HKSAR v. CHINA ROAD ENGINEERING & INVESTMENT CO. LTD.

IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO. 268 OF 1998

HCMA268/98

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J U D G M E N T

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1. The Appellant was convicted by Mr Paul Kelly, sitting at Eastern Magistracy, on 21st February 1998 of a charge under Regulation 47(1) of the Construction Sites (Safety) Regulations, Cap. 59. The particulars of the charge are that the Appellant, being the contractor responsible for a construction site at 127-135 Wan Chai Road, such site being one where workmen were employed, and such workmen were liable to come into contact with a live electric cable, did before the commencement of the work at the site and during its progress, fail to take such measures as would prevent those workmen from being endangered by the live electric cable. The learned Magistrate imposed a fine of $23,000. The Appellant now appeals against his conviction.

2. The Defendant company is the contractor responsible for a construction site at the address mentioned, and that is a site which was being developed by the construction of a multi-storey building. During the course of constructing the building, it was necessary to use a tower crane. The tower crane had to be taken up from level to level as the development progressed and the procedure used was a standard procedure. An opening was made in the floor above which the tower crane was to be moved. The crane was then lifted to that opening. When the tower crane was moved to the level above, it was necessary for the opening to be closed. That was done by concrete back-filling, and in order to perform the back-filling, it was necessary to lay a bed of wooden planking. For the purpose of back-filling the opening, metal falsework was erected, and at the material time, it was erected on the 11th floor. That falsework extended to the top of the depth of the 11th floor so that it terminated at the ceiling, and the workmen who were required to do the back-filling of the opening used the top of that falsework as part of their working platform.

3. Running through the opening of the floor in question were the electric cables providing power to the tower crane and those cables included live electric cables. The electric cables had PVC insulation over them.

4. On 18th April 1997, one of the cables running through the 12th floor had the PVC insulation damaged, and as a result, the wires underneath the insulation became exposed. A worker, working on the 12th floor laying planks to cover the hole on the floor, touched one of the cables and received an electric shock. He was standing near the hole on the 12th floor and had touched one of the cables. After the accident occurred, the tower switch on the ground floor was immediately switched off thereby cutting off the electricity supply which went through the cables to the tower crane situated above the 12th floor.

5. Mr Grossman, appearing for the Appellant, submitted that until the cover, or the PVC insulation around the cable in question was damaged, the cable concerned was not live and it was only after the casing was damaged and the wire underneath the casing was exposed that the electric cable became live.

6. There was, during the trial, no evidence by any of the 10 witnesses who gave evidence on this particular point. I am not sure that at the hearing of the appeal the Respondent considered that Mr Grossman's submission on this particular matter was necessarily correct. In my view the electric cables which went through the openings of the individual floors became live as soon as the electricity supply was switched on. I do not accept that the wires only became live after the casing was damaged, thereby exposing the wires underneath the casing.

7. The evidence of Mr Chan Yau Man, an electrical & mechanical engineer of the Electrical & Mechanical Services Department, was to the effect that when he went to the site in question on 18th April 1997, he found that the PVC cables in question were not properly fixed and secured, and he found that the damaged PVC cables were loosely hanged under the floor opening, and the PVC cables could not be properly fixed and protected.

8. The evidence of Mr Tse Chi Shan, a senior electrical & mechanical engineer of the Electrical Engineering Discipline of the Labour Department, was that there was a total of five cables : three comparatively thicker and two thinner ones. He said that the three cables which were the thicker ones were called live cables. His evidence was that he found cables had been running from a floor opening from the tower crane, which by that date, had been raised to the 20th floor down to the 12th floor opening and then right down to the Ground Floor. He said that he found such an arrangement not good enough from the electrical safety point of view.

9. In his report, he said that the arrangement of the cables at the site was not satisfactory. The bundle of cables was not fenced off to avoid conflicting with other work activities or other installations. In the opinion of the witness, that would increase the chance of having the cables damaged accidentally, and it would impose an electrical hazard on people working in the vicinity, in case the cables or the related electrical circuit became defective. He found that the cables had no protective devices so that the cables were freely hanging around and, in his opinion, this was not safe enough.

