HKSAR v. PROJEXASIA LTD

[English Translation – 英譯本]
HCMA 345/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 345 OF 2014

(ON APPEAL FROM ESCC 32179/2013)

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JUDGMENT

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1.  The appellant was charged with one count of “failing to take adequate steps to prevent any person from falling”, contrary to regs 38B(1), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations (“the Regulations”) made under the Factories and Industrial Undertakings Ordinance, Cap 59 (“the Ordinance”). The appellant pleaded not guilty and was convicted after trial in the Eastern Magistrates’ Court by Deputy Special Magistrate Robin Yue, Esq. The appellant was fined $16,000. It now appeals both conviction and sentence.

Facts

2.  I have by and large adopted the descriptions of the respective parties’ cases as set out in the written submissions prepared by Miss Cheuk, Acting Senior Public Prosecutor for the respondent.

Prosecution case

3.  The prosecution case comprised the evidence of Cheung Siu Kee, Occupational Safety Officer at the Labour Department ( “Mr Cheung”), the Agreed Facts (Exhibit P1), company registration documents of the appellant (Exhibits P2-3), and six photographs taken by Mr Cheung at the scene of the incident (Exhibit P4).

4.  The appellant was the main contractor of a modification and augmentation project for the Lee Theatre Plaza (“the Site”). One Hacely Curtain Wall Engineering Company Limited (transliteration)（喜而利幕牆工程有限公司）was the sub-contractor, whereas one Chung Wah Scaffolds (transliteration)（中華棚業）was the sub-sub-contractor.

5.  On the morning of 18 March 2013, Mr Cheung and a colleague of his arrived at the Site for inspection. They found four scaffolders working at the external wall between the 3^rd floor and the 4^th floor, at a height of 8.4 metres above the ground. The four workers were each wearing a parachute type safety harness with a karabiner at the lanyard for clipping on to the fall arrestor, which had to be clipped to the independent lifeline so as to ensure that the worker would not fall. However, none of the said four scaffolders clipped his safety harness to the independent lifeline along the external wall. Mr Cheung observed the situation for about 10 minutes. He saw the workers moving from side to side on the bamboo scaffolds at the same height. No planks were laid on the scaffolds. No safety net or working platform was seen near the scaffolds to prevent workers from falling. Having taken photographs, Mr Cheung informed one Mr Cheng, a site project manager working for the appellant, who then stopped the scaffolders’ work. Mr Cheung and his colleague made a record of the particulars of the four workers (including Lau Wai Leung and Kan Kwok Wai). None of the four workers returned to work on the scaffolds before Mr Cheung departed.

Defence case

6.  The defence called two witnesses but not Mr Cheng and the four workers who were at the scene at the material time. DW1 was Mak Man Yan (“Mr Mak”), one of the site project managers working for the appellant; DW2 was Chan Chi Wo (“Mr Chan”), a site supervisor working for the sub-contractor.

7.  The defence relied on a Risk Assessment (Exhibit D1) attached to a Method Statement compiled by the main contractor and the sub-contractor. The Risk Assessment stated that where a working platform was not feasible, fall arrestors and an independent lifeline etc had to be made available to make sure workers would not fall down. Mr Mak said that as it was not feasible to erect a working platform at the material time, workers were required to wear safety gears. Furthermore, the appellant provided Induction Training on Safety to every worker who newly joined the company, and Tool Box Talks Training was also provided. The defence produced records of Tool Box Talks Training (Exhibit D2) to show that some safety training regarding working at a height had been held for workers.

8.  As regards how to ensure that workers used safety gears including safety harnesses and fall arrestors etc, the defence case was that the appellant had seven site officers in charge of site management as well as a full-time site safety supervisor who monitored site safety on a daily basis. On the other hand, the sub-contractor also had to carry out inspections. Exhibit D3 recorded that inspections were carried out by various safety supervisors at the Site from 1 March onwards, and a safety supervisor called Leung Tsz Him was on duty at the material time.

9.  The appellant claimed that if it noticed inadequacies in workers’ safety gears, it would issue orders to the workers directly, requiring them to make improvement. It would also issue written notices including Suspension Notice. Two such notices were produced as Exhibits D4 and D5.

10.  When asked whether there was anyone from the appellant who carried out inspections on the day of the incident, Mr Mak replied that Leung Tsz Him was on duty but he himself was not. He had no idea whether other management personnel had conducted any inspection, although he knew that the Site Agent would do it.

