HKSAR v. WOO HING HOLDING LTD t/a WOO HING CO

HCMA 590/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL CASE NO. 590 OF 2009

(ON APPEAL FROM KCS 36106 and 36107 OF 2008)

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J U D G M E N T
(PART I)

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1.  All three magistracy appeal cases relate to accidents on three different construction sites in HCMA 590/2009, 922/2009 and 102/2010 consolidated.

Background

2.  All three magistracy appeals relate to accidents on construction sites and the consequence of which each Appellant was convicted after trial of an offence under s.13(1) of the Factories and Industrial Undertakings Ordinance, Cap.59.  These three appeals were therefore consolidated to be heard before me because they share a similar ground of appeal in relation to the proper construction of s.13(1) and whether it is consistent with the Hong Kong Bill of Rights (Cap.383).  Mr Jenkyn-Jones represents the Appellants in HCMA 590 and 922/2009 and Mr Grossman, SC appears on behalf of the Appellant in HCMA 102/2010.  Submissions of Mr Jenkyn-Jones on this shared ground was adopted by Mr Grossman.  I propose therefore to deal with this common ground of appeal first before going on to deal with the individual grounds relating to the separate appeals.

S.13(1) of the Factories and Industrial Undertakings Ordinance (hereinafter referred to as FIUO), Cap. 59

3.  It is submitted by Mr Jenkyn-Jones:

(1)  Upon a proper construction of s.13(1) in conjunction with s.6A of the Factories and Industrial Undertakings Ordinance, Cap. 59, the “general duties” imposed upon a proprietor under s.6A of that Ordinance in respect of persons employed by him can not extend to person not employed by him; accordingly on the evidence available, the Appellant contractor should not have been charged and could not have been convicted of the offence.

(1B)  Further and alternatively, if s.13(1) in conjunction with s.6A of the FIUO can, upon proper construction, extend a proprietor’s general duties to persons not employed by him, such a construction is inconsistent and non-compliant with the Hong Kong Bill of Rights (Cap.383) and s.13(1) accordingly stands impliedly repealed in its operation in connection with s.6A FIUO offences.

4.  It is appropriate at this stage to set out s.13 of the FIUO here:

“ Liability of proprietor

(1) Except as may be otherwise provided by regulations made under this Ordinance, the proprietor of every industrial undertaking in or in respect of which any offence against this Ordinance has been committed shall be guilty of a like offence, and shall be liable to the penalty prescribed for such offence.

(2) It shall be no defence to a prosecution of the proprietor of an industrial undertaking for an offence against this Ordinance that the offence was committed without his knowledge or consent or that the actual offender has not been convicted of the offence.

(3)     Nothing in this section shall apply to an offence under section 6B or 6BA (15). (Added 71 of 1989 s. 9.  Amended 53 of 1999 s. 7)”

5.  S.2(1) of FIUO defines “proprietor” as:

“in relation to any industrial undertaking or notifiable workplace includes the person for the time being having the management or control of the business carried on in such industrial undertaking or notifiable workplace and includes a body corporate and a firm and also the occupier of any industrial undertaking or notifiable workplace and the agent of such occupier; (Amended 50 of 1985 s. 2; 71 of 1989 s. 2)”

6.  Before going further it is also helpful to set up the provisions of s.6A of the FIUO which reads as follows:

“General duties of a proprietor Version Date: 30/06/1997

(1) It shall be the duty of every proprietor of an industrial undertaking to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking.

(2) Without prejudice to the generality of a proprietor’s duty under subsection (1), the matters to which that duty extends include in particular-

(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking;

(d) so far as is reasonably practicable as regards any part of the industrial undertaking under the proprietor's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; and

(e) the provision and maintenance of a working environment for all persons employed by him at the industrial undertaking that is, so far as is reasonably practicable, safe, and without risks to health.

(3) Subject to subsection (4), a proprietor of an industrial undertaking who contravenes this section commits an offence and is liable to a fine of $500000. (Amended 40 of 1997 s. 2)

(4)   A proprietor of an industrial undertaking who contravenes this section wilfully and without reasonable excuse commits an offence and is liable to a fine of $500000 and to imprisonment for 6 months.  (Amended 40 of 1997 s. 2)”

7.  It is not disputed that in the present day in most cases, if not all, the tendency is to give statutes a purposive construction, consistent with s.19 of the Interpretation and General Clauses Ordinance, Cap.1.  It is not in dispute as Mr Jenkyn-Jones submitted that penal statutes which are of doubtful construction should be construed generally in favour of those adversely affected by an alternative interpretation, and it is presumed that the legislature intends the court when considering opposing interpretations, would find against a construction that creates anomaly or otherwise produces an irrational or illogical result. 

8.  It is also not in dispute that s.6A covers the liability of a proprietor of an industrial undertaking to persons employed by him.

9.  Mr Jenkyn-Jones submitted that it is illogical to conclude that the “like offence” in s.13 would cover a s.6A offence because s.6A only alludes to the liability of an employer to employee directly employed by him. 

10.  Mr Jenkyn-Jones also submitted that in a situation where a sub-contractor wilfully commits an offence, it renders the main contractor equally liable without any defence, and in those circumstances the decision as to whether to prosecute under s.13 would be at the discretion of the Director of Public Prosecutions and that would create an uncertainty that would result in unfairness to the person charged.

11.  Mr Jenkyn-Jones correctly submitted that it would appear that s.6A of the FIUO is in almost identical terms to s.2(1) of the Health and Safety at Work Etc. Act, 1974 in the United Kingdom, which reads:

“2(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

2(2) Without prejudice to the generality of an employer’s duty under the preceding subsection, the matters to which that duty extends include in particular –

(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employee;

(d) so far as is reasonably practicable as regards any place of work under the employer’s control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;

(e) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.”

12.  The adoption of this legislation in Hong Kong necessitated the introduction of s.18 in the FIUO which reads as follows:

“(1) In a proceeding for an offence under a provision of this Ordinance consisting of a failure to comply with a duty or requirement to do something so far as is necessary, where practicable, so far as is reasonably practicable, or so far as practicable or to take all reasonable steps, all practicable steps, adequate steps or all reasonably practicable steps to do something, the onus is on the accused to prove that it was not necessary, not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that he has taken all reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty or requirement.”

13.  Mr Jenkyn-Jones further submitted that the Hong Kong legislature deliberately did not seek to introduce the equivalent of s.3 of HSWA 1974 into the Hong Kong legislation.  S.3 made provision for an employer’s general duties to persons who were not in his employment and it reads as follows:

“3(1) It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, as far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”

14.  Mr Jenkyn-Jones submitted that s.7 of the Occupational Safety and Health Ordinance, Cap.509 effectively introduced a similar section to s.3 of HSWA 1974 into the Hong Kong legislation.  However, s.7 of the Occupational Safety and Health Ordinance merely covers the liability of the person responsible for a workplace with respect to means of egress from the workplace.

15.  It is clear to me therefore that s.13 of FIUO was introduced in Hong Kong in order to cover the special circumstances pertaining to Hong Kong particularly in the construction industry.  Because of the growing problem of industrial accidents in Hong Kong the legislature had felt it necessary to legislate so as to encourage proprietors of industrial undertaking to be proactive and meticulous in the management of the industrial undertaking under their control to minimise as far as possible industrial accidents leading to tragic consequences.  Therefore, I do agree with Mr Jenkyn-Jones that the legislature deliberately did not follow s.3 of the HSWA 1974 because they must have felt that it did not properly cover the Hong Kong situation, and that it was necessary to enact a section with a more far reaching coverage of the Hong Kong situation, and that is why s.13 was duly passed and enacted.

16.  Mr Jenkyn-Jones submitted that s.13 inapplicability was obvious because the prosecution had never chosen to use it until after the case of HKSAR v China Overseas Building Construction Ltd, [2007] 2 HKLRD 216.  And since then according to Labour Department record, eight prosecutions have been laid under s.6A and s.13(1).  Mr Jenkyn-Jones submitted that this was due to a misreading of McMahon J’s obiter remarks in that case.

17.  For a better understanding of his argument, one should first take a look at the China Overseas Building Construction Ltd case.  

18.  In that case the Appellant was charged with s.7(1)(a) and s.7(2) of the Occupational Safety and Health Ordinance for failing to ensure the safety of a construction site.  The facts briefly were that a pump operator employed by a sub-contractor was killed while operating a concrete pumping machine.  The sub-contractor was responsible for the supply, installation, maintenance and operation of the machine.  And trucks delivering concrete were normally directed into position by a workman who was employed by a different sub-contractor.  At the material time, the workman had left his post and the pump operator had assumed both jobs, resulting in the pump operator being struck and crushed by one or both of the trucks he had been dealing with next to the pumping machine.  At paragraph 13 of his judgment, McMahon J said:

“It is in my view clear from the magistrate’s findings that the faults he found related to the system of work which was used in the operation of the concrete pump. He made no finding that the physical site itself was, for any reason, unsafe. Indeed, to the contrary, he specifically found that it was properly provided with warning signs, fencing and safety mirrors and the like.”

19.  McMahon J correctly pointed out that s.6 “intended an employer to be responsible for the system of work which his employees used”.  And that s.7(1)(b) and (c) of the Ordinance are “matters relating to the physical state of the premises or the things upon it”.  And McMahon J went on to say at paragraph 21:

“21.  There can be seen, if that is the case, that there is considerable policy common sense in that view. It would mean, for example, that an occupier of commercial premises which were being renovated so far as its electrical wiring was concerned would not be responsible for the safety of the system of work adopted by the professional electricians provided by a contractor whereas their employer, the contractor, would be. That would, on its face, seem to be a perfectly sensible result.

22.  One matter concerned me however. A situation may well arise where there are premises upon which there is a worksite where employees of a contractor (or sub-contractor where the principal contractor controls the whole of the site) are working who are partially at least subject to the authority and therefore the directions of the occupier or principal contractor.

23.  If the occupier or principal contractor requires the work to be done in a particular way which is unsafe, then pursuant to the above construction of section 7, he may not be liable as his directions would go only to the system of work, and if the premises are themselves safe then no liability would attach to him.   That would seem to run counter to the purposes of the legislation.”

