HKSAR v. HYUNDAI ENGINEERING CONSTRUCTION CO. LTD.

HCMA 815/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 815 OF 2002

(ON APPEAL FROM NKS 674/2002)

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J U D G M E N T

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1. In September last year a safety officer from the Labour Department visited a construction site to which the provisions of the Construction Sites (Safety) Regulations applied and for which the appellant company was the responsible contractor.

2. He saw a man, called at trial as DW1, standing with one foot on the top bar of a tower scaffold and the other foot on the very top step of an A frame ladder which was leaning unsecured and unfooted against a wall. The man was standing fully erect and working with his hands above his head on the ceiling above him. His feet were 2.78 metres above the ground. He wore no safety belt and there was no suitable anchorage for one. No safety nets were in place. If he should have lost his balance or footing or if the ladder had slipped or the tower moved there was nothing to prevent him falling to the ground.

3. Not surprisingly the officer immediately took a photograph. It captured this situation such that it could never be disputed. He caused the appellate company to be summonsed for breaching Regulation 38B(1) of the Regulations on the basis of their failure "to take adequate steps to prevent any person on the site from falling from a height of two metres or more".

4. It was common ground that DW1 was making measurements and marking the ceiling in order that some suspended piping could be affixed to it. The ceiling was 4.5 metres above the ground.

5. The bare facts I have recited gave rise to a prima facie case and the appellants called evidence from DW1, who worked for a sub contractor, and their safety officer, who was DW2.

6. The first question to ask therefore in judging whether the appellants took the adequate steps as required by the regulation is to look for the evidence of what steps they did take.

7. DW2 said that there had been a meeting with the subcontractor to deal with this job and that it was agreed that for the installation of the pipes a proper working platform would be constructed and that he would check it before it was used. However, for the job of measuring and marking the ceiling he said that a footed ladder would be acceptable.

8. The steps that the appellants took therefore to prevent any person on the site from falling from a height of two metres or more was to order the provision of a footed ladder for the job.

9. I have no hesitation in coming to the same view as the magistrate that the prosecution proved a failure to take adequate steps to prevent a fall. The system devised for the work required a man to stand erect and unsupported with his hands above his head on a ladder when his feet were as high as 2.7 metres from the ground. Nothing met the risk of his overbalancing or slipping. Such risks are acceptable when the height from which a man may fall is below 2 metres. They are not acceptable over that limit. It mattered not whether the ladder was leaning against a wall or supported itself on its A frame. It mattered not that the job of measuring and marking was not going to take long. The concentration required in measuring and the risk of overbalancing in seeking to mark the right place added to the inherent risks of such a system. Nipping up a ladder, as it has been described, to do a quick job such as this is just the type of occasion when accidents happen. The steps taken were not adequate.

10. There are statutory defences available in Regulation 38H. The evidence of DW2 did not begin to explain why the proper working platform, which was to be made and used for the pipe installation, was not to be used for the measuring and marking. The nearest he approached to an explanation was to say that the ladder was adequate for measuring and marking "as it won't take him a very long time to do it". It could also be said that he must have considered that the height from which the worker could fall was not greatly in excess of the regulation's limit. I agree with the magistrate that this did not meet the obligation on the appellants to show that it was impracticable to comply with the requirements of the regulation. The burden was on the appellants on the balance of probabilities. A suggestion in argument that it may have been that the pipe installation work was going to be started quite some time after the measuring remained just that: a suggestion. The appellants called no evidence to support it.

11. It was the case that other pipe work hung from the ceiling in the area in question. It was said that this would obstruct the erection of a scaffold tower which used standard sized lengths of framework. Looking at the evidence, especially the photographs, it is not clear to me whether careful positioning of a scaffold tower could overcome the problem. Assuming, in the appellant's favour, that this was not possible, the question arises whether it was impracticable in the circumstances to adapt the scaffold tower. On the material before me I judge that it would have been practicable to adapt it by the simple expedient of shortening the legs of the final stage or making some other adaptation to the framework such as removing the section of the guard rail which fouled the pipes. DW2 foresaw the use of "a proper working platform" for the installation of the pipes. The fact that an adapted working platform may not have met all the requirements in the Third Schedule concerning their construction does not mean that it was not reasonably practicable to take the adequate steps required by Regulation 38B. If a guard rail could not go all the way round the top, then some guard rails round a secure and flat platform was still better than standing on a footed ladder unsupported.

12. The statutory defences were, and are not, made out.

13. It was argued that a defence was available to the appellants if they established on the balance of probability that they honestly believed for good and sufficient reason that they had complied with the regulation, albeit that they were mistaken in their belief. It was described as the common law defence.

14. I have no hesitation in rejecting the availability of such a defence. In my judgment it would turn on its head a whole body of jurisprudence concerning such safety legislation and it would do so for no good reason. Common sense and the policy behind the legislation deny it any place as a defence. It would make those who bear the burden of this safety legislation substantially judges in their own cause, notwithstanding the requirement of "good and sufficient" cause. The prospect of different standards between different companies with different states of mind in this area of safety law which calls out for uniformity in the discharge of statutory duties is not sensibly to be contemplated.

15. It is worthy of note that when this defence was run in the magistrate's court, it was run with no reference as to how the state of mind of a company like Hyundai Engineering Company Ltd should be ascertained. The conventional view is that a company will have imputed to it the acts and state of mind of its directors and managers who represent its "directing mind and will". It seemed to be assumed at the trial that the relevant state of mind was that of the junior safety officer who had devised this unsafe system of work. What would the magistrate have done if faced with evidence of the state of mind in the boardroom? The directors of large responsible companies doubtless hold, and honestly hold, the belief in question. The investigation of whether such beliefs were held for good and sufficient reason opens up diverse facts and issues and the history of previous compliance or the lack of it. It may be argued that the courts must fashion a special rule for the attribution of the state of mind in cases such as this. If that is to be done then it has to be done by interpretation of the Regulations. It appears to me that no advocate of the availability of the defence has addressed this problem.

