THE QUEEN v. SIME DARBY PROPERTY SERVICES LTD

MA No. 239 of 1993

-------------------

HEADNOTE

-------------------

Construction Sites Safety Regulations Cap.59 - Air-conditioning cooling towers not part of building - not construction site.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 239 OF 1993

-------------------

------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was convicted by Mr Tam in Tsuen Wan Magistrate’s Court on 26th February 1993 on an information which was in these terms :-

“Being the contractor responsible for the construction site at the Location stated below did in the Period stated below fail to ensure that there was, so far as was reasonably practicable, suitable and sufficient safe access to and egress from the cooling tower of the air-conditioning system installed on the roof of the building being a place on the said site at which two persons namely LAM Hoi-chuen and KONG Wai-hang at any time worked.

PERIOD :

on 16 June 1992

LOCATION :

2-12 Lung Tang Road, Tsing Lung Tau, Tsuen Wan, NT

CONTRARY TO :

Regulations 38A(a), 68(1)(a) and 68(2)(i) Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance.”

2. The appellant was fined $48,000 and now appeals against both conviction and sentence.

3. The following facts were admitted :-

“On 16.6.1992 the defendant was the contractor responsible for the servicing and maintenance of air-conditioning plants in a 2-storeyed building occupied by the China Engineers Limited at 2-12 Lung Tang Road, Tsing Lung Tau, Tsuen Wan, NT.

On that day two workers namely Mr Kong Wai-hang and Mr Lam Hoi-chuen (the deceased) were assigned to inspect and maintain the chillers/cooling towers of the air-conditioning plants installed at various locations on the rooftop of the said site.

In order to gain access to their working place, they had to go out of the window of the recreation room at top floor and climb up a metal cat-ladder to rooftop. To reach the cooling towers they had to walk along a concrete path of width 1150 mm. which was provided at the lowest edge of a pitched-roof, and then up the pitch roof of gradient 30 degree. On the other side of the path was the asbestos roofing of the recreation room. No guard rails were provided along the edge of this concrete path.

After they had worked at the cooling tower for about an hour it began to rain. The two workers went for shelter with Mr Kong came first and Mr Lam followed. After Mr Kong came down the roof he found the deceased was lying unconscious on the floor of the recreation room and there was a hole on the asbestos roof directly above him.”

4. The only prosecution witness was a factory inspector who testified, as an expert, that there should be railings along the workers’ route to the cooling tower. In particular he said that a railing might prevent a slip from the 30˚ slope to the asbestos roof. If it was raining the risk of this was much greater.

5. The General Manager of the appellant, Lam Kit-leung, gave evidence for the defence. He said that there were seven sets of air conditioning plants in the building and each had a “cooling tower or condenser” on the roof. The cooling towers could also be placed outside a window on a frame. He also said, rather strangely, condenser and cooling tower doing same function - only difference is power - one by water one by air.” He also said that the demolition of all cooling towers and the installation of window-type air-conditioners would not affect the building at all. He was not cross-examined.

6. In his statement of findings the magistrate, after setting out the prosecution and defence cases, said he was satisfied that, so far as was reasonably practicable, suitable and sufficient safe access to and egress from the cooling towers on the roof of the building was not properly maintained.

7. That sentence triggers the first ground of appeal, namely that the appellant was charged with failure to provide, not with failure to maintain, such access and egress. The magistrate has addressed the wrong charge. In the absence of any findings relating to the actual charge, the appeal must be allowed and the conviction quashed. As the question of a retrial arises, it is necessary to consider the remaining grounds of appeal.

8. Mr Macrae, who appears for the appellant, submits that the magistrate erred in holding that maintenance of the cooling tower on the roof amounted to maintenance of the building.

9. The appellant’s liability is as a contractor responsible for a construction site. That, according to Regulation 2, means a place where construction work is undertaken. “Construction work” is defined in section 2 of the ordinance as, inter alia, repair or maintenance of any structure or works specified in the Third Schedule. This includes :-

“1. Any building, edifice, wall, fence, or chimney, whether constructed wholly or partly above or below ground level.

