HKSAR v. GAMMON CONSTRUCTION LTD AND OTHERS

[English Translation - 英譯本]

HCMA 625/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 625 OF 2015

(ON APPEAL FROM TWS17647-48 AND 17651-54/2012)

______________________

______________________

JUDGMENT

1.  There were four defendants at the trial of this case, namely Gammon Construction Limited (“D1”), Hip Hing Construction Company Limited (“D2”), Siemens Limited (“D3”) and Luen Yau Construction Company Limited (“D4”) respectively.

2.  Two summonses were laid against each of D1 to D4, alleging that D1 to D4, on 5 June 2012, were proprietors of the industrial undertaking at Cargo Terminal Construction, Chun Wan Road North, Chek Lap Kok, Hong Kong, in which offences contrary to the Factories and Industrial Undertakings Ordinance (Cap. 59, Laws of Hong Kong) (“the Ordinance”) were committed, which were the following:

(i) “failing to provide and maintain a system of work for the cleaning of roller conveyor of materials handling system, that were, so far was reasonably practicable, safe and without risks to health of the person (known as Cheung Lai Chun) employed at the industrial undertaking”, contrary to section 6A(1), 6A(2)(a) and 6A(3) of the Ordinance; and

(ii) “failing to provide such information, instruction, training and supervision as was necessary to ensure, so far as was reasonably practicable, the health and safety at work of the person (known as Cheung Lai Chun) employed at the industrial undertaking”, contrary to section 6A(1), 6A(2)(a) and 6A(3) of the Ordinance.

3.  It was alleged that D4 had contravened section 6A(1), 6A(2)(a) and 6A(3) whereas D1, D2 and D3 were prosecuted pursuant to section 13(1) of the Ordinance in consequence of the above contravention of section 6A by D4.

4.  D1 to D4 all pleaded not guilty to the summonses.  After trial, they were all found guilty and convicted of the two offences that they faced by the magistrate Ms Amy Chan Wai-mun of the Tsuen Wan Magistrates’ Court.

5.  D1 was fined $150,000 on each charge, ie a total of $300,000.  D2 was fined $120,000 on each charge, ie a total of $240,000.  D3 was fined $100,000 on each charge, ie a total of $200,000.  D4 was fined $80,000 on each charge, ie a total of $160,000.

6.  D1 (1^st Appellant), D3 (2^nd Appellant) and D4 (3^rd Appellant) now appeal against their sentences.

7.  I will adopt the same form of address, using D1, D3 and D4 to represent the three appellants respectively in this appeal.

Facts not in dispute

8.  The case occurred at the construction site of the cargo terminal at Chun Wan Road North, Chek Lap Kok, Hong Kong (“the said construction site”).  The said construction site was the cargo terminal of Cathay Pacific Airways, which was under construction.  On 5 June 2012, construction work was in progress (“the said industrial undertaking”).

9.  The principal contractor of the said industrial undertaking was a joint venture formed by D1 and D2, which was responsible for the construction work of the said construction site.  D3 was a subcontractor responsible for the handling system of construction materials.  D3 has contracted out to D4 the cleaning work of roller conveyor of the material handling system in the said construction site.

10.  D1 to D4 were all proprietors of the said industrial undertaking.

11.  Cheung Lai Chun (“PW1”) was an odd job worker employed by D4, responsible for cleaning work.  On 5 June 2012, an incident occurred when PW1 was cleaning the roller conveyor on 2/F of the said construction site, which resulted in serious injuries of her legs.

12.  The evidence before the magistrate revealed that on 5 June 2012, when PW1 was removing the rubbish underneath the conveyor on the floor between rollers, which was a method that she had been using and had seen other more experienced cleaning workers used, the rollers were suddenly activated and the pallet on the conveyor moved towards her.  She could not get away in time and both legs were trapped by the pallet holding metal pieces and a roller.  The roller did not stop until five minutes afterwards.  The bones of PW1’s lower leg and ankle suffered fractures and the right ankle ruptured.

13.  PW1 did not know there would be a roller test at the place where she worked.  She said that if a test was to be conducted, the red light would be turned on and the conveyor would also be surrounded by red-and-white plastic straps.  However no such precaution was taken on the day in question.

