THE QUEEN v. WAN HIN & CO LTD

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 1735 OF 1990

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BETWEEN

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JUDGMENT

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Fuad, V. -P.:

1. On 1st November 1990 the Wan Hing & Company Limited was convicted by Miss J. Livesey in the magistrates Court of contravening reg. 38P(1) of the Construction Sites (Safety) Regulations made under s.7 of the Factories and Industrial Undertakings Ordinance, Cap. 59 the company was fined $25,000 and ordered to pay $5,000 costs. They appealed to this court against the conviction and, if necessary, against the order for costs. At the conclusion of the hearing of the appeal on 20th March, I dismissed the appeal against conviction but allowed the appeal against the order for costs to the extent of reducing the amount ordered to be paid from $5,000 to $2,000. I now give my reasons.

2. The incident out of which the charge against the company arose, occurred on the morning of 2nd January 1990 on a construction site in the Junk Bay area in the New Territories. There was an accident the victim of which was Mr. Ching Kam Sum, employed by the company as a casual worker. He was working on the first floor level of a building under construction. At the time the accident happened his job was to collect some planks of wood from a store room so that they could be nailed to the formworks on the first floor. To get to the place where the wooden planks were kept, he went through another room which was situated just above a water tank at the ground floor level ("the tank room"). He walked safely through this room stepping on planks of wood which had been laid as a substitute for the floor which had not yet been constructed. He collected some planks of wood and went back into the tank room again on his way to the place where they were to be nailed. He was carrying or 7 planks on his shoulder, and on his Way through the tank room ne stepped onto a piece of foam plastic which covered the water tank. The foam plastic gave way and he fell a distance of more than 2 metres. He was fairly severely injured.

3. When asked in cross-examination why he had not walked round the tank room instead of passing through it, he explained that it would have been difficult to carry wooden planks round corners; it was easier to go straight through the room.Also in cross-examination he firmly denied that the doors to the tank room had been boarded up so that they could not be used at the material time. He was shown a photograph with boarding partially across one of the doors and he said that the boards must have been put there after the accident; had they been thereat the relevant time, he said, he would hot have been able to step over the boarding covering the door to get into the tank room.

4. Evidence for the prosecution was also given by a factory inspector Mr. Yuen Kar Lung. He described what he saw when he went to the scene of the accident later the same morning. He explained that since only a single piece of foam sheet had been used to cover the rectangular opening through which the victim fell it could not support the weight of a normal person.

5. The principal witness for the company was their charge hand Mr. Wong Chin Tung (DW2). He testified that aft three doorways into the tank room had been partially boarded up so that they could hot easily be used. He had hailed these boards over the doorways himself about 10 days before the accident had occurred. The boards could not have been removed easily; nothing less than a forceful jerk would have been sufficient. There was no clear evidence about the height of the boards covering the doorways, but from photographs produced by the defence (if they depicted the scene at the time of the accident) they came to about half way up the doorway. The witness said that when went up to one of the doorways to speak to the victim after he had heard his cry, he had been unable to get into the tank room at all because the barriers he had put up was still in place and he could not, being only 5' 3 " tall, climb over them.

6. The company's safety officer, Mr. Chan Yu Keung, supported the charge hand's evidence that on the day the accident happened there were wooden boards fixed across the doorways partially blocking them so that people could not use them unless they deliberately chose to do so.

7. In a full and careful statement of findings, a model of its kind, the learned magistrate indicated that she had found the victim to be truthful, honest, and reliable as a witness. She accepted his evidence that thedoorways, into the tank room were not boarded up at the time of the accident. She was obviously impressed with the evidence of Mr. Wong and rejected his evidence about the barriers placed across the doorways. She said she believed that the plastic roam covering the hole had been put there deliberately, and had not been merely abandoned there by somebody. She concluded that the barriers across the doors must have been placed there after the accident. She found that the company were the contractors on the site; that they were responsible for the tank room and for its safety; that there were no barriers on the doorways leading to the tank room at the time of the accident; that there were no barriers around the hole through which the victim fell - the foam plastic being totally inadequate, and finally that the victim had been employed by the company as a construction site worker at the time, of the accident.

