HKSAR v. CHINA CIVIL ENGINEERING CONSTRUCTION CORPORATION

HCMA 1020/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1020 OF 2001

(ON APPEAL FROM FLS 2122 AND 2123 OF 2001)

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J U D G M E N T

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1. This is an appeal against conviction and sentence.

2. The appellant, a construction company, appeals its convictions upon summonses as follows:-

(1) Failing to cause a structure made of suitable timber or other suitable material to be erected in connection with excavation operations as soon as necessary after their commencement so as to prevent workmen employed on the site from being endangered by fall or displacement of Earth forming the side of the excavation, contrary to Regulations 39(1) and 68(2)(a) of the Construction Sites (Safety) Regs. made under the Factories and Industrial Undertakings Ordinance, Cap. 59. and secondly;

(2) Failing to cause every part of the excavation where workmen were employed to be examined by a competent person at least once in every period of 7 days after the commencement of the excavation until it was completed or abandoned, contrary to Regulations 39(2)(a), 68(1)(a) and 68(2)(a) of the Construction Sites (Safety) Regs. made under Factories and Industrial Undertakings Ordinance, Cap. 59.

The appellant was fined $50,000 in respect of each offence.

3. The facts of the case as found by the magistrate were that the appellant was the contractor responsible for the construction of a manhole on a construction site on the Yuen Long Industrial Estate. The manhole was constructed by way of firstly excavating the site where the manhole was to be located. That excavation was done and was about 10 m long x 4 m wide x 3 m deep. The manhole was then constructed of concrete in the middle of the excavation. Work to that stage had been done.

4. There were four sides to the excavation. Three of those sides were partly open cut in the sense that they formed slopes on their upper part but with a vertical cut to the bottom of the excavation being their lower part. The fourth side was wholly vertically cut and, although irregular in depth along its length, was something over 3 meters deep. The fourth side was vertically cut for the simple reason that there was insufficient space at that side of the excavation for the larger area required for an open cut.

5. The appellant, prior to commencing the excavation, had DW1, a structural engineer design both the manhole and the safety shoring required to brace the vertically cut side of the excavation so as to prevent it collapsing.

6. There were some faults in the calculations used by DW1 in the design of the safety shoring, but those faults, according to DW2, another and independent expert structural engineer who gave evidence at trial, only reduced the safety factor from the preferred 2.0 (which presumably, in layman's terms was a factor of twice the pressure potentially exerted by the earth wall it was designed to support) to a factor of about 1.8.

7. The magistrate accepted in his findings that the design was therefore, even accepting these errors of calculation, a proper and safe design and that safety shoring built in accordance with that design could properly have been accepted by the appellant as being able to prevent the collapse of the vertical side of the excavation. Safety shoring in purported compliance with DW1's design was built by the appellant against the vertically cut side of the excavation.

8. On the charged date the manhole structure had been completed. The excavation was to be filled in around the completed manhole. Before that was done the vertically cut side of the excavation collapsed. The safety shoring was pushed down onto the manhole. A worker who had been in the excavation at the time was crushed and subsequently died. The safety shoring had demonstrably failed to prevent the collapse of the vertically cut wall.

9. The magistrate concluded that the safety shoring was defective because it had not been constructed in accordance with DW1's plan and in particular had not used sufficiently closely spaced vertical battens of timber against the vertically cut face of the excavations, and that there had been insufficient horizontal or diagonal beams leading from the floor of the excavation and supporting the vertical battens. He accordingly convicted the appellant of a breach of Regulation 39(1) on the first summons.

10. So far as the second summons was concerned, alleging a breach of Regulation 39(2)(a) of the Regulations, the person appointed by the appellant as the competent person required to examine the excavation was PW3. The magistrate found that PW3 was merely a casual worker with no particular training and was able to and did perform no more competent examination than an ordinary worker could perform and had not examined every part of the excavation as required as he had only performed a visual inspection of the excavation from ground level. Accordingly the magistrate concluded PW3 was not a competent person and the appellant had not caused every part of the excavation to be examined by a competent person.