14.  Nor did PW2, who was the safety officer of D3, know that a roller test would be conducted at the place where PW1 worked.

15.  PW3 was the manager of D3, responsible for testing the material handling system which included the operation of the conveyor. At the material time, he was on 1/F and did not know that a worker was cleaning the system on 2/F.  When PW3 turned on the power and switched the system to automatic mode, the rollers started to move before any command was inputted.  It was only after the accident that he knew that a testing pallet was on the conveyor at the place of accident, which caused the conveyor to rotate automatically.  He said that the computer system had a housekeeping function which would automatically detect if there was any pallet on the conveyor, and if there was one, the conveyor would move automatically to remove it so as to avoid causing obstruction to the normal operation of the conveyor.

16.  In addition, in the morning of the day in question, D3 had held a safety seminar, and the cleaning team which PW1 belonged to also attended.  The seminar included telling, inter alia, female labour cleaners to take notice of machines which were in motion.

17.  In respect of the summons of “failing to provide and maintain the safety of plant and system of [work]”, the magistrate held as follows:

“50.  I find that the crux of this case lies on the complete lack of communication and coordination on the part of D3 in dealing with the cleaning and testing of the conveyor. Even if it was assumed that the system had no automatic housekeeping function, the conveyor would still have been activated once PW3 gave command to the system at the time of the test, which was very dangerous if any cleaning worker was staying at the conveyor.

51.  PW3 insisted that the test area had been enclosed with red-and-white plastic straps and even marked the positions of the red-and-white straps on photos D2 and D3. I have looked at Exhibit D2 carefully, the red-and-white plastic straps as marked by PW3 simply did not exist at all and there was only the blue metal frame of the conveyor. From the photo in Exhibit D1 on page 102, it can be seen that PW1 was removed from the conveyor after she had got injured. It can be clearly seen in the photo that there was no red-and-white plastic strap whatsoever enclosing the area where PW1 worked. I do not accept that zone C57 had been enclosed.

52.  I am of the view that the system was still at the stage of testing, and before D3 had full knowledge of the system, he should have been more cautious in taking safety measures before conducting any test. Simple precautions such as enclosing the test areas on 1/F and 2/F with red-and-white plastic straps and posting warning signs to prevent any people from going in could have effectively avoided the accident. D3 has however failed to do so. I find that when D3 was testing the conveyor, the system adopted by the defendants had failed to ensure PW1’s health and safety at work so far as was reasonably practicable.

53.  It was on D3’s instruction that PW1 cleaned zone C57, and the cleaning method that she used had all along been adopted by the foreman in D4. She only followed the working methods of her superior in D4.  I find that PW1 was not negligent herself.  In any event, the defendants cannot rely on PW1’s acts in establishing any defence.”

18.  The magistrate accepted the opinion given by the expert witness for the prosecution (PW4).  She recounted the expert’s opinion in para 33:

“33. Giving the facts provided, PW4 opined that the system of work of PW1 was not safe in view of the following matters:

(i)     The power supply system of the roller conveyor was not properly controlled. It was switched to automatic mode. No locking system or safety device was provided and the control panel of the roller conveyor could be operated by anyone. The roller conveyor should be equipped with a system to prohibit any operation or movement at the time of cleaning.

(ii)    During the testing of the roller conveyor, adequate steps should be taken to ensure that workers were prohibited from entering into the working area of the testing work.  Such steps included the demarcation of a danger zone with proper segregation such as installation of physical barriers and posting of warning notices.  Also, a foreman or supervising staff should be present to ensure the prohibition of other workers entering into the demarcated danger zone.  The safety measures mentioned above were reasonably practicable.”

19.  As to the summons of “failing to provide such information, instruction, training and supervision as was necessary to ensure, so far as was reasonably practicable, the health and safety at work of the person(s) employed at the industrial undertaking”, the magistrate said this:

“55.  The defence in cross-examination, suggested that D3 had arranged training lessons on safety, including induction training for working at construction sites.

