SECRETARY FOR JUSTICE v. HONG DAU CONSTRUCTION COMPANY LIMITED

FAMC Nos. 7 and 8 of 2019

[2019] HKCFA 20

FAMC No. 7 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2019 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 499 OF 2017)

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FAMC No. 8 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 8 OF 2019 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 499 OF 2017)

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D E T E R M I N A T I O N

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Mr Justice Bokhary NPJ:

1.  On 23 May 2013 two scaffolders, Mr Chin Kwok-leung and Mr Kong Tak-kei, were engaged in the erection of a bamboo scaffold alongside the external wall of a carpark building in order for maintenance work to be done there.  There came a time when Mr Chin attempted to return from the external wall to the interior of the building.  This was at the third floor level.  It involved stepping onto a parapet.  While doing that, Mr Chin lost his footing.  His harness not being attached to anything, he fell approximately 10.9 metres to the ground floor level.  He sustained injuries from which, tragically, he died later that day.  From now on, he will be referred to as “the deceased”.

2.  As a result of this accident, a number of summonses were issued.  The magistrate acquitted on all of them.  We are concerned with two of them.  Both were laid under the Construction Sites (Safety) Regulations (Cap 59I) made under the Factories and Industrial Undertakings Ordinance (Cap 59).  And both relate to the work constituted by the erection of a scaffold at the site constituted by where that work was being done.  One was against Hong Dau Construction Co Ltd (to which we will refer as “Hong Dau”) and the other was against Expand Scaffolding Ltd (to which we will refer as “Expand”).

3.  Hong Dau was the contractor responsible for the scaffold.  Expand was the contractor who had direct control over the erection of the scaffold.  Hong Dau was summonsed under regulations 38E(1), 68(1)(a) and 68(2)(a) while Expand was summonsed under regulations 38E(2), 68(1)(a) and 68(2)(a).  The failure for which each of them was summonsed was failure to ensure that the scaffold was not erected except by workmen who (i) were adequately trained and possessed adequate experience of such work and (ii) were under the immediate supervision of a competent person.

4.  Regulation 38E(1) fixes a duty on the contractor responsible for a scaffold on a construction site while regulation 38E(2) fixes a duty on any contractor who has direct control over the erection, substantial addition, alteration or dismantling of any scaffold.  The work to which each of these duties relates is such erection, substantial addition, alteration or dismantling ‑ which are particularly dangerous stages of scaffold work. Each of these duties is to “ensure” that no such work is carried out “except by workmen who are ‑ (a) adequately trained and possess adequate experience of such work; and (b) under the immediate supervision of a competent person.”  Regulations 68(1)(a) makes contravention of regulation 38E(1) or (2) an offence while 68(2)(a) renders a person guilty of any such contravention liable to a fine of $200,000.

5.  On a review which he conducted at the prosecution’s request, the magistrate adhered to the acquittals by him on these two summonses.  The prosecution then appealed against those acquittals by way of case stated.  Two questions were posed by the magistrate for the opinion of the High Court.  The magistrate’s questions are worded thus in the case stated:

“(a) Did I err in holding that under regulation 38E, workmen can be under the immediate supervision of a competent person who is engaged in the erection of scaffold?

(b) If the answer to (a) is “No”, were my findings that there were reasonable doubts that each of [Mr Kong and the deceased] was under the immediate supervision of the other perverse?”

6.  The judge answered the first question “Yes”.  Although the second question only arose if he had answered the first question “No”, the judge nevertheless dealt with the second question, answering it “Yes”.

7.  In the result, the High Court allowed the prosecution’s appeal so as to reverse the acquittals, enter convictions and remit the case to the Magistrates’ Court for the magistrate to hear mitigation and pass sentence.

8.  Wishing to appeal to the Court of Final Appeal, Hong Dau and Expand asked the judge to certify two points as points of law of great and general importance involved in his decision.  Of those two points, the first, which was sub-divided into two parts, went to how the judge answered the first question posed in the case stated while the second point went to how the judge answered the second question posed in the case stated.  The judge refused to certify any point.

9.  Hong Dau and Expand now apply to us, out of time, for leave to appeal to the Court of Final Appeal on both the “point of law” limb and the “substantial and grave injustice” limb of s 32(2) of the Court’s statute.