20.  It was only after those considerations that McMahon J pointed out obiter that s.13 of the FIUO would appear to cover the specific concern he had in mind.  Thus Mr Jenkyn-Jones asserted that not only was the remark obiter, but that it was specifically directed at a specific situation where the proprietor of an industrial undertaking who had partial authority over the workman of a sub-contractor and give him directions which were unsafe would be caught by s.13.  Mr Jenkyn-Jones submitted that it is due to a misunderstanding of the judgment of McMahon J that prosecutions have been launched in cases like these, where there is no evidence that the Appellant had partial or any authority over the system of work of the employees of the sub-contractor, and therefore they should not be caught by s.13.

21.  Counsel for the Respondent submitted that statutory language should be given its natural and ordinary meaning (see HKSAR v Cheung Kwun Yin [2009] 6 HKC 22), and it is clear that Cap.59 was enacted to ensure that places of work including factories and industrial undertakings are safe for the people working therein (see HKSAR v Chun Wo Building Construction Ltd [2001] 3 HKC 5), and that the proprietor of an industrial undertaking owe the duty of care to people other than his own employee (see R v Swan Hunter Shipbuilders Ltd & another [1982] 1 All ER 264).

22.  The Respondent are relying on the recent case of Hin Lin Yee v HKSAR [2010] 2 HKLRD 826.  In that case the 1^st and 2^nd Defendants were charged with selling a drug intended for use by man but unfit for that purpose, contrary to s.54(1) of the Public Health and Municipal Services Ordinance, Cap.132.  Additionally the 1^st Defendant was charged with possession for sale a drug which had not been registered by the manufacturer with the Pharmacy and Poisons Board under Regulation 36(1) of the Pharmacy and Poisons Ordinance, Cap.138A subsidiary legislation.  The 1^st Defendant was proved to have had on four occasions prescribed for children who were his patients a medicine labelled as “Piriton” which was unfit for human use because it was contaminated with isopropyl alcohol.  The 2^nd Defendant was the 1^st Defendant’s clinical assistant and had engaged in selling the contaminated medicine on one of those four occasions.  The Court of Final Appeal held that:

“(2) If the presumption that the prosecution had to prove the mens rea for the statutory offence was displaced, by express on necessary implication, three possible alternatives arose:

(a) First, that there was a common law defence that would absolve the defendant if he or she could prove on the balance of probabilities that the prohibited act was done in the honest and reasonable belief that the circumstances was such that, is true he or she would not be guilty of the offence (the common law defence). This common law approach was not somehow automatically excluded by the fact that the subject matter of the offence was ‘safety legislation’;

(b) Second, if the common law defence was clearly inconsistent with express statutory defences relating to the honest and reasonable belief of the defendant, then the former would be displaced and the defendant would be confined to the latter;

(c) Third, the presumption of mens rea had been displaced to a point where the statute created an offence of absolute liability then the common law defence was unavailable.

(3) In deciding whether the presumption of mens rea had been displaced expressly or by necessary implication, the first, and potentially crucial, consideration was a statutory language, including the use of words carrying a connotation of knowledge or intention. Second, the nature and subject matter of the offence was also of great importance. The more serious the offence in terms of penalty and social obloquy, the less likely it was that the presumption would be held to have been supplanted, although this was not impossible. On the other hand, there was generally less need to feel inhibited about overriding the presumption in relation to what might compendiously be called ‘regulatory offences’, e.g. public health, licensing and industrial legislation. Third, the legislative purpose, and its possible frustration by insisting on full mens rea, was obviously important (Gammon (Hong Kong) Limited v AG of Hong Kong [1985] 1 AC 1 applied; …

(4) Given the severe consequences, it should only be found that an absolute liability arose where the conclusion was compelling. The mere fact that the relevant defence was regulatory was not sufficient, of itself, to justify absolute liability. Rather, as per the Lim Chin Aik Principle, it was necessary to justify absolute liability on the basis that it served some useful purpose, i.e. it could affect observants of the law. Further, the Lim Chin Aik Principle was supplemented by an additional consideration, namely the court had to be satisfied that the statutory purpose could not sufficiently be met by making the offence subject to the common law defence (Lim Chin Aik v R [1963] AC 160, Gammon (Hong Kong) Limited v AG of Hong Kong [1985] 1 AC 1 applied …

(5) There were two situations, amongst others, where absolute liability might in principle be imposed.  The first class was where the law did not consider the conduct in question to be essential or even necessarily acceptable from a societal point of view, as in the case of certain sexual offences.  The second class involved the statutory imposition of the duty on a person (which might be a corporate body), where the conduct or task which was the subject of the duty was in practice likely to be carried out by someone else, such as an employee or a contractor.  Many regulatory offences might fall within this second class (He Kaw Teh v The Queen [1985] 157 CLR 523 applied; So Wai Lun v HKSAR [2006] 9 HKCFAR 530 followed)”

23.  Thus, the Respondent submitted that the appeals in this case fall within the two types of situations where absolute liability might be imposed, and as Ribeiro PJ explained at paragraph 157 of the judgment:

“… the job having been assigned to an employee or contracted out, the employer may truthfully know nothing about the conduct and circumstances constituting the breach. The intermediate defence may not be enough to secure the statutory purpose. The employer may possibly say that he took all reasonable care to entrust the task to a competent employee or specialist contractor and honestly and reasonably believe that the duty was being properly discharged.”

Therefore, the Respondent argues it is the clear intention of the legislature that s.13 is an absolute liability offence as can be seen from s.13(2) where it clearly stipulates that it is no defence for a proprietor to claim that he had no knowledge and had given no consent or that the actual offender had not been convicted of the offence.  The Respondent thus argues that s.13 do not derogate from the presumption of innocence but rather it is a displacement of mens rea, and the question is whether the creation of an absolute liability offence in these circumstances is justified.  They further argue that even if it is a derogation from the presumption of innocence, such derogation is well justified.  They play in aid the case of HKSAR v Ng Po On [2008] 11 HKCFAR 91 where Ribeiro PJ set out the approach in dealing with the justification of a derogation of the presumption of innocence citing HKSAR v Lam Kwong Wai & Another [2006] 9 HKCFAR 574 (paragraph 43):

“(1) is the derogation rationally connected with the pursuit of a legitimate societal aim (the rationality test); and

(2) are the means employed, the imposition of the reverse persuasive onus, no more than is necessary to achieve that legitimate aim (the proportionality test)?”

24.  Therefore, the Respondent argues any derogation of the presumption of innocence under s.13 is rationally connected with the pursuit of a legitimate societal aim, placing the burden on proprietors to ensure the health and safety of all persons working at the industrial undertaking even though those persons are not employed by him, and this duty of the proprietor is not delegable.  The operation of s.13 can encourage vigilant supervision and management on the part of proprietors, and it cannot absolve him of his duty that he had sub-contracted the work to a sub-contractor.  Therefore, s.13 passes the rationality test and further passes the proportionality test as such derogation is no more than is necessary to achieve the legitimate aim.  It was submitted that s.13 promotes diligent proactive management and supervision on the part of the proprietor. 

25.  It is clear from a historical perspective that the FIUO was introduced to promote the safety of workers in industrial undertakings at a time when it was long overdue.  The growth and prosperity of Hong Kong, both in the manufacturing and construction industry, was at an all time high and in the pursuit of profits accidents happened due to the lack of diligence in protecting the health and safety of workers in such industries, and very often the health and safety of such workers were sacrificed at the altar of profiteering.  It is also clear that s.13 was introduced to curtail the ability of proprietors of such industrial undertaking from being absolved of responsibility by the mere fact that they had sub-contracted parts of their work to other sub-contractors, and therefore, can wash their hands off from looking out for the welfare of workers in their industrial undertaking over which they had control.  There is therefore, no doubt in my mind that it was necessary to create s.13 as an absolute liability offence to meet the challenges that existed and still exist for the proper protection of the health and safety of the workers in the industrial undertakings in Hong Kong.

26.  Having said that it is clear that in this case when one look at s.6A that the employer under s.6A can prove on the balance of probabilities under s.18 of the FIUO that it was “not necessary, not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that he has taken all reasonable steps, or practicable steps or done the appropriate things to satisfy the duty or requirement.”  But as Mr Jenkyn-Jones pointed out if s.13 is viewed as an absolute liability offence, situations may arise where an employer is charged under s.6A gets to be acquitted because he has managed to prove on the balance of probabilities that what was alleged was not reasonably practicable, but yet the proprietor of the industrial undertaking charged under s.13 for the same incident is convicted, despite the acquittal of the direct employer, therefore Mr Jenkyn-Jones asserts this creates anomaly in the legislation, and therefore, it shows that the legislature could not have intended s.13 to be an offence of absolute liability.  That argument, at first blush, seemed attractive, which is to accept the conclusion that s.13 is not an absolute liability offence but merely a strict liability offence, and that s.13 imports an intermediate basis of liability, as Ribeiro PJ said in Hin Lin Yee at paragraph 151:

“Lim Chin Aik, like Gammon are Privy Council decisions arrived at in the English context with no consideration of any halfway house. Given the possibility of an intermediate basis of liability offered by the third alternative in Hong Kong, the principle enunciated by Lord Evershed and Lord Scarman should be supplemented by an additional condition: before concluding that the offence is one of absolute liability, the court should first determine whether the statutory purpose can sufficiently be met by construing the statute as creating an offence subject to the intermediate defence. Absolute liability should only be resorted to if the answer is in the negative.”

27.  Ribeiro PJ, however, went on to consider situations when absolute liability might be imposed at paragraphs 152 - 159 in such clear terms that I can do no better than cite the following in full:

“152.    Two situations come to mind (others may obviously exist) where absolute liability might in principle be imposed in accordance with the principle stated in Lim Chin Aik, supplemented as suggested above.

153.  The first is where the law does not consider the conduct in question to be essential or even necessarily acceptable from a societal point of view.  These are situations where the policy of the law is that the persons concerned can properly be required to abstain from such conduct unless the conditions which would render it lawful and acceptable are unmistakeably established.  If such persons go ahead with such conduct anyway, they do so at their peril should it turn out that, contrary to whatever they may have actually believed – or even reasonably believed – the circumstances render their conduct criminal.  They act at their own peril.

