HKSAR v. PAUL Y - ITC GENERAL CONTRACTORS LTD

HCMA347/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 347 OF 2003

(ON APPEAL FROM KTS 17716 OF 2002)

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J U D G M E N T

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1. On 7 March 2003, after trial in the Kwun Tong Magistracy, the appellant was convicted of an offence contrary to certain of the Construction Sites (Safety) Regulations and was fined $100,000.00. The appellant appeals against both conviction and sentence.

2. The grounds of appeal against conviction as perfected by Mr Jenkyn-Jones for the appellant read as follows :

"The conviction is unsafe and unsatisfactory in that :

1.	(a)	Despite correctly finding that PW2 (the injured person) was wholly wrong and unreliable with regard to certain aspects of the case, the Learned Magistrate wrongly concluded that these aspects of the case were not material to the charge.
	(b)	In seeking to resolve the obvious unreliability and errors in PW2's evidence, (and consequently to rely on the remainder of PW2's evidence in convicting the Appellant), the Learned Magistrate further erred in that he :
		(i)	failed to consider (or erred in his conclusion) whether such might be due to deliberate untruthfulness and self-serving motives, such as should taint and throw doubt upon the remainder of his evidence upon which the Magistrate did rely; and
		(ii)	wrongly speculated as to an innocent explanation for PW2's errors, albeit such explanation was not favourable to the Appellant and was not the only reasonable inference available.
2.	(a)	The Learned Magistrate wrongly found that the covering for the opening did not comply with the requirements of the third schedule of the Construction Sites (Safety) Regulations (made under Cap.59 FIUO).
	(b)	Such erroneous finding further influenced his negative findings as to the sufficiency of the Appellant's safety procedures generally.
3.		In all the circumstances the conviction is unsafe and unsatisfactory, alternatively there is a lurking doubt thereto."

3. The grounds of appeal against sentence are these :

"The Learned Magistrate erred in sentencing in that he :

1 took a disproportionately negative view of the Appellant's general safety procedures not supported or justified by the evidence and upon which Counsel was not invited to comment.

2 attached too much weight to the Appellant's record of previous convictions without balancing the same against

(i) the facts and mitigation of this specific case, and

(ii) the lack of any relevant information regarding the facts of those previous convictions.

And the sentence was in all the circumstances manifestly excessive and wrong in principle."

4. The summons facing the appellant at trial reads in this way :

"Information has been laid that you on 26th July 2002, being the contractor responsible for a construction site at development of Lei Yue Mun housing site, phase 1 (contract number 35 of 1999) did, fail to take adequate steps to prevent a person on the site from falling from a height of two metres or more, namely on the top of the junk collection point in the refuse collection point of the site.

Contrary to : regulations 38(B)(1), 68(1)(a) and 68(2)(g) Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap.59."

5. The case at trial is helpfully summarised by the magistrate in his comprehensive Statement of Findings as follows :

"The case for the prosecution was that the appellant company was the contractor for the construction site of the Lei Yue Mun Housing Site. One of the buildings being constructed at the site was a refuse collection point. This was a large, substantial building into which vehicles would be able to drive. Within the collection point was built a platform-like structure described as a 'junk collection point'. It was intended that, when the building was completed, a pipe or nozzle could be deployed downwards in order to provide suction for the removal of noxious odours. In order that the pipe could descend below the level of the platform, a rectangular opening was let into the platform. When the building had been completed the opening was protected by guardrails and by toe guards. However, on the afternoon of 26th July 2002 the opening was unguarded.

On the afternoon of 26th July 2002 some plastering and painting remained to be done in the refuse collection point, although no such work had been carried out for some time. Free-standing scaffolding remained in place for the use of the painters. A three-man team from the painting sub-contractor arrived to carry out the plastering and painting work. There was little or no artificial light in the building and the entry of natural light was restricted. There were few openings in the exterior of the building, although the large opening intended to admit vehicles was, as yet, not closed off.

