R. v. ANWELL BUILDING CONSTRUCTION CO. LTD. and Others

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.590 OF 1996

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J U D G M E N T

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1. The five appellants were convicted after trial of an offence under s.40(2B)(a) of the Buildings Ordinance, Cap.123. Each of them was fined for various sums. They now appeal against conviction.

2. The 1st appellant was the registered contractor of the building works carrying on at the construction site between Kin Kwan Street and Kin On Street at Tuen Mun Town Lot 370. The 2nd appellant was the project co-ordinator and foreman of the building works. The 3rd appellant was a foreman at the site. The 4th appellant was the formwork subcontractor at the site. The 5th appellant was a site foreman and supervisor of the formwork. The building works at the site involved the erection of a 14 storey office and industrial building.

3. On 25th September 1994, part of the building works was still under progress. At about 2:30 pm a section of timber formwork with its associated reinforcement bars measuring 20 m x 5.5 m on the 7th Floor of the building under construction collapsed. It was described as part of the timber shuttering for the external wall on that floor and the outer layer of the wall reinforcement. A large area of the bamboo scaffolding was pulled down. Some of the collapsed material fell to the street level. They caused damage to seven motorcars which were parked by the roadside at that time. Fortunately, no one was injured. Each of the appellants from the 2nd to the 5th, had made a cautioned statement to the Building Surveyor of the Building Department. These statements had been admitted by agreement into the evidence. It is only fair to say that none of these statements contained admissions of guilt. They dealt with general matters regarding the construction work, the erection of the formwork, the inspection and supervision of the work from time to time and what was done after the incident. However in each of these statements, there was some reference to strong winds and opinions were expressed by some of them as to the collapse having been caused by the strong winds. I shall come back to this part of the evidence at a later stage.

4. The prosecution's case is simply that the collapse had occurred in unexceptional weather conditions, that there was no evidence of any other external event contributing to the collapse and that the irresistible inference must be that the collapse was due to the manner in which the building works had been carried out. The defence case is that there was no evidence as to the cause of the collapse and that the prosecution had failed to prove that the building works had been carried out in such manner that it caused damage to the property, namely, the vehicles parked by the side of the road.

5. The learned Magistrate, having considered and reviewed all the evidence, took the view that since the wind conditions at the time were unexceptional, any properly constructed structure should have remained essentially unaffected and certainly should not have collapsed in the way the structure did. He concluded that the compelling inference which could be drawn from the evidence was that the building works had been carried out in such manner that there was insufficient stability and support.

6. In this appeal, counsel for the appellants submitted that the learned Magistrate was wrong in finding that the collapse of the formwork per se established the actus reus of the offence and that the cause of the damage to the property was the manner in which the formwork had been carried out. It was also submitted that the learned Magistrate was wrong in finding that the gust of wind at the subject site that led to the collapse of the formwork was the same as the maximum gust recorded at the Royal Observatory. It was also contended that the learned Magistrate was wrong in coming to the conclusion which he did because he had failed to take into consideration that the minimum design pressure of 1.2 kpa i.e. 25 pounds per sq.ft. under windloading conditions apply to permanent building structures and not to temporary works such as formwork. Counsel further submitted that there was evidence of a very strong wind and that there was no requirement that all works must at all times be hurricane proof. He said that defective manner in the building works was only one of the many inferences to be drawn but not the compelling inference. It was not for the appellants to prove that there was no strong gust of wind at the particular site on that particular day at that particular time.

7. Under s.40(2B)(a) of the Buildings Ordinance, it is an offence for a person, being a person directly concerned with the building works at a construction site, carries out or authorises or permits building works to be carried out in such manner that it causes damage to property. It is clear, and neither the prosecution nor the defence disputes, that this section creates a strict liability (see Gammon Ltd. v. AG of Hong Kong [1984] 3 WLR 437). As Lord Scarman said in the Gammon case, at page 448 :

"The wording of s.40(2B)(a) points to strict liability, once injury or damage has in fact been caused. Any one who has carried out, authorised or permitted work to be carried out in a manner which has in fact caused injury or damage is caught."

