HKSAR v. OTIS ELEVATORS CO (H.K.) LTD

[English Translation – 英譯本]

HCMA 154/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 154 OF 2008

(ON APPEAL FROM ESS NO. 3664 of 2007)

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J U D G M E N T

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Background

1. The Appellant, Otis Elevators Company (H.K.) Ltd., was charged by way of summons with contravening Regulation 44(1)(c) of the Construction Sites (Safety) Regulations enacted under the Factories and Industrial Undertakings Ordinance (Cap. 59 of the Laws of Hong Kong). The Appellant pleaded not guilty and was convicted after trial and fined $5,000.

2. The Appellant now appeals against conviction.

3. The particulars of summons stated that on 16 August 2006, the Appellant, being the contractor responsible for the machinery (namely, the traction motor for Lift No. 1) at Gardenview Heights, No. 19 Tai Hang Drive, Hong Kong, failed to ensure that every dangerous part of the machinery was effectively guarded, and every dangerous part of the machinery was not in such a position or of such construction as to be as safe to every workman on the construction site as it would be if it was effectively guarded.

4. The prosecution’s case was that the Appellant was the maintenance and repair contractor of the two lifts at Gardenview Heights, a residential building situated at Tai Hang Road. It appeared from the maintenance contract that the rise of each lift was 103.93 metres, and 37 ingress/egress points were provided to the residents of the building.

5. On 16August 2006, oil leakage was noticed at the driving unit of the motor for Lift No.1 of the building, and the Appellant sent a team of three lift technicians to the plant room located on the top floor of the building to repair the driving unit in question. In order to carry out the repair work, the technicians had to remove the protective guard installed outside the driving unit. Later the leader of the team conducted “testing” and “fine-tuning” procedures on the lift. In the process, the hand of one of the technicians Mr. Mak was trapped and injured by the steel gear of the driving unit in motion. At the time of the accident, the protective guard of the driving unit had not been re-installed.

6. The evidence showed that the protective guard in question weighed about 30 to 40 pounds. It would take about 10-odd minutes to remove the guard and another 10-odd minutes to install it, and it would take two workmen working together to remove the guard from the gap between the cable gear and the wire rope of the driving unit.

7. After the close of the prosecution’s case, Counsel for the Appellant submitted, on three grounds, that the Appellant had no case to answer. However, the Magistrate found that a prima facie case had been established.

8. The Appellant elected not to call upon a representative to testify in court. Nor was any defence witness called. In the end, the Appellant was convicted.

Grounds of appeal

9. Mr. Lau, Counsel for the Appellant, also appeared for the Defendant at trial. At the appeal hearing, Mr. Lau put forward five grounds of appeal, the first three of which reiterated the submissions made in the course of trial.

10. The first ground of appeal is that Regulation 44(1)(c) is not applicable to the present case and that the Magistrate wrongly held that the work process in question was “construction work” and hence wrongly held that the place of the accident in question was a “construction site”. The second ground is that the Magistrate should have ruled that the Appellant should have been charged under Regulation 44(2) instead of Regulation 44(1). The third ground is that the Magistrate should have found that the Appellant had established the defence provided in Regulation 44(2). The Appellant also relies on a fourth ground of appeal, namely that the Magistrate failed to give any reason for convicting the Appellant; and a final ground of appeal that, in light of the above four grounds, the Appellant’s conviction is unsafe and unsatisfactory.

11. I start by dealing with the first ground of appeal. The Appellant submits that the part of the lift in question that needed repair on the day of the offence was the driving unit of the motor for Lift No. 1, located in the plant room on the top floor of the building. The driving unit is, the Appellant submits, only a component of the lift motor and henceis not a structure or building. Under Regulation 3, the Regulations:

… apply to ―

(a)    all construction work; (b)   all construction sites; and (c)   the machinery, plant, tools, gear and materials with which any construction work is carried on

Regulation 2 defines a “construction site” to include:

a place where construction work is undertaken … [emphasis added]

12. The term “construction work” is defined in section 2 of the principal legislation, namely the Factories and Industrial Undertakings Ordinance, Cap. 59 of the Laws of Hong Kong. Section 2(a) provides that:

‘construction work’ … means ―

(a)    the … repair, maintenance … of any structure or works specified in the Third Schedule;

Schedule 3 to the Ordinance sets out 10 main types of structures and works, the first of which includes:

Any building … .

13. The prosecution’s position, with which the defence took issue, was that the driving unit repaired by the Appellant was part of the building, and therefore the Construction Sites (Safety) Regulations were applicable.

