THE QUEEN v. WING TAI PILONNER COMPANY LIMITED

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 683 OF 1988

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J U D G M E N T

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1. The Appellant company pleaded not guilty to two charges alleging offences against the Building Ordinance. It was acquitted on one and found guilty on the other. The charge on which it was found guilty in its original form read as follows:-

"...you...at 12-14 Marigold Road, Kowloon...being a registered contractor under the Buildings Ordinance, did diverge or deviate in a material way from the piling work shown in the plans approved by the Building Authority under the Buildings Ordinance contrary to section 40(2A)(b) of the Buildings Ordinance."

2. On the day of trial before the Prosecution opened its case Crown Counsel applied for, and was granted with the Defence not objecting, leave to amend the charge so that the essential part of the allegation became -

"...... did diverge or deviate in a material way from the piling work shown in the plans approved by the Building Authority under the Buildings Ordinance, in that pile no. H10 had a net length of only 1.4m and was not capable of adequately bearing the load for which it was intended....."

3. The approved plans did not specify any minimum length for pile H10, or for any other pile for that matter. According to the approved plans and the regulations governing piling operations, the proper length of a pile is determined after it is driven to a level where it meets what I will call a "secure foundation", a point readily determined by a well-known engineering test. It therefore makes no sense to say that there has been a divergence or deviation from an approved plan because pile "A" measures "only X metres". If X metres down at that spot there is a secure foundation then pile A is installed in complete compliance with the, approved plans, and the then actual measurement of the embedded pile is the Length required by the plans and the regulations. In order to say that the X metre measurement of pile A constitutes a material divergence or deviation from the approved plans it is necessary to go further and say that a pile driven only X metres down in A's location falls short of meeting a secure foundation. If a pile is lodged in the ground without resting on what the Building Authority regards as a secure foundation then obviously it is not capable, in the Building Authority's view, of adequately bearing the load for which it was intended. A pile which comes to rest on a boulder is not, in the Building Authority's view, on a secure foundation. Accordingly, in the approved plan there was a requirement that if the pile encountered a boulder drilling could not end there but the pile had to be withdrawn and the boulder prepared for the pile to be driven through it until the pile did reach what the Authority accepted as a secure foundation. In this case, the pile did come to rest on a boulder so that the material divergence from the approved plans was the failure to drive the pile through it until a recognised secure foundation was reached. With hindsight, it can now be seen that that was what the particulars should have alleged. The Defence, however, understandably interpreted the particulars as meaning that because the pile was so short therefore it was incapable of adequately bearing the load for which it was intended.

4. As a result, the Defence by cross-examination of the Prosecution expert witness and evidence led from its own expert established that length was irrelevant for the purpose of determining whether a pile was capable of supporting its intended load. Leading counsel for the Appellant in his final submission at the trial said:-

"It does not matter how long or short a pile is. It is a sufficient compliance with the Building Ordinance if it is able to bear the load for which it was designed. That being the case surely the critical test is the load test. Indeed, that is the only prescribed test. See Building (Construction) Regulations 35 (5):

...Was there evidence from the prosecution that this pile was not capable of bearing the load for which it was intended? The answer must be no."

5. The evidence was that after the piles have been installed any protuberance above ground level is cut off. Another contractor, responsible for constructing concrete pile caps, then comes to the site. His work involves excavating around the top area of the piles. It was whilst this contractor was excacating around pile H10 that he discovered it tilting. On further examination he found that the bottom of it was resting on a boulder one metre in diameter. The pile was extracted and it was then found to measure 1.4 metres.

6. Dealing with the Defence submissions the learned magistrate said that he accepted the evidence of the Defence witness "that a 1.4 metre pile on a boulder at the pile 10 position would have passed the loading test". He then made mention of the same witness' evidence that " it was known that the Building Authority would not accept piles resting on boulders". The learned magistrate then continued:-

"The approved plan clearly called for boulders to be drilled and the pile to be driven through it. To depart from that procedure and adopt an alternative method was a material deviation or divergence..... The amended 'A' summons particularised the material divergence as being 'that pile number 10 had al net 1ength of only l.4 metres and was not capable of adequately bearing the load for which it was intended'. Mr.Robert Tang, Q.C. argued that this was one whole allegation and that if I were not satisfied as to the second limb I should dismiss the charge. I rejected that argument as I was of the view that the particulars were to be construed disjunctively and that if the prosecution proved their primary allegation of divergence, namely a 1.4 metre pile, then the alleged consequence was surplusage and the failure to establish it was not fatal to their case".

7. Mr. Harris, for the Respondent, has adopted that reasoning in his submissions on this appeal. When I asked him during argument how the bare allegation that a pile was 1.4 metres long could describe a material divergence he had to add two further particulars which, for the purposes of this decision, it is not necessary for me to repeat. It is sufficient to say what I said earlier, namely in order to allege a material divergence in a meaningful way it was necessary to supply further particulars. So with all due respect, it cannot be right to say, as the learned magistrate said and Mr. Harris now repeats, that mere proof that H10 measured 1.4 metres constituted proof of the "primary allegation of divergence".

8. The learned magistrate was, in my view on a "secure foundation" when he made the point just mentioned, about the failure to drive through the boulder constituting a material divergence. That however, was not the allegation which the amended complaint called upon the Appellant to meet. It is true, as Mr. Harris has said, implied at least:- "We alleged a material divergence. We have proved a material divergence with proof that the pile was not driven through the boulder". Under our system of criminal justice that is not good enough because it is not regarded as fair. That is why there is specific provision in the Magistrates Ordinance for amendment of allegations where the evidence does not support the original but does support an alternative allegation which still constitutes an offence. Here, the Appellant could be properly convicted in respect of the allegation of failure to drive through the boulder only if the particulars were amended so as to accurately reflect the allegation made good by the evidence. That was not done and cannot be done now because the Magistrates Ordinance requires certain steps to be taken to ensure fairness in reaching a verdict of guilt in respect of the new allegation.

9. For those reasons I think that the conviction is unsatisfactory and must be quashed. I therefore allow the appeal and quash the conviction and sentence.