HKSAR v. HIP HING CONSTRUCTION COMPANY LTD t/a HIP HING NGO KEE JOINT VENTURE

HCMA914/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 914 OF 2009

(ON APPEAL FROM ESS 30269 OF 2008)

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J U D G M E N T

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The Summons

1.  Hip Hing, the appellant, was summoned for the following offence, in that:

“being a proprietor of the industrial undertaking, namely CONSTRUCTION WORK at THE HONG KONG CONVENTION AND EXHIBITION CENTRE ATRIUM LINK EXTENSION, WAN CHAI, HONG KONG, did fail to provide and maintain SYSTEM OF WORK FOR INSTALLATION OF SPLICE PLATES INSIDE MEMBERS OF TRUSSES, that were, so far as was reasonably practicable, safe and without risks to health of the person(s), known as CHOY MING KEI AND KWOK CHI FAI employed by Gammon Construction Limited at the industrial undertaking, contrary to Sections 6A(1), 6A(2)(a), 6A(3) & 13(1) of the Factories and Industrial Undertakings Ordinance, Cap.59.”

2.  The appellant pleaded not guilty and was convicted after trial.  The Magistrate imposed a fine $45,000 and cost of $5,000 on the appellant.  The appellant sought to appeal against the conviction. 

The Background

3.  The Magistrate had very succinctly summarized the background of the case in the Statement of Findings.  I would basically adopt what was said in the relevant paragraphs: the appellant was the main contractor of construction work at the Hong Kong Convention and Exhibition Centre Atrium Link Extension.  Gammon was the sub-contractor for the construction of the structural steel frames including the truss-work.  This required workers to climb into a small confined space on a column head and to put a heavy metal plate into position.  The confined space could accommodate only 2 workers at the same time.  

4.  Mr Choy(the deceased), Mr Kwok(PW3) and Mr Cheung (PW4), were direct employees of Gammon.  At the material time, their foreman Mr Fung(PW1) had given the workers instruction to install the splice plates at a column head.  While Mr Choy was working inside the column head alone, the splice plate fell on him, and he died as a result. 

5.  Gammon was summonsed for the offence of failing to ensure the safety of its employee under s6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance (“FIUO”), Cap 59.  They had pleaded guilty.  The appellant, on the other hand, was charged under s6A(1), 6A(2)(a), 6A(3) and s13(1) of the same Ordinance.  They pleaded not guilty. 

6.  When the case first came before the magistracy for trial, defence counsel had raised a preliminary issue and challenged the constitutionality of s13(1) & (2) of the Factories and Industrial Undertakings Ordinance (“FIUO”), Cap 59.  The presiding Magistrate decided that such sections did not contravene Articles 10 and 11 of the Bill of Rights Ordinance, Cap 383.  After an adjournment for consideration, defence counsel decided not to pursue the matter further at that stage. 

7.  On the first day of the resumed trial hearing, the prosecution applied to the court for an amendment of the summons by adding the particulars that the workers were employees of Gammon.  Defence counsel had objected to the application, arguing that since the appellant was never the employer of the workers, so the amendment could not be right.  The Magistrate allowed the amendment.

8.  The trial then commenced.  In his Statement of Findings, the Magistrate stated that the basic issue of the case was whether Gammon, the direct employer of the workers, had failed to provide a safe system of work for the riggers.  He stated that once that could be proved, Hip Hing, the appellant, would be liable under s13(1) of FIUO.  The Magistrate added that, although s13(1) was a strict liability offence, the appellant could nevertheless rely on whatever defence that would have been available to Gammon, the direct employer. 

The Prosecution Case

9.  Much of the prosecution case was admitted by the defence, and a detailed s65C statement was agreed between the parties.  In the document dated 7 September 2009, there were a total of 12 paragraphs of admitted facts.  The prosecution also called a number of witnesses to testify, covering all the relevant issues such as the installation work and the safety measures and arrangements. 

10.  The evidence showed that the workers involved had considerable skill and experience in their areas of work.  In fact, the prosecution did not dispute that Gammon had arranged safety courses for the riggers to attend, but there appeared to be no special training for the installation of the splice plates. 

11.  The prosecution case revealed that Gammon had prepared a Method Statement for the work on the construction site, however, there was no specific reference to the safety measures about the installation of splice plates nor was there any risk measurement. 

12.  The Magistrate pointed out that the basis of the prosecution case against the appellant was that there was a failure on the part of the companies, which were in charge of the construction site, to maintain any safety system in relation to the installation of the splice plates, and that would constitute a breach of the company’s duty imposed under s6A(1), and hences13(1).  

