, the owner of a lifting appliance shall subject to paragraph (2), appoint a signaller."

13. The Appellant submitted that, the words "its vicinity" should have been held to relate back to the words "the load" (S.15B(1)(a)(i)) rather than, as the Magistrate held, to the vehicle itself. It was the Appellant's case that Regulation 15(B) was directed to visibility of the load and the point of attachment of a load during loading or unloading; and not to general all-round visibility in the area of the appliance itself, whilst it was moving from one work site to another. There was a complaint that the Magistrate had wrongly referred to and adopted the Chinese text of the Ordinance, which did not accurately convey the meaning of the provision.

14. The third ground was that the Magistrate erred in failing to give sufficient weight to the evidence of PW3, the driver of the loader, to the effect that he did have a clear view of the vicinity of the loader; and that he had a clear and unrestricted view of the "point of attachment for a load when no load (was) being carried"; and that his loader was not carrying a load at the material time.

15. The 4th ground was that the Magistrate erred in holding that Regulation 15(B)(1) extended to "a loader in motion". It was argued that she failed to take account of Regulation 2, which provides that the Regulations "shall apply to lifting appliances and lifting gear used for raising or lowering or as a means of suspension" and of the interpretation provision in Regulation 2. The effect of those 2 provisions together is that the word "used" in Regulation 2 must mean "actually being used" for raising and lowering, as opposed to what occurred in this case, where the machine was being moved, without a load, from one place of work to another.

16. The 5th ground was that the Magistrate erred in failing to hold that the Appellant on all the evidence had a defence to the charge under Regulation 15(1), as the evidence showed it was impracticable to comply with Regulation 15(1) and, accordingly, the only obligation on the Appellant was under Regulation 15(3), which was not the subject of any charge.

17. The 6th ground was that the Magistrate erred by holding that there was a case to answer.

Ground 1

18. The Magistrate found the loader was a crane in terms of the Regulation which covers "any appliance equipped with a mechanical means of raising and lowering a load and for transporting the load while suspended". She found that definition wide enough to cover the loader in question. She did not accept the loader was a fork-lift truck within the meaning of the Factories and Industrial Undertakings (Loadshifting Machinery) Regulations. She said: (B20)

"Although the definition of fork-lift truck under such regulations seems to be able to cover this type of loader, I take the view that this fork-lift truck is a well-known piece of factory equipment long before 1961 as it is so acknowledged in the case of Walker Andrew Mitchelle (sic) & Co. [1982] Scots Law Times 266. The New Oxford Dictionary of English defined fork-lift truck to mean a vehicle with a pronged device in front for lifting and carrying loads. Prong means each of two or more projecting pointed parts at the end of a fork. I believe it is these fork-like lifting arms that earned the machinery its name. What's more, any load to be carried by a fork-lift truck is elevated from its bottom as opposed to being lifted up from its top. It therefore does fit into the definition which says "device for elevating and carrying loads"."

19. She rejected the argument put forward by counsel at trial that as the loader could not be tested in the manner required in paragraph 2 of the First Schedule of the Regulations (which provided standard procedures for testing lifting appliances and gear) it could not be a crane or lifting appliance as defined by the section.

20. She stated: (B21)

"It was argued that since the loader could not possibly be tested in that manner, it showed the Regulations did not apply to it. I do not accept such arguments. I believe it is rather because of the advancement of modern technology which outdated the Regulations and made part of its provisions incompatible or inapplicable. I cannot imagine this loader is anything other than a lifting appliance. When the spreader locks into the 4 top corners of a container and carries it, the load is clearly being transported "while suspended.""

21. Judging by its appearance and operation, the loader in question came into the category of a fork-lift truck rather than a crane. Section 2 of the Factories and Industrial Undertakings (Loadshifting Machinery) Regulations defines fork-lift truck as "any self-propelled vehicle, equipped with a mast, along which travels a power-operated device for elevating and carrying loads". That definition describes the loader more accurately than the definition accepted by the Magistrate in equating the loader with a crane. The Magistrate need not have resorted to the New Oxford Dictionary of English to define "fork-lift truck" because a definition was already provided in the Hong Kong Regulations. In my view the loader is a fork-lift truck and Regulation 15B does not apply, so the appeal succeeds on this ground.