154.  An obvious example involves men having sexual intercourse …

155.  In He Kaw Teh v The Queen [157] CLR 5 to 3, 567 Brennan J put the point in this way:

‘It requires clear language before it can be said that a statute provides for a person to do or to abstain from doing something at his peril and to make him criminally liable if his conduct turns out to be prohibited because of circumstances that that person did not know or because of results that he could not foresee. However grave the mischief at which a statute is aimed may be, the presumption is that the statute does not impose criminal liability without mens rea unless the purpose of the statute is not merely to deter a person from engaging in prohibited conduct but to compel him to take preventive measures to avoid the possibility that, without deliberate conduct on his part, the external elements of the offence might occur. A statute is not so construed unless effective precautions can be taken to avoid the possibility of the occurrence of the external elements of the offence.’

156.  A second class of cases where absolute liability may have a justifiable utility involves the statutory imposition of a duty on a person (which may be a corporate body) where the conduct or task which is the subject of the duty is in practice likely to be carried out by someone else, such as an employee or a contractor.  Such situations are commonplace in factories and other workplaces where the legislation places the duty on the owner of the enterprise or the employer concerned.  For convenience I shall simply speak of ‘the employer’.

157.  To construe the offence-creating provision in such a situation as requiring proof of mens rea may make little sense.  The job having been assigned to an employee or contracted out, the employer may truthfully know nothing about the conduct and circumstances constituting the breach.  The intermediate defence may not be enough to secure the statutory purpose.  The employer may plausibly say that he took all reasonable care to entrust the task to a competent employee or specialist contractor and honestly and reasonably believed that the duty was being properly discharged.

158.  The justifiable effect of imposing absolute liability in such cases is that it makes it insufficient for the employer passively to assert an honest and reasonable belief.  It promotes proactive management and diligent supervision on his part to see that the duty is in fact being properly discharged.  If the employer knows that he will be held to account, even without actual fault on his part, if his contractor or employee is slack or careless or incompetent on the job, he has every incentive to make sure that the job is properly done and to replace contractors or employees who are not up to the task.

159.  Devlin J explains this policy as follows:

‘Thus a man may be made responsible for the acts of his servants, or even for defects in his business arrangements, because it can fairly be said that by such sanctions citizens are induced to keep themselves and their organizations up to the mark. Although, in one sense, the citizen is being punished for the sins of others, it can be said that, if he had been more alert to see that the law was observed, the sin might not have been committed.’ (See Reynolds v Austin & Sons Limited [1951] 2 KB 135, 149)’ ”

28.  Therefore, it is clear that a proper reading of s.13 is that the legislature intended it to be draconian to sufficiently promote the objectives of the legislation.  The proprietor of the industrial undertaking would be the eyes of the government in proactively managing and supervising what goes on in his workplace in order to protect the interest and health and safety of any workmen in his workplace.  I therefore find that the argument of Mr Jenkyn-Jones fails, and that s.13 is applicable to offences committed by other proprietors under s.6A.

29.  As for Mr Jenkyn-Jones’s submission that the learned Magistrate and thus the DPP had misapplied s.13 in situations not covered by McMahon J’s obiter remarks.  I am satisfied that upon a proper reading of McMahon J’s obiter dictum, he was merely citing an example of what can be covered by s. 13.

30.  Thus I do not agree with Mr Jenkyn-Jones’s submission that the prosecuting authority had misunderstood the obiter of McMahon J and had misapplied s.13.

Ground 1(B)

31.  Mr Jenkyn-Jones submitted further and alternatively, that s.13(1) in conjunction with s.6A of the FIUO can, upon proper construction, extend a proprietor’s general duties to persons not employed by him, such a construction is inconsistent and non-compliant with the Hong Kong Bill of Rights (Cap.383) and s.13(1) accordingly stands impliedly repealed in its operation in connection with s.6A FIUO offences.

32.  Mr Jenkyn-Jones submitted that Articles 10 and 11 of the Hong Kong Bill of Rights under s.8 of Cap.383 guarantee all persons to be equal before the court and tribunals and entitled to a fair and public hearing, and that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

33.  He submitted that the terminology “shall” in s.13(1) denotes mandatory application and thus overrides any statutory defences or exemptions which might have been available to the original offender, and that s.13 not only removed the presumption of innocence, it replaced it with an irrefutable presumption of guilt.  He submitted that in the case of Morgan Grenfell v Special Commissioner [2003] 1 AC 563 at 607 para 8, Lord Hoffman reiterated:-

“8. Secondly, the courts will ordinarily construe general words in a statute, although literally capable of having some startling or unreasonable consequence, such as overriding fundamental human rights, as not having been intended to do so. An intention to override such rights must be expressly stated or appeared by necessary implication. …”

34.  Mr Jenkyn-Jones submitted therefore that the operation of s.13 cannot have been intended to override the fundamental rights to the presumption of innocence or the removal of otherwise available defences.  Thus he asserted the significance of s.13(1) and (2) was likely “overlooked” when s.6A, Cap.59 was enacted and when the Hong Kong Bill of Rights, Cap.383 was enacted.

35.  The short answer to Mr Jenkyn-Jones’s submission is as the Respondent had pointed out that the rationality and proportionality test applied and has already been discussed.  I had found that s.13 is rationally connected to a legitimate purpose and so is proportionate and necessary to achieve the legislative objective, which is to ensure the safety of industrial undertakings.  As Ribero PJ had pointed out, if the proprietor knows that he would be held to account “even without actual fault on his part, if his contractor or employee is careless or incompetent on the job, he has every incentive to make sure that the job is properly done and to replace contractors or employees who are not up to the task.”  So this ground also fails.

Legal certainty

36.  One of Mr Jenkyn-Jones’s complaints was also that s.13 lack legal certainty.  It has been recognised that the principle of legal certainty “distinguishes government based upon the rule of law from government characterised by excessive executive or judicial discretion, which carries with it the potential for arbitrary interference with individual rights.  A law which confers the discretion must, at a minimum give adequate indication of the scope of the discretion.”

37.  The principle of legal certainty has been interpreted as requiring that the citizens must be able to foresee, to a degree what is reasonable in the circumstances, the consequences that a given action may entail.  This does not mean that the individual must be able to predict the legal consequences of an action with absolute certainty.  As the court in Sunday Times v United Kingdom (No 1)(1979 - 80) 2 E.H.R.R. 245 at para 49 states:

“Experience shows this to be unattainable …whilst certainty is highly desirable, it may bring an excessive rigidity and the law must always be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and with interpretation and application are questions of practice.”

38.  In Emmerson, 2^nd Edition, para 2-82 it says:

“In judging whether a legal rule satisfies the requirements of certainty and foreseeability, the court will approach the question on the assumption that the Applicant could have obtained appropriate legal advice. The fact that a statutory provision is capable of more than one construction does not necessarily involve a breach of the principle of legal certainty. Nor does the fact that the common law offence may be susceptible to change over time, providing any development is reasonably foreseeable and consistent with the essence of the offence.”

39.  It is clear from leading cases on the matter that the constitutional requirement of “necessity” must be that it is “necessary in a democratic society” in pursuit of one or more legitimate aims, which included the interest of national security, public safety, or public order (ordre public) or the protection of health or morals and the protection of the rights and freedom of others.”  (Emmerson, 2^nd Edition, para 2-92)

40.  It is clear that inflexibility or rigidity may be unnecessary and undesirable.  Certainty may be difficult to achieve. Therefore when applying the legal certainty principle one must be an sensible and practical one:

“… must be wary of using the doctrine of vagueness to present or impede state action in furtherance of valid social objectives be requiring the law to achieve a degree of precision to which the subject matter dues at level itself.” (per Gouflier Jin Nova Scotia Pharmaceutical Society v R (1992) 74 CCC (3^rd) 289, 313.

41.  Thus, it is clear that legal certainty does not mean rigidity and in industries like the construction industry where there is a constant change in the codes of practices in the way contracts are made and sometimes in the creative descriptions employed of persons responsible in order to avoid the payment of expensive premiums, then exactitude in the framing of laws, particularly to protect those on the lower tiers of the industry, have necessarily to be vague.

42.  I therefore reject Mr Jenkyns-Jones’s submissions on this point.

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J U D G M E N T
(PART II)

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I have dealt with Ground 1 and Ground 1B which is common to all 3 appeal cases in Part I.

I will now deal individually with the grounds of appeal relating to each case.

HCMA 590/2009

Background

43.  The Appellant company was the 2^nd Defendant at trial.  The Appellant company was the principal contractor of a construction site at the Amenities Building in the City University, Kowloon.  The works involved the demolition of an internal dry wall.  Cheung Pak Lin Engineering (“CPLE”) was the registered demolition sub-contractor.  They were the 1^st Defendant at trial.

44.  On the day of the incident which was 4 May 2008, while demolition works were being carried out by two of CPLE’s direct employees, a wall suddenly collapsed, fatally injuring one of them.

45.  The Appellant was originally charged in summons KCS 36106/2008 with the following particulars:

“On 4 May 2008 being a proprietor of the industrial undertaking, (i.e. construction work) at rooms R6020, R6022 and R6024, on the 6/F, Amenities Building, City University of Hong Kong, No. 83 Tat Chee Avenue, Kowloon, did fail to provide and maintain the system of work for the demolition of walls that were, so far as reasonably practicable, safe and without risks to health of the person(s), known as Chan Chung Yuen and Wong Kai Wing employed at the industrial undertaking.”

Contrary to s.6A(1), 6A(2)(a), 6A(3) and s.13(1) of the Factories Industrial Undertakings Ordinance (Cap. 59), Laws of Hong Kong.