However, I think the prosecution has still to prove the ingredients of this offence. They are :

(1) the defendant is a person directly concerned with the building works;

(2) he has carried out or authorised or permitted the carrying out of the building works;

(3) The building works have been carried out in such a way that damage is done to any property (or injury is caused to any person).

8. There is no dispute in the present case that each of the appellants was at the material time and material place a person directly concerned with the building works, one way or another. It is also not disputed that each of them had either carried out or authorised or permitted the carrying out of the building works at the construction site. It is further agreed that property was damaged by the collapse of the formwork with its associated reinforcement bars and the scaffoldings.

9. In my view, it is not sufficient for the Crown simply to prove that a person was directly concerned with the building works, that he had carried out or authorised or permitted to be carried out such works and that the building works had caused damage to property. The words "in such manner" in the section must have a meaning. I think that in order to constitute an offence, it must also be shown by the prosecution that there was a causal link between the manner in which the building works were carried out and what happened, that is, the damage to property (or injury to person). It has to be shown that the works had been carried out in such manner as to have caused damage to property. If the prosecution can show that the damage to property was caused by some negligence or deliberate act or omission on the part of the person who was concerned with the building works in the carrying out of such work, that would clearly be evidence sufficient to approve the causal link. However, I do not think that such proof is absolutely necessary. In fact, in many cases, proof of negligence and/or default would not be easy. This is because the accident must have already happened, the injury must have already been caused to some person or the damage must have been done to some property. In my view, it is not fatal if the prosecution cannot prove or adduce evidence of the cause of the collapse. The exact cause may never be known. But the circumstances may be such that the court can draw the irresistible inference that there must be some default on the part of those directly concerned in the carrying out of the building work which leads to the injury or damage to person or property.

10. In the present case, the prosecution submitted and the learned Magistrate accepted that in the circumstances, since the weather conditions were unexceptional and there was no other external event contributing, the irresistible inference must be that the collapse was due to the manner in which the building work had been carried out. Was the learned Magistrate entitled to draw such inference in this case?

11. The defence submitted, as counsel in this appeal also submitted, that there was evidence to the effect that the wind conditions at the material time at the construction site were exceptional. Counsel relied on the cautioned statements of the 2nd to the 5th appellants. The evidence was this. In respect of the 2nd appellant, he did not clearly say that the collapse of the formwork and its associated reinforcement bars was caused by strong winds. It was only in response to Question 13 : " Was there a very strong wind at that time?" that he answered : "There was really a very strong wind at that time." In answer to the question : "What do you feel was the cause of the collapse of formwork." He said : "Possibly there was strong wind which caused this accident." With regard to the 3rd appellant, he said in Answer 10 : "At the time of the incident, I was in a building, I discovered there was a strong wind and then I heard a big bang. Only then I knew the formwork had collapsed." In Answer 11, he said : "There was really a strong wind at the time which was much stronger than that in the afternoon." In Answer 15, he said : "I consider this collapse of formwork was purely caused by the strong wind which blew down part of the formwork." With regarded to the 4th appellant, the only part he referred to the strong wind was in Answer 16 he said : "I heard from the workers on the floor that a sudden strong wind blew down the formwork. If there were no wind, I think no accident would have occurred. For instance, in a typhoon I would have taken precautions, but it was impossible to make enough precautions against sudden strong winds. In other sites, I had encountered formwork collapse, also caused by sudden strong winds." Finally, in respect of the 5th appellant, in Answer 16, he also said : "The workers at the scene said that the wind was very strong at that moment and the whole formwork was blown down." In Answer 17, he further said : "We carried out adequate safety measures in case of strong wind. That is what we did as usual. So there was no need for any reinforcement of safety measures. The formwork collapse occurred only because the wind was strong on this occasion."

12. In other words, the 2nd appellant thought that strong wind was a possible cause for the collapse; the 3rd appellant only described the wind as strong (not very strong); and the 4th and 5th appellants only said they heard or were told about the strong winds but did not say they actually noticed such condition. These appellants expressed their own opinion that the collapse occurred because of the winds. It is not clear what was the basis of such opinion. There was no evidence as to how strong the alleged gust of wind was. None of these appellants could give any idea on this. The appellants of course did not have the burden of proving anything. It is for the prosecution to prove the charge against them beyond reasonable doubt. But the lack of evidence with regard to the alleged strong gust illustrates how difficult it was for the court to place any reliance on this allegation.