22. A careful reading of the Lifting Appliances and Lifting Gear Regulations establishes that it is straining the definition of "crane" to require it to cover a vehicle such as the loader. Although reference is made to a crane or a lifting appliance moving, it is clear that what is envisaged is the lesser movement attributable to the transfer of a load for comparatively short and circumscribed journeys, within the radius of its hook or sling, or on tracks or aerial pathways, rather than the completely independent and much speedier transporting of loads which the loader as a self-propelled vehicle can undertake.

23. The First Schedule of the Regulations sets out the requirements for testing the capacity of the crane or lifting appliance - those tests do not provide a satisfactory or feasible method of testing a vehicle such as the loader.

24. Ground two relates to the interpretation of Regulation 15B(1). The Magistrate resorted to the Chinese version of the Regulations, for the interpretation of the phrase "its vicinity" and concluded that that version, put it beyond doubt that the Regulation was referring to the vicinity of the lifting appliance and not the vicinity of the load, as the Appellant argued. She found that the driver did not have a clear and unrestricted view of the vicinity of the loader and that such a view was necessary for the safe working of the machine.

25. While it was not disputed at the appeal that the authentic Chinese text refers to the vicinity of the machine, the Appellant pointed out that when the Chinese text was prepared it appears that the commas were put in the wrong place and "its vicinity" according to the English language text of Reg. 15B(1) and the Regulation under the English Act, on which the text of the Hong Kong Ordinance was based meant, not the vicinity of the machine, but the vicinity of the load.

26. Regulation 26(3) English of the Factories Act 1961 Construction (Lifting Operations) Regulation, appears to have been adopted almost entirely in Reg.15B(1). Regulation 26(3) focusses clearly on the word "load". In S. 15B(1) there is some adjustment of the phrasing, which, unfortunately, makes the Hong Kong regulation less definite, but it is based so closely on Regulation 26(3) that there can be no doubt that vicinity of the load is what is meant. A comparison of the relevant part of each Regulation shows the intended focus is "the load":

" Reg. 26(3) Subject to paragraph (4) of this Regulation, if the person operating a lifting appliance has not a clear and unrestricted view of the load, or, where there is no load, of the point of attachment for a load, and of it

place where such view is not necessary for safe working, there shall be appointed and suitably stationed one or more competent persons as may be necessary to give necessary signals to the operator;

Reg. 15B

(1) Where a person operating a lifting appliance -

(a) does not have a clear and unrestricted view of -

(i) the load carried by the lifting appliance;

(ii) its vicinity;

(iii) the point of attachment for a load where no loads is being carried; and

(b) such view is necessary for the safe working of the appliance, the owner of a lifting appliance shall, subject to paragraph (2), appoint and station such persons as may be necessary to give effective signals to the person operating the lifting appliance to ensure its safe work

s vicinity, throughout the operation, except at anying."

27. The Magistrate erred in referring to the Chinese text, and not concentrating on the English text, the context of the Hong Kong legislation and, if necessary, the English legislation on which it was based. Regulation 15B (1)(a)(i)(ii)(iii) refers to the visibility of the load, the vicinity of the load and the point where a load is attached at those times when no load is being carried. It does not refer to general all-round visibility in the area of the appliance itself, nor is it intended to cover the situation where the appliance is moving from one place to another. The Appellant's interpretation is correct, if S.15B(1) is applicable, which in this case it is not.

28. Ground three was that the Magistrate erred in failing to give proper or any weight to the driver's evidence. Accepting, as I have, that the words "its vicinity" refers to the load and not the loader, it appears that the evidence of the driver, if accepted by the Magistrate, showed that he did have a clear view of the vicinity of the loader and a clear and unrestricted view of the point of attachment of a load, in the situation, which pertained in this case, where no load was being carried by the loader.