56.  Firstly, in the whole set of teaching material, only one photo, which was on page 26 of D1, related to the knowledge of safety on roller conveyor, while the rest was general introduction of safety in construction sites. The whole lesson lasted for one hour, running from 14:00 to 15:00 hours on 6 February 2012. PW1 has been educated up to just primary school [level], and in my view she could have gained only extremely limited knowledge of safety on cleaning the conveyor after completing that induction training lesson.

57.  Furthermore, the teaching materials named by defence as “Zero Harm Trainingarmjj” (see pp 37-57 in Exhibit D1) was wholly written in English. It is self-evident as to how much of the lesson PW1 could understand.

58.  According to PW1, she had climbed to the gap between rollers to clean and she had acquired such method by observing the Big Sister and other more experienced female labour cleaners. This is the method that she had been using since she commenced the job. PW1 had worked in the said construction site for three months, and with her limited experience, she would think that this was a correct way of cleaning.”

20.  The magistrate in para 59 stated that if PW2 had in fact done inspection, but either failed to discover that woman cleaning workers were foolish enough to stand between the rollers to clean or failed to stop them upon discovering such a situation on inspection, then no matter which case it was, it just showed that D3 failed to provide such information, instruction, training and supervision as was necessary to ensure, so far as was reasonably practicable, PW1’s safety at work.

21.  The magistrate has also accepted the expert opinion provided by PW4 in this regard.  She recounted the relevant opinion in paras 34-35:

“34.  It was PW4’s opinion that PW1 had not been informed of the testing work of the roller conveyor. No safety information or instruction had been given to prohibit PW1 from entering the danger zone to work by D1 to D4. On the contrary, the Construction Project Manager of D3 had instructed the cleaning team to proceed to zone C57 to do cleaning work without any specific safety training and emergency procedure provided. No one knew how to stop the roller conveyor immediately after the accident. They were not familiar with the emergency procedures. Therefore, the safety information, instruction and training that PW1 had gained was not reasonably adequate.

35.  Regarding supervision, PW4 said that no supervisor or managerial staff was employed by D1 to D4 to monitor the work of the cleaning team and the cleaning operation of the roller conveyor.  There was a significant deficiency in the aspect of safety supervision.  A competent supervisor should have been employed to ensure that the roller conveyor had isolated power supply and to prohibit workers from working in the danger zone.”

22.  The magistrate found D1 to D4 guilty of the offences laid in the summonses that they respectively faced.

Submission in mitigation

23.  In mitigation, the defence submitted that D3 did not know the system had the housekeeping function.  The incident was an unpredictable misfortune.  D3 and D4 had three and two records of conviction respectively and they were different from the offences in the present case.  D3 did provide weekly training on safety to the cleaning team, and a special safety seminar was convened on the day in question because of the occurrence of a recent incident.

24.  D1 is a large company making high turnover and has been in operation for many years.  It is not extraordinary for it to have 363 previous convictions.  D1 had handed over the construction site to D3, and D1 and D2 could not enter the site.

25.  The defence asked the court to consider the information submitted by the Labour Department on the average fine, ie the fine would be between $13,833 and $26,840 on conviction after trial.

26.  In passing sentence, the magistrate considered the following factors:

(1)  the maximum fine is $500,000;

(2)  the victim sustained serious injuries and was still unable to walk properly at the time of the trial.  She has become bowlegged and her legs are extremely likely to be permanently disabled;

(3)  the magistrate did not accept that the incident was a mere misfortune;

(4)  the legal principles laid down in the case of Chuen Kee Construction Co Ltd ^[1];

(5)  The project contracted by D1 and D2 was of large scale, from which it could be inferred that the project sum must be huge.  D1 has made profits and had the resources to take safety measures but has failed to discharge its responsibilities;

(6)  The magistrate refused to accept the suggestion in mitigation that since D1 was a large company, it was not extraordinary to have 363 conviction records. Although according to both sides, D1 had only one similar record, the magistrate subsequently found out that D1 had eight records contrary to section 6A(2)(a) and five contrary to section 6A(2)(c), and hence thought there was room for the sentence to be adjusted upward;