The members of the painting team began hauling up planks to lay them on the top of the scaffolding to act as a working platform. They did this by passing up the planks in a chain or relay up the scaffolding. One of the members of the team was standing on the platform of the junk collection point to receive the planks and then pass them upwards. In dealing with a plank and manipulating it, this member of the team stepped backwards with the plank and fell through the hole. He fell to the ground, hitting his head in the process.

The case for the appellant company was that, at some stage, a heavy metal plate had covered the hole. After the incident, a metal plate was found on the floor of the refuse collection point. In addition, there had been regular safety inspections at the refuse collection point by safety officers of the appellant company. Finally, there had been regular training sessions for directly employed and contract staff. The appellant company maintained, therefore, that it had taken adequate steps to prevent the fall in question."

The appeal against conviction

6. The crucial questions in this case appear to me to be these :

(a) When, why and by whom, was the heavy metal plate cover removed from the hole?

(b) If the applicant's safety officers had visited the scene of the accident immediately prior to the commencement of the work in question would they have seen a covered or an uncovered hole?

and

(c) At the time when the hole was covered was the heavy metal plate and its supporting structure securely fixed? [see para.4 of the 3rd schedule of the Construction Sites (Safety) Regulations]

7. The magistrate's findings in respect of those questions appear to have been :

(a) Not known but within two to three days of the commencement of the work and by persons other than PW2 and his fellow workers;

(b) They would have seen an uncovered hole;

and

(c) No.

8. The magistrate's findings at para.7(a) and (b) above appear to have been principally, but not solely, based upon the evidence of PW2. As to his findings at para.7(c) above, (which are complained of in the second ground of appeal) what he said was this :

"Counsel acknowledged that the covering was not clearly and boldly marked as to show its purpose. That was clearly right: the cover was paint-spattered and had clearly blended into the floor. However, counsel submitted that the cover was so constructed as to prevent the fall of persons, materials and articles, and that it was securely fixed in position. I accepted that the paragraph referred to a cover being 'fixed' in position rather than 'fastened'. However, bearing in mind that the evidence appeared to be that the cover could be moved by two men it was not, in my judgment, securely fixed in position. Whilst the metal plate was substantial, it could be moved relatively easily. Whilst its own weight might have been sufficient to resist casual moving, the cover could be moved by two men and this fact was obviously known to the appellant company through its safety officer. No attempt had been made to make up for the lack of fixing by marking the cover boldly or by erecting a fence or, indeed, by doing anything else."

9. With regard to that matter and with the greatest respect to the magistrate I take a different view. 'Securely fixed' does not mean 'permanently fixed' in the sense that the cover has to be screwed or drilled into the floor so that it cannot be moved at all. What it does mean is that it must be fixed 'securely' no more, and no less. The fact that the cover can be moved by two men lifting it does not mean that it is 'insecure' in the normal course of events.

10. As Mr Jenkyn-Jones points out, iron/steel plates covering deep drainage or road works in Hong Kong are not secured by drilling into the road/land surface; but they are 'secured by' their own weight and the fact that it may take two or more men to remove them does not mean that they are 'insecurely fixed' in the terms of the Regulations.

11. The fact of the matter is that the heavy steel plate (in the present case) which sat inside a frame was securely fixed by its own weight, and it could only be moved by two or more men lifting it. In my judgment it was securely fixed (when it was covering the hole) and (that being so) there was no requirement for the appellant to take further steps as suggested by the magistrate. In the event however the point is academic because there can be no suggestion that the cover was in place when PW2 fell through it.

12. Returning to the questions which I pose at (a) and (b) in para.6 above it is plain the magistrate accepted the evidence of the injured man (PW2) to the effect that the hole was not covered at the time that he commenced his work and that is why he fell through it - and he (the magistrate) plainly rejected (as he was perfectly entitled to do) the fanciful notion that PW2 and his workmates had moved it for some purpose of their own.

