HKSAR v. COMFORT LAUNDRY CO LTD

HCMA848/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 848 OF 2010

(ON APPEAL FROM TWS 7498 OF 2010)

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JUDGMENT

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The appellant company appeals against its conviction on 12 October 2010 following a trial by Ms Merinda Chow, it being the proprietor of a notifiable workplace, of the offence of not rendering and maintaining in a non-slippery condition the surface of the floor of a passageway in front of washing machines in that workplace on 8 December 2009, contrary to Regulations 39(2), 46(1)(b) and 46(2)(c) of the Factories and Industrial Undertakings Regulations made under the Factories and Industrial Undertakings Ordinance, Cap.59. In consequence of the conviction, the appellant was fined $5,000.

THE TRIAL

The prosecution case

2.  At the trial Mr Singh Gurmalkia (“Mr Singh”), an employee of 10 years standing of the appellant company, testified that at about 4:30 p.m. on 8 December 2009, he had slipped on the wet floor and fallen to the ground as he was pushing a trolley that he had loaded with freshly laundered, partly wet sheets from a nearby washing machine.  Each load of laundry was about 80 kg in weight.  Either because the wheels were misaligned or not maintained properly there were difficulties in maneuvering the trolley.  He had lost his footing as he exerted the extra effort required to get the trolley containing its heavy load of laundry underway.  As a result, he sustained injuries to the left side of his hip and shoulder, evidenced by a considerable swelling in those places.  His colleague Mr Ho Tai Shing (“Mr Ho”) helped him get up from the floor and obtained some medicated oil which he rubbed on the injured parts of his body. On the following day he attended Princess Margaret Hospital.  Thereafter, until the date he gave evidence in September 2010 he had been granted sick leave and had attended that hospital as an outpatient.

3.  Mr Singh testified that the floor was wet because the washing machines leaked water whilst in operation.  At the beginning of his working day, namely between 5:30 and 6:00 a.m. the floor was dry, it having been wiped dry before work ended the previous evening. Whilst the washing machines were in operation during the day they leaked water, as a result of which containers were placed nearby on the floor to catch significant flows of water from the machines and sheets placed on the floor to mop up the excess water flow.  This was a regular occurrence, as a result of which he wore sports shoes with a non-slip sole.  In the morning and afternoon he and other colleagues had emptied those containers of their contents of water and replaced them.  During the day he had slipped several times, as he pushed the trolley with its load of laundry as a result of the presence of the water. However, he had been able to maintain his balance.

4.  He denied that he had not slipped at all, as he did the suggestion that he had suffered an epileptic fit.  He denied that he had ever fallen to the ground because of an epileptic fit or convulsion.  His problem was that on occasions he felt dizzy for a few seconds, no more than that.

The defence case

5.  Mr Tsui Chun Kit (“Mr Tsui”), the supervisor of the appellant company, testified that Mr Singh had been assigned to work that day in the company’s premises for his part, on the 26^th floor of Kingston Industrial Building Kwai Chung.  For most of that day Mr Tsui performed his duties on the 25^th floor of the building. However, he visited the 26^th floor in the morning of 8 December 2008 and did not notice a wet floor.  Similarly, sometime between 5:30 p.m. and 7:00 p.m. he had returned to that place and noticed that the floor was dry. 

6.  Mr Ho, a fellow employee of the appellant company, testified that he had seen Mr Singh between 4:00 and 4:30 p.m. in the area in which Mr Singh testified that he had slipped and fallen to the ground.  The floor was dry.  He came across Mr Singh in a half crouched and half squared position holding onto a board with two hands.  In response to his complaint that he was in pain he went and fetched medicated oil.  Mr Singh did not wish to use it.  Mr Singh did not complain that he had fallen down.

STATEMENT OF FINDINGS

7.  The magistrate stated that she accepted Mr Singh’s evidence that the floor was wet and slippery and that was what had caused him to fall and sustain injury.

8.  In rejecting the evidence of the witnesses called on behalf of the appellant company, namely Mr Tsoi and Mr Ho, the magistrate observed that they had “their interest to serve”, namely that they were still in the employ of the appellant company and had come to court to assist the defence assertion that the floor was dry at the time of the incident.