11.  The gist of Mr Chan’s evidence, which was similar to that of Mr Mak, was that the sub-contractor had also sent people to inspect the Site every day and to ensure that the sub-sub-contractor’s workers complied with safety regulations.

12.  When Mr Chan carried out another inspection at 10 o’clock on the day of the incident, he noticed a worker moving bamboo rods on the first floor without attaching the safety harness to the independent lifeline. Mr Chan immediately told him to attach it properly. Mr Chan said that the circumstances at the Site at that time were such that no safety net could be set up below the bamboo scaffolds because it would affect daily operations such as the moving of building materials. Mr Chan also confirmed that had workers been found not to be using safety harnesses improperly, he would have informed the sub-sub-contractor and not the appellant.

The relevant statutory provisions

13.  The relevant parts of reg 38B of the Regulations provide as follows:

“(1) Subject to paragraphs (2), (3) and (4), the contractor responsible for any construction site shall take adequate steps to prevent any person on the site from falling from a height of 2 metres or more.

(1A) …

(2) For the purpose of paragraphs (1) and (1A), ‘adequate steps’（足夠的步驟）shall include the provision, use and maintenance of one or more of the following —

(a) working platforms;

(b) guard-rails, barriers, toe-boards and fences;

(c) coverings for openings;

(d) gangways and runs.

(3) …

(4) Every working platform (other than a suspended working platform), guard-rail, barrier, toe-board, fence, covering for an opening, gangway or run provided for the purpose of paragraphs (1) and (1A) shall comply with the provisions of the Third Schedule applicable to it.”

14.  Reg 38H provides for the defences to (inter alia) reg 38B:

“(1) It shall be a defence for a contractor charged with an offence under regulation 38B(1) or (1A) or 38C to show — (L.N. 258 of 2003)

(a) that in all the circumstances of the case, it was impracticable to comply with all or any of the requirements of that regulation;

(b) that —

(i) the contractor provided suitable and adequate safety nets and safety belts in lieu of complying with those requirements; or

(ii) in all the circumstances of the case, it was impracticable to provide such safety nets and the contractor provided suitable and adequate safety belts in lieu of complying with those requirements; and

(c) that all reasonably practicable steps were taken to ensure the proper use of the safety belts by the persons to whom they were provided. (L.N. 64 of 1999)

(2) Safety nets shall not be considered as suitable and adequate for the purpose of paragraph (1) unless they are —

(a) of such design and so constructed; and

(b) so erected, maintained and kept in such positions,

as to be effective to protect persons carrying on at a height the work to which the nets relate, to protect persons using any access to or egress from the part of the construction site where that work is being done and to prevent as far as practicable injury to persons falling onto them.

(3) Safety belts shall not be considered as suitable and adequate for the purpose of paragraph (1) unless they —

(a) are attached continuously to a suitable and secure anchorage;

(b) have suitable fittings therefor; and

(c) are of such a design and so constructed and maintained as to prevent injury to persons using them in the event of a fall.”

The magistrate’s verdict (conviction)

15.  The magistrate accepted Mr Cheung’s evidence that the four scaffolders had not attached their safety harnesses to the independent lifeline.

16.  The magistrate accepted that it was impracticable to erect a working platform on the scaffolds. He analysed whether the appellant could escape criminal liability by invoking the defences under reg 38H(1). The magistrate pointed out that the appellant must prove reg 38H(1)(a), (b) and (c). The magistrate held that although the appellant had proved (a), namely that it was impracticable to erect a working platform, it was not open to the appellant to invoke (b) because it had only provided safety belts but not safety nets and hence had not complied with (b)(i), which required the contractor to provide suitable and adequate safety nets and safety belts in lieu. Nor, the magistrate held, could the appellant invoke (b)(ii), namely having only provided suitable and adequate safety belts in lieu, because the magistrate took the view that the evidence did not show that it had been impracticable to erect safety nets.

17.  The magistrate was aware of the defence case that the prosecution did not dispute that the appellant had satisfied reg 38H(1)(a) and (b) and took issue only as to whether the appellant had satisfied reg 38H(1)(c). However, the magistrate was of the view that, to rely on the defence under reg 38H, the appellant had to prove each and every provision of that regulation. The magistrate held that the appellant had failed to adduce sufficient evidence to satisfy the requirement under reg 38H(1)(b).

18.  The magistrate also pointed out that even if he was wrong in finding that the appellant had not adduced sufficient evidence to satisfy the requirement under reg 38H(1)(b), he had also considered whether, besides providing safety belts, the appellant had taken “all reasonably practicable steps … to ensure the proper use of the safety belts by the persons to whom they were provided”.