46.  The Appellant was eventually convicted of the amended charge which read as follows:

“On 4 May 2008 being a proprietor of the industrial undertaking, (i.e. construction work), at Rooms R6020, R6022 and R6024, 6/F, Amenities Building, City University of Hong Kong, 83 Tat Chee Avenue, Kowloon, in which the following offence had been committed by a proprietor of the same industrial undertaking, namely, Cheung Pak Lin trading as Cheung Pak Lin Engineering, did fail to provide and maintain the system of work for the demolition of walls, so far as was reasonably practicable, safe and without risks to health of the persons, known as Chan Chung Yuen and Wong Kai Wing, employed by Cheung Pak Lin Engineering at the industrial undertaking, contrary to sections 6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance, (Cap. 59), and contrary to s.13(1) of the Factories and Industrial Undertakings Ordinance (Cap. 59), Law of Hong Kong.”

47.  The Appellant was also charged with the 2^nd summons KCS 36106/2008 which stated that:

“On 4 May 2008 being a proprietor of the industrial undertaking at Rooms R6020, R6022 and R6024, 6/F, Amenities Building, City University of Hong Kong, No. 83 Tat Chee Avenue, Kowloon, were specified process, namely, breaking of concrete with carried on, did fail to take all reasonable steps to ensure that every person for whose use it so provided eye protectors, or a shield or a fixed shield, made full and proper use of the same.”

Contrary to Regulation 7(b), 9(1) of the Factories and Industrial Undertakings (Protection of Eyes) Regulations made under the Factories and Industrial Undertakings Ordinance (Cap. 59), Laws of Hong Kong. 

48.  The Appellant was convicted of both summonses after trial.  The Appellant now appeals against conviction on both summonses.

49.  The 1^st Defendant at trial was CPLE who were also charged with two summonses under s.6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap. 59.

50.  The 1^st Defendant was also convicted after trial of both summonses. 

51.  At the beginning of the trial, the Appellant submitted that the original version of the 1^st summons (KCS 36106/2008) was null and void because:

(1) the summons is not known to law;

(2) Section 13(1) of the relevant Ordinance did not and could not create an offence that was different from s.6A(1) of the said Ordinance;

(3) The prosecution could not presumptuously amend the provisions or elements of s.6A(1) of that Ordinance, so as to create an offence.

(4) As the summons was null and void it could not be amended or rectified (see Attorney General v Wong Lau, Trading as Kin Keung Construction and Engineering Company [1993] 1 HKCLR 257).

52.  The learned Magistrate when considering the legal principle of nullity and the magistrate’s power to amend under s.27 of the Magistrate Ordinance had properly considered and cited the case of the Secretary for Justice v Yau Yuk Lung Zigo FACC 12/2006 where Ribeiro PJ at paras. 82 and 83 said the following:

“82. Given the overall scheme of section 27 and the great width of the power of amendment it confers, it is hard to conceive of a defect in an information which cannot in principle be amended, particularly by substitution of the offence charged.

(a) Stock J gives as his first example of nullity, a case where the statutory provision creating the offence charged has been repealed and not re-enacted. However, if section 27(4) is kept in view, in such a case the question is whether there exists an alternative offence under a valid enactment or at common law which would be disclosed on the evidence to be called and which could be substituted without injustice for the defective charge. Of course in any particular case, this may not be possible. But defects of this nature are clearly in principle capable of being cured so that the proposition that they result in a nullity cannot be accepted.

(b) The same applied to Stock J’s second example, involving a case where “the statement and particulars of offence cannot be seen fairly to relate to, or be intended a charge, a known and subsisting criminal offence.” If the offence charged is not known to law, the curability of the information must depend, in the section 27 context, on whether a valid offence can be substituted without injustice and pursued on the available evidence. There is again no reason in principle why a defect of this particular type should brand the information a nullity.

83. Indeed, it is hard to see what role there is at all for the notion of “nullity” in section 27. That provision creates a self-contained scheme which requires a defective information or one which is at variance with the evidence adduced to be dealt with either by amendment or by dismissal. It prescribes amendment in mandatory terms if this can be achieved without injustice. If not, section 27 itself stipulates that the information must be dismissed. It is hard to see what purpose would be served by injecting the notion of “nullity” into that scheme. To the extent that the three cases referred to support the view that informations may be so defective as to constitute nullities incapable of being amended pursuant to section 27 (and only to such extent) they are, in my respectful view, wrongly decided and should not be followed.”

53.  The learned Magistrate then considered that in the present case amendment could be made without prejudice to the Defendant and I agree with him because the evidence are the same and, in any event, the learned Magistrate gave the defence time to prepare their case as a result of the amendment.  The learned Magistrate also considered that “proprietor” in the Ordinance can refer to people “in different capacity”.  As there can be more than one proprietor in an industrial undertaking therefore s.13(1) can refer to all proprietors in that said industrial undertaking.  The learned Magistrate then granted leave for the prosecution to amend the charge.  The learned Magistrate then granted an adjournment for the defence to prepare its case. Then on the return day of new hearing the defence made an application for a review of the learned Magistrate’s ruling on the amendment but having considered the argument put forward, the learned Magistrate then confirmed his previous ruling.

Evidence for the prosecution

54.  PW1 is a construction site worker and on the day of the incident was working with the deceased, who was a wall demolition worker.  PW1 had gone to work with the deceased at the deceased’s request and this was the first time that PW1 had performed any wall demolition work.  He said that at about 9 a.m. on that morning of the incident, he arrived at about 9 a.m. at the site with the deceased and they met the foreman (PW2) on the site.  PW2 provided them with some tools and safety equipment like helmets, masks and labour gloves.  Then PW2 led them to work at Room 6020 of the Amenities Building.  He was then taught by the deceased on how the wall was to be demolished.  He said the foreman, PW2, was also present at the scene.  He described how the deceased taught him to demolish the wall from the top downward by using an electric concrete breaker and a sledgehammer.  After demolishing one wall they then stopped for lunch.  After lunch, they began demolishing another wall.  PW1 said he used an electric concrete breaker and sledgehammer to strike at the second piece of wall near the light which is outside the door frame then the deceased took over and PW1 said he walked away.  Shortly after, he suddenly heard the foreman shouting, “wall collapsed”. He turned and saw that the deceased was crushed under a piece of concrete.

55.  PW2 was the Appellant company’s foreman and he was responsible for monitoring the maintenance work at City University.  At about 9 a.m. on the material day, he said PW1 and the deceased went to the City University warehouse where they collected the electric concrete breaker and sledgehammer and iron shield and other safety equipment including safety helmets, masks and gloves.  He said he pointed out to the deceased where the eye protectors were placed but he did not know whether they had collected eye protectors or not.  He did not know PW1.  He confirmed he took the deceased and PW1 to the work site.  He noted that the deceased and PW1 were probably not wearing eye protectors but he did notice that they were demolishing the wall from the top downwards.  After lunch, he said he returned to the scene and found PW1 and the deceased demolishing a small part of the first piece of the wall.  He left the scene and returned at about 2:20p.m. and by then he noticed that the deceased and PW1 had finished demolishing the first piece of wall and had begun to demolish the second piece of wall positioned at the corner.  He saw that the door frame of that wall had been demolished but the wall extending from the top of the door frame to the ceiling was still there so he immediately asked the deceased why the door frame had been demolished first because he felt that after the door frame had been demolished there was nothing to support the wall so it would be unsafe and dangerous and the wall may collapse.

56.  PW2 said the deceased was wearing a mask at that time and he did not answer but walked near the door frame.  All of a sudden that piece of wall fell vertically and collapsed sideway.  The deceased was crushed underneath.

57.  Under cross-examination, PW2 agreed that the deceased was an experienced wall demolition worker and had performed wall demolition work at City University on ten previous occasions.  He also agreed that he had expected that the door frame to the second wall would not be removed first, and it should be the last item to be demolished.

58.  PW4 was a District Occupational Safety Officer of the Labour Department.  There was no objection as to his expert status on occupational safety.  He submitted two reports (Exhs P.16 and P17).  He said that although the demolition of concrete walls was a dangerous work process, there was no risk assessment done in respect of this demolition work.  He agreed, however, under cross-examination that the method adopted in demolishing the first piece of wall was safe. 

59.  Other witnesses were called for the prosecution at trial but for the purposes of this appeal, I need only to refer to some of them.

Case for the defence

60.  DW1 was a Registered Safety Officer.  There was no objection to his status as an expert witness.  He said that there was no safety guideline in respect of wall demolition work in the trade.  The Code of Practice 2004 is principally concerned with Building Demolition Work and its principle is to demolish from the top downwards and he was of the view that this principle is applicable to wall demolition work.  He explained that the buckle between the door frame and the wall referred to as “hinges” in the trade would firmly mount the door frame to the concrete wall and that is why, he was of the view, that the method adopted to demolish the first wall was safe.

61.  Under cross-examination, he said that one of the reasons for the collapse of the second piece of wall may be that the door frame had been removed first, coupled with the fact that concrete around the door frame had been struck resulting in the loosening of the wall.

62.  The 1^st Defendant, who was the direct employer of the deceased, gave evidence that he had been operating a Demolition Company for 10 odd years and had known the deceased for 20 odd or years and he had employed the deceased to work as a wall demolition worker for about 20 years.  In his view the deceased was a wall demolition master, at the request to PW2, he then assigned the deceased and PW1 to do the wall demolition work at the scene. 

63.  According to his experience, he had carried out wall demolition work with the deceased on more than hundred occasions.  He said he could not foresee that the deceased would depart from his usual method of demolition and if he was present he would not have allowed the deceased to demolish the door frame first.

Magistrate’s Findings

64.  The learned Magistrate having considered the evidence accepted all the prosecution witnesses as credible witnesses.  He also accepted the evidence of the 1^st Defendant.

65.  The learned Magistrate however accepted the evidence of PW4 and DW1 who were expert witnesses and gave evidence that the method adopted in demolition the first piece wall was safe.  The learned Magistrate correctly identified the main issue in the case.  The defence’s contention was that the deceased when demolishing the second wall had adopted the method which departed from the safe system of demolition.  The learned Magistrate had concluded, at paragraph 58(2) in his Statement of Findings, that the deceased had departed from the safe system of work because:

“Plainly, one of the reasons for so doing was that the deceased wanted to expedite the demolition of the entire piece of wall, the sequences of demolishing the wall from the top downwards was not followed.”

