HKSAR v. HIP HING CONSTRUCTION CO. LTD.

HCMA858/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 858 OF 1998

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J U D G M E N T

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1. The Appellant was convicted on 24th August 1998 of an offence of failing to ensure a load to be lifted by a lifting appliance on 20th November 1997 was adequately secured, contrary to Regulations 7J(1)(b) and 19 of the Factories & Industrial Undertakings (Lifting Appliances & Lifting Gear) Regulations, Cap.59.

2. The Prosecution case was that an accident took place on 20th November 1997 inside a construction site at Luen Wo Hui at Fanling in the New Territories. The evidence was that a load of two bundles of town gas pipes were to be hoisted by a crane up the side of a building to an elevated position. The bundles were secured by strips and were then secured to the crane by a chain which was tied around the load. It was the fifth load of the day and that after the load had been secured, the crane lifted the load a short distance and it was then checked again at about five feet to see that it was securely tied. It appeared to be so and the crane operator continued to raise the load.

3. This fifth load of the day was treated in the same way as others, however, when it reached some height from the ground, the pipes broke free from the chain and scattered to the ground. Two workers were trapped beneath the falling pipes and one was injured.

4. The learned Magistrate found that the crane operator operated the crane correctly as instructed by the load master of the crane, who was the second prosecution witness, and that the tower crane was working perfectly at the material time. She also found that the crane was not overloaded by the two bundles of pipes, and that the load did not bump against anything on its way up. She found that the chain slings and safety hooks were in good condition at the material time and that the double choker hitch method of securing the pipes was an acceptable one. She considered the sling angle, that is the internal angle of the chain slings and the load, to be a safe angle.

5. She found that there were only four possible causes to the accident and they were these :

" 1. the load was not adequately secured;

2. the metal strip of the packing of the two gas pipes was broken;

3. the load bumped against something on its way up;

4. the chain sling broke."

She found that there was direct and undisputed evidence ruling out the last two possibilities and found, therefore, that the accident had been caused either by the fact that it was not adequately secured, or the metal strip of the packing of the town gas pipes was broken. For clarification, the metal strip was a strip placed around each of the two bundles of pipes either during manufacture or during transport to the site by a company other than the defendant company. These strips were left in situ at the time the chain was attached to the pipes for lifting and reliance was placed upon those strips to continue to restrain the two bundles of pipes during the lifting.

6. The first ground of appeal was that the learned trial Magistrate unfairly convicted the Appellant on a basis which was never canvassed by the Prosecution nor contemplated by the Appellant. This refers to her finding that either the load was not properly secured, or that a strip may have broken causing the accident. It is true that the prosecution did not proceed initially on that basis, but the matter was raised by the Magistrate to both parties in the course of the trial. She raised it squarely with them and required it to be addressed, and it was addressed by Mr McGuinniety who appeared in the Court below. He cannot be said to have been taken by surprise by the Magistrate's addressing of this particular issue.

7. Whilst I accept that if an issue is not raised during the trial, for a Magistrate to do so for the first time in the reasons for verdict would be to raise an issue upon which the parties had not had an opportunity to address the Magistrate, that is not the case here. In addressing the issues as to the causes of the accident, the Magistrate took into account all that she had heard, both from the Prosecution and the Defence, including a Defence expert. That being so, even though the expert for the Defence did not close the categories of possible causes of the accident, the Magistrate was entitled to come to the conclusion that the accident must have been caused by one of the four causes she sets out. The Magistrate was entitled to hold that either there must have been a fault in the securing of the load or that the strips securing each or one of the bundles of pipes had failed.

8. Even where strips had been placed prior to delivery on pipes in bundles to secure those bundles, where reliance is placed upon those strips in the course of the lifting of the pipes by a crane, then it is the duty of the Appellant to ensure that they are properly secured, not only by the chain, but also by the strips. Although not specifically addressed by the Magistrate, clearly if the pipes scattered upon falling, the strips must have broken. There was, therefore, evidence before her that somewhere in the failure of the load to retain its integrity as it was lifted, the strips broke enabling the pipes to fall.

9. The Appellant further argues that the Magistrate wrongly drew an inference of guilt against the Appellant despite there being other compelling inferences that could be drawn. I do not agree. The only reasonable inference in all the circumstances as drawn by the learned Magistrate were those which she drew.

10. Further, there was clearly evidence that there was a case to answer notwithstanding that the Prosecution had nothing to say in reply to the half-time submission of no case, and I do not accept the argument that the use by the trial Magistrate of the word "we" in her ruling leads to any conclusion that she was biased towards the Prosecution. I do not consider that her words that the load was not secured adequately contrary to the weight of the evidence she having found four possible causes to the failure of the load and having excluded those reasons extraneous to the failure of the strips or the failure of the load to be secured, it left only that the load was not secured adequately by either the strips or by the chain.

11. The Appellant further alleges that the Magistrate's finding that the Appellant failed to check the metal strips before commencing loading contradicts the facts admitted by the Prosecution. Those facts were to the effect that on the day in question, the lifting of the town gas pipes included lifting initially the load off the ground to a height of about five feet and then stopping for a while to check that the load was securely tied and connected, and that only then would the crane operator continue to raise up the load, moreover, that this practice was followed at the time of the fifth load.

12. This is not in contradiction with the finding of the Magistrate which was that :

"We have no evidence that PW2 checked the metal strip of the gas pipes before wrapping it with the chain sling."

Quite clearly, the point where the Magistrate was referring to the checking done before the load left the ground before the chain was placed around the pipes and not at the point when it was hoisted some five feet above the ground. There is nothing in this ground of objection.

13. I have considered all that the learned Magistrate had said and the facts herein, I am satisfied that the approach of the learned Magistrate was a proper one and that her findings are unassailable. This appeal must be dismissed.