HKSAR v. TEEMWAY ENGINEERING LTD

HCMA 1081/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1081 OF 2003

(ON APPEAL FROM KTS 6583/2003)

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J U D G M E N T

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1. The Appellant company was summonsed in the Magistracy in that being a contractor responsible for a construction site it failed to take adequate steps to prevent a person on the site from falling from a height of two metres or more, contrary to regulations 38B(1), 68(1)(a) and 68(2)(g) of the Constructions Sites (Safety) Regulations, made under the Factories and Industrial Undertakings Ordinance, Cap. 59. The Appellant pleaded not guilty to the offence and a trial followed: the Appellant was convicted and fined the sum of $75,000. The Company appeals against that sentence.

Facts

2. The Appellant was a contractor responsible for demolition of blocks 13 and 14 of Sau Mau Ping Estate. A substantial metal hoarding marked the boundary of the site and provided a "first floor" walkway for workers and members of the public who could walk underneath this walkway, which had a substantial metal cover. Where the hoarding had been completed, the Appellant provided safety nets on either side of the walkway.

3. An Occupational Safety Officer of the Labour Department visited the site on 14.3.2003. The hoarding had not been completed at the location described in the summons. The uprights of the framework were in place as was the horizontal walkway on the first floor. The cover of the structure was in place over the walkway. However no safety netting was erected at the walkway and no guard rails or toe boards were in place. No independent life-lines had been slung and no fall-arresters were in place. The Occupational Safety Officer saw that an 'A'-frame ladder had been put up at the level of the first floor walkway. A worker was on top of the ladder using an electrical arc-welding set to weld the metal plates forming the cover of the walkway. That worker was not wearing a safety belt.

4. The Occupational Safety Officer pointed out to the Appellant's site agent what she had observed. The agent said he had told workers to stop work and install guard rails before starting work again. The Occupational Safety Officer inspected the place where she saw the worker welding and saw the three areas showing signs of recent welding. In addition to electric cabling having been slung at the walkway for the arc-welding set, there was also tubing for supplying oxygen and acetylene gases for oxy-acetylene welding.

5. The overall height of the hoarding was 5.6 metres. The first floor walkway was 2.8 metres high and 1.4 metres wide. The unfinished length of the hoarding at that location was more than 24 metres.

6. The Appellant had sub-contracted the erection of the hoarding to Ping Kee. There were specific procedures which should be followed in erecting the hoarding and the evidence of the site agent was that the work was not carried out in accordance with those procedures.

7. The Appellant had a training system in place and had produced a project safety plan. There was a system of issuing safety equipment to workers, but not every worker was issued with a safety belt. Counsel representing the Appellant advised this court that those workers who were working at height were issued with safety belts.

8. The Appellant agreed the offence was one of strict liability. It defended the case on the basis that it had instructed the workers not to go onto the hoarding and because of its safety system was entitled to the benefit of the statutory defences in Regulation 38H of the Construction Sites (Safety) Regulations, Cap. 59.

9. The Magistrate was not satisfied those defences were made out and convicted the Appellant. In his Statement of Findings the Magistrate commented that the system of site inspection was inadequate. The Appellant had done nothing to deny access to those who might wish to walk on the hoarding whether or not the work might be in contravention of the instructions of the Appellant. The Appellant had been put on notice but its own sub-contractor had disobeyed direct instructions. He referred to photographs which show workers examining the open framework from the vantage point of ladders on the ground.

10. He was satisfied that the sub-contractor had fixed the cover of the hoarding without providing the most rudimentary safety measures. That would have been readily apparent to the employees of the Appellant. He stated:

"I took the view, therefore, that the sub-contractor had been lax in the extreme and the Appellant had done nothing to enforce its own safety directives. Indeed, the direct instructions of the Appellant as to the method by which the hoarding was to be erected had been flouted with impunity by its own sub-contractor."

11. The Magistrate found the breach was serious and considered the principles set out in HKSAR v Paul Y-ITC Construction Ltd [1998] 2 HKLRD 35 as having relevance to this particular case. The maximum fine for this offence is of $200,000.00. The Magistrate felt the level of fine should be sufficient to indicate to the Appellant that it had taken no adequate steps to ensure the safety of workers in this particular instance.

12. He was not amenable to the argument put forward at trial and which was put forward again today that this was a prosecution brought after an inspection, rather than an investigation following an injury or fatality. He fined the Appellant company the sum of $75,000.

13. The perfected grounds of appeal against sentence were (Ground 1) that the Magistrate failed to give sufficient weight to:

(1) poor economic climate in the instruction industry which, allegedly, threatens the Appellant's business;

(2) only 3 workers who were not supplied with safety belts were workers who did not work at height;

(3) the Appellant had a relatively good record in the past twelve years in respect of this particular offence, which is one commonly charged;

(4) the offending act was the use of a ladder on the walkway by a worker who was 1 metre above the walkway and about 2.8 metres above the ground level. (This appeared to be a suggestion that because it was closer to the ground there was no real danger);

(5) the offence was committed by a worker who acted contrary to the Appellant's instructions; and

(6) it was an impossible task for the Appellant to exercise control over individual casual workers in the present hopeless system of levels of sub-contracting and employment of such casual workers.

14. The second ground was that the Magistrate failed to take into account that the average fine for the offence was $21,352. (That figure was taken by the Respondent from figures kept by the instructing Department.)

15. The third ground was that in the circumstances of the case, the fine is "slightly excessive".

16. Counsel for the Appellant missed the point that these offences should be dealt with by deterrent sentences. That the average fine was $21,000.00 reflects no more than the fact that fines, in the context of often parlous safety conditions on Hong Kong construction sites, are (not infrequently) far too low.

17. The Magistrate looked carefully at the relevant matters. All the matters urged by the counsel on appeal were before the Magistrate at the hearing. There is nothing wrong in principle in the fine imposed by the Magistrate, nor is it an excessive fine given the serious nature of the offence and the hazards offered to workers by such lax control.

18. Accordingly, the appeal is dismissed.