HKSAR v. HIP HING CONSTRUCTION CO. LTD.

HCMA1018/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1018 OF 2000

(ON APPEAL FROM ESS 6562 OF 2000)

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J U D G M E N T

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1. The appellant was summonsed for the following offence that :

"..... on 15 November 1999 being the contractor responsible for a construction site at CUSTOMS & EXCISE SERVICES MARRIED QUARTERS, FIRE SERVICES QUARTERS, FIRE SERVICES QUARTERS NORTH POINT, 632 KING'S ROAD, NORTH POINT, HONG KONG did fail to take adequate steps to prevent a person on the site from falling from a height of 2 metres or more, namely WORKERS ON THE DOUBLE-ROW BAMBOO SCAFFOLD AT THE EXTERNAL WALL (FACING KING'S ROAD) OF THE BUILDING AT 3/F, 4/F AND 10/F."

2. The appellant pleaded not guilty and was convicted after trial. The sentence was a fine of $20,000 and the appellant now appeals against the conviction.

3. The prosecution case was simply that PW1, a safety officer, had conducted a spot check on a work site on 15 November 1999. He noticed that some workers were working outside the external wall of a building. But there was no working platform provided. Although the workers were wearing safety belts but they were not attached to any lifeline. The further investigation revealed that the appellant was the main contractor responsible for the site. The prosecution contended that no adequate steps had been taken by the appellant in the circumstances to prevent a person from falling.

4. The defence had called a witness. He was the manager of the subcontractor Fung Fan Engineering Company. Actually the appellant had subcontracted the maintenance work to Fung Fan Engineering Company which had in turn subcontracted the scaffolding work to another company. The workers in question were engaged to do the scaffolding work. The witness testified that on the material date, the painting work for the building's external wall had already been finished and the scaffolding was about to be dismantled. Hence, it would be impracticable to erect a working platform for the workers. The witness also gave details as to the measures he had taken to ensure the safety of the workers.

5. Counsel for the appellant had raised a total of four grounds of appeal in the Perfected Grounds of Appeal. The first ground was that the learned magistrate had erred in finding that none of the workers had attached their safety belts to a lifeline. The second and third grounds related to the complaint that the magistrate had failed to consider the defence's case properly and actually applied the wrong tests in relation to the available defences, namely the statutory defence under Regulation 38H CS(S)R and the common law defence of honest and reasonable, albeit mistaken, belief. The fourth matter was as follows :

"4. (i) In so far as the Learned Magistrate purports in his formal Reasons For Verdict to find that DW1 'tended to over-state the lengths to which he had gone,' such a finding;

(a) does not appear to have existed in the Magistrate's mind or to have carried any significance at all at the time he actually gave his verdict and gave oral reasons therefor,

(b) is in any event wholly unsupported by the actual evidence, and

(c) is wholly inconsistent with the implied finding of creditworthiness and reliability in favour of DW1's evidence, that led to PW1's evidence as to 'work in progress' being totally rejected.

(ii) Furthermore, notwithstanding such a finding, even if it has any significance, the Learned Magistrate has still failed to properly apply both the statutory defence under Regulation 38H CS(S)R and the Common Law Defence of 'honest and reasonable belief'."

6. I was indebted to both counsel who had prepared very helpful written submissions on the various matters raised in this appeal. Mr Jenkyn-Jones had also made a very persuasive oral submission in court which I had taken time to consider with care.

7. From the transcripts of the case, I noticed that defence counsel had presented a comprehensive final submission in the trial. He strongly questioned the reliability of the main prosecution witness. It was said that PW1 was not an experienced officer, and what he claimed he had seen about the workers not being attached properly, could not be supported by the photographs he himself had taken. Counsel had reminded the learned magistrate, inter alia, that at the material time, the witness was focusing on the absence of working platform and not the lifeline, therefore his evidence was unreliable. All the matters relating to the credibility of PW1 had been fully argued and analysed by counsel. But in the end, the learned magistrate came to find PW1 to be a truthful witness and that he specifically accepted that none of the workers had attached his safety-belt to a lifeline. I agree with counsel that the photographs produced at the trial were not helpful but the magistrate was keenly aware of this aspect of the evidence (see the magistrate's oral reasons at page 25 of the Transcript). Nevertheless, he was satisfied with PW1's evidence on this matter. I found that it would be inappropriate for me to reconsider his testimony now. Having seen and heard the witness, the learned magistrate was entitled to accept some aspect of the his evidence and reject the other part. I agree with the respondent's submission that there is no merit in this ground.

8. The transcript also revealed that counsel had made a full submission before the learned magistrate on both the statutory defence under 38H and the common law defence of honest but mistaken belief. But in the end, the magistrate rejected both defences. Counsel sought to argue that the learned magistrate had failed to properly consider these defences and had in fact failed to apply the correct tests. In his oral submission before this court, counsel criticized, inter alia, that the learned magistrate had apparently confused the two defences. Counsel made this complaint based on the following remarks in the Statement of Findings :

"... While I did not expect that the Defendant Company would post a 'minder' behind every worker to ensure compliance with safety regulations I found that the DW did not do all he could have to ensure compliance by the workers nor could he claim an 'honest and reasonable belief' that the regulations were complied with."

