HKSAR v. AGGRESSIVE CONSTRUCTION CO LTD

[English translation – 英譯本]
HCMA 190/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO.190 OF 2011
(ON APPEAL FROM FLS 12572-3 OF 2010)
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BETWEEN
HKSAR
and
AGGRESSIVE CONSTRUCTION
                COMPANY LIMITED
(精進建築有限公司)
Defendant
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Before : Hon D. Pang J in Court
Date of Hearing : 29 November 2011
Date of Judgment : 30 November 2011
Date of Reasons for Judgment: 14 December 2011
REASONS FOR JUDGMENT
1.
The appellant was convicted after trial of two offences, respectively contrary to regulations 38B(1A) and 38AA(2) of the Construction Sites (Safety) Regulations (Cap. 59), and was fined $8,000 and $6,000 respectively. The appellant now appeals both convictions.
Charges
2.
The appellant was the first defendant (D1) at trial and the second defendant (D2) was Great Harvest Construction Limited. They were each charged with two offences.
3.
The particulars of the two summonses as they related to the appellant are as follows:
FLS 12572/2010
“... on 27 January 2010, being a contractor who had direct control over the construction work which was being carried out at the carcass works for the Proposed G.I.C./Public Carpark and Residential Development (Phase 2) at TSWTL No.24, Area 33, Tin Shui Wai, New Territories, did fail to take adequate steps to prevent a person on a place where the construction work was being carried out from falling from a height of 2 metres or more, namely failed to provide, use and maintain a working platform for the connection of water hose to the water tap at the external wall at Level 2 of Tower 8.”
FLS 12573/2010
“... on 27 January 2010, being a contractor who had direct control over the construction work at the carcass works for the Proposed G.I.C./Public Carpark and Residential Development (Phase 2) at TSWTL No.24, Area 33, Tin Shui Wai, New Territories, did fail to ensure that, so far as was reasonably practicable, suitable and adequate safe access to and egress from a place of work at external wall at Level 2 of Tower 8 where the
construction work was being carried out was provided and properly maintained.”
4.
The two summonses for which D2 was prosecuted (FLS12574/2010 and FLS12575/2010) were in substance the same as those laid against the appellant, but D2 has not appealed its convictions.
Facts of the case
5.
I will adopt the following summary prepared by the respondent for the purpose of this appeal, which succinctly sets out the relevant testimony and evidence.
6.
The prosecution called 4 witnesses at trial.  D2 was one of the appellant’s subcontractors at the construction site in question.  PW1 was at the material time an odd job worker in the employ of D2.  She had received safety training. On the day in question, her supervisor Tseung Pun Pun told her to assist another odd job worker called Ah Kan (transliteration).  PW1 arrived Level 2 of Tower 7 and saw Ah Kan, and was instructed to go to Level 2 of Tower 8 to turn on the water tap (i.e. the water tap at the location shown in prosecution exhibit P2 – photos A, B and F: pages 40, 41 and 45 of the appeal bundle). Afterwards, she was told that no water came out and so Ah Kan told her to go to the water tap again to change the connection and replace the plastic hose.  She therefore returned to the abovementioned location.
7.
Whenever PW1 was required to get to that water tap to turn it on or change the hose, she had to climb over a parapet wall (prosecution exhibits P2C and D – pages 42 and 43 of the appeal bundle) and gain support from the exposed reinforcement bars in order to get near the scaffold (prosecution exhibit P2E – page 44 of the appeal bundle).  There was no other way of access to that water tap.  The top of the wall was about 800 mm high.  The construction area shown in prosecution exhibits P2C and D was in fact a flower bed, and there was a scaffold outside and a passageway in between (as shown in prosecution exhibit photo P2E).  The passageway was made up of bamboo with three wooden battens placed on it.  PW1 had to get to the surface formed by these three battens in order to remove the old plastic hose and install a new one.  When she was doing this work, she noticed that the bamboo below the battens cracked.  She fell, from the vicinity of the water tap, i.e. Level 2 of Tower 8, to the ground level.
8.