The Defence Case

13.  The Magistrate understood the defence case as simply that the appellant had provided all the necessary training and equipment to the riggers regarding the installation of the splice plates, and that in their Method Statement, prepared by both Gammon and the appellant, had specifically dealt with the installation of truss members.  The defence’s main contentions appeared to be that as the appellant had performed fully under the contract, there could not be any question of breach of section 13, and further that the appellant was entitled to rely on the common law defence of an honest but mistaken belief. 

The Magistrate’s Findings

14.  The analysis in Paragraphs 16-30 of the Statement of Findings indicated that the Magistrate had given very careful assessment of the evidence and the parties’ respective cases.  For the purpose of this judgment, in view of the single ground raised by the appellant, I don’t believe it is necessary to cover the details of the analysis by the Magistrate.  I would simply recite his basic findings (paras 27 and 28, Statement of Findings):

“27 I find that the failure in the system lies in 2 areas. First was the failure by Gammon to devise a system so that the dimensions of the angled cleats to be installed would not be decided by the welders themselves. In fact, in relation to the cleats in the column head where the accident happened, there is still no evidence as to who decided to install cleats of those dimensions. Neither Gammon nor the defendant company had devised a system on that. The cleats are a small but extremely important part of improving the safety of the workers in the process of installation. If the cleats in our present case had but been a few inches longer, Mr. Choy might have had slightly more time to try to escape when the splice plate fell.”

“28 The second failure is obviously the use of wooden blocks to be placed underneath the plates when they are being manoeuvred into position. Having heard how the riggers would habitually look for wooden blocks lying around on the construction site for use underneath the splice plates, I find that it is an irresistible inference that the wooden block that the riggers used to put underneath the splice plates in order to manoeuvre the plate must have broke during the process, causing the height of the plate to be lowered. With the lowered height, the top of the plates was just enough to clear the angled cleats when it lost its balance and collapsed on to Mr. Choy.”

15.  The Magistrate further pointed out that the basic failure of the system lied in the fact that neither Gammon nor the appellant had looked into the use of casual wood blocks found on the site to support such heavy plates.  And now, after the accident, PW6 said that all wooden blocks had been replaced by metal blocks, the angled cleats were lengthened, and clear instructions were available as to the use of appropriate cleats in the truss members. 

16.  The Magistrate concluded that he found that the prosecution had proved beyond a reasonable doubt that Gammon was the employer of the riggers named in the summons, and that Gammon had failed to maintain a safe system of work as required under s6A(1) of the FIUO.  He found that the appellant was a proprietor of the construction site as named in the summons, where s13(1) was applicable; and since Gammon was guilty of s6A(1), by reason of s13(1), the appellant would also be guilty of the failure to maintain a safe system of work. 

The grounds of appeal

17.  Counsel for the appellant had, at first, proposed a total of 17 grounds of appeal, challenging the conviction from different angles, legal, creditability and the factual findings.  Subsequently, the grounds were reduced into one point: that the learned Magistrate had erred in law in convicting the appellant in that the information laid in the summons was defective in disclosing no offence known to law. 

The appellant’s submission

18.  Mr Grossman SC sought to rely on the Court of Final Appeal’s judgment in Paul Y Contractors Ltd v HKSAR and Lucky Engineering Company Ltd v HKSAR, FACC Nos 4 & 5 of 2012, to support this appeal.  It was his contention that the charge laid in the amended Summons was defective in that it disclosed no offence known to law, as it was framed as a “combination” of s6A(1), 6A(2)(a), 6A(3) & 13(1) of the Factories and Industrial Undertakings Ordinance, Cap 59.  

19.  Mr Grossman submitted that the Court of Final Appeal had emphasized the necessity for a criminal charge to be properly formulated.  He cited Mr Justice Gleeson NPJ having said, at para 91 of the judgment, that:

“91 I also agree with the observations of Mr Justice Chan PJ. The charges laid against the appellants under s13 of the Factories and Industrial Undertakings Ordinance, Cap 59, alleged offences of a hybrid nature, conflating the provisions of ss6A and 13, and failing to distinguish between the primary offence, under s6A, and what might be called the derivative offence, under s13, of which the primary offence is an element. In respect of those charges, the appellants were convicted of offences not known to the law, and their appeals must be allowed.” (My own Emphasis)

20.  Mr Grossman argued that the present charge was framed in identical terms as those cases before the Court of Final Appeal, and hence this appeal should also be allowed. 

21.  Mr Prakash Daryanani, for the respondent, disagreed.  He argued that the information laid in the summons was not defective. As I understand his submissions, Mr Daryanani was saying that this court should focus on the actual evidence presented in the trial.  He had analyzed the necessary elements of the offence, and he pointed out that the evidence had shown that the predicate offence under s6A of FIUO had been committed by Gammon, as it had pleaded guilty, and the other elements such as the appellant being the proprietor, etc, had also been proved.  Furthermore, the appellant had been given the opportunity to raise their defence.  The Magistrate had duly analyzed the evidence and made his findings. 

