HKSAR v. KADEN CONSTRUCTION LTD

HCMA992/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.992 OF 2008

(ON APPEAL FROM TWS 3166 AND 3167 OF 2008)

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J U D G M E N T

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1. The appellant Kaden Construction Limited (“the appellant”) was convicted, after trial, on two summonses brought under sections 6A(1), 6A(2)(a) and 6A(3); and 6A(1), 6A(2)(c) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap. 59.  The appellant now appeals against both convictions. 

2. Summons TWS3166/2008 alleged that the appellant, being the proprietor of the industrial undertaking at Lamma Power Station Foundation and Civil Works, did fail to provide and maintain a system of work for the refuelling of a petrol floor saw that was, so far as was reasonably practicable, safe and without risks to that health of one Mr Leung, an employee of the appellant.  Summons TWS3167/2008 alleged that the appellant had failed to provide such supervision as was necessary at the same site to ensure, so far as was reasonably practicable, the health and safety at work of the same Mr Leung referred to above.  

3. A fine of $12,500 was imposed for each summons. 

4. The prosecution case was that on 8 September 2007, Mr Leung who appeared in the trial as PW1, was injured while refuelling a petrol operated floor saw with an improvised paper funnel.  The fuel caught fire in the course of the refuelling and the witness suffered burns.  The prosecution alleged that the appellant had failed in their duty to ensure the health and safety at work of Mr Leung and also had failed to give proper supervision.  

5. At the trial the appellant was represented by Mr Halkes who also appears for the appellant at this hearing.  The defence case at the trial was that there was no failure of the statutory’s duties by the appellant as they had in place a safe system for refuelling whereby all workers were directed to refuel the machines by using the siphon pumps provided by the appellant.  The defendant contended the accident occurred as a result of Mr Leung and his co-workers going on a frolic of his own when Mr Leung and his colleagues had deliberately chosen not to use a siphon pump despite knowing that there were such pumps available in the vicinity and they were fully aware of the potential danger of not using them for refuelling.  The defence also relied on the statutory defence contained in section 18(1) of the Ordinance that it was not necessary and not reasonably practicable to do more than was in fact done in their circumstances and also on the common law defence of due diligence. 

6. At the trial the prosecution called a total of three witnesses.  Mr Leung the injured worker appeared as PW1; a co-worker Mr Chan as PW2 and one Mr Mak as PW4 as an expert witness on the issue of occupational safety.  The statement of PW3, an Occupational Safety Officer of the Labour Department was read into the record pursuant to section 65B of the Criminal Procedure Ordinance. 

7. The defence called one witness a Mr Law who was at the material time engaged as the Safety Officer of the appellant company.  

8. On the day of the incident both PW1 and PW2 were working on the site.  There were two machines which were fuelled by petrol.  PW2 was operating a concrete vibrating machine which PW2 and PW1 was operating what was called a petrol floor saw.  It is not unusual that such machines would run out of fuel in the course of operation and according to the appellant, the proper way of refuelling the machines would be to use a vacuum siphon pump to transfer petrol from cans to the machine in question.  It was the appellant case at the trial that such siphon pumps were readily available in the vicinity of the machines on the day in question and that workers had been instructed to use the siphon pumps and warned of the dangerous consequences of not using one. 

9. Instead of using the siphon pump, PW1 resorted to using an improvised cardboard paper funnel for pouring fuel from the petrol can into the fuel inlet of the machine.  PW1 first refuelled PW2’s concrete vibrating machine in the manner as described.  When he proceeded to do likewise with the petrol floor saw, the petrol caught fire in the course of the transfer and Mr Leung suffered burns on various parts of his body. 

10. It would be useful to note at this stage that even according to the evidence of the defence witness Mr Law who had compiled an incident investigation report which was produced as exhibit D12 at the trial, he had accepted that there were insufficient fuel pumps available for use at the time of the incident.  In the same report Mr Law recommended that more siphon pumps should be purchased.  The magistrate therefore had unchallenged evidence before him that however safe and adequate a refuelling system that the appellant had provided, there were insufficient siphon pumps available to the workers on the day of the incident. 

11. At the trial considerable number of questions were directed at whether there had been warning and supervision over the use of siphon pumps for refuelling the machines during examination-in-chief and cross-examination.  It emerged from PW1’s evidence that the practice of using an improvised paper funnel to refuel the machines was practised prior to the incident on 8 September.  PW1 also testified that he used a paper funnel because he had seen PW2 refuelling machines in this manner on previous occasions.  There was also undisputed evidence that PW1 had never been given instructions as to the correct way in refuelling the machine nor had he received any training in this aspect of his duties. 

12. Towards the end of Mr Leung’s evidence, there is the following series of questions and answers :

“Q.  The question that have been asked you is not whether other people have been taught, but whether you yourself have received any training or instructions from your company.