66.  The learned Magistrate came to the conclusion, based on the evidence given by PW2, that he had requested the 1^st Defendant to assign more workers so that the demolition work could be completed as soon as possible and the 1^st Defendant had failed to assign sufficient number of workers to do the demolition.

67.  The learned Magistrate reminded himself that the 1^st Defendant’s evidence was that he had instructed the deceased to do his work slowly and safely but the learned Magistrate said this reminder was insufficient.  At the end of the day, the learned Magistrate considered that the 1^st Defendant had failed:

“(1) At the time when he accepted the work, he did not know the size of the wall to be demolished, nor the time required;

(2) He failed to consider how many workers were required to complete the work;

(3) He did not know whether the worker brought in by the deceased, namely, PW1 was an experienced worker and therefore failed to estimate the time required for the completion of the work etc..”

68.  Therefore, the learned Magistrate found that the 1^st Defendant had failed to maintain a safe system of work.  The learned Magistrate continued to consider the case against the 2^nd Defendant, who is the Appellant in this case, and found that in the Admitted Facts, the Appellant had admitted that it was the proprietor of the industrial undertaking in this case, and since he had found that the 1^st Defendant was guilty on s.6A(1), 6A(2)(a) of Cap. 59 and considering s.13 he found that the prosecution had proved its case beyond a reasonable doubts against the Appellant company and found the Appellant company guilty, in relation to the amended summons KCS 36106 of 2008.

69.  The learned Magistrate also found that the Appellant company was guilty of summons KCS 36107 of 2008 for failing to take reasonable steps to ensure that every person for whose use it so provided eye protectors, or a shield or a fixed shield, made full and proper use of the same, contrary to Regulation 7B and 9(1) of the Factories and Industrial Undertakings (Protection of Eyes) Regulations Cap. 59.

70.  This was based on the evidence of PW1 who said he was not told where to get eye-protectors and also based on the evidence of PW2, the foreman of the Appellant Company, when he said that he did notice the deceased and PW1 were not using eye protectors.

71.  The learned Magistrate found that PW2 was obliged to urge the workers to put on appropriate eye protectors but had failed to do so.  So the learned Magistrate found the Appellant company guilty but acquitted the 1^st Defendant of a summons of a similar nature because the 1^st Defendant had said the deceased had his own eye protector and that he had urged PW2 that he should keep an eye on the use of safety equipment and the 1^st Defendant was not on the site whereas PW2 was, so the learned Magistrate acquitted the 1^st Defendant of the summons.

Appeal

72.  On behalf of the Appellant company, Mr Jenkyn-Jones submitted further grounds of appeal:

“(2) Even if the learned Magistrate’s findings were correct in relation to Ground 1, he nevertheless erred in allowing the prosecution’s amendment to the current amended charge under s.27 of the Magistrate Ordinance, Cap. 227 because;

(a) The current amended charge as drafted is not one known to law; and

(b) The amendment occasioned injustice to the Appellant.

(3) The learned Magistrate’s further erred in dealing with the Appellant’s application for review of the magistrate’s ruling permitting amendment of the charge, he gave no reasons for rejecting the application.

(4)  Because the learned Magistrate found that D1 was guilty of an offence he also convicted the Appellant (by virtue of the terms of the amended charge), but in so doing he was wrong; in that his conclusions apparently justifying D1’s conviction were not based on the evidence but arose through speculation only.”

73.  The arguments advanced by Mr Jenkyn-Jones in relation to Ground 2 were actually advanced before the learned Magistrate in the court below and the learned Magistrate had correctly relied on the judgment of the Court of Final Appeal in Secretary for Justice v Yau Yuk Lung, Zigo 2007 (10) HKCFAR 335 where Ribeiro PJ dealt with s.27 of the Magistrate Ordinance and the question of nullity.  In Headnote 10 of the Report:

“(10) The notion of a defect in an information that was so fundamental as surrendered “nullity”, in capable of being cured by amendment under s.27, should not be injected into scheme of s.27. Given the overall scheme of s.27, which required as defective information to be doubt with either by amendment or dismissal, it was hard to conceive of a defect that could not in principle be amended, particularly by substitution of the offence charged. Thus, there was no role for a “nullity” under s.27…”

74.  As the learned Magistrate had correctly identified what is of paramount importance was the consideration whether the amendment can be made without injustice to the defence and the learned Magistrate considered that it can be. 

75.  Mr Jenkyn-Jones’s submission that the s.13(1) was not an offence known to law because it prescribed no penalty is actually misconceived, because s.13(1) of Cap. 59 reads “the proprietor of every industrial undertaking… and shall be liable to the penalty prescribed for such offence.” Therefore the legislature did provide for a penalty and the penalty is as prescribed for the “like offence”.

76.  As far as, I can see there was no injustice done to the defence because of the amendment, the defence applied for an adjournment and was granted an adjournment and upon the return day did not ask for any further adjournment and as the Respondent correctly pointed out, the amendment was made before any evidence was called.

77.  In relation to Ground 3, Mr Jenkyn-Jones complained that the learned Magistrate failed to give reasons for refusing the application on the part of the Appellant to review his ruling of the day before. It is not, actually, the true position because I can see from the transcript at page 624 of the Appeal Bundle.  The learned Magistrate did give brief reasons that he had considered the submissions and ruled that s.13 is clear and can amount to an offence and the amendment in question did not bring any injustice to the defence and therefore, the court maintain “the previous decision in accordance with the stipulation under s.104 of the Magistrates’ Ordinance.”  In truth, the submissions of the Appellant’s counsel in the court below on his application to review was again to reiterate the original objection to the amendment in that s.13 was not an offence known to law and that an amendment would cause injustice to defence.

78.  In those circumstances, the learned Magistrate, having heard submissions, did not have to go through the reasons he had already given in allowing the amendment and was entitled to briefly deal with the application for review as he did.  So I do not find any merit in the complaints of Mr Jenkyn-Jones in Grounds 2 and 3.

79.  Mr Jenkyn-Jones argued in Ground 4, that the conviction of the 1^st Defendant was wrong as D1’s conviction was based on the pure speculation of the learned Magistrate.

80.  The learned Magistrate in his reasons for verdict had noted this:

“(2) The evidence showed that during the course, PW2, that is, the Company’s foreman, had requested 1^st Defendant to assign more workers so that the demolition work could be completed as soon as possible. According to the evidence of PW1 and PW2, when the second, the smaller piece of wall was being demolished, it was not demolished from the top downwards but it was the door frame which had been removed first. PW1 had even struck the different part the wall with electric drill etc. Plainly, one of the reasons for so doing was that the deceased wanted to expertise the demolition for the entire piece of wall, the sequence of the demolition the wall from the top downwards was not followed.

(3)      With regard to the wall demolition work involved in this case, I considered that the area of demolition work involved was very substantial. The 1^st Defendant had not fully considered whether he had assigned sufficient number of workers.”

81.  The learned Magistrate also noted that PW1 was not an experienced wall demolition worker and therefore he found “one of the reasons why the deceased departed from the established wall demolition procedure was that he wanted to demolish the second, the smaller piece of wall in a faster way … .”

82.  Thus, as can be seen from the learned Magistrate’s Statement of Findings the conclusion, that the deceased had adopted an unsafe system of work in demolishing the collapsed wall was because he wanted to finish the job as quickly as possible, is based on the evidence of PW2 that he had spoken to the 1^st Defendant about wanting more workers and also based on the evidence of the 1^st Defendant that he did not even bother to attend the scene and did not even bother to check on PW1’s qualifications. So in view of the evidence before the learned Magistrate at that time, the learned Magistrate was entitled to draw the only reasonable inference in the circumstances that the reason for such an experienced wall demolition worker as the deceased to have departed from the usual safe system of demolition was because of the time factor.  I, therefore, do not accept Mr Jenkyn-Jones’s submission that there was insufficient evidence to support the conviction of the 1^st Defendant.

Ground 5

83.  This ground of appeal is in relation to Summons no. KCS 36107 of 2008 where the 2^nd Defendant was alleged to have acted contrary to Regulation 7(b) and 9(1) of the Factories and Industrial Undertakings (Protection of Eyes) Regulation, of the Factories and Industrial Undertakings Ordinance, Cap. 59, Laws of Hong Kong in that the 2^nd Defendant on 4 May 2008, being a proprietor of Industrial Undertakings at R6020, R6022 and R6024, 6 floor, Amenities Building, City University of Hong Kong, No. 83, Tat Chee Avenue, Kowloon, where a specified process, namely breaking of concrete was carried on, failed to take all reasonable steps to ensure that every person for whose use it so provided eye protectors, or a shield or a fixed shield, made full and proper use of the same.

84.  The learned Magistrate found that according to the evidence of PW2, the foreman of the Appellant Company on site, he had pointed out to the deceased and PW1 where they could get eye protectors subsequently when he saw the deceased and PW1 demolishing the wall, he could see that they were not using eye protectors so he had an obligation to urge PW1 and the deceased to use the eye protectors, so the learned Magistrate found the Appellant guilty of this summons.

85.  The defence, at the trial, had submitted to the learned Magistrate that it was PW1’s evidence that noone ever provided him with an eye protector so therefore the defence had submitted that the Appellant company should not have been charged under Regulation 7, but rather under Regulation 5, for failing to provide eye protectors.

86.  This defence submission found no favour with the learned Magistrate who accepted the evidence of PW2 that he did indicate to the deceased and PW1 where eye protectors were stored and that the words in Regulation 7(b) where it said “for whose use he so provides” do not mean that the eye protector had to be handed over to the users.  The learned Magistrate said that so long as PW2 had pointed out where the necessary equipment was available that would constitute the term “so provides”.

87.  Mr Jenkyn-Jones submitted that the learned Magistrate had failed to resolve the inconsistency between the evidence of PW1 and PW2 as PW1’s evidence was that nobody had given him eye protectors or told him where he could obtain the same and he did not know where he could get them. Since the learned Magistrate had found both PW1 and PW2 to be credible and reliable witnesses.  By failing to resolve this inconsistency between them, that had rendered the conviction under the summons unsafe and unsatisfactory.