13. The prosecution produced before the learned Magistrate the records of the Royal Observatory which showed that at the relevant time, the wind condition in the area as detected by the observation post in Tuen Mun was not exceptional. Counsel for the appellants submitted that the two places were different and that the Magistrate was wrong to deduce from such evidence that there was no gust at the material time at the construction site. The defence was that there was a strong wind before or at the time of the collapse.

14. In my view, the main issue is not whether the prosecution can disprove that there was no strong gust of wind or that the collapse was not caused by a strong gust of wind as alleged by the defence. The main issue is whether the damage to property was caused by the manner in which the building works were carried out. In the absence of evidence showing the exact cause of the collapse, the question the court should ask is : were the circumstances of the case such that the court can draw the irresistible inference that the collapse of the formwork with its associated reinforcement bars and scaffoldings was caused by a default in the building works rather than some other reasons?

15. The presence or absence of strong winds at the material time is only one factor to be taken into account. It is of course commonsense that the wind condition at the construction site at the material time may not be the same as that at the Royal Observatory Station in Tuen Mun. One does not need an expert to prove or disprove this. The records of the Royal Observatory are simply one piece of evidence which may or may not assist the court in deciding the crucial question. I do not think such records are capable of proving or disproving that there was a strong gust at the construction site at the material time. The purpose of such records is simply to show what the general condition of the wind was in the area at the material time so that the court, if it thinks fit, may rely on it to draw the necessary inference. Nor do I think any of the cautioned statements goes any way near proving that there was a strong wind in the vicinity of the building at the material time. Like the records of the Royal Observatory, they only constitute a piece of evidence which, if accepted, the court may take into consideration when it comes to consider what inference to draw from the circumstances.

16. When one looks at the circumstances of this case, the situation is this. The building works were being carried out. Not only did the timber formwork collapse, the associated reinforcement bars were also bent. The scaffoldings too fell with them. As a result, these materials from the formwork, scaffolding, and bars fell onto the ground level and damaged the vehicles. The photographs showed the conditions shortly after the collapse of the formwork, its associated reinforcement bars, the different places along the external wall and the collapse of the scaffoldings. These were strong structures. It is true that at that time, there was a strong tropical storm or typhoon in the South East Asian Region. But it was not sufficiently near Hong Kong to have required the hoisting of any typhoon signal. It is of course not beyond all human possibilities that there might be a gust of wind of such magnitude that it caused the collapse of such strong structures. But there is no evidence of this except the allegations made by the appellants in their cautioned statements.

17. Looking at what had collapsed, it is difficult to imagine how an alleged sudden gust wind of unknown magnitude would have blown down not only the timber formwork but also bent the reinforcement bars and the scaffoldings. Parts of these structures were temporary and not permanent. But that does not mean they need not be safe and secure. Afterall, the legislation, by creating a strict liability, clearly intends that those directly concerned with such building works should have a burden to ensure that such structures, be they temporary or permanent, are sufficiently safe and secure. It is a heavy burden indeed since the consequences of a failure to comply with this statutory obligation may be drastic and fatal. That being the case, one would not expect such strong structures to collapse so easily even in the midst of strong winds in the absence of were exceptional circumstances or special causes unless there was a default in the building works. From the evidence placed before the learned Magistrate including what was alleged by the appellants, I do not think there were any exceptional circumstances or special causes.

18. At the end of the day, it is a common sense jury question bearing in mind all the exigencies in life and everyday experience. I think in the circumstances of this case, the learned Magistrate as both judge and jury was entitled to draw the irresistible inference that there was some default in the manner of the building works which had caused the collapse of the structures.

19. In these circumstances, I am of the view that the learned Magistrate was perfectly correctly in coming to the conclusion which he did. For the reasons which I have given above, the appeal must be dismissed.