19.  Having considered the evidence of the defence witnesses and the defence exhibits, the magistrate took the view that the appellant had been sloppy, inadequate and lacking in caution in the two areas of training and inspection. He considered that “the [appellant] has not adduced sufficient evidence that it had taken all reasonably practicable steps to ensure that workers had worn safety belts before getting on their work places at a height, and to ensure that workers tied or attached their safety belts to that anchor or lifeline”, and accordingly the appellant did not meet the requirement under reg 38H(1)(c).

20.  The magistrate further referred to section 18 of the Ordinance and held that there was no evidence that at the material time the appellant had taken all reasonable steps, or it was not practicable to take the steps that the appellant had not taken, or the appellant had done the appropriate thing to satisfy the relevant duty or requirement.

21.  Finally, in respect of the common law defence relied upon by the appellant, the magistrate held that the appellant “has not adduced sufficient evidence to prove that the belief it was holding at the material time was a reasonable one, be it wrong or not and irrespective of the reason for holding that belief”.

22.  Relying on the case of HKSAR v China Road and Bridge Corporation and two others (HCMA 192/2010), in which Deputy High Court Judge Andrew Chan (as he then was) held that the statutory defence under section 18 both encompassed and surpassed the common law defence, the magistrate held that the common law defence neither existed nor applied to the present case.

Grounds of appeal (conviction)

23.  Mr Fong, Counsel for the appellant, has put forward eight grounds of appeal in support of the argument that the conviction is unsafe and unsatisfactory.

24.  Grounds 1 to 3 contend that the magistrate erred in ruling that common law defence was not applicable to the present case – in particular, the magistrate did not take into account that the prosecution and the defence had agreed that the common law defence was applicable. Nor did the magistrate consider the evidence adduced by the appellant in respect of this defence.

25.  Grounds 4 and 5 argue that the magistrate wrongly and unfairly expanded the prosecution case in that, despite the confirmation made by the prosecution in opening its case that the issue in the present case was whether the appellant had satisfied the requirement under reg 38H(1)(c), the magistrate took the view that the appellant had not adduced sufficient evidence to prove that it was impracticable to provide safety nets and therefore could not invoke reg 38H(1)(c). It is also argued that the magistrate erred in ruling that the appellant had not adduced sufficient evidence to prove that it was impracticable to provide safety nets.

26.  Grounds 6 to 8, directed at the finding made by the magistrate regarding the defence evidence, contend that the magistrate erred in requiring the appellant to supervise the workers at the Site in a nanny style and that such a finding was too harsh and impracticable.

My deliberations

Grounds of appeal 4 to 5

27.  I deal with Grounds 4 to 5 first. I notice that in opening the prosecution case the prosecutor told the magistrate that the focus of the allegation was that, at the material time, although the appellant’s workers were wearing parachute type safety harnesses, they did not attach their safety harnesses to the independent lifeline (page 150 B-C of the Appeal Bundle).

28.  As the magistrate also pointed out in paragraph 78 of his Statement of Findings, the defence indicated in its closing submissions that the prosecution did not dispute that the appellant had satisfied reg 38H(1)(a) and (b) and the only issue before the magistrate was whether the appellant had satisfied the requirement under reg 38H(1)(c). In light of what the prosecution had told the magistrate at the outset about the focus of the prosecution’s allegation, it is not surprising that the defence held the above point of view. Seen as a whole, the evidence from both prosecution and defence focused on safety harnesses, with only passing reference made to the evidence on safety nets. Moreover, the prosecution did not raise any objection to the magistrate against the defence’s view of the matter. In these circumstances, it is unfair to the defence for the magistrate to say that the defence failed to adduce sufficient evidence that it was impracticable to provide safety nets. Had the magistrate informed the defence, prior to passing the verdict, that he did not accept the view taken by the defence (despite the fact that the prosecution had clearly pointed out that the focus of the allegation was on safety harnesses), the defence would have had the opportunity to cross-examine prosecution witnesses or call its own evidence in support of its argument that it was impracticable to provide safety nets.

29.  This notwithstanding, the magistrate had in paragraphs 80 to 97 of his Statement of Findings considered the provision of safety belts under reg 38H(1)(c). The mere expansion by the magistrate of the prosecution case does not, without more, constitute a valid ground of appeal against conviction.