9. Any water, electrical, gas, telephonic, telegraphic, radio, or television installation or works, or any other works designed for the manufacturing or transmission of power or the transmission or reception of radio or sound waves.

10. Any structure designed for the support of machinery, plant, or power transmission lines.”

10. It is admitted that the cooling towers were part of the air conditioning plants. Item 10 draws a distinction between plant and structure. Is an air conditioning plant an integral part of a building? There is no evidence to that effect.

11. The magistrate held :-

“The air-conditioning plants were there to enable the building to be used for a particular purpose. Without them the building could no longer be used in the same way it was being used. Without them the building was no longer the same building. The air-conditioning plants had become an integral part of the building.”

12. In Hutchison v. Cocksedge and Co Ltd (1952) 1 AER 696 it was held that the defendants were engaged not “in the construction ... repair or maintenance of a building” within the regulations, but in providing plant for a building, and therefore there was no breach of any statutory duty by them. Mr Macrae argues that, on this authority, maintaining plant is not maintaining a building.

13. In Price v. Claudgen Ltd (1967) 1 AER 695, the appellant, an electrician, was on the roof of a cinema, leaning over the edge and joining electric wires of a neon lighting installation, which was on the face of the building, in order to remedy a defect. The installation consisted of neon tubes outlining the features of the outside of the front of the cinema. The installation had been fixed and was maintained by the appellant’s employers; it was held in place by clamps attached to pins driven into the masonry. The current was suddenly switched on from inside the building. The appellant received a shock, fell off the roof and was injured. On appeal in an action by him against his employers for alleged breach of duty under reg.24 of the Building (Safety, Health and Welfare) Regulations, 1948, it was held that the operation on which the appellant was engaged was not repair or maintenance of a building within reg.2(1) of the regulations, since the neon installation was not part of the building but was something that was on the building; accordingly the regulations did not apply and no breach of statutory duty was established.

14. Lord Morris of Borth-Y-Gest said at p.698 :

“If the question is posed whether the appellant was engaged in the operation of repairing a building I think that the immediate answer would be in the negative. He was engaged in the operation of repairing the neon installation. He was repairing something which was on a building. If someone replaces a burnt out wire or mends a break in a wire in a neon installation on a building, it does not seem to me that it can reasonably be said that he is repairing a building. Both before and after such operation of replacement or repair the building will be the same : neither its structure nor its condition will be affected. Indeed, if such an installation were removed, the building as a building would (apart from any special facts and circumstances) be unaffected.”

15. However he was careful to say that the decision rested on the particular facts and concluded :-

“I agree with the Lord President that there may be many things, which could be attached to or hung on to or placed on to or in a building, which in no true sense would be or become a part of a building. There could be cases in which something was so fixed or installed or erected on or in a building as reasonably and properly to be regarded as a part of the building. For a determination of the present case I cannot think that a study of any authorities assists. In my view, it could not rationally be said that the operation which the appellant undertook was the repair of a building.

I would dismiss the appeal.”

16. I agree with Mr Macrae that it depends on the degree of attachment and the ease of removal. Mr Lam’s unchallenged evidence that the cooling towers could be placed on a frame outside a window and that window-type air conditioning could be installed instead persuades me that the removal of the cooling towers would not affect the nature of the building. The workers were therefore not repairing or maintaining a building.

17. The magistrate also found that the cooling towers fell into the category of water installation, included in Item 9 of the Third Schedule, and thus brought the maintenance work within the definition of “construction work”. His reasoning ran thus :-

“The cooling towers supplied cool air for the occupants of the building in the same way water tanks supplied flushing water for the occupants. Both stored water and discharged water to perform a useful function.”

18. There was no evidence that the cooling towers stored water. Nor was there evidence about the working of an air conditioning unit. It is certainly -to a layman - a complicated process involving gas, electricity, air and water. In the absence of such evidence I consider that the magistrate was not justified in coming to his conclusion.

19. Moreover, if it had been intended that air-conditioning plant should be a “specified structure or work” it would have been included in Item 9 of the Third Schedule.

20. I conclude that the appellant could not properly be convicted on an information laid under regulation 38A. The appeal is allowed and the conviction quashed. The fine if paid should be repaid to the appellant.