10. In the witnesses' opinion, because the bundle of cables was not properly fixed and supported, their own weight would impose strength on the cable terminations and on the cables themselves, and this might result in cable damage in extreme situations. In the opinion of the witness, the cables, providing power to the crane, should be protected from mechanical damage by one or more of the following means :

1. the cables should be running in conduits, or in trunking, or on trays;

2. the cables should be clipped to a structure in a position where they would be protected from mechanical damage; and

3. the cables should be of armoured construction.

11. In my judgment, as I stated above, the electric cables in question did not become live only if the outside casing was damaged, thereby exposing the wires underneath the casing. In my view, the electric cables became live as soon as, or whenever the electrical supply supplying electricity to the crane was switched on. If the electrical supply was switched off, and whenever it was switched off, then the wires would cease to become live wires. Whenever the wires became live and where workmen employed at the construction site were liable to come into contact with them as in this case clearly they were, then the contractor responsible for the site shall, both before the commencement of the work at the site and during its progress, take such measures as will prevent the workers from being endangered by the cable. The measure suggested in the Regulation 47(1) of rendering the cable or apparatus electrically dead is only one of the measures which can be taken by the contractor, and that measure is mentioned really only by way of a suggestion. What the contractor is required to do under the regulation is to take such measures as will prevent the workers from being endangered by the electric cables.

12. In my judgment, in the present case, the contractor responsible for the site, namely, the Appellant, failed either before the commencement of the work or during its progress to take the necessary measures to prevent the workers from being endangered, and it was as a consequence of that that the worker concerned was electrocuted on 18th April 1997.

13. Mr Grossman's submission was that it was only after the casing was damaged that the electric cable became live, and that it was only after the electric cable became live that the contractor had the responsibility to take the measure of rendering the cable electrically dead. I cannot agree with that submission. The measures should have been taken before the commencement of the work or during its progress and should have been taken if there was a likelihood of any workmen coming into contact with the live electric cables.

14. The Hansard Report of 16th August 1978 confirms that the Factories & Industrial Undertakings Ordinance was passed to ensure the health and safety at work of people who work in construction sites. On that day, in moving an amendment to a regulation under the Ordinance, Sir S.Y. Chung said :

"During the past ten years, we in Hong Kong have introduced a spate of Labour Legislation with a view to providing minimum standards for our workforce, firstly, in respect of health and safety at work and, secondly, in respect of job security and fringe benefits."

15. What I have said above is enough to dispose of the appeal. However, out of deference to Counsel's submissions, I would deal with the question of whether the offence created by this particular regulation is one of strict liability. In my judgment, this offence is a strict liability offence.

16. Looking at the whole of the legislative scheme in context, in my judgment, it was a necessary implication of this statute's effect that the prosecution does not have to prove knowledge on the part of the Defendant that an electric cable has become live before the Defendant is under the obligation to take the necessary measures. As long as workmen employed at the construction site are liable to come into contact with any live electric cable or apparatus, the contractor responsible for the site has the responsibility to take the measures to prevent the workers from being endangered. This obligation arises whether or not the Defendant has knowledge that on any particular occasion any workmen are liable to come into contact with any live electric cables and is irrespective of whether the Defendant has knowledge that any electric cable, or cables, or apparatus have become live.

17. The five propositions mentioned by the Court of the Appeal in Attorney General v. Fong Chin Yue & Others [1995] 1 HKC 21 as they were expounded by Lord Scarman in Gammon (Hong Kong) Ltd. v. A.G. [1985] AC 1 have, in my view, complete application to the circumstances of this particular case.

18. It is quite clear that in this particular case, the regulation is concerned with an issue of social concerns, namely, public safety and therefore the presumption that mens rea is required before a person can be held guilty of a criminal offence can be displaced. It is also my view that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to ensure due compliance with the regulation. This regulation is not so much concerned with the commission of a prohibited act but rather the obligation to take measures to prevent workers from being endangered by live electrical cables or apparatus which workmen are liable to come into contact with.

19. The appeal against conviction is therefore dismissed.