14. The Appellant has relied on the local case of R. v. Sime Darby Property Services Ltd [1993] 2 HKC 485 to support its argument.  In that case, Justice Bewley, the appellate judge, reversed the magistrate’s ruling that a cooling tower for air-conditioning installed on the exterior wall of a building was part of the building. The Appellant has also relied on the House of Lords case of Price v. Claudgen Ltd [1967] 1 WLR 575 and the Scottish case of Lawson v. J.S. Harvey & Co. Ltd 1968 SLT (Sh Ct) 24.

15. In Price, the House of Lords held that a neon light tube installed on the exterior wall of a cinema was not or did not form part of the cinema building.

16. In Lawson, the Scottish court held that a disused lamp holder installed on the lamp pole at the entrance of a school did not form part of the building.

17. In the present case, the evidence and testimony show that the driving unit in question is part of the motor that controls the operation of Lift No. 1 of the building. Viewed as a whole, the driving unit, motor, other gear traction systems, lift passenger car and lift belts are naturally parts of the entire lift system. None of them can operate on its own. Lift No. 1 in question functions inside the lift shaft, and there are 37 ingress/egress points for each lift. It can be imagined that the stoppage of the lifts or either of them will certainly have a significant impact on the residents and visitors of the building. If no lift facilities are in place, the building may not even be suitable for residential use. It can therefore be seen that the lift system that comprises two lifts must be an integral part of the building. The lift facilities in the present case are plainly different from those facilities involved in the three cases cited above in terms of nature and use. The Magistrate’s ruling that the plant room in question and the relevant components formed part of a “construction site” was, in my judgment, in line with the relevant statutory definitions and the actual circumstances of the building. The Magistrate did not err. Paragraphs 17 to 25 of the Magistrate’s Statement of Findings contained a lucid analysis on the differences between the cases relied on by the Appellant and the present case, and paragraphs 26 to 27 expressly stated that the driving unit in question was an indispensable part of the lift system. In my judgment, the first ground of appeal must fail.

18. On the second ground of appeal, Counsel for the Appellant submits that, if the Construction Sites (Safety) Regulations were applicable to the present case, the prosecution should have charged the Appellant under Regulation 44(2) instead of Regulation 44(1)(c).

19. The Magistrate quoted the following provisions in the regulations (see page 15 of the appeal bundle):

Regulation 44(1) and (2) provides as follows:

“(1)  The contractor responsible for any prime mover, transmission machinery and other machinery (whether or not driven by mechanical power), and any contractor who has direct control over any construction work which involves the use of the prime mover, transmission machinery and other machinery, shall ensure that –

(a)    every flywheel and moving part of the prime mover;

(b)   every part of the transmission machinery; and

(c)    every dangerous part of the other machinery,

are effectively guarded unless they are in such a position or of such construction as to be as safe to every workman on the construction site as they would be if they were effectively guarded. …

(2)  Where under paragraph (1), parts of any machinery are required to be guarded, the contractors shall ensure that the guarding is kept in position while the parts are in motion or in use, except where the parts are necessarily exposed for examination or for any lubrication or adjustment shown by the examination to be immediately necessary. …”

20. The Appellant argues as follows: at the time of the accident, the workmen were testing the operation of the lift system and checking individual components. Regulation 44(2) should have applied since the lift was then in motion. Furthermore, as the prosecution had never denied that the dangerous parts of the machinery in question were effectively guarded, the prosecution could not possibly have charged the Appellant under Regulation 44(1). Mr. Lau of Counsel submits that Regulation 44(1) applies only to stationary machinery whereas Regulation 44(2) applies to machinery in motion.

21. At trial, Counsel put forward the same argument, and the Magistrate dealt with it in the following way:

“9. I do not agree with this submission. In my view, Regulation 44(1) is wide enough to cover both stationary machinery and machinery ‘in motion or in use’. Is it the case that, had Regulation 44(2) not existed, the protective guard of any machinery which was ‘in motion or in use’ could have been removed at will? Is the protection conferred by Regulation 44(1) confined to machinerywhich is as stationary as decorative items? The answers must be in the negative. In my view, the sole purpose of Regulation 44(2) is to specify a situation in which the protective guard can be removed, namely ‘while [the machinery is] in motion or in use … where the parts are necessarily exposed for examination or for any lubrication or adjustment shown by the examination to be immediately necessary.’

10.    I reject Ground 1.

11.  (a)  I understand the argument put forward by Defence Counsel that, as it was necessary to touch the belts/arms of the brake with bare hands, there was no need to put the protective guard back in place. Defence Counsel is obviously relying on the (exceptional) circumstance specified under Regulation 44(2). I wish to stress that the exception applies only when the work in question must be conducted when the machinery is in motion or in use. There is no evidence in the present case which indicates that the act of touching the belts/arms of the brake with bare hands must be done when the lift was in motion or in use. The Defence also submits that it would take 10-odd minutes to remove the protective guard again once it had been put back in place, and this lapse of time would render it impossible to examine whether the temperatures of the two belts/arms were different. A simple answer to this submission is that there is no evidence to show that this could not possibly be done.