11. I will deal with each appeal against conviction in turn. So far as the conviction on the first summons alleging an offence contrary to Reg. 39(1) is concerned the appellant appeals on, effectively, two basis:-

(1) That the magistrate wrongly ignored the testimony of witnesses, particularly PW5, the appellant's project manager; PW6, the proprietor of the firm responsible for the construction of the manhole and the safety shoring against the vertical side of the excavation and DW3, the foreman of that firm who had been in charge of the making of the excavation and the construction of the safety shoring, and relied upon his own interpretation of the photographs of the scene taken after the accident and other evidence to have wrongly concluded the safety shoring was inadequately constructed; and

(2) Secondly, the magistrate wrongly rejected the defence of honest and reasonable belief that the safety shoring complied with the provisions of Regulation 39(1) which was a defence available to the appellant.

12. Before the appellant's grounds of appeal can be properly approached it is necessary to deal with some quite fundamental aspects of the offences created by Regulation 39(1) and by Regulation 39(2)(a).

13. In my view these offences are offences of strict liability. That is, it is not required of the prosecution, so far for example as Regulation 39(1) is concerned, to prove the offender intended to fail to erect a structure so as to prevent workmen being endangered.

14. It seems quite plain to me that the offences are sufficiently ones directed to concerns of public interest and policy, namely the safety of persons employed in the construction industry so as to displace the presumption that mens rea is an element of the offences. The purpose of the legislation of which these regulations form a part is that of the promotion of worker and to some extent also public safety in the context of the construction industry in Hong Kong.

15. Regulations such as the present imposing strict liability on individuals and corporations responsible for the operation of construction sites would promote such safety by enhancing the vigilance of those responsible for the safety of workers and the public in the environs of construction sites. Gammon (HK) Ltd v Attorney General [1985] AC 1 and Attorney General v Fong Chin-yue [1995] 1 HKC 21.

16. Further the offences are ones of "mala prohibita" rather than ones of "mala in se". The offences are regulatory in nature and are not directed against any inherent evil in the conduct of individuals.

17. Nonetheless even though the regulations do impose strict liability it seems to me, and it was accepted by counsel before me, that a defence of honest and reasonable belief is available to a person charged under the regulations.

18. It is true that no statutory defences are incorporated into this particular set of regulations. But in my judgment it is quite plain that such a defence would not detract from the purpose of the regulations. All those regulations hope to achieve is that those responsible for construction sites will exercise their endeavours in preserving their workers' safety to the point where they honestly believe that has been achieved. Those creating the scheme of the legislation cannot have had as a purpose that those subject to the legislation would go beyond a state of affairs where they believed they had preserved their workers' safety. There would be no point in that.

19. For that reason, a defence of honest and reasonable belief in compliance with the regulations must have been available to the appellant. The onus of proving that defence, given the important purpose the regulations are directed at, i.e. preserving the safety of workers, must be upon the alleged offender. In my judgment the standard of proof is on the balance of probabilities: Attorney General v Fong Chin-yue (supra).

20. I have taken some time in arriving at this point because in my view, these being offences of strict liability, the prosecution, so far as the first summons was concerned, pursuant to alleging a breach of Regulation 39(1), did not require proof that there was a particular defect in the construction or design of the safety shoring erected against the vertically cut wall of the excavation but simply proof that the safety shoring, whatever the reason, was not a structure which prevented workmen employed on the site from being endangered by a fall of earth from a side of the excavation.

21. In this particular case it was common ground that the erected safety shoring failed to prevent the collapse of the excavation. In other words, so far as the facts of the first summons are concerned, the appellant had patently failed to erect a structure which would preserve its workers from the danger of a collapse of the sides of the excavation. That is so because the erected structure in fact failed to prevent such a collapse. That fully makes out the prosecution case under the first summons. What remained after that was simply for the magistrate to decide whether the appellant had made out, on the balance of probabilities, its available defence of an honest and reasonable even if mistaken belief that it had erected a structure which complied with the provisions of Reg. 39(1).

