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MAGISTRACY APPEAL N0. 438 OF 1986
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IN THE HIGH COURT OF HONG KONG
APPELLATE JURISDICTION
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BETWEEN
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The Attorney General |
Appellant |
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and
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LIU Ching-sun trading as
Sun Lee Aircondition Company |
Respondent |
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Coram: de Basto, J.
Date of Hearing: 16th May, 1986
Date of Judgment: 22nd May, 1986
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JUDGMENT
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1. This is an appeal by way of case stated by a Magistrate under section 105 of the Magistrates Ordinance (Chapter 227).
2. At the Magistrate's Court at Tsuen Wan on 4th December 1984, an information
was preferred by LEUNG Lin-ming, Factory Inspector, Labour Department on behalf of the Attorney General (hereinafter called 'the Appellant') against LIU Ching-sun trading as Sun Lee Aircondition Company (hereinafter called 'the Respondent') alleging breach of Regulations 38C and 68 of the Construction Sites (Safety) Regulations, Chapter 59 of the Laws of Hong Kong charging :
"for that you on the 13th day of June 1984 at Chun Pin Street, 11th floor, Flat A, Kwai Chung, New Territories in this Colony, being the contractor responsible for a scaffold on a construction site at 10
- 18 Chun Pin Street, 11th floor, Flat A, Kwai Chung, New Territories, failed to ensure that such scaffold
was altered under the immediate supervision of a competent person and by competent workmen possessing adequate experience of such work, contrary to regulations 38C and 68 of the Construction Site (Safety) Regulations, Cap. 59."
3. During the trial it was proved on the part of the Appellant, and found as a fact, that: -
| (a) |
the Respondent was at all material times responsible for the installation of an airconditioning system at the address at which the offence is alleged.
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| (b) |
such system included a water cooling tower and stand, to be erected on and attached to the side of the building, exterior to the flat upon which the said installation work was being performed.
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| (c) |
the stand in question was a platform fixed horizontally to the side of the building as aforesaid upon which the tower, a cylindrical device, was to stand.
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| (d) |
to enable the said tower and stand to be positioned and fixed in their places, bamboo scaffolding had had to be erected, from which workmen could operate, of a boxlike formation which was attached vertically to the side of the building aforesaid. At no point was the said scaffolding structure supported by contact with the ground.
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| (e) |
the said tower and stand were duly fixed in their places within the framework of the boxlike structure created by the said scaffolding, it being the intention that the said scaffolding would be dismantled and removed upon or after the fixing of the said toner and stand had been completed.
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| (f) |
the said scaffolding had been erected accordingly on 2nd June 1984 by a subcontractor of the Respondent. The subcontractor in question who erected the scaffolding was one CHAN Tak-lim, nominally acting in partnership for the purpose of this undertaking with HO Yau-shan and LEUNG Wing-shing (deceased).
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| (g) |
On 13th June 1984, one WONG Po-chau, an airconditioning mechanic in the employment of the Respondent, was working on the installation of the said tower and stand, together with connecting pipes at the aforesaid place. So as to facilitate his task, WONG aforesaid made the following alterations to the said scaffolding structure as criginally erected. |
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(i)
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he sawed short one of the horizontal members (ledger)
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(ii)
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he shifted outwards the foot of one of the members (standard)
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(iii)
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he disconnected one of the 3 metal wires securing a standard to the building at a window hinge
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(iv)
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to allow for alteration (ii), he undid one of the bindings on the said scaffolding structure which he later replaced with the length of wire obtained as a result of alteration (iii)
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| (h) |
the said WONG had 6-7 years of practical experience working from, and making adjustments and alterations to, scaffolding structure inhere the nature of his assignment required. He was however not a scaffolder by occupation and had received no formal training nor served any formal apprenticeship in scaffolding work.
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| (i) |
Subsequent to completion of the installation work by the Respondent, his servants or agents, the partners CHAN Tak-lim and LEUNG Wing-shing (deceased) aforesaid commenced to dismantle the said scaffolding on 2nd July 1984.
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| (j) |
During the course of the dismantling process, an accident occurred which resulted in the death of LEUNG Wing-shing aforesaid.
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| (k) |
There was no evidence as to whether or not the alternation made to the said scaffolding by WONG Po-chau aforesaid weakened the scaffolding in any way or otherwise was responsible for or caused the way or otherwise was responsible for or caused the fatal accident which ensued after such alteration.
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| (l) |
The said alteration of the scaffolding was not done upon the instructions of the Respondent, nor had the Respondent supervised such alteration.
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| (m) |
The said scaffolding was situated on a construction site for which the Respondent was responsible and the Respondent was the principal contractor on such construction site for the purposes of the regulations above referred to. |
4. Regulation 38C reads as follows: -
"The contractor responsible for a scaffold on a construction site shall ensure that no such scaffold is erected on the site or substantially added to, altered or dismantled except under the immediate supervision of a competent person and by competent workmen possessing adequate experience of such work."
5. At the trial the Respondent contended that he was not the contractor responsible for the scaffold as specified in the aforesaid regulation. In this connection the learned magistrate
was referred during argument to the decision in R. v. CHAN Ka-kui (MA 674/84).
