THE QUEEN v. YAU LEE CONSTRUCTION CO LTD

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 733 OF 1989

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BETWEEN

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J U D G M E N T

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1. The appellant is a building contractor and it faced two charges, the first was the failure to ensure that every side of a working platform was provided with a suitable guard rail(s) in accordance with Regulation 38(N) of the Construction Sites (Safety) Regulations, Cap. 59, I shall refer to those Regulations simply as 'the Regulations'.

2. The second charge was that the appellant failed to ensure that a power driven tower crane ('the crane') was not used for raising persons other than in accordance with the Regulations.

3. The magistrate heard-evidence for three days, Several days later on 2nd May, 1989 he purported to deliver a written 'Judgment'. In that Judgment, he said he intended to convict the appellant (subject to what the appellant's solicitor had to say) of two offences in substitution for the original first charge and he set out those two offences which involved different offences under regulation 38Q(1)(a) and regulation 38Q(3) of the Regulations. Those words, unfortunately, might reasonably convey to the ordinary man the impression the magistrate had made up his mind to convict unless the appellant's solicitor persuaded him otherwise - thus shifting the onus of proof.

4. He gave the appellant's solicitors an adjournment to consider the substituted charges.

5. On 8th Way 1989 the magistrate said he had concluded that he had to use Section 51(2) of the Criminal Procedure Ordinance, Cap. 221 to amend the charges rather than Section 27 of the Magistrates Ordinance Cap. 227 as he had firstly to hear the defence evidence and deliver judgment in favour of the appellant on the first charge before he could conclude whether there had been any other offence under a different regulation of the same Regulations.

6. Section 51 of Cap. 221 is virtually identical to Section 6 (3) of the Criminal Law Act, 1967.

7. In the House of Lord's case of R. v. Wilson (1983) 3 All E. R. 448 Lord Roskill said:

My Lords, the right approach to the solution of the present problem must first to be to determine the true construction of s 6(3), bearing in mind the observations of Lawton L. J. in R. v. Lillis as to its purpose and as to the position before the enactment. Ignoring the reference to murder or treason, there seems to me to be four possibilities envisaged by the subsection. First, the allegation in the indictment expressly amounts to an allegation of another offence. Second, the allegation in the indictment impliedly amounts to an allegation of another offence. Third, the allegation in the indictment expressly includes an allegation of another offence. Fourth, the allegation in the indictment impliedly includes an allegation of another offence. If any one of these four requirements is fulfilled, then the accused may be found guilty of that other offence. My Lords, if that approach to the construction of the subsection be correct, it avoids any consideration of 'necessary steps' or of 'major' or 'lesser' offences, and further avoids reading into the subsection words which were never used by the draftsman. I am unable to find that this approach to the construction of the subsection was ever advanced in R. v. Springfield. If it were there is no reflection of such an argument in the judgment. I would add the observation that although s 6(3) is often spoken of as permitting conviction for a less serious offence on a count charging a more serious offence, the maximum penalties for offences against both s 20 And s 47 are the same: five years' imprisonment. There is, in my view, a clear antithesis in the subsection between 'amount to' and 'include': the word 'or' which joins those two words is clearly disjunctive and must not be ignored. If either limb of the phrase is satisfied then the stated consequences can follow. Thus, in R. v. Lillis the allegation of burglary plainly expressly included (my emphasis) the allegation of theft. R. v. O'Brien (1911) 104 L.T. 113 is another example of one charge being expressly included in another. The charge was of riot but that charge included an allegation of assault.

8. The original first charge related to the provision of guardrails under regulation 38N. The purported, replacement charges were concerned with safely belts under Regulation 38Q.

9. Section 51(2) of Cap. 221 did not operate so as to permit the magistrate to convict of an offence under Regulation 38Q for a charge under Regulation 38N despite what he called a 'seamless scheme".

10. The power of a magistrate to amend a charge, including to amend by substitution, is provided in Section 27 of Cap. 227. Sub-section (3) sets out a number of provisions to be observed after amendment and includes the power of the magistrate to award costs in favour of a defendant.

11. In this case, after the purported substitution, the 'new' charges were not read to the appellant nor was it asked to plead.

12. The magistrate had no power to amend, by substitution, the first charge under Section 51(2) of Cap. 221 which has nothing to do with amendments.

13. The second charge was under Regulation 37(2) of the Regulations and charged that the appellant, as the contractor responsible for a power driven tower crane at a construction site, had failed to ensure that it was not used for raising persons other than in accordance with the Regulations. The defence was that persons could be raised or lowered by a power driven appliance 'on a suspended scaffold of such design and construction as ensures the safely of any person carried thereon' (Regulation 37 (1)(b)).

14. It is not in dispute that on the relevant date, two workers were on a scaffold within the meaning of Regulation 2 of the Regulations or that it was capable of being raised or lowered. The scaffold in question was a suspended scaffold within the meaning of the Regulations. The scaffold concerned was hazardous in that (and this was accepted by the defence expert) there were gaps between the edges of the scaffold at either end and the walls of the building.

15. Regulation 37(2) obliged the appellant (being the person responsible for the crane) to ensure that the scaffold was not used otherwise than in sub-regulation 1. Sub-regulations (1) (b) provided that a person may be raised or lowered or carried on a suspended scaffold 'of such design and construction as ensures the safety of any person carried thereon'. I have already referred to the gaps between either end of the scaffold and the walls on either side of the scaffold.

16. The magistrate found the scaffold was not a suspended scaffold.

17. With respect, he was wrong. There was a suspended scaffold and there was sufficient evidence for the magistrate to have found that the appellant company had failed to ensure that the suspended scaffold was such that it ensured the safety of any person carried thereon. The magistrate did not so find.

18. The appeals are allowed and the fines set aside.