22. The evidence supporting this defence before the magistrate can be summarised as follows.

23. DW1 a structural engineer designed a structure which according to DW2 a wholly independent structural engineer who gave expert evidence at the trial was sufficient to achieve compliance with the Regulation, so far as preventing the collapse of the vertically cut wall was concerned. PW5, the appellant's project manager and PW6 and DW3 respectively the proprietor and foreman of the firm which built the safety shoring all said that the safety shoring was built in compliance with DW1's plan.

24. No doubt those witnesses may each have had an interest to serve in giving evidence to that effect, but their evidence in this regard was consistent and was uncontradicted by any witness who had seen the structure before its collapse. On its face the combined evidence of DW1, DW3, PW5 and PW6 that the safety shoring had been designed to acceptable structural engineering standards and had been built in accordance with that design would, without more, have been compelling evidence of the appellant having a reasonable and honest belief of compliance with the requirements of Reg. 39(1).

25. The only evidence from a witness as to the insufficiency of the construction of the safety shoring came from PW7, another structural engineer who was employed by the Labour Department and who visited the scene of the accident the following day. He said he observed the following things:-

(1) He could not see any horizontal struts in the collapsed excavation, although he agreed that as a result of the collapse, he would not have been able to see the lower horizontal struts as they would have been covered.

(2) He had measured the spacing of some of the vertical battens pushed against the manhole by the collapse and found them to be more than 300 mm apart. He had measured their spacing by comparison to his hand span.

(3) The plywood boards between the vertical battens and face of the vertical cut extended only 1.8 m, approximately, up the face of the cut so far as he could see. That is about halfway up the face of the cut, so that bare earth was exposed between the battens above that height. That apparently was in breach of the requirements of the design plan.

26. It was, unfortunately, never made wholly clear from the evidence of PW7 whether these observations were completely restricted to the collapsed part of the vertical cut side of the excavation, or whether they were also confirmed by any other part of the vertically cut side and its safety shoring which remained intact. In this regard there was some confusion in the giving of PW7's evidence.

27. Further, throughout most of his evidence up until the latter part of his cross-examination, he was under the mistaken belief that further supporting struts had been required to be added to the safety shoring for the purpose of gradual refilling of the excavation in accordance with the design plan. But it was common ground in the case that no such additional struts had been added to the structure as the original safety shoring was not going to be removed and was to be sacrificed when the excavation was filled. For that reason his evidence of finding no such additional struts or the shear-pins associated with them was wholly irrelevant.

28. The magistrate accepted the evidence of PW7 and rejected that of PW5, PW6 and DW3 and concluded that the safety shoring had not been constructed in accordance with DW1's design. There were two main basis for the magistrate doing so.

29. Firstly, the magistrate said that photographs produced in evidence, taken at the time firemen were performing their rescue of the fatally injured worker, showed that the safety shoring was not built in accordance with the plan. He arrived at that conclusion from the number of battens he could see in those photographs and the absence of any struts.

30. But according to the evidence, before these photographs were taken, workers at the scene had removed part of the safety shoring. That evidence, it is true in part came from DW3. But additionally, according to PW2, one of the firemen present, his fellow firemen also had removed a number of battens which were hampering the rescuers. In other words, in the prosecution's own case battens and woodwork had been removed from the accident site prior to the photographs being taken.

31. For that reason one would have thought the photographic evidence should have been approached with considerable caution. It suffered from the same flaw as the evidence of PW7. That is, that the scene of the accident had been altered considerably by the removal of material relating to the safety shoring before the photographs were taken and before PW7 attended at the scene. The second basis the magistrate had for rejecting the evidence of PW5, PW6 and DW3 and accepting the evidence of PW7 was that in some respects the whole of the excavation site had not been built in accordance with DW1's design. One of those matters was that the appellant had made a decision to backfill the excavation with the safety shoring still in place, thereby sacrificing it, rather than backfilling the excavation stage by stage with additional strutwork inserted so as to be able to gradually remove the safety shoring.

32. The magistrate took this procedural deviation into account as evidence that supported PW7's evidence that the safety shoring at the collapsed wall also deviated from the plan.