Grounds of appeal 6 to 8

30.  I now proceed to consider Grounds of appeal 6 to 8. Upon the testimony and evidence regarding the two aspects of “training” and “inspection”, the magistrate held that the appellant failed to take all reasonably practicable steps to ensure the proper use of the safety belts by the persons to whom they were provided.

31.  The magistrate’s finding that the appellant had been sloppy in respect of training was primarily based on the failure by a worker called Lau Wai Leung to fill in his “safety card” number and expiry date on two attendance records dated 28 February 2013 (Exhibit D2). I agree with the appellant’s argument that the omission of “safety card” data of the same individual from two attendance records on the same day does not by itself mean that the worker had not received basic induction safety training or that training had been sloppily conducted. In my view, if there were errors and omissions on a number of attendance records on various dates, that might indicate sloppiness in training. Furthermore, it was not in dispute that Lau Wai Leung was the holder of a valid “safety card”.

32.  As regards inspection, the magistrate pointed out that on the day of the incident at 10:00 am when Mr Chan from the sub-contractor carried out another round of inspection, he had already noticed that a worker was in violation of the rules by failing to attach his safety belt properly in the course of moving bamboo poles. And then at 11:10 am, Mr Cheung from the Labour Department found that four workers had not attached their safety belts properly. In other words, within a period of one hour and ten minutes, there had on the same scaffolds been two occasions of workers not attaching their safety belts properly. And at no point during the ten minutes when Mr Cheung made his observation was there any site supervision personnel or safety supervisor as claimed by the defence. The magistrate held, accordingly, that the supervision by the appellant was “inadequate and lacking in caution”.

33.  Having considered the relevant evidence, I am of the view that the magistrate had imposed overly harsh requirements on the appellant. What the evidence in the present case showed was not that the workers were not wearing safety harnesses, but that they had not attached their safety harnesses to the independent lifeline on the external wall. The acts of attaching a safety harness to and detaching a safety harness from the independent lifeline were both very easy to perform. Obviously, a worker could at any time attach the fall arrestor to or detach it from the independent lifeline. The evidence and materials adduced by the appellant showed that the workers had received training. They were also under a duty to ensure their own safety. Reg 38I of the Regulations requires a worker to wear a safety belt and keep it attached to a secure anchorage. A worker who contravenes the regulation would be suspended from work as a penalty and might be liable to prosecution. It seemed that in the present case, the workers in question were ignoring instructions for the sake of convenience, and in order to be able to move about more freely when moving the bamboo poles, they contravened the regulations by not attaching their safety harnesses to the independent lifeline..

34.  On the day of incident at 10:00 am, Mr Chan of the sub-contractor noticed a worker not attaching his safety belt properly. He immediately shouted at the worker, asking him to attach his safety belt properly. At 11:10 am, Mr Cheung witnessed four workers not attaching their safety harnesses to the independent lifeline. Mr Cheung observed for 10 minutes, during which no supervisor was seen carrying out any inspection.

35.  There is no evidence in the present case to show that the workers in question did not attach their safety harnesses to the independent lifeline during the whole period of time from around 10:00 am to 11:10 am. Nor was there evidence to show that there were no supervisors carrying out inspection during that whole period of time.

36.  I have considered the fact that the scaffolds in question were only part of the Site and that Mr Cheung observed the situation for about 10 minutes. It was not possible for the appellant to ceaselessly monitor the workers and urge them to attach their safety belts to the independent lifeline at all times. The appellant could not possibly be the “nanny” of the workers at the Site. I agree with the argument put forward by the appellant in this regard.

37.  On the basis of the testimony and evidence in the present case, the appellant has in my judgment succeeded in invoking the defence under reg 38H(1)(c) of the Regulations: all reasonably practicable steps had been taken to ensure the proper use of the safety belts by the persons to whom they were provided.

38.  For the above reasons, I find in favour of the appellant on this ground and allow the appellant’s appeal against conviction.

Common law defence

39.  For the sake of completeness, I shall also deal with the issue regarding the common law defence.

40.  The appellant’s chief complaint here is that, as the prosecution and the defence had agreed that the common law defence was applicable to the relevant charge, i.e. reg 38B(1) of the Regulations, and as the common law defence was not inconsistent with the statutory defences, i.e. reg 38H(1) of the Regulations, it was unfair to the appellant for the magistrate to make his own finding that the common law defence was not applicable in the present case.

