HKSAR v. KADEN CONSTRUCTION LTD

HCMA 446/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 446 OF 2011

(ON APPEAL FROM KCS 1817/2011, KCS 1818/2011 & KCS 1819/2011)

------------------------

________________________

REASONS FOR JUDGMENT

________________________

1.  The appellant was convicted after trial of the following three summonses:

(i)   Failing to examine lifting appliance under Regulation 5(1), and 19 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations under the Factories and Industrial undertakings Ordinance, Cap 59.

(ii)  Failing to the ensure test and thorough the lifting appliance have been tested and solely examine before use, in Breach of Regulations 5(2) and 19 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations under the Factories and Industrial Undertakings Ordinance, Cap 59.

(iii)   Failing to mark lifting appliance with safe loading, in Breach of Regulations 11(1) and 19 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations under the Factories and Industrial Undertakings Ordinance, Cap 59.

The appellant appeals against those convictions.

The case of prosecution

2.  It is not in issue that the appellant on the 23 July 2010 was the owner of the said excavator concerned in the three summonses; and the prosecution‘s case was that the appellant had failed to ensure that the said excavator was not used unless it has been thoroughly tested, examined and certified by a competent examiner; and that the safe working load applicable to the said excavator was clearly and legibly marked on it.  The only issue in the case was whether the said excavator was in use at the construction site on 23 July 2010.

3.  PW1, Mr Lam, was the Occupational Safety Officer of the Labour Department.  Mr Lam testified that at around 3:15 pm on 23 July 2010, he conducted a safety inspection at the site accompanied by a safety officer of the site, Mr Law (DW2).  Mr Lam saw one excavator operator, another Mr Law (DW1) operating the excavator carrying out some excavating work by the side of mud trench.  At that time there was a debris vehicle to the right of the netting.

4.  Mr Lam said he observed the operator, DW1 at his work for about 5 minutes, then he approached DW1 for enquiry.  He asked DW1 to present Form 1 but was told by DW1 and DW2 that the relevant certificates were available for his inspection in the office.  PW1 did not take any photograph at that time.  Mr Lam left with the safety officer DW2 and when he returned half an hour later, he still saw DW1 operating the said excavator excavating concrete debris from the trench.  Mr Lam demanded DW1 to stop working and show him Forms 1, 4 and 5.  None was produced, and Mr Lam found there was no safe working load marking on the said excavator.  Mr Lam then said he took a number of photographs (Exhibit P4).  Mr Lam agreed that at material time there was another excavator of a similar make to the said excavator in the vicinity (see Exhibit D1) but Mr Lam said he did not see anyone operating that excavator.

5.  A few days later, Mr Lam said he returned to the site and DW1 produced a Form 1 (which is a report of the result of a Weekly Inspection of the Lifting Appliances which was dated 22 July 2010 which was one day prior to the site inspection.)

Case of the defence

6.  DW1 who was the excavator operator had left the employment of the appellant in October 2010.  He said that when PW1 came to the site at around 1:00 pm, PW1 waved him to go over to where he was.  DW1 said he was the only excavator operator on that day and he was operating the other excavator known as SK30 and not the excavator in question.  He agreed he did not produce Form 1 when asked “because the machine was not in use, …...”.  He said PW1 left shortly after and he continued operating SK30 until PW1 returned at around 4:00 pm.  Upon Mr Lam’s return, he told DW1 that he had to take a photograph, and he told DW1 to sit at the seat of the said excavator.  DW1 complied he said Mr Lam appeared unhappy.  Under cross-examination, DW1 said he had last used the said excavator about 3 or 4 months prior to 23 July 2010 and that he did not inspect the said excavator in July 2010 at all.  Nevertheless, he did submit Form 1 because he was asked by personnel of the Labour Department to do so.  Therefore, he completed the form a few days after 23 July 2010 and put down the dates of 22 and 26 July 2010, and submitted the form.

7.  DW2, the safety officer confirmed he had accompanied PW1 on his inspection, he produced Exhibits D4 and D5 which showed that the said excavator was recorded as “Idling” which he said meant not in use whereas SK30 was recorded as being in use.  These documents were dated 18 July and 19 July 2010.  He said that on 23 July 2010 when he was with PW1 in the vicinity of the said excavator, DW1 had walked over from excavator SK30 to them and they were standing at the said excavator.  After PW1 had a short conversation with DW1, he accompanied Mr Lam to the site office for inspection of the machine examination sheet.  DW2 confirmed that he did not leave the office together with PW1 and he never saw the said excavator in operation at any stage on 23 July 2010.  Under cross-examination, he agreed he had not given PW1 Exhibits D4 and D5 because PW1 did not ask to see them.

Magistrate’s finding

8.  The learned Magistrate accepted PW1 as a truthful witness and a reliable one.  The learned Magistrate found DW1 not truthful or reliable and as for DW2 the learned Magistrate said there was a possibility that DW2 may not have seen the said excavator in operation that day and the learned Magistrate opined that despite the documentation produced by the appellant, workers at the site may have used the said excavator which may have been more convenient to them for the task at hand.

Appeal

9.  Mr Grounds on behalf of the appellant submitted basically 2 substantive grounds of appeal.  They were that the learned Magistrate had failed to evaluate the evidence, particularly that of PW1 properly; and that the learned Magistrate had failed to give sufficient reasons for his findings of fact, therefore leading to a lurking doubt as to the correctness or propriety of the convictions.

10.  It must be said at the outset that the whole of the prosecution case relied on the reliability and credibility of the evidence of PW1.  In reading the transcript, there were many instances where no explanation was forthcoming as to why PW1 took certain actions.  For example, when PW1 returned on the second occasion to the site, he agreed that he had told DW1 to get into the said excavator in order for him to take a photograph.  He, therefore, agreed that the photograph was a reconstruction.  Why was a reconstruction necessary, and why had he not taken the photograph when he first saw, as he claimed, DW1 operating the said excavator.  Also of concern is the fact that when DW1 and DW2 insisted in their evidence that DW1 had not operated the said excavator and DW1 had walked over to Mr Lam from excavator SK30, it was never put by the prosecution to both defence witnesses that the said excavator was at the relevant time in operation.

11.  This was a case which turned on its facts and the failure of the learned Magistrate in dealing with the lacuna in the evidence as indicated above makes his ultimate finding of fact that PW1 was a truthful and reliable witness open to doubt.  While it is true that a Magistrate is best placed to make findings of fact, his findings of fact have also to deal with issues in the case which may affect the credibility of certain witnesses which he found credible.  It would be, therefore, incumbent on the learned Magistrate to explain why, despite inconsistencies or issues which may point in the other direction, he still found that a particular witness was credible.  In this case, that is sorely lacking.

12.  The learned Magistrate also found that there was a possibility that the workers on the site may have used the said excavator because it was more convenient to do so for a particular task.  However, he did not identify any evidence that would support this conjecture, nor did he resolve the conflict between Exhibit D4 and D5, and PW1’s evidence that the said excavator was in use and not “idling”.  The reconstruction photograph was of no assistance at all in view of the issues in dispute.

13.  I am therefore left with the distinct impression that the evidence was insufficient to support the learned Magistrate’s findings in this case.  The appellant should have the benefit of the doubt and therefore I had concluded that the appeal should be allowed for the above reasons.