33. But with respect to the learned magistrate the decision to backfill the excavation, and sacrifice the safety shoring in doing so, was a decision relating to a method of work rather than a non-compliance with DW1's design for the construction of the safety shoring itself. The decision to backfill the excavation in the terms in which it was made was not in contravention of DW1's plan of construction. It simply rendered that part of DW1's plan dealing with the provisions of additional struts to allow the removal of the original safety shoring during a stage by stage backfilling operation inapplicable.

34. In my judgment the magistrate wrongly took these two matters into account as supporting the evidence of PW7 in the manner that he did. As I say, in accepting PW7's evidence he rejected the evidence of PW5, PW6 and DW3. He gave only one reason in doing so and that was that while those witnesses particularly PW5 and DW3 had said that the construction of the manhole or excavation was carried out according to plan, it was obvious, because of the deviation from the wholly open cut aspect of the planned three non-vertical cut sides being changed to render them partly vertical cut that the excavation was not carried out according to plan.

35. But in fact PW5, PW6 and DW3 in their evidence had not said that the excavation generally had been carried out according to DW1's plan. They had been asked specifically whether the safety shoring had been constructed according to DW1's plan and had agreed that it had.

36. It seems to me that the magistrate treated their evidence in that particular regard as if they had said the excavation as a whole had been constructed in accordance with DW1's plan, and then used evidence of deviations to DW1's plan in other aspects of the construction of the excavation to contradict their evidence. In my view that is not a substantial reason to reject the evidence of PW5, PW6 and DW3. Accordingly in my judgment he had rejected PW5, PW6 and DW3's evidence regarding the proper construction of the safety shoring on the wrong basis. Further he had taken into account matters in support of PW7's evidence that, at the least, were of doubtful weight as to the issue of the proper construction of the safety shoring.

37. For those reasons in my judgment the magistrate had not properly considered the appellant's available defence of honest and reasonable belief and his rejection of that defence inherent in his statement of findings was without a proper evidential basis. In my judgment that renders the appellant's conviction on the first summons in respect of the alleged breach of Regulation 39(1) unsafe and in that regard the appellant's appeal is allowed and the conviction is quashed and the sentence set aside.

38. So far as the second conviction contrary to Regulation 39(2)(a) is concerned the appellant advances the following grounds of appeal.

(1) That the statutory definition of "competent person" includes persons with PW3's experience and the magistrate was wrong in law in finding him to have not been a competent person.

(2) That in arriving at that conclusion the magistrate wrongly took into account evidence as to the unsafe nature of the excavation site after the collapse of the vertically cut wall.

(3) That the defence of honest and reasonable belief available to the appellant was not properly considered by the magistrate.

39. As to the first complaint of the appellant the statutory definition of competent person for the purpose of Regulation 39(2)(a) is contained in Regulation 2 and is as follows:

"'competent person' in relation to any duty to be performed under these regulations by a competent person, means a person who is -

(a) appointed for that purpose by the contractor required by these regulations to ensure that the duty is carried out by a competent person; and

(b) by reason of substantial training and practical experience, competent to perform the duty."

40. It seems to me that the requirement that a competent person have substantial training and experience is conjunctive. That is, in my judgment, it is a requirement that a person before he be regarded as competent by reason of sub-paragraph (b) have both training and experience.

41. I form that view because firstly the immediately proceeding definition of "competent examiner" requires, as a mandatory matter, that such a person have specific qualifications as well as training and experience.

42. It seems to me that the definition of "competent person" while a step down in the hierarchy of requirements in that regard should, even if the specific requirements are less, nevertheless be read consistently as also requiring both aspects of competence.

43. Secondly, in my view the legislation should be read in a way which furthers its aims. The aim of the legislation is to promote the serious matter of worker and public safety. In my view a literal reading of the legislation so as to read conjunctively the requirement that a competent person possess both substantial training and experience would further the aims of the legislation.