16. Whether or not the suggested belief can found a defence to a charge based on a breach of these Regulations is a matter of statutory construction. No Hong Kong case binding upon me has held as a matter of construction that these Regulations provide for the belief to be a defence. I decline so to construe them.

17. Safety regulations of the type in question in this case have a long history both here and in England and Wales. They have long been dealt with on the basis of strict liability. It has long been the law in England and Wales that mistake of fact, whether based on reasonable grounds or not, will not run as a defence against an offence of strict liability (see R v Howells [1977] QB 614). Mistaken belief in compliance is, of course, a mistake of fact.

18. The construction of the Ordinance in AG v Fong Chin Yue and others [1995] 1 HKC 21, which dealt with dutiable goods and is the cornerstone of the appellant's argument (and which introduced a reverse burden defence as a matter of construction) is not authority for a sweeping introduction of such a defence across the whole range of strict liability offences, especially those regulatory ones that have their own statutory defences. It is worthy of emphasis that the offences in Fong's case did not have their own statutory defences and that the instant offence before me does.

19. In my judgment, the same considerations and reasons that justify offences of strict liability for safety regulations make it right to construe them as excluding the claimed common law defence. This is not heavy handed. The statutory defences, which the legislature has provided to meet the rigour of the regulation, are available in deserving cases and honest effort is good mitigation, especially in respect of regulatory offences.

20. I can thus see no need to upset the established law that has seen magistrates try such safety cases on the basis of strict liability without the claimed common law defence for decades. I can see good reason to exclude the defence as its availability opens up a host of issues and complexities that should have no place in summary trials of regulatory offences. The fact that counsel for the respondents is prepared to concede the point to the appellant does, of course, make me pause. All I can say is that concession by counsel from the Department of Justice should not be the basis of a fundamental change in the law and that I take a different view.

21. I should mention that I was referred to the case of HKSAR v China Civil Engineering Construction Corporation HCMA 1020/2001 which is a decision by McMahon DJ on an appeal from a magistrate's conviction of an offence under Regulation 39 of the same Regulations as apply here, namely Construction Sites (Safety) Regulations. He said that the common law defence was available. He did not have the benefit of argument as the matter was conceded by counsel for the respondents and it is to be noted that Regulation 39 does not have a separate statutory defence.

22. Even if there was such a defence available, the appellants have not in my judgment begun to discharge their burden on the evidence. DW2's attempt to explain why he thought that the system he devised was one that amounted to taking adequate steps under regulation 38H signally failed. He did not establish on the balance of probability that his belief was held for good or sufficient reason.

23. I thus confirm the order of the magistrate convicting the appellant.

24. Finally, I wish to read paragraph One of Mr Jenkyn Jones' Grounds of Appeal:

"In so far as it is possible to discern any logical reasoning for the rejection of defence issues and the ultimate basis for conviction, such reasoning is either flawed in itself or based on a misunderstanding of the underlying legislation and law".

The tone continues through the grounds. It has no place in Perfected Grounds of Appeal and I have told him so.

25. In view of the way those grounds were drafted, I will say that the detailed Statement of Findings written by the deputy special magistrate, Ivy Lau, demonstrated considerable hard work and application and that she was quite entitled on the evidence to make her findings which were entirely consistent with good common sense. Given that deliberate compliment, I may perhaps be allowed one criticism: she assumed the appellants to have a clear record in the absence of any evidence about character or previous convictions being led. In fact they have 135 previous similar convictions spaced over the last four years. It is not the first time I have seen such an assumption in a Statement of Findings. Such assumptions are not justified.

Discussion on Costs

26. In this case, I am going to make an order that the appellant pay the respondent's costs of this appeal, to be taxed if not agreed, pursuant to s. 13 of the Costs in Criminal Cases Ordinance because I judge the appeal was one without merit. Let me say immediately that if I had found on the facts for the appellant but dismissed the appeal because of my view as to the availability of the common law defence, I would not make any order for costs, but this appeal has been disposed of on the basis of findings of fact.

27. Those findings of fact were remarkably similar to those in an appeal, heard by Jackson J, in July of 2001, MA 167 of that year. In that case, a man was standing on A frame ladder, and his feet were 2 metres above the ground, and he had to reach up to a light fitting and work with his hands above his head. The Judge agreed with the magistrate that it was obviously unsafe and dismissed the appeal. That is in fact exactly the substance of this appeal here. In that case, the same counsel, Mr Jenkyn-Jones appeared and it seems to me he came and argued the same thing and he has lost again. That is why the appeal was without merit.

28. Let me just repeat what Jackson J said on that occasion, he said:

"given what he [the Magistrate] did say it seems to me that this appeal against conviction has about it an air of unreality. The fact of the matter is that the learned Magistrate found (and this seems to me to be a matter of common sense) that it is inherently dangerous (or certainly unsafe) for a man to do work which necessitated him standing astride the top of an 'A' frame ladder and stretching upwards with no other support. Because of the height of the ladder and the height of the light fitting there existed a real danger that the worker might fall unless other adequate steps were taken such as the use of a more stable platform."

29. This appeal, especially given that previous experience, did lack merit and I make the order for costs accordingly. Despite the fears of Mr Jenkyn-Jones that has nothing to do with the tone of his perfected grounds of appeal.