6. That case concerned the conviction of a head contractor for a breach of Regulation 44(1) of the Regulations in failing to ensure the fencing of dangerous machinery on a construction site. The machinery in that instance
was under the immediate control of a subcontractor, but the head contractor was held responsible nevertheless, being responsible for the construction site upon which the machinery in question was situated.
7. The magistrate stated that responsibility for the/a construction site and plant situated thereon is defined in regulation 2(2) of the Regulations and forms the basis upon which R. v. CHAN Ka-kui (supra) was decided. Regulation 2(2) reads as follows :-
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"(a)
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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;
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(b)
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A contractor is responsible for any plant referred to in these regulations if it is located that a construction site for which he is responsible." |
8. "Plant" for the purposes of the Regulations is defined in Regulation 2(1) as including any plant, equipment, gear, machinery, apparatus or appliance or any part thereof.
9. The learned magistrate, being of the opinion that whilst the Respondent was the contractor responsible for the site, he was not responsible for scaffolding thereon as such did not amount to "plant" for the purposes of the Regulations, dismissed the case brought against the Respondent, he not being the proper person to charge with this offence.
10. The magistrate's reasons for deciding thus were as follows :-
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"(a)
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Regulation 38C of the Regulations begins "The contractor responsible for a scaffold on a construction site .....", as distrinct from 'The contractor responsible for the/a construction site' simpliciter, the latter being the more commonly used phrase in the Regulations upon which R. v. CHAN Ka-kui (supra) was decided. The responsibility appropriate to this regulation thus relates not to the construction site as such, but rather to the scaffold situated on it. I held that R. v. CHAN Ka-kui was concerned with Regulation 44 (1)(c) which creates an offence which may be committed by : -
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(i) |
the contractor responsible (de facto) for machinery on a construction site, no matter whether that contractor is the principal contractor on a subcontractor, and
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(ii) |
the contractor responsible for the construction site, who is deemed by virtue of Regulation 2(2)(b) to be responsible for plant (which includes machinery) located on the construction site for which he is responsible.
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Regulation 38C is therefore distinguishable from Regulation
44(1)(c) as it is clear that Regulation 38C creates an offence which may be
committed by the contractor responsible for the scaffold.' Regulation 38C is
concerned with a "scaffold"; not with "machinery ", and not with "plant".
| (b) |
"Scaffold" is defined at length in Regulation 2(1) of the Regulations. Plant is defined in Regulation 2 as "including" " any plant, equipment, gear, machinery, apparatus or appliance, or any part thereof. That definition does not specifically include a scaffold, and I held that the definition should not be enlarged to include it. I further infer from these definitions that the regulations conceive scaffolding to be more in nature of a "structure" than in the nature of "plant". "Plant", in the everyday sense of the term, does not include "structure". I do not consider that a scaffold falls within the definition of "plant" as contained in the regulation and thus exclude Regulation 2(2)(b) as having any bearing upon the facts of this case. I further held that Regulation 38C is as against the person who may commit the offence, an offence of strict liability and the interpretation of the section should be strict so as not to unduly widen the scope of its application.
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| (c) |
The words "on a construction site" as they appear in Regulation 38C of the Regulations serve merely to particularise a certain kind of scaffold. Presumably a scaffold used only for a decorative purposes, or in use as a hoarding or as a ladder or fire-escape, in some place other than a construction site would not come within the ambit of this regulation. |
11. The learned magistrate posed two questions of law for the opinion of this court, namely :
"FIRST, was I right to hold that "plant" as defined in Regulation 2 of the Construction Site (Safety) Regulation does not encompass "scaffold"? and SECONDLY, was I right to hold that a contractor responsible for a construction site (not being a contractor responsible in fact for a scaffold) has no legal responsibility under Regulation 38C of the Regulations for a scaffold erected thereon?"
12. It appears that it was the Respondent's counsel who drew the learned magistrate's attention to the case of The Queen and
CHAN Ka-kui Magistracy Appeal No 674 of 1984. That case decided that the contractor who was charged under Regulation 44(1) which is essentially concerned with-machinery (plant) for which he is responsible was found to be responsible by reason of Regulation 2(2)(b) which specifically refers to "plant". The effect of that ruling was to impose a strict liability on a contractor responsible for a construction site on which is situated a plant for which he is responsible. Thus if a sub-contractor brings on the site machinery for which the principal contractor is responsible and it is not securely fenced, etc. the principal contractor as well as the subcontractor would be liable under Regulation 44(1) even though the principal contractor may not have known of the existence of the machinery, Chan's Case makes it the duty of the principal contractor to know and control each subcontractor in relation to machinery brought on to the site - it imposes a strict liability on the principal contractor.
13. As Bewley J. said at page 8 of Chan's Case "the draftsman has clearly made the distinction in order to catch the principal contractor ...... "
14. The Crown contends that Regulation 2(2) was drawn in a manner to "cast the net'' of responsibility as wide as possible so as to catch the principal contractor where danger might be caused by a subcontractor who may, or may not, be easily identifiable. The learned magistrate, in paragraph 12 of the Case Stated, distinguished Chan's Case on the basis that scaffolding is not a "plant" and that, accordingly the Respondent as contractor responsible for the site is not caught by Regulation 2(2)(b) which refers specifically to "plant".