(7)  The method of work adopted by the cleaning team of D4 was extremely dangerous.  Both D3 and D4 had failed to discharge their responsibilities to ensure PW1’s health and industrial safety in the said industrial undertaking;

(8)  The magistrate refused to accept the suggestion in mitigation that D1 and D2 could not go into the construction site for safety inspection, not even posting a safety officer there;

(9)  D3 had three previous convictions which were different from those in the present case by nature and had taken improved measures after the incident.  D4 had two previous convictions which were different from those in the present case by nature;

(10)  The magistrate said that the average fine could not reflect the safety measures adopted by principal contractors, the facts of the cases, the records, the causes of injuries or death and so on;

(11)  The magistrate has considered the statistical data of injuries and deaths caused by industrial accidents and the harm done to the families as a result in the past five years (2010-2014);

(12)  The magistrate considered deterrent sentences to be necessary to reflect the gravity of the case.

Grounds of appeal

27.  On behalf of the appellants, Mr Jeff Ho of counsel has put forward nine grounds of appeal.

28.  The first four grounds contend that the magistrate was wrong in principle in sentencing:

(1)  The magistrate erred in considering the data involving all industrial injuries and deaths all over Hong Kong in the past five years, including those happened in the few years after the present case regardless of the ordinances and the defendants concerned.

(2)  In considering the above data, the magistrate mistakenly took the number of summonses involving injuries and deaths as the number of actual injuries and deaths, and failed to take into account the continuous fall of the number of summonses involving injuries and deaths in the few years after occurrence of the present case.

(3)  The magistrate had not adequately considered the mitigating factors put forward in the present case.

(4)  In respect of D1, the magistrate had put too much emphasis on the number of cases in which D1 was convicted while in fact, in the vast majority of those cases, D1 was not convicted under the same ordinance as that in the present case.

29.  The other five grounds criticise the sentences as being manifestly excessive:

(1)  The magistrate departed very much from the usual level of sentences, adopting a manifestly excessive starting point without any particular reason.

(2)  The magistrate relied on the legal principle laid down in the case of Chuen Kee Construction and Engineering Company Limited as the basis in sentencing but had not sufficiently considered the levels of sentences in various courts in the past five years, ie after the judgment of that case had been handed down, and adopted a starting point which was manifestly excessive.

(3)  In respect of D3 and D4, they respectively had three and two dissimilar previous convictions.  The starting points of their sentences were $100,000 and $80,000 respectively, which were manifestly excessive.

(4)  Regarding D1, who had only one similar previous conviction, the starting point of $150,000 was manifestly excessive.

(5)  As far as D1 is concerned, they were, as with D3, not a direct proprietor but had been prosecuted under section 13(1) of the Factories and Industrial Undertakings Ordinance, and in fact D3 was even a subcontractor designated by the [proprietor].  Under such circumstances, the starting point for D1 which was 50% higher than that of D3 was manifestly excessive.

My consideration

30.  As to the four grounds of appeal advanced by the appellants suggesting that the magistrate had been wrong in principle, with respect, I do not agree.

31.  The magistrate indeed requested the prosecution to provide the data of injuries and deaths happened in the five years before sentencing.  The case happened in 2012 and the magistrate ought to consider the situation before it.  Although that should have been the proper approach, the data show that the number of people injured has decreased from 14,015 in 2010 to 12,547 in 2012.  Yet the situation in which over ten thousand people got injured each year should not be ignored.

32.  The magistrate has not mistakenly regarded the number of summonses as the number of actual injuries and deaths (the appellants have withdrawn this point in court).

33.  The appellants suggest that the magistrate had put too much emphasis on the record of summonses previously laid against D1.  There was one case in which D1 contravened section 6A(2)(a), which is also involved in the present case, and section 13(1), and there were other 11 cases involving section 6A(2)(a) and 6A(2)(c) as well.  Other convictions involved other ordinances.  In my view, in looking at the previous records of D1 in order to assess if D1 had contravened the law repeatedly regardless of repeated punishment, consideration should be given not only to the records involving section 6A(2)(a).  D1’s contravention of various provisions of the Factories and Industrial Undertakings Ordinance shows D1’s failure in dealing with industrial safety properly.  The magistrate was entitled to take this into account.