88.  According to the transcript of the evidence of PW2, he said that at the time when PW1 and the deceased were getting equipment for the wall demolition work at the beginning of the day, he had spoken to the deceased and pointed out where the eye protectors were kept and the deceased did answer him “all right” (see pages 404J and 409T to 410F of the Appeal Bundle). Therefore, in effect, it was not an inconsistency because PW2’s did not allege that PW1 might have or have not heard what he said to the deceased and thus it was not an inconsistency which had to be resolved.  The fact of the matter is that PW2 did inform the deceased of the availability and provision of eye protectors by the Appellant company and it was also his duty when he was on site to make sure that the workers particularly PW1 and the deceased were using those eye protectors.

89.  According to evidence of PW2 the eye protectors were indeed made “readily and obviously available”.  (see Norris v Syndic Manufacturing Company [1952] 2 QB 135, CA at page 146) and PW2 had failed to ensure that these eye protectors were, indeed, used.  I therefore do not find any merit to this ground of appeal.

90.  For the above reasons, I dismiss the appeal against conviction of this Appellant under both KCS 36106 and 36107 of 2008.

HCMA 922/2009

Appeal against conviction of Paul Y – General Contractors Ltd.

Under Summons Nos. KCS 10145, 10147 and 10149/2009)

91.  In Summons no. 10145/2009, the Appellant company was charged that on 20 September 2008, being the contractor responsible for the construction site of the residential development project situated at KIL 11124, Sheung Shing Street, Homantin, Kowloon had failed to ensure that, so far as the reasonably practicable, suitable and adequate safe access to and egress from a place of work on the site, which being the roof structure of Block 2 of residential development project is provided and properly maintained, contrary to s.38A(2), 68(1)(a), 68(2)(g) of the Construction Site (Safety) Regulation under the Factories and Industrial Undertakings Ordinance (Cap. 59).

92.  In Summons no. 10147/2009, the Appellant was charged that on 20 September 2008, being the contractor responsible for the construction site of the residential development project situated at KIL 11124, Sheung Shing Street, Homantin, Kowloon had failed to take adequate steps to prevent any person on the site from falling from a height of no less than 2 metres, which being the installation of aluminium cladding at the roof structure of Block 2, contrary to s.38B(1), 68(1)(a) and 68(2)(g) of the Construction Site (Safety) regulation under the Factories and Industrial Undertakings Ordinance, Cap 59.

93.  In Summons no. 10149 of 2009, the Appellant company was charged that on 20 September 2008, being the proprietor of Industrial Undertakings (i.e. installation of aluminium cladding at the roof structure of Block 2) of the residential development project situated at KIL 11124, Sheung Shing Street, Homantin, Kowloon had failed to provide and maintain systems of work which is, for the installation of aluminium cladding at the roof structure of Block 2, so far as is reasonably practicable, safe and without risks to the health of the persons employed in such industrial undertakings, and the person so employed are So Woon Chiu, Leung Ho Fai and Yeung Chuk Siu, contrary to s.6A(1), 6A(2a), 6A(3) and 13(1) of the Factories and Industrial Undertakings Ordinance, Cap. 59.

Alterative charges

94.  Under Summons 10146 of 2009 (an alternative to Summons no. 10145) the Appellant was charged that on 20 September 2008, being the contractor who had direct control over the construction site of the residential development project situated at KIL 11124 Sheung Shing Street, Homantin, Kowloon, had failed to ensure that as far as it is reasonably practicable, suitable and adequate safe access to and egress from place of work where the construction work is being carried out, which being the roof structure of Block 2 of the residential development project, is provided and properly maintained, contrary to s.38A(2), 68(1)(a) and 68(2)(g) of the Construction Site (Safety) Regulation under the Factories and Industries Undertakings Ordinance, Cap. 59.

95.  Under Summons no. 10148 of 2009 (an alternative summons to Summons no. 10147) the Appellant company was charged that on the material day and at the scene being the contractor who had direct control over the construction site had failed to take adequate step to prevent any person on the site from falling from a height of no less 2 metres, which being the installation of aluminium cladding at the roof structure of Block 2, contrary to s.38B(1A), 68(1)(a), 68(2)(g) of the Construction Site (Safety) Regulation under the Factories and Industries Undertakings Ordinance, Cap.59.

Prosecution case

96.  It was agreed between the parties that on 20 September 2008, three workers namely, So Woon Chiu, Leung Ho Fai and Yeung Chuk Siu were performing aluminium cladding installation work at the roof structure of Block 2 at the scene.  At the time of the accident, So, Leung and Yeung were employees of Ka Shing Engineering Company (“Ka Shing”).

97.  At the time of accident, So, Leung and Yeung were standing on an aluminium slab which was 4 metres long and 0.25 metres wide.  The slab was 6 metres from the ground and both ends were not tied to anything.  It only rested on a metal scaffold in the air and the middle part of the aluminium slab was not supported by anything either.  During the course of the work, So and Leung did not wear any safety belts.  The aluminium slab on which So and Leung were standing suddenly bent and broke, causing them to fall onto the floor 6 metres below.  So suffered serious injury and died subsequently. It was agreed that at the time of the accident, no suitable and adequate safe access to and egress from the accident scene was provided and properly maintained in the site and no adequate steps were taken to prevent any person on the site from falling from a height of no less than 2 metres.  It was also admitted that at the time of the accident, there was not provided and maintained relevant systems that are, so far as it is reasonably practicable, safe and without risks to the health of the persons employed in the industrial undertakings.

98.  The aluminium cladding installation work at the accident scene was covered by a work contract, Exh. P6, signed between CK Construction Management and the Appellant company on 6 October 2006. The contract expressly states that CK Construction Management Limited is the employer’s representative, and that it was the responsibility of the Appellant company to provide all necessary “attendances, coordination, liaison and such work as necessary for obtaining phased occupation permit(s) from the Buildings Department”.

99.  PW1 was the contract manager of HH Robertson Limited (“HH Robertson”). HH Robertson and the Defendant Company signed a “carcass” contract, which incorporated the contract for installation of aluminium cladding.  He said the Appellant company was the “main contractor” and HH Robertson was the subcontractor.  HH Robertson then sub-contracted part of the site installation works to Ka Shing.

100.  PW2 was one of the workers injured in the industrial accident, he was working on the aluminium cladding work when he fell from the slab together with another worker.  He was hired by Mr Tso Chin Ka to work on the site, and it was Mr Tso, who assigned duties and distributed pay to them.  The site officer was PW3, who worked for HH Robertson.  He knew the manager of Ka Shing was Mr Tso, who assigned duties to Ka Shing workers on the site.

101.    The project manager was PW4, who was also an employee of HH Robertson.  But he considered that the Appellant was not the “main contractor” of the site.  PW5, an employee of the Appellant company, said the Appellant company was only responsible for part of the work, and that work had been subcontracted to HH Robertson, and the Appellant company had to execute the instructions given by CK Construction Management.

102.    The defense did not call any witnesses, and the Defendant chose not to give evidence.

Magistrate’s Findings

103.    It was submitted by counsel for the Defendant that the Defendant company was neither the “proprietor” of the industrial undertaking nor was it the “contractor responsible for the construction site” or the “contractor with direct control of the construction work” nor was it the “principal contractor”.  The defense submitted that the “main contractor” should be CK Construction Management, but had to concede that CK Construction Management had signed the relevant works contract only in the capacity of an agent of the owner.  The learned Magistrate found that whether a particular contractor is the “contractor responsible for the construction site” must be judged on the basis of the facts in the case, and pursuant to Regulation 2(2) of the Construction Site (Safety) Regulations.

104.    Under Regulation 2(ii) of the Construction Site (Safety) Regulations:

“(a) A contractor is responsible for a construction site if he is undertaking construction work there or, where there is more than one contractor undertaking construction work at the site, if he is the principal contractor undertaking work there;

(b)     A contractor is responsible for any plant referred to in these Regulations if it is located at the construction site for which he is responsible.”

The learned Magistrate also considered the case of The Attorney General v John Lok & Partners & George Wimpey International Limited [1986] HKLRD 325 at page 335:

“principal contractor … must mean at law the head contractor or the one contractor from whom the other contractors derive their contracts, whether directly or through other contractors.”

105.  The learned Magistrate found that both PW1 and PW4 had said that the contract of HH Robertson was obtained from the Defendant Company, and HH Robertson had subcontracted the relevant work to Ka Shing. Thus, the Defendant company was, therefore, the “principal contractor” referred to in John Lok case.  The learned Magistrate found that the Appellant’s submission is “identical to that of the Defendant Company in the case of John Lok & Partners”, as the Appellant had obtained the contract directly from the owner through the owner’s representative CK Construction Management. The learned Magistrate thus convicted the Appellant company of summons no. 10145 of 2009, and summons no. 10147 of 2009.  The learned Magistrate did go on to consider the alternative charges under summons no. 10146 and summons no. 10148, but I shall not do so here.

Grounds of appeal

106.  Grounds (1) and (2) of this appeal had already been dealt with in Part I of this judgment and so I go directly to ground (3).

107.  Mr Jenkyn-Jones submitted that the learned Magistrate wrongly found the Appellant to be the “contractor responsible” for the construction site, such finding being:

“(a) contrary to the evidence, (in absent any evidence as to be particularized location);

(b) contrary to the strategy definition under section 2(2) of the Construction Site (Safety) Regulation, Cap. 59; and

(c) contrary to the authority of The Attorney general v John Lok and Partners and George Wimpey Joint International Limited T/A/John Lok/Wimpey Joint Venture [1986] HKLRD 325 on the construction and interpretation of “head contractor””.

108. Mr Jenkyns-Jones contended that the Appellant was not the head contractor nor was it the one contractor from whom other contractors derive their contracts, and that the learned Magistrate should have found that CK Management was in fact the principal contractor, and that the learned Magistrate should have ignored the description in the contract stating that CK Management was the “owner’s representative”.

