HKSAR v. OTIS ELEVATOR CO (HK) LTD AND ANOTHER

HCMA 130/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 130 OF 2011

(ON APPEAL FROM STS 6307 & 6308 OF 2009)

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BETWEEN

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J U D G M E N T

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1.  On the night of 11 January 2009, five persons were trapped in Lift No. 7 at Heng Shan House, Heng On Estate, Ma On Shan. After a time, they were rescued uninjured.

2.  One information was laid against the 1^st Appellant.  It was laid under sections 11J(1)(d), 27H and 28(3)(a) of the Lifts and Escalators (Safety) Ordinance, Cap. 327.  One information was laid against the 2^nd Appellant.  It was laid under sections 11A(1)(b), 27H and 28(3)(a) of that Ordinance.

3.  The particulars of the information against the 1^st Appellant read:

“Information has been laid THAT YOU, being a registered lift contractor, on or about 11 January 2009, at Lift No. 7, Heng Shan House, Heng On Estate, Ma On Shan, N.T. in Hong Kong, failed to carry out the lift works, namely the maintenance and examination of the lift at Heng Shan House, Heng On Estate, Ma On Shan, N.T., which you were engaged to carry out, in accordance with the provisions of the Lifts and Escalators (Safety) Ordinance, Cap. 327.”

4.  The particulars of the information against the 2^nd Appellant read:

“Information has been laid THAT YOU, being a registered lift engineer, on 16 December 2008, at Lift No. 7, Heng Shan House, Heng On Estate, Ma On Shan, N.T. in Hong Kong, failed to examine the lift at Heng Shan House, Heng On Estate, Ma On Shan, N.T., in accordance with the Lifts and Escalators (Safety) Ordinance, Cap. 327, in carrying out the lift works.”

5.  Each Appellant was convicted, and each now appeals against conviction.

6.  Grounds 1, 2 and 3 pertain to the 1^st Appellant alone.  They read:

“Ground 1

1. In finding a case to answer against the l^st Appellant and subsequently convicting the 1^st Appellant, the learned Magistrate erred in:

(A) finding that the Prosecution are absolved from the duty of proving beyond reasonable doubt who the manufacturer of the lift in question is and what schedule of routine maintenance in respect of the lift in question that manufacturer has recommended for the purposes of Clause 4.5.1(r) of the Code of Practice for Lift Works and Escalator Works (the ‘CoP’);

(B) misdirecting himself that as long as the Prosecution ‘accepted’ that the 1^st Appellant should follow their own routine maintenance schedule (Exh. P16), that would be sufficient to show what recommended schedule of routine maintenance would satisfy the requirements of Clause 4.5.1(r) of the CoP; and

(C) further misdirected himself that for the purposes of Clause 4.5.1(r) of the CoP, it is ‘immaterial’ whether it is the recommended routine maintenance schedule of the rope manufacturer or the lift manufacturer that the 1^st Appellant should follow, where evidence beyond reasonable doubt is clearly required as to what schedule the 1^st Appellant should follow.

Ground 2

2. The learned Magistrate erred in finding that Clause 4.5.1(r) of the CoP imposes a duty on the 1^st Appellant as the Registered Lift Contractor (‘RLC’) to maintain the lift in question to the standard of ‘good working order’ and in finding that the 1^st Appellant did not keep the lift in question in ‘good working order’ where:

(A) on a true construction of Clause 4.5.1(r) of the CoP, the essence of that clause is a requirement to conduct routine maintenance of the lift in question in accordance with a schedule recommended by the manufacturer for the purposes of keeping the lift in question in good working order; that clause does not impose a discrete duty to keep the lift in question in good working order; and

(B) the charge under ss. 11J(l)(d) and 27H of the Lifts and Escalators (Safety) Ordinance (‘LE(S)O’), Cap. 327, would fall foul of the principles affirmed in HKSAR v Lam Geotechnics Limited, HCMA 379/2000,should it be found that Clause 4.5.1(r) of the CoP does indeed lay down a discrete requirement to keep the lift in question in ‘good working order’ since no manner of how to achieve that requirement is set out under that clause or the CoP, and HKSAR v Lam Geotechnics Limited,HCMA 379/2000is not properly distinguished on the facts of this case.

Ground 3

3. In the alternative to Ground 1, namely should it be found by this Honourable Court that the 1^st Appellant’s Routine Maintenance Master List (Exh. P16) is the recommended schedule referred to in Clause 4.5.1(r) of the CoP, the learned Magistrate erred in:

(A) relying on the evidence of PW 1 to find that the schedule in Exh. P16 had not been adhered to as PW 1 has given various contradictory versions of the frequency of his attendance to the lift in question; and

(B) ignoring Defence submission that if PW 1 have not reported to the 1^st Appellant the true frequency of his attendance to the lift in question, the defence of honest and reasonable belief ought to be available to the 1^st Appellant and failing to find that the ‘common law’ defence was made out.”