10.  The point of law which they put forward runs thus.  The “immediate supervision” under regulation 38E is concerned principally with ensuring that the scaffold itself is structurally safe.  And that goes to show that workers engaged in the erection of scaffold can for regulation 38E’s purposes be under the immediate supervision of each other.  That point goes to how the judge answered the first question posed in the case stated.

11.  We pause here to mention that Hong Dau and Expand’s greatest concern is said by Mr Robert Pang SC on their behalf to be not so much with that point as it is with their apprehension that the judge had held, or might be thought to have held, that supervision must be “one on one” in the sense that each workman has to be supervised by a supervisor of her or his own to the exclusion of any other worker.  We make it clear at once that it would not be right to so hold and that the judge did not so hold.  As to what “immediate supervision” entails in circumstances like those of this case, the judge applied and rightly applied the cases of Maloney v A Cameron Ltd [1961] 1 WLR 1087 and Owen v Evans & Owen (Builders) Ltd [1962] 1 WLR 933.

12.  As for Hong Dau and Expand’s complaint of substantial and grave injustice, it is a recasting of what had been the second point of law which they had asked the judge to certify.  This complaint is that the judge had to their disadvantage departed from accepted norms to so serious an extent as to cause a substantial and grave injustice to them.  On the magistrate’s order, the transcript of the testimony given by Mr Kong had been annexed to the case stated.  It is complained that the judge had: ignored certain findings made by the magistrate; focused on only a part of Mr Kong’s testimony; and failed to consider the evidence as a whole or in context.  This complaint goes to how the judge answered the second question posed in the case stated.

13.  Legislation, whether primary or subordinate, is to be interpreted and applied purposively, holistically and contextually.  It is not to be interpreted or applied to impose criminal liability unless it is clear that it is so to be interpreted and applied.  At the same time, the courts can hardly be expected to attribute to those who enact statutes or make rules or regulations any intention that involves a lack or shortage of concern for safety.  Very properly, the magistrate obviously had the first of those principles in mind.  But did he give effect to the second one?

14.  Mr Pang has argued these applications with his customary skill.  Nevertheless, in regard to regulation 38E, the following propositions emerge so clearly as to be beyond reasonable argument to the contrary:-

(1) The safety which it is the regulation’s purpose to ensure is not of a narrow ambit.

(2) Not only the safe condition of scaffold but also the safety of scaffolders is within the protection of the regulation.

(3) Scaffolders are at risk of falling off a scaffold even when it is in a safe condition, and that risk is naturally increased if the scaffold is in an unsafe condition.

(4) If a scaffold’s unsafe condition renders it liable to collapse, passersby are at risk of the scaffold falling on them; and whatever the reason for a scaffolder’s fall may be, passersby are at risk of the scaffolder falling on them.

(5) The supervision for which the regulation calls is in the interests of the safe condition of scaffold and in the interests of the safety of scaffolders, these two interests being inextricably inter-linked.

(6) In both of those interests, the regulation, on its plain wording, proper context, and obvious safety-centred purpose, requires that what scaffolders at work do and how they do it be under the immediate supervision of a competent person who is not at the time herself or himself actively engaged in such work and who is free to look to the safe condition of the scaffold and the safety of the scaffolders without being distracted by having to mind her or his own safety.

(7) Such supervision is not confined to the time when scaffolders are actually moving or perched on a scaffold, but extends to the stages at which they are climbing on or off a scaffold - for those stages, too, as the facts of the present case clearly and tragically demonstrate, are hazardous.

15.  Consequently, the points of law put forward on Hong Dau and Expand’s behalf are not reasonably arguable.  This means that the attack on the judge’s answer to the first question posed in the case stated fails.

16.  On that basis, the second question posed in the case stated does not arise.  It is not, however, to be thought that leave to pursue the complaint of substantial and grave injustice would have been granted if it had arisen for decision.

17.  In the result, with an expression of thanks to counsel on both sides for their assistance, leave to appeal is refused.  Those thanks can be accompanied by congratulations to Mr Pang and his team who have, without having to go to the Court, managed to remove any cause for concern on their clients’ part that the judge’s judgment may be thought to have held that supervision has to be “one on one”.