Counsel argued that the learned magistrate seemed to have adopted the logic that because he had found that the statutory defence could not be established, it would automatically follow that there could be no defence of honest and reasonable belief.

9. I had gone through the Statement of Findings and in the context, I did not gain the impression that the magistrate had confused the two defences. It should be recalled in this connection that the magistrate had ultimately found that DW1 "... tended to overstate the lengths to which he had gone to ensure that the workers compiled with the safety regulations" and based on this credibility finding, the magistrate proceeded to conclude that the defence witness did not do all he could have to ensure compliance by the workers nor could he claim an "honest and reasonable belief" that the regulations were complied with. In my view, the magistrate had not confused the two defences.

10. There was, of course, the criticism that the learned magistrate had made no negative comment about DW1's credibility in his oral reasons, it only appeared subsequently in his Statement of Findings. I could not accept that there was anything irregular about this. The oral reasons, which were given right after the final submissions were obviously not meant to be a comprehensive statement on the case. The magistrate could not, of course, change the basis of his decision, but he was entitled to expand on the reasons when he came to prepare the formal Statement of Findings in which he was obliged to state all his specific findings. I could see no contradictions between the Statement of Findings and his oral reasons.

11. There is a further angle to the defences arising from the respondent's written submissions. Regulation 38B(1) of the Construction Sites (Safety) Regulations, which were made under the Factories and Industrial Undertakings Ordinance, Cap.59, imposed an obligation on the contractor responsible for any construction site to take adequate steps to prevent workers working at a height from falling, including the provision of working platforms or other steps under Regulation 38B(2).

12. Then under Regulation 38H, it would be a defence for the contractor to prove that, (i) it was impracticable to comply with the steps mentioned in Regulation 38B(1)(2) and (ii) that all reasonably practicable steps were taken to ensue the proper use of the safety belts by the persons involved. There was no specific reference in the statute concerning the situation of subcontractors.

13. Submitting that the magistrate was fully aware of the available defences, counsel for the respondent stated in her written submission that :

"23. The authorities clearly indicate that the duty on the principal contractor is both onerous and heavy. It was incumbent upon the appellant, as a contractor responsible for the site, to exercise strict supervision and to take all reasonable practicable steps to ensure compliance with the safety requirement.

24. The appellant had not called its own safety officer or site agent to testify as to the steps taken to ensure compliance with the safety requirement. Apparently, the appellant had left it entirely to the Sub-contractor to ensure the proper use of the equipment by workers who were employed by yet another sub-contractor.

25. In most construction sites, not only there are frequent site inspections, rules are set to warn the workers for the proper use of the equipment by providing that workers who are found to be in breach will be suspended or even stopped from work. The appellant had done nothing of the sort.

26. The law imposes a non-delegable duty on the appellant to comply with the safety regulations. If it chose to leave it to a sub-contractor, it did so at its own peril. It would have to be responsible for the result if the Sub-contractor (who was not even present at the site) did not carry out regular site inspections and chose to have a sudden check at his own whim, as the Magistrate put it, 'and then sit back and hope for the best'."

14. What the respondent was arguing appeared to be that as there was no direct evidence coming from the appellant, therefore none of the defences could be established, whether by statute or common law. I could see the force in this argument, particularly on the issue of honest but mistaken belief as it necessarily involved some degree of subjective consideration. Here, the appellant was charged and not the defence witness or the subcontractor. But the appellant was seeking to simply rely on the performance of the subcontractor to satisfy the safety requirements and raised the defence of honest but mistaken belief. Counsel for the appellant contended that whatever defence was available to the subcontractors, it would also be available to the appellant. I am not sure if it is really that straightforward. I tend to think that the main contractor cannot delegate all the obligations under the statute and be allowed to simply rely on the subcontractor's conduct. But for the sake of this appeal, I am prepared to accept the appellant's contention and proceed on that basis.

15. Whatever the position about the availability of defences, here the learned magistrate had found that the defence witness had exaggerated what he had done, and in any case he was not satisfied that what was said to have been done was sufficient. I disagree that the magistrate had to first list out what else could have been done before he could come to that conclusion. Taking the magistrate's reasoning as a whole, I gathered that he was not satisfied with the haphazard, non-systematic way the defence witness had approached the task. That was his view of the evidence. And therefore he found that the onus of the statutory defence had not been discharged and also that the burden of showing the honest and reasonable belief, whether mistaken or not, had not been discharged. On his findings of facts, I was unable to agree, despite a very persuasive submission to the contrary, that the magistrate had committed any error in the consideration and the application of the defences. The appeal must be dismissed.