7.  Grounds 4 and 5 pertain to the 2^nd Appellant alone.  Ground 4 has been abandoned.  Ground 5 reads:

“Ground 5

5. The learned Magistrate erred in finding that Clause 5.1(xiv) of the CoP imposes a duty on the 2^nd Appellant as the Registered Lift Engineer (‘RLE’) to ‘properly examine’ the ropes of the lift in question in his annual examination because the ropes were found not to be in safe working order where:

(A) on a true construction of that clause, the duty was to include the ropes of a lift in one’s examination and that clause does not impose a discrete duty to ‘properly examine’; and

(B) the charge under ss. 11A(1)(b) and 27H of the LE(S)O would fall foul of the principles affirmed in HKSAR v Lam Geotechnics Limited,HCMA 379/2000,should it be found that Clause 5.1 (xiv) of the CoP does indeed lay down a requirement to ‘properly examine’ since no manner of how to achieve that requirement is set out under that clause or the CoP, and HKSAR v Lam Geotechnics Limited,HCMA 379/2000 is not properly distinguished on the facts of this case.”

8.  Ground 6 pertains to both Appellants.  It simply says that “the conviction against the 1^st and 2^nd Appellants are unsafe and unsatisfactory”.

9.  The admitted facts at the trial include these. The 1^st Appellant has been a registered lift contractor since 1988.  It installed the lift concerned (“L7”) in 1986 and has been responsible for its maintenance since then.  The 2^nd Appellant has been a registered lift engineer since 1977 and has been an employee of the 1^st Appellant since 2004.  On 16 December 2008, the charge date in the information against him, he conducted a periodic examination of L7 together with two technicians of the 1^st Appellant.  He certified that L7 was in safe working order.

10.  Following the incident on the night of 11 January 2009, L7 was inspected.  What that inspection revealed may be taken from para. 8 of the first set of admitted facts.  That paragraph reads:

“ Upon initial site inspection at the machine room at the top floor level of Heng Shan House, one of the 4 suspension ropes of L7 (‘R4’), i.e. the one closest to the main driving motor of L7, was found missing. It was found subsequently that R4 had broken with a section jammed at the clearance between the lift car door and the landing door on the 24/F, and one of the broken ends of R4 was found hanging in the air at the 15/F level inside the lift shaft. The said broken end of R4 was measured to be around 92 meters from the car side fixed end of the rope. Red iron oxides were observed from both broken ends of R4 and 2 other suspension ropes next to R4, i.e. R2-3, at the similar location as the broken ends over a 500 mm section. R4 as well as the other 3 suspension ropes R1-3 were later removed and taken to EMSD’s workshop for further examination. Samples were cut from R4 and the other suspension ropes for tensile test on 21-1-2009 and other detailed examinations by or under supervision of Dr. GREENE.”

11.  By reason of sections 11J(1)(d), 27H and 28(3)(a) of the Ordinance under which the informations in this case were laid (“the Ordinance”), a registered lift contractor’s position is as follows.  He must carry out any lift works which he is engaged to carry out in accordance with the provisions of the Ordinance.  He must do so to the satisfaction of the Director of Electrical and Mechanical Services.  That involves doing so in accordance with the relevant portions of codes of practice established under Part IVB of the Ordinance (‘”the Codes”).  Otherwise he commits an offence.

12.  By reason of section 11A(1)(b) of the Ordinance, a registered lift engineer’s position is the same as that, except that it relates to the examination of lifts.

13.  Under Clause 4.5.1 of the Codes it is provided that:

“For keeping the lift and accessories in good working order, at least the following applicable items are to be checked for proper condition, and attended to if necessary, in accordance with a schedule recommended by the manufacturer.

(a) lift machine gearbox and bearings

(b) brake …

…

(r) suspension ropes …”

Public safety in terms of life and limb is involved.  Plainly acting in accordance with a schedule recommended by the manufacturer is an additional requirement.  It is plain that the main and indispensable requirement is to check the lift and accessories for proper condition and to do so for the purpose of keeping them in good working order.

14.  On the admitted facts, it is plain that no such checking had been done and that the periodic examination conducted on 16 December 2008 could not have failed to detect the appalling state of R4 if that examination had come even close to complying with Clause 4.5.1.

15.  For the foregoing reasons none of the grounds of appeal are to the point.  None of them have any merit.  All of them fail.

16.  As for the argument that the offences are not of absolute liability but of strict liability permitting of a defence showing that all reasonable steps had been taken, it can be disposed of on the simple basis that even if such a defence is permitted no such defence would have come even close to being made out on the evidence in this case.  In saying this, I am not to be taken to be deciding that such a defence is permitted.

17.  In the result, both appeals are dismissed.