Before the accident, PW1 had been to the water tap thrice: on the first occasion, to turn on the tap (following which she noticed that no water came out); on the second , to remove the plastic hose; and on the third, to install the new hose.  On each occasion, she had to stand on the wooden battens.  The sheet of galvanized zinc shown in prosecution exhibit photo P2E was not there at the time of the accident, and beneath the wooden battens there were only bamboo members with gaps in between.  In addition, on the passageway there was a hole measuring 18.5 inches x 16 inches, which was big enough for a person to pass through, and a traversing bamboo pole was found broken.  There was no other water tap nearby.  On all three occasions when PW1 entered and left the above location, she did not wear any safety belt, nor was she instructed to wear it. D2 did not provide her with any safety belt.  She did not know the appellant. She could not do the water tap connection within the flower bed area because the water tap was about 4 feet away from the building.  At the time of the accident, the outside of the scaffold was only covered with one layer of grey safety net – not one layer of green net and one layer of grey net (the grey one was originally in white) as shown in the photos.
9.
PW2 is a site project manager in the employ of the appellant.  On the day in question, he was responsible for the construction site concerned, having to perform such works as concrete structure, external wall and plastering.  D2 was one of the appellant’s subcontractors at that construction site and was responsible for works such as decoration, plastering and various odd jobs.  The person-in-charge of D2 at the site was Tseung Pun Pun.  As to prosecution exhibits P10A and 10B – the authorization letters of the appellant and D2, he did not know why the appellant and D2 had the same office address and shared the same logo and why the two letters appeared to be signed by the same person.  He knew that there was some overlap in the staff members of the appellant and D2. The appellant was not the main contractor of the site and was only two (sic) of the subcontractors.  The appellant had no power to control how D2 carried out the works and was not concerned about the nitty-gritty of D2’s works.  The appellant did have control over the safety of D2’s workers and during inspections he would put a stop to any work the execution of which he found to be unsafe.
10.
PW3 was employed by the appellant as the site agent of the site in question.  His daily duties included monitoring subcontractors and ensuring work safety and workmanship.  D2 was a subcontractor of the appellant, responsible for plastering and odd jobs.  PW3 inspected the site on a routine basis.  If he saw that D2’s workers did not work safely, he would, if the situation so required, approach and communicate with the person-in-charge of D2.  On the day in question, he was not at the scene.  If D2’s workers worked in an unsafe way, he could put a stop to D2’s work.  He would not supervise the manner and procedures of execution of work by D2, but if any method of work was obviously dangerous, he would point it out or tell the person-in-charge.  He would require D2 to adopt safe methods and its workers to work safely.  The appellant’s concern was that the methods of work must meet safety standards, and he would also raise the matter if any other subcontractors did not work safely.
11.
Outside the flower bed at the location of the accident was the scaffold.  Climbing over the parapet wall was not the only way PW1 could take because on the scaffold there were other ways of accessing the water tap.  The ways of access concerned were laid properly with bamboo members and (depending on the process of work involved) possibly covered with other materials on top such as galvanized zinc sheets, and they all allowed people to walk on.  The scaffold was erected and repaired by licensed master workers, and was inspected regularly with certificates issued.  Before the accident, he had been to the scaffold and saw that the bamboo members were properly laid and tied as shown in prosecution exhibit photo P2B without any problem (page 41 of the appeal bundle).  The bamboo near the water tap had not gone mouldy or decayed.  The grey net and green net shown in prosecution exhibit photo P2B were all along hung on the external wall.  The green net was put up before the grey net and was not added afterwards, and it was not possible to put it up in one day.
12.
The water tap was situated outside the building, at a location which allowed workers to obtain water conveniently.  It was secured about 5 metres above the ground to provide water for use by workers at work.  This way, the building would not be affected when the tap was to be removed in future after the completion of works.  The parapet wall was about 0.5 metre away from the water tap, and one could turn on the water tap and replace the hose when one was within the flower bed area.  He had no knowledge of any access or opening which could lead to the scaffold outside.  No measure was taken to prevent the water tap from leakage and hence prevent the bamboo members nearby from becoming mouldy.
13.