34.  In respect of the appellants’ submission that the 363 previous convictions in fact related to 260 incidents only and that the two-digit annual conviction figures were only data in the last century, such arguments were not put forward before the magistrate.  I will reconsider and deal with it in considering whether the sentences were manifestly excessive.

35.  The appellants submit that the magistrate had not taken into account the mitigating factors and suggested that D3 had not turned a deaf ear or blind eye on the safety of workers, where in fact D3 held seminars, safety training and so on regularly.  The magistrate had made clear that she did not accept the above mitigating factors in paras 56-63 of her Reasons for Sentence which are recounted in paras 19-21 of this judgment.

36.  As to the appellants’ complaint that the sentences are manifestly excessive, they basically rely on the so-called “average level” of sentencing to contend that the sentences in the present case have far exceeded such an average level.

37.  There is no sentencing guideline in this kind of cases.  Since the facts in each case may vary a lot, comparison cannot be simply made directly or rigidly.  In fact, it is quite meaningless to obtain an average of the fines by adding up the sentence in a serious case and that in a very minor matter.  What I have to consider is the facts in the present case and whether the sentence imposed by the magistrate is appropriate.

38.  I agree with the view of Deputy High Court Judge Pang (as he then was) in香港特別行政區訴瑞昌建築工程有限公司^[2]:

“9. As to the statistical data of the fines provided by the Labour Department, I can only say that the circumstances in each case are not completely identical and should not be compared rigidly. In fact, according to the statistics, the highest fines in 2000 and 2001 were both $100,000 while that in 2002 was as high as $150,000.  The lowest fines in the same period were only between $1,000 and $2,000. Thus, it can be seen that the so-called average fine is in fact meaningless.”

39.  On the other hand, the offences committed by D1 contrary to the Ordinance may vary a lot, and the circumstances concerned are not comparable to those in other criminal cases such as repeated commissions of an offence like burglary.

40.  I have said that in considering D1’s record of previous convictions, consideration must be given not only to the convictions under section 6A(2)(a).  However, I agree with the appellants that since the beginning of this century, the annual conviction rate of D1 has dropped to single-digit figures, indicating improvement on D1’s part.

41.  Magistracy appeals are conducted by way of “rehearing”.  Even if the magistrate has made an error, I will not intervene if the ultimate fine is not excessive.  What I have to determine is whether in all the circumstances of the present case, the penalties imposed on D1, D3 and D4 are appropriate.

42.  D4 was PW1’s direct employer, which was a proprietor of the Industrial Undertaking.  D3 and D1 were not direct proprietors, but they were still proprietors in law.  The joint venture formed by D1 and D2 was the principal contractor and D3 a sub-contractor.  In my view, it is not improper for D1, D2 and D3 to receive penalties heavier than D4.

43.  Having regard to all the facts in the present case and the culpability of each appellant, I find that the fines of $80,000 imposed in respect of each summons against D4 and $100,000 in respect of each summons against D3 are appropriate and not excessively harsh.

44.  The joint venture formed by D1 and D2 was the principal contractor of the industrial undertaking concerned, and their criminal liability should be the same.  D2 has not appealed.  In passing sentence orally, the magistrate said that D2 had 302 previous convictions and had been fined $20,000 and $12,000 respectively for offences under section 6A(2)(a) and 6A(2)(c) in 2014.  She fined D2 $120,000 in respect of each summons.

45.  I am of the view that the fine on D1 should be the same as that on D2 in the present case, which is $120,000 for each summons, making it a total of $240,000.

46.  I would also like to mention this.  The defence has relied on the case of寶嘉建築有限公司 ^[3]which involved a deceased person who had been run over by heavy duty machinery at the time of work.  This case is different from the facts in the present case.

Conclusion

47.  In the light of the above reasons, I allow D1’s appeal against sentence and the fine of $150,000 in respect of each summons is replaced by $120,000, making it a total of $240,000.  The appeals of D3 and D4 are dismissed.