41.  The appellant further submits that the magistrate had also been unfair to the appellant in another way, namely by not informing the prosecution and the defence of his view that the common law defence was not applicable and of his reliance on the China Road and Bridge Corporation case as authority, and by not giving the prosecution and the defence an opportunity to make submissions.

42.  The appellant submits that the China Road and Bridge Corporation case, which merely concerned regs 38A(2) and 38AA(2) of the Regulations, is not applicable to the present case which concerns another provision, i.e. reg 38B(1).

43.  On the other hand, the appellant also submits that the magistrate’s ruling, made in reliance of the above case which held that the defence under section 18 of the Ordinance “both encompassed and surpassed the common law defence”, that the common law defence was not applicable, is open to question. The appellant submits that section 18 only points out that where the phrases “reasonable steps”, “practicable steps”, etc appear in any provision of the Factories and Industrial Undertakings Ordinance, the onus of proof is on the defence. Section 18 itself is not a statutory defence.

44.  Mr Fong has also informed me that he has been given to understand that the Court of Final Appeal will soon deal with the question of whether section 18 is a statutory defence or not. (See HKSAR v Gammon Construction Ltd, FAMC 21/2014)

45.  The appellant also relies on the leading work Archbold Hong Kong 2015, page 2349, paragraph 44-32, and submits that the statutory defence in reg 38H of the Regulations is technical, and that a consideration of the relevant factors under the relevant provision would not overlap conceptually with a consideration of the common law defence of honest and reasonable belief.

46.  Having read the transcript of the trial, it is clear to me that during the pre-trial review, the prosecution did not dispute that according to Hin Lin Yee and Another v HKSAR (2010) 13 HKCFAR 142, the common law defence was not inapplicable in the present case, and that the common law defence and the statutory defence could co-exist (page 144 J-N of the Appeal Bundle). Given that the prosecution and the defence agreed that the two defences co-existed, if the magistrate was of the view that the common law defence was “non-existent” and “not applicable” in the present case, he should have given prior notice to the prosecution and the defence, in particular the defence, so that the defence could make submissions. It was unfair to the appellant for the magistrate to do what he did without such notice.

47.  The magistrate was of the view that the common law defence neither existed nor applied in the present case because the appellant had not adduced sufficient evidence to establish a reasonable belief on its part and the statutory defence under section 18 also encompassed and surpassed the common law defence.

48.  On the basis of his verdict that the appellant had been “sloppy”, “supervision being inadequate” and “lacking in caution” in the two areas of “training” and “inspection”, the magistrate said that the appellant had not adduced “sufficient evidence” to prove that it had held a reasonable belief. I have stated the reasons why I do not agree with this verdict of the magistrate.

49.  Section 18 of the Ordinance reads as follows:

“(1) In a proceeding for an offence under a provision in this Ordinance consisting of a failure to comply with a duty or requirement to do something so far as is necessary, where practicable, so far as is reasonably practicable, or so far as practicable or to take all reasonable steps, all practicable steps, adequate steps or all reasonably practicable steps to do something, the onus is on the accused to prove that it was not necessary, not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that he has taken all reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty or requirement.

(2) In a proceeding for an offence under a provision in this Ordinance consisting of an exemption from compliance with a duty or requirement to do something where it is impracticable, not reasonably practicable or rendered impracticable to comply with that duty or requirement, the onus is on the accused to prove that it was impracticable or not reasonably practicable to do more than was in fact done to comply with the duty or requirement.

(3) Subsections (1) and (2) do not apply where the offence is committed on or before the commencement of this section.”

50.  Is section 18 of the Ordinance a general statutory defence? Or does it merely point out that the onus of proof is on the defence? The Court of Final Appeal may give a ruling thereon.

51.  In my view, section 18 is both: it points out that the onus of proof is on the defence, and at the same time provides a general statutory defence. Nevertheless, the applicable defence in the present case is reg 38H(1) of the Regulations. In my view, given that the Regulations clearly state what the applicable statutory defence is, the magistrate should not have considered section 18, which is a general statutory defence.

52.  Having considered the statutory defence under reg 38H(1) of the Regulations, I am of the view that it is also not inconsistent with the common law defence.

53.  The magistrate should have considered, on the basis of the common law defence, whether the measures taken by the appellant could have given rise to an honest and reasonable (albeit possibly mistaken) belief on the part of the appellant that it had complied with the statutory requirements.

54.  This ground of appeal has been made out.

Decision

55.  For the above reasons, I allow the appeal against conviction, quash the appellant’s conviction and set aside the fine. It is not necessary for me to deal with the grounds of appeal against sentence.