PW4 was the expert witness for the prosecution and there was no dispute over his expertise.  He pointed out that the access concerned did not meet the safety requirements and was not constructed in the way as shown in Figure 2 on page 31 of the Code of Practice which was prosecution exhibit P14 (page 141 of the appeal bundle).  Having an access laid with galvanized zinc sheets as shown in prosecution exhibits photos P2E and F (pages 44 and 45 of the appeal bundle) was inappropriate because workers might be tripped over by the curved edges of the zinc sheets and also cut by the sharp edges.  If it was necessary to prevent objects from falling down, catch-fans and protective screens should be put in place as required by paragraph 4.4.4 on page 15 of the Code of Practice (page 125 of the appeal bundle), and the galvanized metal sheets should be fixed in place.  Walkways on scaffolds should, in line with the requirements shown in Figure 2 on page 31 of the Code of Practice, be properly laid with boards or planks, and the walkway/working platform should be stable and flat.   Galvanized metal sheets were not flat and hence also did not meet the statutory requirements.  It was also not safe to have a big hole of 18.5 inches x 16 inches on the access.  The statute required access ways to be made of boards or planks and not bamboo because they had to be flat and stable.  Bamboo members had curved and smooth surface which was not flat, and there were also gaps in between, and therefore they were not suitable.  Prosecution exhibit photo P2E showed that the surface of the metal sheets was stained, indicating there had been fallen objects, and the access was inappropriate and unsafe.  The statute required the height of a parapet wall to be 900 mm to 1,150 mm.  The parapet wall of the flower bed was lower than 900 mm and hence fell short of the statutory requirement.  A worker who went close to the parapet wall or turned on the tap would risk falling because there was a big hole out there through which a person could fall onto the ground.  Furthermore, a scaffold should have transoms but this scaffold had none.  The scaffold should, as the statute or the Code of Practice required, be added with transoms, and the boards should be added with toe-boards and gangways.
14.
He suggested that a lawful and practicable method would be to erect a working platform (i.e. walkway) (as per paragraph 5.3.2 on page 20 of the Code of Practice – page 130 of the appeal bundle) in the flower bed, crossing over the parapet wall and with the other end connected with the scaffold, so that workers could move along on the working platform and reach the tap in question (see prosecution exhibit P16 – page 149 of the appeal bundle).  This kind of platform is common in construction sites.  Having a working platform to lead workers to the water tap was the minimum requirement.  Since the water tap was fixed and workers naturally went there to get water, a working platform should be provided together with the water tap because that location was not safe.  The working platform could have three ways of access with stairs, going over the top of the parapet wall and be located on both the right and left sides and on the flower bed, that is to say, there could be access from the flower bed on one side, and also access openings on both the left and right sides so that workers could go in and out of the flower bed and move from left to right or from right to left without obstructing the access.  The working platform should have working space as required by the statute, and be laid with planking on top.  Erecting a working platform required one manhour of work by one worker.  He had also considered whether there would be sufficient headroom for workers after the working platform was put in place, although he had not taken any measurement.
15.
The defence only called one expert witness whose expertise was also not in dispute.  He agreed that the access in question was not safe because PW1 had to climb over a 800 mm-high parapet wall in order to get to the water tap.  However, he said that according to PW3 there were also other ways of access, such as walkways, leading to the water tap.  As the prosecution expert suggested, structures such as platforms with stairs were acceptable if they were well constructed.  It was also acceptable for workers to turn on the water tap when they were on the walkway.  As a lot of work was in progress on the external wall where the water tap was located, it would not do simply to erect there and then a structure such as a working platform and stairs .  He had never seen any platform, or the kind of walkway as suggested by the expert witness for the prosecution, erected solely for a particular work process.  It took at most two seconds to turn on the water tap; one manhour of one worker, however, might not be sufficient for erecting a working platform.  The suggestion put forward by the expert witness for the prosecution was feasible but not practicable.  He agreed that a walkway/passageway with a hole was not safe.  No hole was shown on the passageway in prosecution exhibit photo P2E and he did not see any sharp edge on the galvanized metal sheets; however, if any hole or sharp edge existed, it would be unsafe.  He agreed that the requirements were set out in paragraph 2(1) on page 27 of the Code of Practice (page 137 of the appeal bundle) and that what was shown in photo P2E of the prosecution exhibit was at variance with those requirements, but he did not consider such discrepancies problematic.  He said that the Code of Practice, while meeting the requirements of the law, was not the only standard.  A walkway and a working platform were both feasible.  However, given insufficient headroom, it was not sensible to erect a working platform, and it would be easier and more acceptable to erect a walkway.  It would take five to seven working days to erect walkways on all four sides of the scaffold, whereas erecting a working platform would require two workers to work for one half-day.  As to whether the legislation provided for the minimum safety standard, he had no further comment to make provided that everything was legal.  Each and every building under construction should have sources of water supply, usually with one source provided for every three to five storeys, because water was needed for much of the work process.  He had not been to the construction site in question.  This was the defence case.