13. Inter alia, what he said in his Statement of Findings about that evidence was as follows :

"PW2 gave evidence that he had some three years' experience in the painting and plastering field. ... He had not worked at the construction site in question before the day of the incident. He and other employees of his sub-contracting employer had worked elsewhere on the site in the morning of the day of the incident and had then moved onto the refuse collection point in the afternoon. There was no lighting in the refuse collection point and it was very dim. He went up onto the platform of the junk collection point. PW3, who was on the floor of the refuse collection point, began passing him the planks for use on the top of the bamboo scaffolding. In turn, PW2 passed the planks to the third member of the team ... who was on the top of the scaffolding. PW2 had successfully passed up two boards. The third plank was, however, heavier than the first two. ... In order to manipulate the heavier board, PW2 had to step backwards to give himself sufficient room to pass up the plank. It was at this point that he fell through the unguarded opening to the floor below.

PW2 said that he was not aware, before he fell through it, that there was an opening in that location. There was no cover over the opening and there was no fencing, railing or chains around it. No-one from the main contractor had told him that there was such an opening.

In cross-examination, PW2 accepted that he had attended a safety lecture that day and acknowledged that care had to be taken on construction sites. PW2 said that he got to the platform by climbing up the scaffolding and denied that the edge of the platform was protected by guardrails."

And :

"The platform of the junk collection point was accessed by means of a ladder and the parapet of the platform protected by guardrails. This is clear from the photographs taken on the day of the incident. The situation is also confirmed by the evidence of PW3. In this regard, it is clear that the evidence of PW2 that there was no ladder and no guardrails cannot stand. However, PW2 had suffered the trauma of a fall and, in my judgment, the error was one of memory and not one of deliberate falsity. Whilst I cautioned myself with regard to the reliability of the remainder of the evidence of PW2 I came to the conclusion that I could substantially rely on that evidence."

14. It is those findings at which the first ground of appeal against conviction is directed and in respect of that ground Ms Lo for the respondent makes this submission :

" ... The defence at trial was that the Appellant had taken adequate steps to prevent the accident. There was evidence that the Appellant had organized safety lectures for its workers and PW2 had attended one of these lectures on the day of the accident. There was evidence that the safety inspector of the Appellant had conducted safety inspections 3 days before the accident. Therefore, the issue for the Magistrate to determine was whether the steps that the Appellant had taken were adequate to prevent the accident.

The Magistrate found that PW2 was wrong in his evidence that there was no railing at the side of the platform and that there was no ladder up the platform. The Magistrate came to this conclusion because the railing and the ladder were clearly shown on the photos taken on the day of the accident. The Magistrate found that in relation to this part of PW2's evidence, PW2 could not be relied upon. And this issue did not greatly affect the matters and issues which he had to deal with.

Having regard to the matters that were not in dispute and the defence at trial, it is submitted that the Magistrate was not wrong to say that that matter did not affect greatly the issue that he had to decide. It is submitted that whether the railings or ladder were at the side of the platform did not change the undisputed matter that the hole was at the time of the accident uncovered and unfenced. ...

The Magistrate did give a possible reason why PW2 made the error as mentioned in his evidence. It is submitted that the Magistrate was doing no more than making a sensible and logical deduction from the evidence.

It is to be noted that PW2 was challenged to the extent that (1) he should have seen the hole before he fell because although there was no lighting inside the refuse collection point, the natural light coming from outside the building was sufficient for him to see the hole; and (2) that he should have been more careful.

The Magistrate, when coming to the decision to convict, did not only rely on PW2's evidence. He relied on the evidence of other witnesses and the photos as well. He made a careful analysis of all the evidence before him."

15. One of the matters which troubled me during the hearing of this appeal related to that crucial finding by the magistrate that the hole was not covered at the time when the works commenced. As to that, inter alia, he says that the appellant's safety officers should have inspected the site before the work commenced and that if they had done so they would have found that the heavy plate cover and its support had (already) been moved to the ground floor. Mr Jenkyn-Jones suggests that he was wrong about that and that had he admitted certain available evidence that would have shown that the cover and its support were not moved to the ground floor before the accident, but afterwards when the appellant's safety officer was investigating the accident.

