HKSAR v. SUN FOOK KONG HOLDINGS LTD AND ANOTHER

HCMA140/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.140 OF 2003

(ON APPEAL FROM NKS 15574 OF 2002)

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J U D G M E N T

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1. Information was laid by the Labour Department against the appellant for an offence against the Construction Sites (Safety) Regulations ("the Regulations"), made under the Factories and Industrial Undertakings Ordinance, Cap.59 ("the Ordinance"). The particulars of the summons dated 7 November 2000 was as follows :

"Contrary to Regulations 38B(1), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap. 59. It was alleged that the appellant on 11th May 2002, being the contractor responsible for a construction site at URA RPOJECT K2, SITE A (the site bounded by Portland Street, Shanghai Street, Argyle Street and Shantung Street, Mongkok, Kowloon) did fail to take adequate steps to prevent a person on the site from falling from a height of 2 metres or more, namely on the tubular scaffold adjacent to wall 6 at level 5 of office tower."

2. The appellant pleaded not guilty and was convicted after trial by Deputy Magistrate Mr Ken Ng on 17 January 2003. A fine of $35,000 was imposed and the appellant now sought to appeal against the conviction. (The appeal on sentence was abandoned at the hearing.) The co-defendant, Wong San Man, was also convicted after trial.

3. The appellant was represented, both at the trial and the appeal hearing, by Mr Ashok Sakhrani, counsel. At the trial, the prosecution had called a total of nine prosecution witnesses to testify, they were, inter alia, the site manager, the occupational safety officer of the Labour Department, a foreman, a site agent, three workers, and a registered safety officer in the employ of the appellant and an expert from the Labour Department.

4. The appellant was the principal contractor responsible for a construction site in Mong Kok where construction work was then in progress. Bun Kee Construction Co. Ltd ("Bun Kee") was the sub-contractor responsible for all the steel bending works on the site. Bun Kee had subcontracted such work to one Wong San Man, the co-defendant, who was responsible for recruiting workers to carry out the job. He had indeed employed the steel-bending workers, including the deceased. By agreement, the appellant had the obligation to provide all working platforms when work was to be done at a height of more than four metres above the ground. At the material time, the workers had to work at a wall at level 5 of the office tower. There was no dispute that the appellant had provided suitable working platforms both on the inside and outside of the wall in question as required. On 11 May 2002, a fatal accident had occurred at the work site. The deceased was one of the steel-bending workers. During his work, he had stepped through an opening in the platform which was built by the workers themselves for the purpose of working at a higher position.

5. The learned Magistrate had, in his Statements of Findings, analysed the evidence, considered the defence and the relevant provisions, and had given reasons as to why he found the offence proved against the appellant. The Magistrate had specifically addressed his mind to the statutory defence under Regulations 38H of the Regulations stipulated under the Ordinance. He stated that he had considered, in light of all the circumstances, whether it was impracticable for the appellant to comply with all or any of the requirements of that Regulation 38(1) and his answer was 'No'. The Magistrate had also noted the burden of proof as stated under section 18, Cap.59.

6. Counsel for the appellant had stated six grounds of appeal in the perfected grounds. They were, in full, the following :

"1. Having regard to the evidence of the steps taken by the Appellant to promote safety on the site, and his own findings of the systems of penalty and reward, risk assessment, toolbox talks, safety plan, and safety meetings and committees arranged by the Appellant (paragraph 39 of the Statement of Findings), the learned magistrate confused the futility of the same in this instance (when experienced workers knowingly built obviously dangerous working platforms without the instruction, knowledge and consent of the Appellant and its sub-contractors) and concluded contrary to the evidence that these were just superficial steps which were not seriously taken by the workers, the sub-sub-contractor, namely the 2nd Defendant, the sub-contractor, Bun Kee Construction Co. Ltd. ('Bun Kee'), and the Appellant.

2. The learned magistrate failed to properly evaluate the whole or any part of the evidence of the co-workers of the deceased in finding that the workers did not know whom they should approach to ask for the provision of a higher working platform and the workers did not understand safety, these being contrary to the evidence of the workmen themselves and the evidence of other witnesses called by the prosecution.