(b)  In fact, PW2’s evidence indicates that it was unnecessary for the driving unit to be in motion when the belts/arms of the brake were being touched with bare hands.  PW2 instructed PW1 and the technician to pick up the tools while PW2 himself conducted the ‘fine-tuning’. In my view, this shows that PW2 was able to handle the ‘fine-tuning’ by himself, otherwise he would not have instructed PW1 and the technician to carry out some other work. PW2 had to stand at the position where the cabinet door was open, as shown in Photo D of Exhibit P2, and press the button to set Lift No. 1 in motion. Once PW2 released the button, the lift would stop. It appears from pages 1 and 2 of Exhibit D1 that the location where PW2 pressed the button was more than 2 metres from the driving unit. PW2 would not/could not have pressed the button with one hand and touched the belts/arms of the brake with the other hand. In other words, when PW2 was touching the relevant parts, he would not be pressing the button and the driving unit would not be in motion.”

22. The evidence in the present case shows that the fine-tuning to the lift and the testing by hand of the temperature of the belts of the brake were two distinct work processes. It is not difficult to understand the Appellant’s submission that the protective guard had to be removed before the temperature could be tested, the reason being that if the protective guard was in place, the workman could not touch the belts with his hand and would therefore be unable to test the temperature of the belts. However, the Appellant has overlooked the point that there was no reason why the two work processes, namely fine-tuning and temperature testing, could not be conducted separately; in other words, why could the machinery not be stopped first so that the temperature of the belts could be tested when the transmission part was no longer dangerous? In my judgment, there is nothing in the second ground of appeal.

23. The third ground of appeal is that the Magistrate failed to make a ruling on the ground of defence under Regulation 44(2) which the Appellant had relied on.

24. Regulation 44(2) provides a statutory defence in the following terms:

“… except where the parts are necessarily exposed for examination or for any lubrication or adjustment shown by the examination to be immediately necessary.”

The Appellant submits that the work processes of testing and fine-tuning conducted by the witness at the material time fell within the above terms and hence the Appellant could rely on the said defence.

25. As mentioned above, the Magistrate pointed out in paragraph 11(a) and (b) of the Statement of Findings that there was basically no evidence showing that the fine-tuning and the testing had to be conducted simultaneously. This being the case, there was no basis for the Appellant to rely on the exception specified in Regulation 44(2) as a defence.

26. What led to the accident in the present case was that the workmen attempted to test, by using the dangerous parts of the machinery, whether the driving unit of the motor was functioning normally. As the temperature testing and the fine-tuning were distinct work processes and there was no evidence showing that the two processes had to be conducted simultaneously, there was nothing improper in prosecuting the Appellant under Regulation 44(1)(c). In my judgment, the third ground of appeal must also fail.

27. The fourth ground of appeal is a complaint that the Magistrate failed to give any reason for convicting the Appellant. To support this contention, Counsel for the Appellant relies on my judgment in HKSAR v. Sin Chi Yin [1999] 2 HKC 403.

28. In Sin, I quashed three convictions of the appellant, on the ground that the magistrate, in delivering the oral reasons for the verdicts, did not deal with the accuracy or otherwise of the identification evidence and issue appropriate warnings to himself. It was only in the subsequent Statement of Findings that the magistrate addressed for the first time the quality of the identification evidence.

29. In the present case, at the conclusion of the trial, the Magistrate held that the prosecution had:

“Despite the great efforts made by Mr. Lau of Counsel in persuading me that the prosecution has erred in law and that the prosecution’s case does not establish the Defendant has committed the offence, I am satisfied beyond all reasonable doubt that the Defendant company is guilty and that the prosecution has proved its case against the Defendant company. I convict the Defendant accordingly.”

30. With respect, Counsel may have overlooked the general legal proposition that I made in Sin, at 407E-F:

“… There is no requirement that a Magistrate must give detailed oral reasons of his decision at the end of each trial but if he does, he is expected to inform the person in the dock the salient features of his mental process in reaching his decision and that in so doing he had addressed himself on the relevant law and evidence.”  [Emphasis added]

31. I reiterate that the judgment in the case of Sin applies only where the magistrate chooses to give oral reasons for his verdict, in which case he is required to provide salient points of his reasons for verdict. At the same time, it is perfectly normal for the magistrate to merely say that the prosecution has in his judgment proved its case against the defendant beyond reasonable doubt and that the defendant is convicted accordingly, and not to give any reason for the verdict.  The Magistrate in the present case did not err, and I reject the Appellant’s fourth ground of appeal.

32. As to the fifth ground of appeal, the Appellant’s conviction is in my judgment neither unsafe nor unsatisfactory.

33. The Appellant’s appeal against conviction is dismissed and its conviction is affirmed.