8. I think it will be convenient here to set out the relevant parts of the regulation which the magistrate found had been contravened:

9. Mr. McCoy, who did not represent the company before the magistrate, submitted that she had erred in failing to find that the statutory defence provided for by reg. 38P(2) had been establisehed by the uncontradicted evidence of two defence witnesses: Mr. David Handing (DW1) and Mr. Ho Yau Kin(DW40). His submission, briefly, was that the opening on the temporary work platform through which the victim fell was necessary (a) for removing the formwork inside the water tank through the opening at the top of the tank and/or (b) for allowing the concrete to be poured through to complete the construction of the tank.

10. Mr. McCoy. took me through the evidence upon whicn he relied and I have to say, with respect, that all the evidence in the case taken together did not begin to lay a foundation for a defence under either paragraphs (a) and (b) of reg. 38P (2). In the circumstances, this is, perhaps, not particularly surprising since the defence which was sought to be raised at the tria1 was, as we have seen, that the doorways into the tank room had been partially boarded up. None of the witnesses were suggesting for one moment (to follow the wording of ref. 38P(2) that guard-rails and coverings in place in compliance with reg. 38P(1) had been removed or had yet to be erected because it was necessary to proceed with any permanent filling in, etc. or for the time and to the extent necessary for the access of persons or the movement of materials or other purposes of the work. I have read and re-read the evidence and can find no basis for Mr. McCoy's submission.

11. The next ground of appeal (in grounds drafted by Mr. McCoy himself) is worded as follows: "The appellant was not proved to be the same company as the company in the certificate of Incorporation". I must confess that when I read the papers overnight I was baffled as to what was meant by that ground. However, all became clear, of course, when Mr. McCoy addressed me. His contention was based on the fact that on the information the name of the defendant is given as: "Wan Hin & Company Limited", whereas on the Certificate of Incorporation the company's name is given a s Wan Hin and company Limited." I have caused the variance between the two versions relied upon by Mr.  McCoy to be emphasised in case it is missed. It is of passing g interest to note that on the form which the company used to apply for registration as a business they typed their name as "Wan Hin & Company Limited "and above the signature of the director who signed the form is typed "Wan Hin and Company Limited" with the chop "Wan Hin & Co. Ltd." The same chop is used on the notice of appointment of registered contractor etc. filled in by the Company for the purposes of the building (Administration) Regulations.

12. For his startling proposition Mr. McCoy relied'' on an unreported decision of the Court of appeal of New Zealand, Ministry of Transport v. the Cash bat Company of Christchurch Limited C.A. 81/83, 20th February 1984. Since Mr. McCoy acknowledged that that case is easily distinguishable, and because I do not think any principle emerges from the decision which is applicable to our case, I do not find it to discuss it.

13. I permit myself to say that the submission made by counsel on the consequence which results from the use, on the information, of the ampersand "&" in the company's corporate name, as opposed to the use of the word "and", verges on the absurd. After noting that the submission was made it is only necessary for me to say that I reject it.

14. The magistrate's findings, and the conviction which followed, are unassailable.

15. The final ground of appeal which, as will have been seen succeeded, was on the question of costs. The point taken was that the company had not peen given an opportunity to address the magistrate on costs at all because she had not indicated that she was minded to award costs against them. A number of authorities (of which the unreported decision of Barnes, J. dated 5th January 1987 in The Queen v. do Fai, Magistracy Criminal Appeal No. 117 of 1986, is an example) hold that it is necessary for a magistrate to give an opportunity to a convicted defendant to make submissions on the question of costs before it can be said that an award of costs has been made in the proper exercise of judicial discretion. Since $5,000 is the maximum amount of costs that can be awarded, in all the circumstances I thought that a possibly justified sense of grievance felt ay the company would be met if the amount were reduced to S2,000, and I so ordered. I could not see now it could have been argued that it was improper to award any costs at all against the company in the circumstances of this particular case.