109.     The Respondent contended that whether the Appellant company was the principal contractor was a finding of fact, and the Respondent points to Exh. P6, which is the “carcass” work contract between CK Management and the Appellant company where in clause 5, it was stipulated that, the Appellant company upon instruction “by the employer’s representative provide all necessary attendances, coordination, liaison and such other work as necessary for obtaining phased occupation permit(s) from the Buildings Department”, and in clause 7, it was also stipulated that the Appellant company had to “liaise, coordinate with and allow access for the separate contractors under employer’s representative instruction”.  So the Respondent assert that the contract clearly specified that the Appellant company was the principal contractor as its role was to manage, coordinate and liaise.  Therefore, the Respondent submitted that the Magistrate was correct when he said that the facts in the present case were akin to the facts in John Lok’s case.  I agree with the Respondent’s submission, and I do not agree with Mr Jenkyn-Jones’s submission that because the Appellant company was not the only contractor with a direct contractual relationship with the owner, therefore he cannot be termed the principal contractor the contractor responsible for the construction site. As the learned Magistrate pointed out correctly s. 19 of the Interpretation and General Clauses Ordinance (Cap. 1) clearly says:

“an Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit”.

It cannot be the intention of the legislature, by this artificial reasoning, that because there are other contractors with a direct contractual relationship with the owner that a contractor, who has been proved to be the “contractor responsible” on a construction site could be absolved of its liabilities under this Ordinance.  I therefore find that ground (3) of the appeal is unsuccessful.

110.     As for ground (4) of the grounds of appeal, Mr Jenkyn-Jones sought to challenge the learned Magistrate’s Findings that there was sufficient evidence to convict on the alternative summonses of KCS  10146 and 10148 of 2009.  I find this ground misconceived because the learned Magistrate, as pointed out by the Respondent, was merely dealing with these summonses only for the sake of completeness and no conviction was entered for these alternative summonses, and so Mr Jenkyn-Jones complaint that the learned Magistrate had failed to particularize the work under the Summons, in which the Appellant had direct to control, and also at an earlier time, when the proposed Method Statement was compiled, I do not propose to deal with.

111.  I therefore find that there is no reason to interfere with the learned Magistrate’s conviction, and therefore this appeal against conviction is dismissed.

HCMA 102/2010

112.       I now turn to the remaining grounds of appeal against conviction, lodged on behalf of Lucky Engineering Company Limited by Mr Grossman.

Background

113.  The Appellant company was convicted after trial of these summonses:

“(1)(i) On 30 October 2008, being a proprietor of the industrial undertaking at Happy Valley Clubhouse, 25 Shan Kwong Road, Happy Valley, Hong Kong, did fail to provide a system of work for the installation of 18, 400W floodlights at the wooden catwalk over the top of indoor swimming pool of the premises, that, so far as was reasonably practicable, safe and without risk to health of the person, known as Mr Ho Pong Kit and Mr Lok Chun Yu, employed at the industrial undertaking;

(ii)     On 30 October 2008, being the contractor responsible for a construction site at Happy Valley Clubhouse, 25 Shan Kwong Road, Happy Valley, Hong Kong, 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 measure as to prevent those workmen from being endangered by the live electric cable.”

Prosecution case

114.  The Jockey Club having decided to upgrade the lighting system over the indoor swimming pool had engaged the Appellant company to install 32 floodlights (hereinafter referred to as “black lights”).  After completion of that work, it was decided that 18 more “grey lights” were necessary.

115.  PW1 was the project manager of the Jockey Club. He was in charge of the renovation project of the Clubhouse.  In 2008, the Jockey Club wanted to upgrade the electrical power system, ie the switchbox of the Clubhouse, and awarded the work to the Appellant company.  Sunland AL (International) Company Limited, (“Sunland”) was appointed as the consultant engineer on the electrical power system.

116.  When the Jockey Club decided to upgrade the lighting system, Sunland entrusted the installation of the 32 black lights to the Appellant company (see Exh. P6).  After the installation, the Jockey Club was not satisfied, and Duo Lighting Design (“Duo”), the lighting consultant then proposed that 18 more grey lights should be installed.  According to PW1, Duo verbally instructed the Appellant company on 29 October 2008 to install the grey lights.  The lights were supplied by Lumen Arts (HK) Ltd.

117.  Under cross-examination, PW1 said the Appellant company was the appointed “main contractor”, but he agreed that the Appellant company had nothing to do with the installation of the “grey lights”, except for providing the electricity.

118.  PW2, Mr Szeto, was one of the two directors of Lumen Arts.  He confirmed that Duo was the lighting designer, while Lumen Arts was the supplier of the floodlights.  He said that when it was decided to install 18 more grey lights, these lights were to be supplied by Lumen Arts, but the Appellant company indicated that they did not have sufficient manpower to install the additional flood lights, so PW2 said he was told by the Jockey Club to source for another party for this project, and the Appellant company was to only provide the power supply.  PW2 then verbally instructed the deceased to take up the project.  PW2 took the deceased to check out the site before work was commenced on 30 October 2008.  PW2 also briefed the deceased on where the flood lights were to be installed, and he told the deceased to approach the Appellant company for “cooperation of the work”.  PW2 explained that the Appellant company was responsible for providing the power supply and the cables whilst Lumen Arts would connect the cable to the lights.  It was only after the accident that he realized that the deceased and his colleagues were not registered electrical workers.

119.  PW3, Mr So, was the site agent, employed by the Appellant company.  He is an engineer by training, and together with another employee of the Appellant company, were responsible for overseeing the progress of the work. He had arranged for another contractor, Wah Yip to install the power supply, ie the adaptable boxes for the grey lights. He said that on the 30October, there were about 15 Wah Yip workers on the 4^th floor doing other renovation work.  After 5 p.m., two Wah Yip workers were working inside the switch room, while 5 to 6 were dealing with the connection work in relation to the power supply for the 18 grey lights.

120.  On that day, he had obtained a draft circuit diagram from Sunland, and he was supervising the work of Wah Yip on the 4^th floor. By about 4 p.m., Mr So inspected 50% of the adaptable boxes, and saw that the connecters were properly done. 

121.  During the course of such checking, the power was off, and the power cords from the 18 grey lights have not yet been connected to the adaptable boxes, so there should be no electricity flowing through them.  But he was not sure if he checked adaptable box no. 6, the one box, where the deceased suffered electrocution.

122.  After 5 p.m. that day, he said that connection work inside the switch room concerning the 18 adaptable boxes were done by Wah Yip workers, and such wiring were finished at about 6 p.m..  He did not agree that the deceased and his fellow workers were under his supervision.  At 5:30 p.m., he saw that the power panels were cut off, as the power supply leading to the 18 adaptable boxes were off until 7:30 p.m. when he was told by a Wah Yip worker to turn it on to carry out some tests, and he saw, then, that the floodlights were on in consequence of that.

123.  Mr So said that he did brief the Wah Yip workers on safety measures and that for the 18 grey lights, he had verbally instructed the workers to cut off the power as a safety measure.  There was no written safety plan.  Mr So agreed it was possible that electricity was switched on earlier than 7 p.m., and after the accident, he noticed that the phase and earth wirings inside the adaptable box no. 6 had been mistakenly interchanged.

124.  PW4, Mr Ho, worked with the deceased at the site of the incident.  He had connected the cables which were already attached to the floodlights to the adaptable boxes, and at the same time, electrical workers installed the power supply.  After they had finished installing all the 18 grey lights, the deceased had adjusted the angle of the lights, and at that time there were also tests carried out to see if the lights were on.  At about 6:30 to 7 p.m., while working on an adaptable box, he noticed from the screwdriver tester that there was power, he informed PW6 of this, and at that time, a few of the 18 grey lights were on, and all the 32 floodlights were lit up.  He said no one gave him any safety instructions apart from the deceased, he did not wear any insulating clothing or gloves, and he did not know if any work were available on site.

125.  PW5 and PW6 joined the deceased at about 6 p.m. to install the 18 grey lights, PW5 said that when he was working with the adaptable box, the Appellant company worker held a torch for him to illuminate the area he was working in.  He noted that the adaptable box PW4 was working on was live. He informed the deceased of this.  After connection work was completed, he secured the cover of the adaptable boxes as instructed by the deceased.  At that time, he had noticed that some lights were on.  A moment before the accident, he had noticed that some black lights and one grey lights were on.  He had not been given any safety instructions or advice.  He said that he had tested the adaptable box with the screwdriver similar to the one he produced in court as Exh. D6, and the screwdriver had lit up, but the learned Magistrate noted that when Exh. D6 was placed on the palm of defense counsel it lit up as well.  Thus the effectiveness of Exh. D6 is questionable.  PW6 was the one who saw the deceased adjusting the angle of the grey lights when the accident took place.  At that time the deceased was holding a spanner in his left hand.

126.  PW8, Mr Yiu, was an expert in electrical engineering, his expertise was not challenged, and his report was produced under section 65B of the Criminal Procedure Ordinance (Cap. 221).  He said that the primary cause of the accident was “the interchange of phase and earthing conductors at the adaptable box” connected to the floodlight which was involved in the accident.  The root cause of the accident was due to the default of the concerned contractors and the registered electrical worker who was responsible for the electrical wiring work at the 4/F switch room and the catwalk because they should not have allowed electric circuits for the floodlights to be energized without proper testing.  In addition, they had not taken all safety precautions to isolate all outgoing electric circuits from the 4^th floor switch room to the floodlights to prevent the circuits from coming live when the electrical wiring and installation work for the floodlights were in progress.

127.  In court, Mr Yiu stressed that even if the floodlights were not under the responsibility of the Appellant company, they had to obtain a work completion certificate from Lumen Arts, which must be certified by a registered electrical contractor to make sure the floodlights were safe before they proceed to energize the circuit, and that the testing of 50% of the power points were not sufficient, the Appellant company should also have tested their own circuit.  It was the duty of the Appellant company to inform Lumen Arts and the Jockey Club in advance that the circuits would be energized.  After inspection, he found that wiring mistakes were found in flood light no. 6 and flood light no. 7.  PW8 opined that Luman Arts and the Appellant company should each certify their own circuit.

