HKSAR v. CHUN WO CONSTRUCTION & ENGINEERING CO LTD AND ANOTHER

[English Translation – 英譯本]

HCMA 1190/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1190 OF 2006

(ON APPEAL FROM ESS NOS. 14506-14507 OF 2006)

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BETWEEN

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J U D G M E N T

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1.  Summonses were issued against the 1^st Appellant Chun Wo Construction and Engineering Co Ltd (hereinafter “Chun Wo”) and the 2^nd Appellant Chuen Kee Construction Co Ltd (hereinafter “Chuen Kee”) for the following charges:

(1)     The 1^st Appellant: On 8 December 2005, being the contractor responsible for the site of P350-Sky Plaza Building Works at the Hong Kong International Airport, the 1^st Appellant did fail to take adequate steps to prevent any person on the site from falling from a height of 2 metres or more, contrary to section 38B(1) of the Construction Sites (Safety) Regulations, Cap. 59I of the Laws of Hong Kong.

(2)     The 2^nd Appellant: On 8 December 2005, being the contractor who has direct control over the site of P350-Sky Plaza Building Works at the Hong Kong International Airport, the 2^nd Appellant did fail to take adequate steps to prevent any person on the site from falling from a height of 2 metres or more, contrary to section 38B(1A) of Construction Sites (Safety) Regulations, Cap. 59I of the Laws of Hong Kong.

2.  The two Appellants were convicted after trial in the Eastern Magistracy on 13 November 2006 and were each fined $20,000. They now appeal against conviction.

3.  At trial, it was agreed between the prosecution and defence under section 65C of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong, that the 1^st Appellant was the contractor of the construction site of P350-Sky Plaza Building Works, a contract of the Hong Kong International Airport, and that the 2^nd Appellant was the subcontractor of the 1^st Appellant at the construction site, responsible for formwork carpentry, casting and concrete placement.

4.  The prosecution case revealed that on the morning of 8 December 2005, PW1, i.e. Mr Lee, an Occupational Safety Officer of the Labour Department, carried out an inspection on level 3 of the site. He saw a worker squatting on the working platform of the formwork near the duct at L8/1 on level 3. The platform was about 330 cm from the ground of level 3. The platform was 70 cm long on one side and about 50 cm long on the other. No guardrail was installed on either side of the platform to prevent people from falling, nor was there any fall arrestor such as safety strips or safety net.

5.  Mr Lee took a few photographs to capture what he saw, and they were adduced as evidence at trial. Photo exhibit P5A shows that a worker was squatting and working on that platform. As Mr Lee testified, there was no guardrail or safety net around the platform. Mr Lee claimed that he observed the worker for about 3 minutes, during which the worker was hammering the planks on the platform. When the worker realized that he was photographed, he left the platform through a hole on the upper level. Mr Lee was unable to confirm the identity of the worker thereafter.

6.  PW2, Mr Shum, was Chuen Kee’s foreman on the site. He claimed that works relating to the formwork had stopped since early December so there should not be any workers from Chuen Kee working on the platform as shown in the photographs. He too had no idea as to the name and identity of the worker in the photo.

7.  The defence called two witnesses. The first one was Mr Lau, who was a foreman employed by Chun Wo working in P350-Sky Plaza. The second witness, Mr Wong, was the foreman in charge of the works on level 3 of the site. In general, three grounds of defence were put forward. First, as the photos show, level 3 could only be reached by going down from a hole on the floor slab of level 5 where a fall arrestor was duly installed, and the relevant legal requirement had therefore been complied with. Second, the works in respect of the formwork on the third level stopped in early December, and no worker from Chuen Kee was supposed to work there when Mr Lee inspected the site.  Therefore the Appellant should not be held responsible for the act of an unknown worker. Third, the two Appellants had taken all reasonable steps to prevent workers from falling. The magistrate has set out his reasons on pages 17 and 18 of his Statement of Findings as to why he rejected the defence and convicted the two Appellants.

8.  Mr Chan, solicitor for the Appellants in this appeal, raises two grounds of appeal. The first ground consists of two parts: the first part is that the magistrate had overlooked the fact that the prosecution was unable to prove the relationship between the worker in the photographs and the 1^st or 2^nd Appellant, whereas there was evidence that PW2 claimed that work on level 3 had stopped since early December. The second point is that it was not possible at all for Chuen Kee to have control over the platform on level 3 because work had stopped and the magistrate had erroneously found the two Appellants to be criminally liable in respect of the worker.

9.  Mr Chan’s grounds of appeal has, in my view wisely, not touched on whether level 3 had sufficient fall arrestors, because the photographs show that there was no guardrail, safety net or fall arrestor around the platform. The two issues in this appeal are: first, whether the platform, on which the worker in the photographs was working, had sufficient equipment under regulation 38B(1), which provides:

“… to prevent any person on the site from falling from a height of 2 metres or more”

and under regulation 38B(1A), which provides:

“…take adequate steps to prevent any person on any place where the construction works is being carried out from falling from a height of 2 metres or more.”

and second, whether the 2^nd Appellant had direct control over the work of the platform on the day of the offence.

10.  I have already explained “any person” in the case of HKSAR v Adrian Engineering Co Ltd and Cedar Constructions Co Ltd, HCMA 561/2007. In my judgment, the literal meaning of “any person” certainly is “anyone on the site”. The law does not stipulate that different degrees of protection are to be accorded to workers doing different kinds of work. Moreover, under regulation 2(2), construction site is defined as:

“a place where construction work is undertaken and also any area in the immediate vicinity of any such place which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work.”

The platform in the photographs must be part of the construction site. The term “any person” does not carry different meanings in regulations 38B(1) and 38(1A). In this case, “any person” certainly includes the worker in the photo exhibits.

11. Furthermore, the term used in the provisions is “any person”, not “any worker” or “any worker employed by the contractor”. The legislative intent is plainly to protect any person who may enter the construction site and this is not confined to workers working on the site or those under the employment of a certain contractor.

12. It is not disputed that Chun Wo was the contractor of the site. PW1 testified that he saw workers of over 100 designated trades working on the site and PW2 agreed that Chuen Kee was responsible for the formworks on level 3 and above. The evidence in this regard is sufficient to confirm that the platform in the photographs was under the direct control of Chuen Kee. The fact that there were other subcontractors working on the site does not, in my judgment, affect Chuen Kee’s direct control over there. Where workers of various trades are working on a site, different subcontractors may jointly have control over the site or any part thereof.

13. In the present case, Chun Wo and Chuen Kee had different degrees of control over the site and they should provide a fall arrestor to “any person” on the site as required by the law. Mr Chan claimed that the work in respect of the formwork stopped in early December and Chuen Kee no longer had the duty to provide a fall arrestor. If Mr Chan’s argument was correct, only Chuen Kee’s employees would enjoy the statutory protection and workers of other subcontractors would not. This argument certainly cannot be sustained. Work was only suspended for the time being and it does not mean that Chuen Kee had finished all work on the site under the contract. Suspension of work does not reduce or vary the subcontractor’s responsibility under the law.

14.I have considered the reasons for verdict and the reasons for rejecting the defence in the Statement of Findings. The magistrate did not err. He did not make any mistake in reaching the verdict. For the above reasons, the appeal of the two Appellants is dismissed and their convictions are affirmed.

Ms Teresa Kam, Government Counsel, for the HKSAR.

Mr Chan Man Hon of Chan, Wong & Lam for the 1^st and 2^nd defendants.