HKSAR v. TAKASAGO THERMAL ENGINEERING CO LTD

HCMA 398/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 398 OF 2004

(ON APPEAL FROM TWS 17861 OF 2003)

____________

____________

_______________

J U D G M E N T

_______________

1.  The Appellant company was tried in the Magistrate’s Court on a summons that being the contractor responsible for a construction site named in the information, they failed to take adequate steps to prevent a person on the site from falling from a height of 2 metres or more, namely the Lobby of Tower 8, Tierra Verde, Tsing Yi, and this is contrary to Regulations 38B(1), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap. 59.

2.  The prosecution called a total of 4 witnesses and the defence called 1 witness and at the end of the trial, the learned Magistrate convicted the Appellant company and fined the Appellant company $6,000.  Now this is an appeal against that conviction.

3.  At the first hearing of this appeal, the matter was adjourned because the Appellant wanted an opportunity to locate a crucial witness in the case, who was missing at the time when this matter came for trial before the learned Magistrate.

4.  The facts in brief were that the injured person, PW2, had claimed in his evidence that he had been instructed to repair the damage to the upper ceiling in Tower 8 and when he was doing so, he fell more than 2 metres.  Now working alongside PW2 on that day, was a person called Yeung Mau Lam.  It is apparent from the affirmation that had been filed that the Appellant company did use its best efforts to try and locate Mr Yeung but as is very common with itinerant workers, it was difficult to locate him.  When he was located, he had proved uncooperative about returning to Hong Kong to assist the Appellant and it was subsequently after much persuasion during the adjournment of this appeal that Mr Yeung finally came to Hong Kong or rather saw the solicitor acting on behalf of the Appellant and furnished an affirmation to the Appellant’s legal representative.

5.  Counsel for the Respondent, very properly, after reading all the affirmations and considering the matter came to the proper conclusion, that, in view of this fresh evidence that she cannot resist the appeal.  I, myself, after having read the affirmation am satisfied that the Appellant in the interest of justice should be allowed to adduce this fresh evidence.  As it goes to the crux of the matter before the learned Magistrate, and I am also satisfied that Ms Lo, for the Respondent had come to the right decision in not resisting the appeal.

6.  The Respondent then applied for a retrial on the basis that it is in the interests of justice to do so and that this is a very serious case involving injury to a workman and thus relating to construction site safety and that the fresh evidence that has been produced should be subjected to cross-examination and be tested in a trial because as Ms Lo properly pointed out it should not be just taken at face value.

7.  Mr Richmond on the other hand resisted the application for a retrial, in the basis that, based on his other grounds of appeal, where he pointed out the errors made by the learned Magistrate, would have been sufficient to quash the conviction and therefore a retrial would not serve any purpose.  But Mr Richmond very properly accepted that of course the learned Magistrate had a discretion, in assessing the evidence, as to what evidence he accepts and what evidence he rejects, and whether he accepts the honesty and reliability of a particular witness.  And in this case, most importantly, it is the evidence of PW2.  The issue in the case is basically that the repair to the damage of the upper ceiling was outside the contract of the Appellant.

8.  PW2’s evidence nevertheless said he was instructed to repair that damage because it was felt that that damage was caused by the contractor.  PW2’s evidence was indeed contradicted by the evidence of DW1.  The defence case is that the upper ceiling was outside the ambit of the contract, and at that time, they had not made the decision as to what to do, so the defence case was that PW2 was indeed not told to repair that part of the ceiling.

9.  It is clear from Mr Richmond’s skeleton argument and what he had submitted to this court that basically the learned Magistrate was making findings of facts in relation to the issue in the case without the assistance of this fresh evidence.  Whilst Mr Richmond has made a persuasive argument in his criticism of the learned Magistrate’s rejection of some of the evidence without giving sufficient reason, for example, the learned Magistrate had rejected PW2’s evidence that he had not used such a long ladder before, and thus this evidence would tend to, as Mr Richmond pointed out, support the defence case that PW2 was never told to do any repairs to any upper ceiling.  But the learned Magistrate had rejected this part of the evidence of PW2 without giving any consent reason why he did so.  As Ms Lo pointed out, all this have to do with the learned Magistrate’s finding of fact through it is arguable that the learned Magistrate may not have given sufficient reasons.

10.  Each point in itself is not sufficient for me to quash the conviction and in my judgment, neither conclusive nor satisfy me that the learned Magistrate had come to the wrong conclusion in this case based on the facts before him.  Certainly, I agree with Mr Richmond, as he is very properly pointed out, the learned Magistrate had the opportunity of observing the witnesses giving evidence and in the final analysis, it is for him upon assessing the evidence using his common sense together with his observation of the various witnesses to make certain findings of fact.  And as the Court of Appeal had said, it would be rare for a court on appeal to interfere with the learned Magistrate’s finding of fact unless it can be showed that the learned Magistrate did commit an error either in fact or in law in coming to his conclusion.

11.  I therefore feel that in this case, in the interests of justice, this fresh evidence should be tested at trial and therefore I will accede to the prosecution’s application for a retrial in this case.  This appeal is therefore allowed, the conviction of the Appellant is quashed, and I order that this case be sent back to the Magistrate’s Court for a retrial.