22.  The respondent reminded this court that the Magistrate had properly assessed the issue of credibility in the present case, citing the case of HKSAR v Tong Kwok Shan HCMA 1015/2008, in which Judge Line, as he then was, stated emphatically that the Magistrate had the advantage and the opportunity, to see and hear the witnesses in court and in the context of the relevant points, therefore, issues of credibility would best be left to the trial Magistrate.  Having given his analysis of the evidence in the trial, Mr Daryanani supported the findings of the Magistrate regarding the failures on the part of the appellant in the context of the summons.  

23.  In addressing specifically the only ground of appeal, Mr Daryanani said these:

(i) the charge in the present case was drafted in a materially different way than the charge in the Paul Y cases, the main difference being that the present charge included the point that the appellant was a proprietor and mentioned clearly that the two workers were employed by Gammon, whereas it was unclear as to who was the employer in the Paul Y cases.  

(ii) the fact that Gammon pleaded guilty to the predicate offence under section 6A was also part of the respondent’s case.

24.  Mr Daryanani made an alternative point.  He argued that if the charge was found to be not in order, which he denied, it was only a defect in form rather than substance.  This was because, given the way the charge was drafted and the way the prosecution case was presented, the predicate and derivative offences were clear.  However, if deemed necessary, an amendment could be done without injustice, and this court had such a power to amend, based on section 119(1)(2) and (g) of the Magistrates Ordinance, Cap 227.  

25.  Mr Daryanani referred to a number of decisions concerning amendment of the charge on appeal, such as R v Wong Man Shun [1980] HKLR 266, HKSAR v Shahid [2013] 4 HKLR 226 and R v Lee Shiu Chung HKLY 212.  I have read those authorities.  I noted that it was pointed out in the Court of Appeal case of Wong Man Shun that although a charge could be amended on appeal by virtue of the Magistrates Ordinance, it would be undesirable to amend a charge on an appeal save in exceptional cases, and except in minor particulars.  If this course were to be taken, the case should be referred back to the Magistrate for hearing. 

26.  I further noted that in the case of R v ChenTa-hoi and others [1986] HKLR 1189, the court made an amendment by deleting the words “or in the management or other control”.  An order of re-hearing on the amended charge before the same Magistrate was made. 

Discussion

27.  The Magistrate stated in his Statement of Findings that the issue in this case was whether Gammon, the direct employer of the workers, had failed to provide a safe system of work for the riggers.  Once that was proven, the appellant would be liable under s13(1).  Perhaps one may ask, if there was no dispute between the prosecution and the defence, and as written in the Admitted Facts that Gammon had already pleaded guilty, then why was there still a need to have a trial at all, when all the other basic elements of the offence such as the appellant being a proprietor were not challenged?  In this regard, I think the Magistrate had taken the appropriate course.  So even when it was an admitted fact that Gammon had pleaded guilty, the Magistrate still proceeded to examine the overall evidence against Gammon and the appellant to see if Gammon was indeed guilty, and in doing so, the appellant would also be given the opportunity to raise any defence they deemed appropriate. 

28.  As I see it, the Magistrate had clearly a correct understanding of the relationship between the 2 charges, ie s6A and s13(1) of FIUO, one being a predicate and the other derivative offence, as described by the Court of Final Appeal in the case of Paul Y and Lucky Engineering.  In fact, that was how the respondent had argued the case in his written submission, and this court was invited to conclude that the prosecution evidence, as accepted by the Magistrate, supported the s13(1) offence. 

29.  However, the summons was the foundation of the prosecution case, and the evidence should correspond to the elements of the summons.  It was apparent that the prosecution case was put on the basis that s6A and s13, in combination, imposed a duty on a proprietor to ensure safety extending beyond its employees.  The fact that the prosecution had asked for an amendment to the summons to specifically add the particular that the workers were employees of Gammon, illustrated this stance.  And indeed, the respondent would now argue that this particular amendment constituted a material difference when compared to the summonses in the Paul Y cases. 

30.  However, Mr Justice Tang PJ, in giving judgment of the court, unreservedly said that he would reject the submission that 6A and s13, in combination, imposed a duty on proprietor to ensure safety extending beyond the sub-contractor’s employees.  He stated that the language of s13 was too plain to admit any such argument; section 13 was predicated on an offence having been committed. He pointed out that the comments made by McMahon J in HKSAR v China Overseas Building Construction Ltd [2007] 2 HKLRD 216, which was correct in the context of that case, had been misunderstood. 