44. As a second preliminary matter, for the reasons I have already expressed in dealing with the appeal relating to the conviction of the appellant on the first summons pursuant to Regulation 39(1), in my judgment the offence created by Regulation 39(2)(a) in respect of which the appellant now appeals is also an offence of strict liability. That means once the magistrate had determined that PW3 in this case was not a competent person or that he did not examine every part of the excavation, regardless of the appellant's intentions in this regard, then the only defence available to the appellant is that of an honest and reasonable belief which it must establish on the balance of probabilities.

45. The magistrate in finding PW3 not to be a competent person said this:

"Although I accept there was no formal qualification in order to become a competent examiner, according to PW3, he did not receive any training on excavation examination. He only passed a general safety course plus he had 20 to 30 years on levelling working on trench and excavation. PW3 repeatedly whilst giving evidence stressed that he was just a casual worker. He was told to act as a contacting person. He was no senior than other workers. He stated in his evidence that he was not a professional and should not be asked to conduct examinations of excavations."

46. The magistrate further went on to find that the appellant in any event had not caused every part of the excavation to be examined by a competent person. In this regard he said this:

"On 4 September 2000, PW3 examined the excavation. According to his evidence, he did no more than a visual inspection. He looked at the excavation to see if any risks such as the presence of water, loose soil and the condition of the shoring. He stated that he would not go down to the excavation to check because it was dark. As such, not every part of the excavation where workmen were employed was examined by a competent person. In summary, he only performed visual inspection. What he did was no more than an ordinary worker would do."

47. The magistrate further went on to say in respect of water being seen to have entered the site, on the same day, by PW1.

"PW1 who arrived at the scene shortly after the accident noticed water of 0.2m deep was at the bottom of the excavation. There had been no rainfall that morning."

When PW7 visited the scene on 5 September he noticed water coming out from the soil 300-400 mm below the ground surface. In my view the magistrate was perfectly entitled to take those matters into account, albeit these observations were made after the accident had occurred, in considering whether PW3's examination had been competently and thoroughly performed. The fact that they were observations made after the accident had occurred went only to their weight and not to their admissibility.

48. In other words what the magistrate took into account in arriving at his conclusion that the prosecution had established beyond reasonable doubt that the site had not been examined in every part by a competent person were all perfectly proper matters.

49. What remained then was to consider whether a defence of reasonable and honest belief had been made out by the appellant. In my view the appellant plainly failed to do that. There was no evidence that PW3's training and experience was in any particular way examined prior to his being appointed as a competent person so as to lead the appellant to the conclusion, properly formed, that he in fact was a competent person in terms of Regulation 39(2)(a). There was no evidence that the appellant had taken any steps to ensure PW3 knew he had to examine all parts of the excavation. PW3 was plainly unaware he had to examine the shoring at least once a week thoroughly, and every other aspect of the excavation, apart from the very broad visual inspection he gave the site from its perimeters. The fact that a thorough examination was not done was reflected in the uncertainty in the evidence before the magistrate as to what the precise state of the shoring was before it collapsed, and what the precise state of the earth it was supporting in terms of location of water seepage and amounts, and tension cracks had been.

50. For these reasons the magistrate's rejection of the defence of honest and reasonable belief cannot be criticised. The appeal against conviction in respect of the second summons is dismissed.

51. So far as the appellant's appeal against sentence is concerned in respect of the second summons the appellant says the fine of $50,000 imposed by the magistrate was manifestly excessive and wrong in principle in that the magistrate took into account the "average" of fines imposed in other cases.

52. So far as this latter complaint is concerned I do not think it is wrong in principle for a magistrate to take into account the range of sentences previously imposed in respect of a particular sort of offence so long as he does not regard it as determinative or binding upon him. The magistrate in referring to an "average" sentence in this matter was obviously merely looking at a previous range of penalty. He obviously did not regard that as determinative.

53. He then went on to find that the particular case before him was at the higher part of the range of sentences imposed for these sorts of offences. Bearing in mind the maximum penalty for the offence is $200,000 I cannot see that a fine of $50,000 is manifestly excessive.

54. The sentence was neither wrong in principle nor manifestly excessive. The appeal against sentence in respect of the second summons is dismissed.