HKSAR v. GOLDEN FIELD GLASS WORKS CO LTD

HCMA 358/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 358 OF 2016

(ON APPEAL FROM ESS 26352/2015)

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J U D G M E N T

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1.  The appellant[1] was convicted after trial by Mr Simon K F Ho, Deputy Special Magistrate, of being the employer of Tsang Fu‑wing (PW2) on 13 February 2015 at 5 Staunton Street, Central, Hong Kong, did so far as reasonably practicable, failed to ensure the safety and health at work as employee, in that the appellant failed to provide and maintain a system of work for window replacement work that was so far as reasonably practicable safe and without risks to health, contrary to s 6(1), 6(2)(a) and 6(3) of the Occupational Safety and Health Ordinance Cap 509. The appellant appealed against his conviction.

Prosecution’s evidence

2.  It is not disputed that on 13 February 2015 when PW2 was working on the podium outside the first floor of 5 Staunton Street and was stepping on a ladder that was leaning against the exterior of a window glass of the first floor, PW2 grasped a suction cap that was attached to the window glass with his right hand and climbed from the ladder down to the podium, suddenly the suction cap detached from the window glass, PW2 lost his balance and fell to the ground and sustained injuries.  The Divisional Safety Officer of the Labour Department, Mr Kwong, was of the opinion that the appellant had failed to provide a safe system of work, in that there were (1) insufficient specific risk assessment conducted to identify the risk; (2) insufficient supervision of the workers; and (3) inappropriate instructions and safe working methods (such as the absence of a working platform).

3.  The prosecution called 5 prosecution witnesses and PW2’s evidence is the most relevant.

4.  PW2’s evidence was that on the day of the accident, he went to the opening (as shown on the right hand side of the photo at p 70 of the Appeal Bundle) and walked along the podium outside to the other side of the unit where he worked and at that point he could only anchor his safety belt to a suction cap attached to the window glass.  PW2 confirmed that a working platform had been installed but was dismantled on the 12 February 2015 following a complaint from the restaurant on the ground floor of the building and that after it was dismantled, no one had told him that he cannot work on the podium.

Defence case

5.  The appellant through the evidence of Mr Leung Man‑lee, Director of the appellant’s company maintained that a safe system of work was provided to PW2 before and at the time of the accident and prior to the accident, the appellant had instructed PW2 not to work on the podium without the working platform.  After the working platform was dismantled by PW2 without the appellant’s prior approval, the appellant had once again reminded PW2 and other workers not to work on the podium without the working platform.  The defence maintained that the appellant never asked PW2 to use the suction cap as anchorage point for his safety belt and that the actions of PW2 on the podium was as a result of his own volition or he was on a frolic of his own which is outside the control, knowledge and foreseeability of the appellant and that PW2 had been sufficiently supervised and instructed and adequate risk assessment before the work had begun on the site.

Verdict

6.  The learned magistrate accepted the evidence of PW2 and PW3 and did not accept the evidence of the defence witness.

Appeal

7.  Mr Hui on behalf of the appellant advanced 5 grounds of appeal:

(1) The learned magistrate erred in finding and accepting that the acts of PW2 and PW3 were performed under the control, knowledge and foreseeability of the appellant;

(2) The learned magistrate erred in rejecting the appellant’s evidence;

(3) The learned magistrate failed to consider the criminal convictions of PW3;

(4) There was a material irregularity at the trial in that the learned magistrate convicted the appellant on a “further or alternative” basis; and

(5) There was a material irregularity at the trial in that the learned magistrate provided ex post facto reasoning in the Statement of Findings.

Discussion

8.  I will deal, first of all, with ground 4 whether there was a material irregularity in that the learned magistrate had convicted the appellant on a “further or alternative” basis.

9.  In the learned magistrate’s Statement of Findings, in his conclusion at para 46, the learned magistrate said:

“I find that on the date of accident, D2 did not give any or any direct and clear instructions to PW2. Further or alternatively, I find that on the date of the accident, D2 did not supervise its workers on the site. Further or alternatively, I find that D2 did not make any risk assessment on the site.”

10.  Then the learned magistrate at para 47 said:

“I am satisfied beyond reasonable doubt that on the date of accident D2 did, so far as far as reasonably practicable, fail to ensure the safety and health at work of PW2, namely that D2 failed to provide and maintain a system of work for window replacement work that were, so far as reasonably practicable, safe and without risks to health.”

11.  The learned magistrate went on to say that he was satisfied that all the elements of the trial had been proved and then convicted the second defendant.