This appeal
16.
A crucial issue before me is the capacity of the appellant.  Be it under regulation 38B(1A) or regulation 38AA(2) of the Construction Sites (Safety) Regulations, only a contractor having “direct control” over the construction site in question can be charged with the relevant offences.  As a matter of fact, in all the summonses in the present case, express reference is made to the words “direct control”.
17.
As to the meaning of the words “direct control”, regulation 2 of the Construction Sites (Safety) Regulations provides as follows:
“Direct control, in relation to any construction work, process, excavation, operation, or erection, substantial addition, alteration or dismantling of scaffold, means
control
over the way
the
construction work, process, excavation, operation, or erection, substantial addition, alteration or dismantling of scaffold, as the case may be,
is carried out
.” [emphasis added]
18.
In the English version of regulation 2, the words read “control over the way the [construction etc] is carried out”.
19.
How did the magistrate apply this concept in the present case?  He had this to say in his written judgment (only the material parts are quoted):
“76. Subcontractors are equipped with different specialties, skills and tools for completing specific work. Generally speaking, a contractor does not necessarily make comments on the specific works of its subcontractors; but it is beyond doubt that ultimately the contractor has direct control over its subcontractors because the subcontractors are bound by the contracts they have with the contractor. An analogous situation is that, although in general an employer rarely intervenes in the work of employees having special skills, ultimately the employees must be under the employer’s control.
77. As a subcontractor of D1, D2 and its staff must be under the control of D1. Going back to the example given by the defence: a client who has instructed a lawyer to handle his case will rarely intervene in the decisions made by his lawyer in his professional capacity, but ultimately, the client has direct control over his lawyer, e.g. in respect of settlement, guilty plea or other requests.
78.       Moreover, according to the evidence given by PW2 Tam Fan Wing (transliteration), D1 had control over the safety of D2’s workers, and during inspection he would stop their work if he found the work methods to be unsafe.  PW3 said if he found D2’s workers working in a dangerous manner, he could stop their work and would also ask them to adopt safe methods of work.  If the workers were seen to be working in an obviously dangerous way, he would point it out or inform the person-in-charge of D2.  All this shows that D1 could directly control the staff of D2.”
20.
With respect, however, I do not think the magistrate’s analysis is correct.
21.
According to the judgment of this Court in
HKSAR v Fai Lung Exploitation Limited
,HCMA 1189/2005, there are two ways by which the prosecution can prove that a defendant is the contractor having direct control over the construction site in question: one is by producing the contract between the defendant and the subcontractor as evidence, and the other is by calling witnesses at trial to testify to the subordinate or working relationship between the two of them.
22.
The problem here is that the prosecution in this case has not produced the relevant contract and its terms and provisions remain unknown.
23.
Furthermore, as the respondent has pointed out in its own summary, PW2, being an employee of the appellant, “had no power to control how D2 carried out the works and was not concerned about the nitty-gritty of D2’s works” (see paragraph 9 above).  Similarly, PW3, another employee of the appellant, “would not supervise the manner and procedures of execution of work by D2” (see paragraph 10 above).  Rather, these two witnesses would only monitor and, if necessary, temporarily stop the work in order to ensure the safety of workers on the site.  At most, as PW3 has mentioned, they would only also  monitor the “workmanship” of subcontractors (see paragraph 10 above).
24.