3. The learned magistrate's finding that the workers and D2 simply could not on the tight schedule afford to wait 2 hours for the qualified carpenters to erect a proper working platform (paragraph 37 of the Statement of Findings) was without any evidential basis and was contrary to the evidence of evidence of PW6, Kwan Sai Shing.

4. The learned magistrate's finding that the representatives or the management of the Appellant deliberately turned a blind eye to the needs of the workers, that the workers were not stopped, and they were left to set it up in their own ways (paragraph 39 of the Statement of Findings) was contrary to the evidence that, inter alia, the workers, in particular PW3 Lee Wai-Wing, knew the Appellant was obliged to provide safe working platforms, that it had done so both on the inside and outside of the wall being constructed, that only the day before the accident the Appellant's Registered Safety Officer, PW8, had stopped this very team of workers from working on an inadequate working platform, that on the morning of the accident about 45 minutes before the construction of these defective working platforms the Appellant's Site Agent, PW7, had inspected the work of this very team of workers, and, lastly, the workers knowingly built obviously dangerous working platforms without the instruction, knowledge and consent of the Appellant and its sub-contractors and PW3 gave evidence that he knew if the team was caught a complaint would be made to their boss.

5. The learned magistrate's opinion that because the Appellant must have known the provision of a higher working platform would be required that morning, it was putting the cart in front of the horse to require the workers to request a higher working platform (paragraph 35 of the Statement of Findings) was erroneous and contrary to his own finding that Bun Kee or the workers could inform any personnel if there was a need for a working platform (paragraph 22 of the Statement of Findings).

6. The learned magistrate's conclusion that inadequate steps had been taken in the circumstances to prevent the fall of workers (paragraph 39 of the Statement of Findings) was contrary to the evidence of the steps taken by the Appellant and the unforeseeable, unnecessary and dangerous actions of the workers themselves."

7. Mr Sakhrani had elaborated on all these points in a very clearly structured written submission. He emphasized that the present case disclosed a situation where the workers had deliberately taken upon themselves to construct a substandard platform. He said that had they made the simple request, the appropriate platform would be built for their use. He argued that if the workers had ignored the procedure and erected an obviously dangerous platform for themselves, then there was nothing the appellant could do because no safety system could be fool proof when the workers were determined to do it their way. Counsel listed out nine points to illustrate that there was a risk management and work safety system adopted on the site. He stressed that the appellant had the ability and the willingness to build suitable platforms for the workers at the latter's request.

8. In light of the appellant's submissions, one could not help but ask why in such circumstances, the workers still chose to take the risk and built their own "home-made" platform instead of making what was described as a simple request. These workers should know the risk involved if they used substandard platforms. What could be their concern for not making the request, especially when their wages appeared to be calculated on a daily basis and they would not suffer any personal loss even if the job would take another day longer (see pages 176, 177 Transcript). One of the Magistrate's findings, on this matter, was the pressure of time. In paragraph 36 of his Statement of Findings, the Magistrate stated that "PW6, the site foreman of Bun Kee required the steel binding works in question to be completed within 2 days. The fatal accident happened on the second day of the schedule. The workers were in fact working on a tight schedule." He further stated the following in paragraph 37.

"37. Although the erection of a proper platform by the qualified carpenters was said to take just about 2 hours to complete, the workers, particularly D2 simply could not afford to wait under such a tight schedule. D2's interest was in jeopardy if there was any delay in the completion of the works. Under the contract signed with Bun Kee, it was D2 who would be penalized financially for any delay. It was to serve the interest of D2 if the workers could save the 2 hours of waiting time for the appellant to erect a proper and safe working platform. Further time would be wasted to find the right person to make the request for the provision of such a platform. In order to secure a further assignment, the workers would observe the interest of D2 by working faster to meet the schedule. Obviously, a tight schedule served the interest of the appellant as well. D2, Bun Kee and the appellant, all of them stood on the same line with a view to completing the works on time. I found that if the appellant did not deliberately disobey the safety regulation, they turned to blind eye to it."