9.  In particular, the judge rejected Mr Ho’s evidence that when he went to assist Mr Singh in the afternoon of 8 December 2009 that he had noticed that the floor was dry.  In the context of his evidence, namely that he had not helped Mr Singh up from the floor and had not received a complaint from him that he had slipped and fallen to the floor she found “it was not necessary for him to notice whether the floor was dry or wet.”

10.  Similarly, she rejected Mr Tsui’s evidence that he too had noticed that the floor was dry on the afternoon of 8 December 2009.  She noted that it was not until 10 December 2009 that Mr Tsui learned that it was alleged that Mr Singh had suffered a fall on 8 December 2009.  Accordingly, there was no reason for him to have taken the trouble to observe the state of the floor on that particular afternoon. Furthermore, she noted that Mr Tsui’s evidence that he had witnessed Mr Singh collapsing whilst at work on five or six occasions over the years was at odds with the evidence that he permitted Mr Singh to be alone at work in the first hour of each day.  Permitting that arrangement was to risk Mr Singh collapsing while he was alone for the first hour of that working day.

11.  The judge stated that she attached no weight to a medical referral letter in respect of Mr Singh, dated 2 February 2009, from a consultant in the Accident and Emergency Department of Princess Margaret Hospital to a Consultant Physician.  The letter referred to Mr Singh as having had convulsions three times on the day of admission and of a history of convulsions “2-3 x/day and usually lasts for a few minutes”. She noted that Mr Singh had denied that he had had convulsions and said that there was a “language barrier” between him and the doctor.  Further, she observed that it had been very difficult to understand Mr Singh in court when he had spoken in English and that it was necessary to rely on interpretation of his evidence given in Urdu. 

GROUNDS OF APPEAL AGAINST CONVICTION

12.  It was contended in the grounds of appeal against conviction on behalf of the appellant that the judge had erred in finding that the defence witnesses, Mr Tsoi and Mr Ho, as current employees of the appellant “had an interest to serve”, which determination was compounded by her failure to find that Mr Singh also had an interest to serve in giving his evidence.  Further, the reasons that she gave for rejecting the evidence of those witnesses (see paragraphs 8 to 10) were flawed. Next, she erred in accepting the evidence of Mr Singh, in particular as to the flooding/wet condition of the floor in the area outside the washing machine : that evidence was inherently improbable and contradicted by Mr Tsui and Mr Ho. 

13.  It was submitted that the magistrate was wrong to place no weight on the medical report on Mr Singh, in particular in respect of the issue of his convulsions.  His denial of suffering convulsions was contradicted by the testimony of Mr Tsui, who claimed to have witnessed Mr Singh collapsing on five or six occasions.  Finally, the magistrate was wrong to determine that it was an “unbelievable” that the appellant company would have tolerated regular absences from work two to three times a year, for period of one or two days at a time.

A CONSIDERATION OF THE SUBMISSIONS

Overflow of water onto the floor

14.  As the judge noted, there was a long-standing problem of water overflowing into the area in which Mr Singh testified that he slipped and fell.  Although the size of the nullah which drained soiled water from the washing machines remained the same, as the years went by more washing machines were put into use, so that there were no fewer than 14 washing machines installed on the premises at the material time.  When the cycle of the washing machines resulted in water being discharged at the same time the volume of water was more than the capacity of the nullah.  As a result, in the period 2003-2004 a system was introduced which automatically activated a pump which diverted some water out of the nullah and discharged it through another pipe.  It was Mr Singh’s evidence that four machines were in simultaneous operation at the time of the incident and that the pump was not working on 8 December 2009.  That evidence was not contradicted by other evidence.

15.  The judge noted that, in effect, the appellant company tolerated a situation in which from time to time water overflowed onto the floor adjacent to the washing machines.  One consequence was that detergent, washing oil and bleach used in the washing machines leaked over the floor creating a slippery surface.  In that context, it is to be noted that Mr Singh’s testimony was that when work finished at the end of the day prior to 8 December 2009 the floor was wiped “to make it dry”, as a result of which at the beginning of work on 8 December 2009 the floor was dry. That evidence was not contradicted by other evidence.