16. Apparently at trial, counsel for the appellant sought to adduce that evidence but was prevented by the magistrate from doing so upon the footing that such evidence was 'hearsay' and therefore inadmissible. Indeed what the magistrate said about this at the time of delivering his verdict (although he did not repeat it in his Statement of Findings) was as follows :

"Both the frame and the plate were found after the incident on the ground floor. No evidence has been put before me as to how they got there and when that was. To be fair to Mr Dunn he did endeavour to assist the court by his questioning of PW5 but I stopped him, pointing out that clearly that evidence would be hearsay."

17. Before me Mr Jenkyn-Jones has not sought directly to suggest that such evidence was other than hearsay or that the magistrate was in error in refusing to admit it but he does implicitly criticize the magistrate for coming to a conclusion upon what may well have been a false premise.

18. That being so, and whilst I take the point made, it seems to me that this is not a matter which, at the end of the day, had any bearing whatsoever on the crucial issue which (I repeat) was whether the hole was in fact covered at the time when the work commenced.

19. And in any event it is of course trite to say that the magistrate could only determine the case on admissible evidence presented to him and not upon 'hearsay' evidence. Had the defence at trial considered that the evidence was, or might have been, of some importance I cannot imagine that there would have been any difficulty in adducing it in an admissable form.

Conclusions

20. In my judgment the magistrate was perfectly entitled on the admissable evidence presented to him to conclude, as he did conclude, that the hole was uncovered prior to the commencement of the work; that if the appellant's safety officers had inspected the site prior to that commencement that fact would have been patently apparent to them, and that because they failed to do so the appellant was guilty of the offence.

21. I reject the detailed submissions contained in the first ground of appeal set out in paragraph 2 above and I accept the arguments put forward on behalf of the respondent in answer to them. As I have already said I accept the proposition set out in the first part of the second ground of appeal but I am not persuaded that the magistrate's finding about that matter in anyway adversely affected his decision as to guilt as has been suggested.

22. I find myself unable to agree with Mr Jenkyn-Jones' well argued contention that this conviction is unsafe and unsatisfactory or that there exists a 'lurking doubt' concerning it. Accordingly the appeal against conviction must be dismissed.

The appeal against sentence

23. I have set out the grounds of appeal against sentence in paragraph 3 above. It is, I think, pertinent to add (as Mr Jenkyn-Jones said to me in argument) that on the evidence the general safety procedures adopted by the appellant are not unimpressive; that the larger the contractor the heavier is his exposure to the Regulations; that the appellant (despite its safety record criticized by the magistrate) is a building contractor registered by the Government and is so registered in the full knowledge of that record; that the workers concerned in this case had attended a safety lecture that very morning; and that on the evidence in the present case this was not (despite the consequences) of such seriousness as to warrant such a heavy penalty.

24. What the magistrate had to say about sentence was this :

"The appellant company had some 69 previous convictions, of which some 19 were for similar offences as in the present case. There had been no previous convictions in relation to the construction site involved in the present case.

Counsel told me that that the appellant company is an established and well-respected company in the construction industry and that it is presently involved in more than ten major construction sites. It takes the question of safety very seriously and counsel produced a number of awards and certificates given to the appellant company for its safety achievements.

I considered that this was a serious offence. The appellant company had, in my judgment, been lax in its approach to the requirements in this particular situation. There were only two safety officers for a large site and it was clear that they were overworked and could not give individual situations the appropriate time needed to ensure that work could be carried out safely. The maximum fine was $200,000. I ordered the appellant company to pay a fine of $100,000."

25. What he did not say (when imposing sentence albeit that he said it elsewhere) was that on the undisputed evidence the hole in question had been covered for some two months prior to the accident and that it was regularly inspected, the last such inspection having taken place about two days previously.

26. In those circumstances and given counsel's submissions at trial and those matters about which I have made mention in paragraph 25 above, it is my view that the fine imposed of $100,000.00 was excessive, particularly bearing in mind the level of fine imposed for previous similar offences committed by the appellant, the highest of which was $25,000.00 and that was in respect of the only other case in which a worker had suffered injury.

27. Accordingly I allow the appeal against sentence to the extent that I set aside the fine of $100,000.00 and replace it with a fine of $25,000.00.