9. Counsel commented that the learned Magistrate had misconstrued the evidence and misled himself so much so that he found that the workers could not afford to wait in such a tight schedule. Counsel pointed out that D2 actually did not given evidence and none of the three workers said anything about a tight schedule etc. However, as I read the relevant paragraphs in the Statement of Findings, the Magistrate never said that D2 had given evidence and that his conclusions on this issue were obviously reached on the basis of his interpretation of the evidence and the inferences made thereof. Such findings would appear to be in accord with common sense or else why should the workers risked their lives to side-step the request for a proper platform.

10. Leaving that aside, counsel also complained about the Magistrate's comment that the representative of the appellant had turned a blind eye to the needs of the workers. He submitted that the implication of such a finding was that this team of workers had to be watched round the clock, but such a step would clearly be an unreasonable burden on the management.

11. I have to agree that no reasonable system of safety should require the responsible person to impose a round-the-clock supervision. However, there is a special feature in this case which could not be marginalized. There was no dispute that PW8, the registered safety officer, on the day before the accident, had discovered that members of the same team of workers were using an inadequate platform. Their work had to be stopped immediately until corrective measures were taken. Then PW7, the site agent, who was responsible for watching over the progress of the work and to supervise the safety measures, had inspected the work of the same team on the morning of the accident, and that he had not received any request for a platform.

12. But what could be the significance when the workers had been using some inadequate platforms. Objectively speaking, it could only mean that the workers actually need another platform in order to continue with their work. If PW8, a representative of the appellant, was aware of this situation, should there not be some steps taken to provide the necessary and adequate platforms for the workers? There may well be a general safety system in operation on the site. But in relation to the building of the platforms, the system seemed to respond to "express request" only. Here, the need for some higher platforms had been, in a way, manifested by the conduct of the workers and yet that "message" was ignored. The appellant should have responded to "actual need", instead of taking the position of "no request, no action". I believe that was what the Magistrate meant when he made the observation about the cart being put before the horse.

13. I believe the core of the Magistrate's finding had been clearly stated in paragraphs 33, 34 and 35 of the Statement of Findings :

"33. It had been suggested by defence that it was not possible for the appellant to have a safety officer to oversee each and every single work on site, hence the co-operation of all persons involved was essential. I accepted that we could not ask the appellant to do the impossible. In this case, the safety officer (PW8) of the appellant said that he had detected one day before the incident that the same team of workers had failed to use a safe working platform. Such detection by the appellant should put the appellant on the alert about the tendency of those steel-binders in using unsafe platform.

34. What those workers were doing on the date of the incident was just the same kind of works carried forward from the day before. The management of the appellant knew that wall number 6 had to be constructed on the date of the incident. Bun Kee had also provided sketches to guide the steel-binders to do their works. It would be an affront to common sense to say that the appellant, being the principal contractor of the site, did not know the progress of the steel binding works to wall number 6, namely that the workers were required to work on the upper half of that wall on the day in question.

35. The progress of works had reached a stage in which half of that wall had been concreted. What left to be done was the steel fixing works at the upper part of the wall. It was the only reasonable and irresistible inference to draw that the management of the appellant knew very well that the provision of a suitable platform was required in that morning. It was because the appellant knew that in that morning before the incident happened, the workers had to do the steel binding works at such a height. Without a platform of a suitable height, it was obvious to everyone that the workers could not carry out their works in relation to the steel binding works on the upper half of the wall. To suggest that the workers themselves should have raised the request to the appellant and/or D2 for the provision of such a platform was in effect putting the cart in front of the horse."

14. I have to agree with the Magistrate, particularly in the context of the relevant statutory provisions. It should be remembered that the regulations addressed the situation of a "failing to take adequate steps to prevent a person on the site from falling... ." This denotes the requirement of active steps as the respondent had, in my judgment, correctly submitted. I take the view that a system that waits for an express/explicit request from the manual workers would not be sufficient for the purpose of the Ordinance.

15. I have taken time to go through the transcripts and the relevant documents. Perhaps I would not have said that the safety measures and arrangements adopted on the site were all futile, but the Magistrate was entitled to his view based on his own assessment of the evidence. Despite the able arguments raised by counsel against certain individual findings made by the Magistrate, I cannot say that his decision to convict was wrong in the particular circumstances of this case. I find that there was nothing unsafe or unsatisfactory about the conviction.

16. I would therefore dismiss the appeal accordingly.