31.  Mr Justice Chan PJ had explained the characteristic of a s13(1) charge as follows (para 3 of the judgment):

“3. Under s13(1), the prosecution must prove that first, the accused is a proprietor in an industrial undertaking (which includes the person having the management and control of the business carried on in an industrial undertaking) and secondly, an offence under the Ordinance has been committed in or in respect of such industrial undertaking.  On the first issue, it is important to identify correctly the industrial undertaking (ie the place of work and/or the activities carried on in that place) of which the accused is alleged to be the proprietor.  On the second issue, it is necessary to specify the offence which it is alleged has been committed in or in respect of this industrial undertaking including the ingredients of the offence and the alleged offender. Where s6A is the alleged predicated offence, the proprietor who was the employer of the persons working in the industrial undertaking and the alleged breach of duty by this proprietor should be clearly stated.  It is only when the s6A offence has been proved to have been committed (even if the proprietor who was the employer of the workers involved was acquitted) that the proprietor charged under s13 can be guilty of a like offence.”

32.  In conclusion, Mr Justice Chan PJ said (para 5 of the judgment):

“5. At the trial of Paul Y, it appears that although the proprietor charge was framed as a ‘combination’ of s6A(2)(a), 6A(3) and s13(1), Paul Y was alleged to have been in breach of the duty under s6A.  In other words, Paul Y was alleged and sought to be proved to be the offender under s6A when it was quite clearly not the employer of the persons involved in the industrial accident. What in fact should have been the case against Paul Y was that a s6A offence had been committed in or in respect of an industrial undertaking by Ka Shing (the sub-sub-contractor) and that Paul Y, as a proprietor of that industrial undertaking, should be guilty of a like offence under s13.  That, unfortunately, was not the case presented against Paul Y; nor was it the basis upon which it was convicted.  The same criticism can be made in respect of the trial of Lucky Engineering.  The convictions on the proprietor charge again both appellants must be quashed.”

33.  Mr Justice Litton NPJ had made general remarks against the way that these summonses were drafted.  However, his main criticism regarding the s13(1) charge was as follows (para 77 of the judgment):

“77. …the charge against Paul Y as proprietor is laid under s13(1).  An ingredient of the offence is that another ‘offence against this Ordinance has been committed’, before Paul Y could be guilty of the ‘like offence’.  The offence under s13(1) is derivative.  Where s13(1) speaks of ‘offence against this Ordinance’ it includes any subsidiary legislation made under the Ordinance[28]. Hence, if it was alleged in the summons that Ka Shing, being the contractor responsible for the aluminium cladding work, breached Reg. 38B of the Construction Sites (Safety) Regulations made under the Ordinance, in that Ka Shing had failed to take adequate steps to prevent his workmen falling from a height of 2 metres or more, then Paul Y would be guilty of ‘the like offence’ if they were ‘proprietors’ of the ‘industrial undertaking’.  But that is not how the charge was framed.  It must necessarily fail. (My own Emphasis)”

34.  And regarding the charge against Lucky Engineering, Mr Justice Litton NPJ stated that: again, that charge failed because there was no avernment as to who had committed an offence against the Ordinance to make Lucky Engineering derivatively guilty as proprietor of an industrial undertaking under the Ordinance. 

35.  I have considered the submissions, especially the respondent’s contentions repeatedly.  I can only conclude that the cases of Paul Y General Contractors Ltd and Lucky Engineering Company Ltd are undistinguished from the present case.  The avernment as to the identity of the employer did not cure the problem pointed out by the Court of Final Appeal.  The fundamental avernment that an s6A offence has been committed, and by whom, was lacking.  I am obliged to follow and apply the reasoning of the decision by the Final Court. 

Amendment?

36.  The respondent further argued that if there was any defect about the charge, it would just be the form and could be amended.  It was said that this court in hearing Magistracy Appeal had the power to amend under the Magistrates Ordinance. 

37.  As I said, I have read the relevant authorities cited.  I would, of course, agree that this court has very wide power to amend under s119(d) of the Magistrates Ordinance.  But we are not dealing with a minor amendment here, or just deleting some unnecessary details. Furthermore, I cannot accept the respondent’s submission that the “defect” was a minor one or just a matter of form.  As the Paul Y cases have shown, such matters relate to the basic nature of the charge.  The present charge was said to be not known to the law. 

38.  Even if I agree to amend in principle, how would the summons be drafted to incorporate the primary and derivative offences?  It may appear that I would have to re-draft the summons instead of amending the particulars.  With the instructive comments made by Mr Justice Litton NPJ, I believe the drafting of the relevant charge should now be left to the expert instead of the court. 

39.  I have given anxious consideration as to this issue of amendment.  In the end, I am unable to say how the s13(1) charge should be formulated.  I am also unable to say that it is appropriate to amend the charge at this stage and send the case back to the same Magistrate for a trial de novo, especially after he had made all the specific findings already.  I would decline the request to amend. 

Conclusion

40.  In the circumstances, I would allow the appeal, quash the conviction, and set aside the sentence and the order for costs. 

41.  Unless parties ask for a hearing, I shall order that all consequential matters, if any, are to be dealt with by written submissions.