15. That "plant" and "scaffold" are essentially distinct was not disputed by the Crown.
16. Thus in the instant case the principal contractor could only have been held liable in respect of scaffolding if Regulation 2(2)(a) applied rather than 2(2)(b).
17. Section 2(2) provides:
"For the purposes of these regulations :
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a contractor is responsible for a construction site if he is undertaking the constructions 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; (emphasis mine).
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| (b) |
a contractor is responsible for any plant referred to in these regulations, if it is located at a construction site for which he is responsible. |
18. "Construction work" is defined in section 2(i) of the Factories and Industrial Undertaking Ordinance as meaning, inter alia,
"...... the erection, installation, ...... removal, alteration dismantling ...... of any structure or work specified in the Third Schedule."
19. Number 10 of the Third Schedule refers to "Any structure designed for the support of machinery, plant, ......... "
20. It is clear that in the instant case the Respondent would only be liable as the contractor responsible if it can be said that Regulation 2(2)(a) rather than 2(2)(b) applies.
21. Regulation 2(2)(a) refers to "a contractor responsible for a construction site if he is undertaking construction work ........" . I have already referred, briefly, to the interpretation of "construction work".
22. The Crown also
suggested that the learned magistrate made "an essential and fundamental
error" in considering Regulation 38C in isolation. He should also have
looked, as he was perfectly entitled to do, at Regulation 38(b) which reads :
"Without prejudice to the other provisions of this Part, where work cannot safely be done on or from the ground or from part of a building or other permanent structure, the contractor responsible for. the construction site concerned shall provide, place and keep in position for use and properly maintain either scaffolds or, where appropriate, ladders or other means of support, all of which shall be sufficient, strong and suitable for the purpose."
23. The Crown contended that Regulation 38B makes the contractor responsible for the construction site also the contractor responsible for the scaffolding on that site. I agree.
24. In The Attorney-General and John Lok, Magistracy Appeal No. 62 of 1985 (date of hearing 11th September, 1985) Hooper J. said at page 11 :
"In construing the legislation the Magistrate was bound first of all to have regard to the provision of Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, which provides".
"An Ordinance shall be deemed to be remedial and shall receive such fair, large aid liberal construction and interpretation as will best ensure the attainment of the object of the circumstances according to its true intent, meaning and spirit".
"This provision has given statutory recognition to what has been called the "purposive" approach to interpretation. It is a provision which applies in Hong Kong to penal legislation as well as non-penal and the Courts are bound to follow it.
The "Construction Sites (Safety) Regulations" are clearly concerned with safety in construction sites and to fix liability for failure to comply with the regulations on the contractor with the greatest responsibility at the construction site. That responsibility is intended to cover the whole site, and is not limited to any particular part of it. Furthermore, the regulations do not appear to envisage more than one contractor being responsible for a particular site from the commencement of the construction work until its ultimate completion. To my mind, there can be no doubt that the person with the greatest responsibility in respect of the construction site as a whole so far as the terms of the contracts are concerned must be the Respondent."
25. Lastly in the case of Gammon (Hong Kong) Ltd v Attorney General of Hong Kong 1984 2 All E R p 503 at p 508 the Privy Council held that inter alia :
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"In their Lordships opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellants' counsel, which their Lordships gratefully acknowledge) : (1) there is a presumption of law that men rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is 'truly criminal' in character; (3) the presumption applies to statutory offences and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern; public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigiliance to prevent the commission of the prohibited act." (emphasis added). |
26. In view of the Magistrate's findings mentioned in paragraph 5(m) I am of the opinion that the Respondent was strictly liable for, inter alia, the erection, installation, maintenance, alteration, removal or dismantling of the scaffolding concerned.
27. The learned magistrate made no finding of fact whether the subcontractors who erected and subsequently started to dismantle the scaffold were "competent persons§ within the meaning of the Regulation 2(1) of the Regulations.
28. That really does not matter in view of the fact that strict liability attached to the Respondent as principal contractor on the site. He does, however, mention that his employee WONG Po-chau had no formal training nor served any formal apprenticeship in scaffolding work, and this renders him, in effect, not a "competent person" in respect of scaffolding.
29. Mr. Aiken for the Respondent referred to the possibility of a "novus actus interveniens" because the accident occurred 19 days after Wong had made alternations to the scaffolding. In my view, with respect, there is no merit in that argument.
30. It follows from what I have said that the answer posed in the first question is "Yes" but that the answer to the second question is "No".
31. The appeal is allowed. I refer the case to the learned magistrate with a direction to continue with the hearing of the case.
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(Gerald de Basto)
Judge of the High Court
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Representation:
Mr I. G. Cross, Senior Assistant Crown Prosecutor for Appellant.
Mr N. Aiken instructed by Messrs. David F. K. Yeung & Co. for Respondent.
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