29. Ground four was that the Magistrate erred in holding the Regulation 15B(1) extended to "a loader in motion". It was submitted that she failed to take account of Regulation 2, which provided that the Regulations "shall apply to lifting appliances and lifting gear used for raising, or lowering, or as a means of suspension", and of the interpretation provision in Regulation 2. The combined effect of those provisions was that the word "used" in Regulation 2, must be taken to mean actually being used for raising or lowering in contradistinction to this case where the loader was being moved without a load from one work site to another. As I find on ground 1 that Reg. 15B(1) was incorrectly used, it follows that this ground also succeeds. The section does not apply to a loader in motion.

30. Ground five was that the Magistrate erred in failing to find that the Appellant had a defence to the charge under Regulation 15(1), as the evidence showed it was impracticable to comply with it and therefore the remaining obligation on the Appellant was under Regulation 15B(3), which was not the subject of any charge. Regulation 15B(3) required "effective signalling arrangements or other means of communication" between the operator of the appliance and the person employed in the loading or unloading of it.

31. Although I have found that the Appellant was charged wrongly under Reg. 15B(1), I consider, for argument only, whether, if the loader was a crane, a signaller was necessary or practicable.

32. The Appellant was in overall control of the traffic in the container depot. There were notices prohibiting drivers from leaving their vehicles, but these were respected in the breach rather than in the observance. Although checkers advised the drivers when and where to collect, or unload their loads, there were no signallers, nor was it the practice to use signallers to direct the operations of the loaders. Mirrors, additional to those fitted as standard on the loader, were fitted, on Labour Department advice, post-accident. These gave a better view to the front of the vehicle but, were insufficient to remove all the blind spots caused by the positioning of the shafts in front of the driver. It was considered impracticable and dangerous to use signallers, such as suggested in Regulation 15B(1), to direct the loaders. The most practical means of communication with the loaders was walkie-talkie between the loader and the checkers. The lay-out of the container depot, meant signallers were not a practical or safe means of directing the loaders.

33. Various witnesses gave evidence that to have signallers operating in the vicinity of the loader would be dangerous.

34. DW1 gave evidence that when advice had been given to the Appellant company on the issuing of the Notice of Suspension there was no discussion with a Safety Officer of the Labour Department about, nor any stated requirement for, signallers to be used. The expert witness, DW2, confirmed it was not industry practice to use signallers and in his view it was too dangerous to use them. PW1, PW2 and PW4 gave evidence to similar effect. Only PW11 advocated the employment of signallers, although his suggestion that they be stationed at certain control points seemed rather vague and impracticable given the layout of the depot and the changing configuration of the container stacks. Overall, if Reg. 15B(1) had been applicable, the evidence was to the effect that it was impracticable to comply with it.

Conclusion

35. While accepting the difficulties the Magistrate was under in linking the facts with these Regulations, it appears that she failed to consider sufficiently the ordinary principles of statutory construction, including the principle that a penal provision should be strictly construed to avoid doubtful penalisation and that the practicality of the construction should be tested against the practical outcome of giving effect to it. Here there was extensive evidence which showed that providing signallers would be impracticable, and also dangerous, and that it had not been the practice in the industry to provide such signallers, possible for those reasons.

36. The Appellant argued that the court should avoid a construction which caused unjustifiable inconvenience to persons subject to the enactment; and which required one danger to be removed at the cost of creating another danger.

37. The Appellant could have been dealt with by a charge alleging failure to provide a safe system of work, e.g. 6A of the Factories and Industrial Undertakings Ordinance, Cap. 59; but from the facts and evidence and my reading of the Regulations, Regulation 15B(1) was relied on, wrongly. The clue to the difficulty lies in the Magistrate's comment at B21 "I believe it is rather because of the advancement of modern technology which outdated the Regulations and made part of its provision incompatible or inapplicable."

38. If that is the position it is not for the Magistrate to try and force the square peg of the fact situation into the round hole of the legislation just because a summons has been drawn up. While legislative meaning can be expanded to encompass situations and objects that were not in existence, or contemplated, when the legislation was formulated, there may come a time when that is no longer possible or desirable and new or amended legislation is needed. Here it is not possible to force the loader into being a crane, when it is a forklift truck.

39. For the reasons given above, I allow the appeal and order that any fine paid be returned to the Appellant.