12.  Mr Hui argued that the learned magistrate’s finding is plainly wrong as the basis of conviction was entirely unclear. Mr Hui cited the case of Tsang Ping Nam v The Queen[2] where the prosecution’s case was that the defendant had either given false information to the investigating offices or committed perjury and the defendant was convicted of attempting to pervert the course of justice upon the “alternative” basis, the pervert counsel allowed the appeal after observing that the Crown had averred that it was clear that either the defendant had committed perjury or had given false information to the investigating offices and that whichever was the case, he was still guilty of an attempt to pervert the course of public justice by his conduct, their Lordships in conclusion said at page 655E:

“. . . it was wholly illegitimate for the Crown to seek to overcome their difficulties of proof by charging attempts to pervert the course of justice upon this alternative basis and their Lordships with respect are therefore unable to accept the reasoning which led the learned trial judge to convict the defendant and the Court of Appeal to dismiss his appeal against those convictions.”

13.  In the case of the Queen v Chan Po Cheung[3], the learned magistrate had convicted the defendant of indecent assault on the basis that he found that the defendant had deliberately press “his body and/or his hand against the buttock of the victim”.  Hooper J allowed the appeal and said at para 11 and 12:

“11. In my judgment he was right to do so. The use of the and/or combination meant that the magistrate was not making a specific finding of fact about what happened.

12. A man’s guilt cannot be based on two possible but alternative findings of fact.”

14.  Mr Hui submitted that in the present case the magistrate had convicted the appellant on a “further or alternative” basis and therefore the conviction was based on possible and alternative findings of fact which deprived the appellant of knowing precisely what it had been convicted of and therefore unfair to the appellant and therefore it is a material irregularity.  Mr Lee on behalf of the respondent submitted that it had all along been the prosecution’s case that the appellant had failed to provide a safe system of work in that there were (1) insufficient specific risk assessment; (2) insufficient supervision of the workers; and (3) inappropriate instructions and safe working methods and therefore Mr Lee asserted that the appellant had failed to discharge his duty on all three aspects and therefore the learned magistrate in finding as he did was not unfair to the appellant.

15.  The appellant was charged under the Occupational Safety and Health Ordinance Cap 509 in that he had failed to ensure safety and health of employees contrary to s 6(1), 6(2)(a) and 6(3).

16.  Under the Ordinance, s 6 reads as follows:

“(1) every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees.

(2) the cases in which an employer fails to comply with subsection (1) include (but are not limited to) the following‑

(a) a failure to provide or maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health;

(b) a failure to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c) a failure to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safely and health at work of the employer’s employees;

(d) as regards any workplace under the employer’s control‑

(i) a failure to maintain the workplace in a condition that is, so far as reasonable practicable, safe and without risks to health; or

(ii) a failure to provide or maintain means of access to and egress from the workplace that are, so far as reasonably practicable, safe and without any such risks;

(e) a failure to provide or maintain a working environment for the employer’s employees that is, so far as reasonably practicable, safe and without risks to health.

(3) an employer who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine of HK$200,000.00; and

(4) an employer who fails to comply with subsection (1) intentionally, knowingly or recklessly commits an offence and is liable on conviction to a fine of HK$200,000.00 and to imprisonment for 6 months.”

17.  The appellant in this case was therefore convicted only under s 6(1) and 6(2)(a) of the above Ordinance.  In other words, the appellant was convicted of failing to provide or maintain plant and systems of work that are so far as reasonably practicable safe and without risks to health.  At the trial, the defence’s submission was that the charge against the appellant under the subsection (2)(a) does not cover supervision because supervision is covered by another subsection namely, subsection (2)(c), the learned magistrate found that the subsections (a) to (e) are not mutually exclusive and their supervision is part and parcel of the safe system of work, which the appellant had failed to provide.  However, in the learned magistrate’s conclusion, in his Statement of Findings at para 46, it would appear that the learned magistrate was not satisfied beyond a reasonable doubt as to whether the failure of the appellant was in not giving “direct and clear instructions to PW2” or that the appellant did not supervise properly the workers on the site or that the appellant had failed to make any risk assessment on the site.  Further, it would appear from the learned magistrate’s conclusion, he considered that as any of those scenarios would make the appellant guilty of failing to ensure the safety and health at work of PW2 he convicted the appellant.

18.  I agree with Mr Hui that it is incumbent on the learned magistrate to be satisfied beyond the reasonable doubt on the actual basis of guilt of the appellant in a criminal trial and using the words “further or alternatively” leads one to conclude that the learned magistrate was not sure as to upon what basis he convicted the appellant and therefore there is a material irregularity and it is not fair to the appellant.  The conviction is therefore unsafe and unsatisfactory.

19.  So in the light of the above conclusion, even if the appellant failed on the other grounds of appeal, this ground of appeal having succeeded would by itself render any conviction unsafe, therefore, the appeal is allowed, the conviction and sentence set aside.