A.    No.

Q.   You’ve also told the court in answer to the second gentleman, Mr Halkes’ questions, that you knew you should have used a pump.  

A.    Yes. 

Q.   If no one taught you or trained you to refuel this type of machine, on what basis do you say you knew you should have used the pump?

A.    I have seen it. 

Q.   You’ve also seen a paper funnel being used, you’ve told us.

A.    Correct, yes.

Q.   Well, how do you know – – on what – – how do you know one is to be used as opposed to the other method?

A.    Well, I am injured because of using the paper funnel.  So, the other method, naturally, is to use the kerosene pump. 

Q.   At – – before the accident, did you know you had to use the pump?

A.    Nobody talked about that.”

13. In his Statement of Findings the magistrate accepted the account of PW1 and found that the elements of the two summonses proved beyond reasonable doubt against the appellant. 

14. The appellant advanced 10 grounds of appeal.  

15. Grounds 1, 3, 4 and 5 are directed at the magistrate’s findings of fact.  Despite counsel’s complaint against the magistrate’s treatment and approach of the evidence at the trial, the facts, as found by the magistrate, remained that the injured employee had not received any instructions as to how to refuel the machines.  In addition there was the inadequacy of siphon pumps available to the workers for refuelling which was apparent from the evidence of the defence witness Mr Law. 

16. In my view the magistrate was entitled to come to the conclusions as he did once he had accepted the evidence of PW1 and the defence witness Mr Law.  There were inadequate instructions on the safe use of vacuum siphon pumps, there were no supervision on the day in question, and the system of work as found by the magistrate was not safe under the circumstances. 

17. Ground 2 of the appeal is directed at the magistrate’s treatment of the expert witness Mr Mak, a Divisional Safety Officer of the Labour Department.  In the course of determining Mr Mak’s expert status by the magistrate at the trial, Mr Halkes for the defence had doubted the witness’s qualifications.  Questions were put by the defence to challenge Mr Mak’s specialist training and knowledge in the field.  By so doing, it must have been the defence intention at the trial that the contents of the expert report would be in issue.  The magistrate ruled that Mr Mak was an expert and was competent to give evidence on issues of safety and health at work.  However the magistrate then took the course that he would place no weight on the evidence of the expert save and except on matters of common sense.  This the magistrate was entitled to do and one cannot see how the defence could have been prejudiced in any way.  When it had been the defence position all along to challenge the evidence of the expert in any event. 

18. Grounds 6 and 7 of the appeal are again critical of the magistrate’s conclusion drawn on the evidence at the trial.  Suffice it for me to say that the learned magistrate had considered the evidence before him carefully and he was entitled to come to his conclusions as he did.  It was open to him to find the appellant had failed to provide and maintain a safe system of work and that the appellant had failed to provide proper supervision under the circumstances of the case. 

19. Grounds 8 and 9 are directed at the magistrate’s refusal to admit the common law defence of due diligence which the appellant contends was available to him in addition to the statutory defence.  On this issue one only needs to refer to the Court of Appeal decision in HKSAR v Shun Tak Properties Ltd, HCMA1014/2006.  The Court of Appeal, having considered the leading cases of AG v Gammon (HK) Ltd and others [1983] HKLR 93 and R v Fong Chin Yue [1995] 1 HKC 21 stated :

“115. To ensure compliance with the Ordinance and the Regulations, it is necessary to treat the offence in question as an offence of absolute liability and that ‘honest and reasonable belief, albeit an erroneous one’ is not a valid defence.  The possible conviction of a blameless person, a person who does not have the necessary mens rea to commit a criminal offence, is not a relevant concern.  The policy consideration, in our view, requires such an approach in the construction of safety regulations. 

116.   Otherwise, the intention of the legislation to ensure public safety can be easily defeated when the appellant, being the ‘owner’ is not liable when the gondola is not properly maintained because the duty to maintain the gondola has been entrusted to an independent maintenance contractor, and the independent maintenance contractor is not liable because it is not an ‘owner’ within the meaning of the Regulations.”

Insofar as this case concerns public safety, the learned magistrate had applied the law correctly in ruling that the common law due diligence defence was not available to the appellant at the trial. 

20. Ground 10 of the appeal complains that the magistrate was wrong in convicting the appellant on both summonses which were based on the same facts and arising from exactly the same allegations.  I fail to see the logic behind this ground of appeal as summons TWS3166/2008 alleged the appellant’s failure to provide and maintain a safe system of work for the refuelling of the gasoline saw.  The 2^nd summons TWS3167/2008 alleged the appellant’s failure to provide proper supervision in so far as was reasonable and practicable.  They are by their very nature two different allegations based on different sections of the Ordinance.  The learned magistrate found that the appellant was in breach of two different statutory obligations.  I see no substance in this ground of appeal.  

21. For the reasons given the appeal against conviction is dismissed.