16.  The attack made on the magistrate’s reasoning for disbelieving the evidence of Mr Ho and Mr Tsoi that the floor was dry when they viewed it on 8 December 2009 is, with respect, misplaced. It was relevant to Mr Ho’s evidence in that he denied not only having helped Mr Singh up from the floor but also having received a complaint that he had slipped and fallen.  Mr Ho testified that he had encountered Mr Singh in a half squared and, therefore, partially upright position.  In those circumstances, there was nothing out of the ordinary to draw his attention to the state of the floor.  Similarly, the magistrate was entitled to have regard to the fact that when Mr Tsui visited on the 26^th floor on 8 December 2009 he was unaware that it was alleged that Mr Singh had slipped and fallen earlier on the that floor earlier that day.

17.  Further, the magistrate was entitled to caution herself that Mr Tsui and Mr Ho had an interest to serve in giving their testimony.  Clearly, it was relevant that they continue to be employed by the appellant company.  Moreover, both of them exercised a supervisory jurisdiction over Mr Singh at the time of the alleged accident.  Each of them bore a level of responsibility for ensuring that he worked in a safe environment.  Conversely, in answer to her own enquiry as to whether or not there were civil proceedings on foot, the magistrate had been informed that the matter had been reported by Mr Singh to the Labour Department as an industrial accident.  Obviously, the magistrate was aware of Mr Singh’s interest in the proceedings.

The medical referral letter

18.  In determining to place no weight on the medical referral letter in respect of Mr Singh of 2 February 2009 it is clear that the magistrate accepted Mr Singh’s testimony that there was a “language barrier” between him and the consultant of the Accident and Emergency Department of Princess Margaret Hospital.  Having listened to Mr Singh give evidence for no less than one whole day, the magistrate was particularly well-placed to make the finding that she did, namely that Mr Singh had great difficulty in making self understood in English.  Of relevance to his abilities to communicate in languages other than Urdu it is to be noted that it was Mr Tsui’s evidence that Mr Singh spoke only a little Cantonese, adding that he communicated with him “in sign language or just some simple wordings”.  In any event, as the magistrate noted, there was no evidence of the circumstances in which the author of the medical referral letter had received the information which resulted in the factual assertions set out in the referral letter.  Furthermore, very obviously the note taken by the consultant, that Mr Singh suffered convulsions “2-3 x/day and usually last for a few minutes”, was wholly different from that given in testimony by Mr Tsui of having observed Mr Singh over a ten-year period collapsing on no more than five or six occasions.  In all those circumstances, the magistrate was entitled to afford that evidence the weight that she did.

Mr Singh’s absence from work

19.  The magistrate’s determination, in respect to Mr Tsui’s evidence, that it was “unbelievable” that the appellant company would tolerate Mr Singh’s absence from work “on average three times a year” is, without more, surprising.  However, it is to be understood in context.  In his evidence-in-chief Mr Tsui said that Mr Singh was absent from work “without any notice or any telephone call”.  Of the frequency of those occurrences, he said it was “maybe one or two times a month — suddenly absent from work.  Each time when he came back he explained to me that he got a fever, headache.”  However, in cross-examination when the magistrate posed a question, Mr Tsui answered that the absences were “once in 3 to 4 months, or once in 4 to 5 months.”  Finally, he agreed with the magistrate’s suggestion that it was at least three times a year.  It is to be noted that this issue was never raised with Mr Singh at all, certainly not in cross-examination.  In true context, it is clear that the magistrate’s determination related to the assertion that Mr Singh conducted himself as a persistently thoughtless employee, indifferent to the consequences of his absence at work.  She was entitled to make the finding that she did.

CONCLUSION

20.  In all circumstances, and for the reasons set out above, I am satisfied that there is no merit in any of the grounds of appeal against conviction advanced on behalf of the appellant.  Accordingly, the appeal is dismissed.