Defence case

128.  The defence called Leung Wai Kwong, who was a registered electrical worker, and was employed by the Appellant company at the material time as Project Manager.  He was involved in the preparation of the tender for the electrical power system upgrading at the Happy Valley Clubhouse, and there was a safety plan attached to the tender which was produced as Exh. D7.  He said that he did give safety instructions to the workers at the site, though there was no written record.  He said that after the 32 black lights were installed by the Appellant company, it was decided that 18 more lights were needed.  As the Appellant company did not have the manpower to do the installations, it was resolved that the Appellant company would provide the power supply while Lumen Arts would arrange for the installation of the 18 grey lights.

129.  Mr Leung had compiled an accident report, Exh. D9, which set out the events.  He pointed out that only registered electrical workers, authorized by the Jockey Club, were allowed to enter into the switch room.  Mr Leung agreed that Wah Yip was his sub-contractor.  At 5:45 p.m., when he went past the switch room, he found that the main circuit breaker board was switched off.  By 7 p.m., the circuit test had been completed.  There should not be any power supply before 7 p.m..  He said that the main switch in the switch room should have been turned off and it was the responsibility of the Jockey Club to monitor access to the switch room.

Magistrate’s Findings

130.  The learned Magistrate, after considering the relevant cases cited to her, concluded that these offenses are strict liability offences, and that “the contractor responsible for the site has the responsibility to take the measures to prevent the workers from being endangered.” (see HKSAR v China Road Engineering and Industrial Company Ltd HCMA 268/1998).

131.  The learned Magistrate found as a fact that the Appellant company was the main contractor “so far as the upgrading of the electricity work was concerned”.  And having considered Gold Ram Engineering & Development Ltd HCMA 912/2001, she adopted what was said in that case, that her duty was not to determine the cause of the accident, but to consider whether there was “any risk involved in the operation carried out; if there was a risk, what precautions the Appellant, or its servants, had taken to ensure that it was a safe operation and whether, as so far as reasonably practicable those precautions, if any had been taken, were sufficient.”.

132.  The learned Magistrate found that the Appellant company was responsible for coordinating the work of the workers in the switch room, the workers led by the deceased, and the workers who were working at the catwalk area regarding installation of the power points or adaptable boxes.  Further, PW2 had told the deceased to approach the Appellant company for coordination/cooperation of the work.  Therefore, the learned Magistrate found that the Appellant company had the control and management of the electricity work in question.

133.  The learned Magistrate found that although the Appellant company did not have keys to the switch room, however, Wah Yip contractors were working inside the switch room on behalf of the Appellant company, and thus the Appellant company was responsible to make sure that nobody could have accidently switched on the power switch inside. Such was clearly foreseeable, and the Appellant company had failed to do a proper assessment of the danger of the work, and therefore the Appellant company had failed to take all safety precautions that was necessary and reasonable to isolate all out-going electric circuit from the 4^th floor switch room to the floodlights while the installation work was still in progress.

134.  The learned Magistrate accepted that PW4’s testimony that he had not received any safety instructions from people other than the deceased.  She found that there was lack of communication, organization and supervision, and that insulating gloves and clothing were insufficient to meet the needs at the time.  The learned Magistrate found therefore that the Appellant company had failed to ensure that the power supply would not be accidently switched on.  They failed to give safety instruction to workers on site, failed to update the risk assessment and adequate safety measures, and so convicted the Appellant of both summonses.

Appeal

First summons

135. In relation to the first summons, which charged the Appellant company with being a proprietor of the industrial undertaking, did fail to provide a system of work for the installation of the 18 grey lights that were so far as a reasonably practicable safe and without risk to health of the person, known as Mr Ho and Mr Lok employed at the industrial undertaking.

136. Mr Grossman complained that the learned Magistrate had erred in finding that Mr Ho and Mr Lok were employed by the Appellant in the industrial undertaking.

137. Mr Grossman submitted that “the proprietor” in this case would be the Jockey Club, but even if for the sake of argument that the Appellant company can be considered “the proprietor”, Mr Grossman further submitted in ground (2) of this appeal that Mr Ho and Mr Lok were not persons employed by him in the industrial undertaking, because under s. 6A of the Factory and Industrial Undertaking Ordinance, Cap. 59, it imposes the duty on every proprietor of an industrial undertaking to ensure so far as reasonably practicable, the health and safety at work of all persons “employed by him” in the industrial undertaking.  Mr Grossman asserted that the Appellant had specifically contracted out of the work of installing the grey lights, and the work was being undertaken by the deceased and his employees under the supervision and control of Duo and or the Jockey Club.  Mr Grossman asserted that the Appellant company is “morally blameless” as said in the case of Hin Lin Yee & another v HKSAR FACC 7/2009.

138.  Section 13 of Cap. 59 makes the proprietor of every industrial undertaking in or in respect of which any offence against this Ordinance has been committed, shall be guilty of a “like offence”.

139.  In an offence of this nature, each case must turn on its own facts.  In this case, as was correctly pointed out by the Respondent, pursuant to the agreement between the Appellant company with the Jockey Club (Exh. P5), payment of the installation for the 18 grey lights would be covered under the provision for contingency in the contract (Exh. P5). Although it was Lumen Arts, who instructed the deceased, and his workers to take up the installation work, the Appellant company assigned PW3 to be the site agent, and PW2 of Lumen Arts had said that he told the deceased when he started to work to approach the representative of the Appellant company for “cooperation” regarding the different work, so, in essence, the evidence showed that the Appellant company was in overall charge of the coordination of the work, and was in control of the power supply to the 18 grey lights.  With the site agent, at the construction site with PW3, there was therefore a responsibility on the Appellant company to see that the different sub-contractors doing the electrical work for coordination, and that proper safety measures have been taken by them.  In this case, it is clear that very minimal safety instructions were given with insufficient safety tools such as insulation gloves, etc. provided by the proprietor of the industrial undertaking through its site agent.

140.  Therefore, in the circumstances, I find that the learned Magistrate was correct in finding that the Appellant company being the proprietor of the industrial undertaking was guilty of the “like” offence in s. 6A(1) in that they did fail to provide a system of work for the installation of the 18 grey lights, that was so far as was reasonably practicable safe and without risk to health of the deceased and his co‑worker employed at that industrial undertaking.

141.  As I point out in the reason for verdict in relation to the joint ground (1) and ground (1)(b) that s. 13(1)and (2) was to ensure that the proprietor of the industrial undertaking is pro-actively managing, diligently supervising and properly discharging his duty.  Thus, I find that this ground also fails.

Second summons (ESS 15118/2009)

142. Mr Grossman complained that the learned Magistrate had erred in finding that the Appellant was the contractor responsible for the construction site as he had specifically contracted out of all responsibility for the work being done.  Further, that she had erred in finding that the Appellant was responsible for controlling entrance to the switch room that it was the Appellant or someone under the control of the Appellant who had wrongly switched on the power source if it had been switched on.

143. First of all, there does not seem to have been any evidence to prove beyond a reasonable doubt as to who had switch on the power source which ultimately led to the death of the deceased, but it was not challenged, and, in fact, the evidence of the site agent of the Appellant that Wah Yip workers were working in the switch room and he, being the site agent, had the overall duty to be in charge of these Wah Yip workers, so if the power source had been accidently switched on, then the only inference was that it had been one of these workers working inside the switch room.

144.     I have read the written final submission of Mr Grossman in the trial below, and at the beginning of his submissions, that the second summons is “largely a duplication” of the first summons.  Section 2 of Cap. 59, defines proprietor as:

“proprietor (東主) in relation to any industrial undertaking … includes the person for the time being having the management or control of the business carried on in such industrial undertaking …and includes a body corporate and a firm and also the occupier of any industrial undertaking … and the agent of such occupier.”

145.     There can be more than one proprietor of such industrial undertaking and Regulation 22 of the Construction Site (Safety) Regulation stipulates that:

“(a) A contractor is responsible for a construction site if it is undertaking construction work there or, whether there is more than one contractor undertaking construction work at the site, if he is the principal contractor undertaking work there.”

and, as the Respondent correctly pointed out, in John Lok & Partners [1986] 1 HKLR 325 Hooper J, at page 336, had defined “principal contractor” as:

“the term “principal contractor” … must mean at law the head contractor or the one contractor from whom the other contractors device their contract, whether directly or through other contractors.”

146. Therefore, on the facts already elucidated above, the Appellant was the contractor responsible, charged with coordinating the installation of the lights, the black lights and the grey lights, and providing the electrical power for those lights.  The Appellant had a site agent on the site, who was busy, on that day of the accident, coordinating the work on site of the various contractors in the connection of the power supply and the installation of the lights.  And as Mr Shek of Lumen Arts pointed out the deceased had been told that he had to report to the Appellant company’s representative in order for the Appellant company to cooperate or coordinate his work.

147. So although I find that Mr Grossman made a valid point in his submissions below, there is nothing under the statutes to prevent the Appellant company from being both the “proprietor”, and the “principal contractor” at the same time.  It is correct that the learned Magistrate found that the Appellant company had failed to prevent the circuit from becoming live when the installation of the 18 grey lights were in progress, and that the coordination and communication were insufficient to prevent this accident from happening. Furthermore, as I had said, there was a paucity of insulating clothing or gloves for such dangerous work.  So at the end of the day, I find that there is no merit in this second ground of appeal.

148. Finally, Mr Grossman complains that the learned trial Magistrate had erred in accepting the evidence of the two experts, PW8 and PW9 “whose evidence is based on the misconception that the Appellant was contractually liable for the installation of the grey lights”.

149. At the hearing of this appeal, Mr Grossman did not make any further submission on this point, and all I wish to say is that there was no misconception because as Mr Grossman eventually accepted the defense exhibit, Exh. D1 the accident report compiled by the Director of Electrical and Mechanical Services, clearly showed that the deceased was sub‑contracted by Lumen Arts, so this ground of appeal is misconceived.

150. In conclusion, I find that there are no grounds to interfere with the learned Magistrate’s findings, and so this appeal against conviction in relation to the two summonses are dismissed.

Conclusion

All 3 Appeals against conviction are therefore dismissed.