In addition, even though PW2 and PW3 have said they would monitor the safety of workers, we do not know if this was pursuant to the contract between the appellant and D2 or something else, because both witnesses testified that they would, for the sake of safety, “tell them to stop” or “point out the matter” no matter who they were, and would not let off even the landlord (i.e. the developer) or those who were not at all related to the appellant (see the transcript of the trial at page 262 H and page 267 C to F), as if they were discharging moral obligations.
25.
That being the case, I find it very difficult to agree with the magistrate’s observations and conclusion on the issue of “direct control”.
26.
For instance, the reference he made to the example of lawyer-and-client relationship is off the mark because, as the magistrate himself acknowledged, the client does play a substantial part throughout the proceedings.  The lawyer has to obtain clear instructions from the client on a whole range of matters such as: whether to plead guilty or not guilty, or plead guilty to a lesser offence; whether to admit certain facts or put the prosecution to strict proof thereof; whether to criticize the character of prosecution witnesses or avoid doing so in order to eliminate the risk of having previous records disclosed; whether to give evidence or solely rely on cross-examination of prosecution witnesses to achieve a result favourable to the defence; and so on. This is a far cry from the situation described by PW2 and PW3.  Therefore, this example only demonstrates the lack of direct control by the appellant over D2 instead of proving its existence.
27.
Basically, on a proper interpretation of regulation 2 of the Construction Sites (Safety) Regulations, “direct control” can only refer to positive and active control, that is to say, having the right to deliberate and agree on how the works should commence specifically. Only such an interpretation of “direct control” can give effect to the most natural meaning of the term, namely “control over the way [the construction …] is carried out”. On the contrary, if the contractor can only, for the safety of workers, put a temporary halt to an item of work, this is at most a short-term passive right of inspection based on one single consideration (i.e. safety).  The execution of such right is too random and too narrow in scope.  It is very remote from, although not totally irrelevant to, the specific commencement of the works as a whole.
28.
Take the present case as an example.  Assume that, at the material time, when PW2 and PW3 saw PW1 try to climb over the parapet wall, they told her to stop for safety reasons and required her to consult Tseung Pun Pun as to another way of obtaining water. Something similar would then happen to other staff members of D2 occasionally, but apart from that, no one was (or had the power to be) concerned about  how D2 performed the contract up to the completion of the works. Can we say that such circumstances are also sufficient to show that the appellant had “direct control” over the works?  A positive answer to this question would not, in my view, accord with the legislative intent of regulation 2 of the Construction Sites (Safety) Regulations.
29.
I now turn to another key issue at trial, namely for whom D2 was working.  That is to say, if PW1 was instructed to get water because D2 was in fact working for a contractor other than the appellant, then not only the appellant did not have “direct control” as discussed above, but the works in question were by no means the “works” over which the appellant had direct control as alleged by the prosecution.
30.
As to how this argument arose, I notice, with the help of the appellant, that the defence had in fact hinted at it while cross-examining PW2 (see the transcript of the trial at page 258 A to O).  For instance, the latter admitted in court that the appellant was but one of the many contractors of the developer, and he had no idea whether D2, being a subcontractor, had undertaken any job from contractors other than the appellant.
31.
The evidence above is indeed veiled.  This explains why I call it a hint.  However, as the transcript shows, both half way through the trial and in his final submissions, the defence counsel relied on this as a main argument – in other words, turning a hint into an ambush. Nevertheless, the magistrate made no ruling on this at all.
32.
This being the case, and with the parties before me not having ruled out such possibility (i.e. that a subcontractor might at the same time be engaged by two different contractors to work on the same construction site), and coupled with the fact that what PW1 was instructed to do was not “sand-spattering” but obtaining water which was a step common to all work processes, the magistrate’s omission was obviously a mistake which rendered the convictions in the present case unsafe and unsatisfactory.
Judgment
33.
The appeal is allowed.  The two convictions are quashed and fines set aside.
(D. Pang)
Judge of the Court of First Instance
High Court
Mr Michael Tsang, Senior Public Prosecutor (Acting) of the Department of Justice, for the HKSAR
Mr Kenneth Ng of Messrs. Ng, Au Yeung & Partners, for the Appellant
Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.