THE QUEEN v. TAI HING (ENGINEERS AND BUILDINGS) LTD

HEADNOTE

Amendment of charge at the conclusion of prosecution case - Whether amendment so substantial to constitute a completely different or new charge - Whether amended charge time-barred - Sections 26 and 27 of the Magistrates Ordinance, Cap. 227 - Whether amendment also contravened section 17 of the Factories and Industrial Undertakings Ordinance, Cap. 59 - Requirements in statements of findings by magistrates - No injustice caused to the appellant - Appeal dismissed.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAGISTRACY APPEAL NO. 1443 OF 1988

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J U D G M E N T

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1. The appellant, a limited company carrying on building and construction business, was summoned for an offence under Regulations 38Q(5) and 68(1)(a) of the Construction Sites (Safety) Regulations, Cap. 59. The full particulars of that offence were that the appellant on the 10th March, 1988 at Blocks, l2, 14, 15 and 16, Shek Lei Estate, New Territories being the contractor responsible for a construction site at Blocks 12, 14, 15 and 16, Shek Lei Estate, New Territories did fail to take all reasonable steps to ensure a workman did not remain on a dangerous place namely, the window sill of Room 652, 6th floor, Block 14, Shek Lei Estate, New Territories, on the site without wearing a safety belt provided to the workman.

2. It was not disputed that the appellant was the contractor responsible for the construction site in question on 10th March, 1988.

3. The evidence adduced by the prosecution was that three workers employed by the appellant were carrying out eternal wall maintenance work at Block 14. Two of them, Fung Chun-ming and Chu Yin-hon were on a canopy at the 6th floor while a third one, Au Yeung Wing was on the 3rd floor. Angle iron was being lifted from the 3rd floor to the 6th. Chu was wearing safety belt but Fung did not do so because his work required him to move about. When the lifting of angle iron was finished, Au Yeung went up to the 6th floor to ask Fung if there was anything else for him to do as he had already finished work on the 3rd floor. Fung, who was in charge of the team, told him to wait. For no apparent reason Au Yeung climbed out of the window of Room 652 onto the canopy which was immediately below the window sill and stood there. He was not wearing any safety belt. Suddenly he lost balance and fell to the ground from the canopy.

4. A factory inspector testified to the effect that when a worker went out to a canopy, he must wear a safety belt. He further stated that the contractor was under the duty to exercise strict supervision, and ensure compliance with safety regulations. Moreover a contractor is responsible to educate his workers on safety measures.

5. In his evidence, Fung Chun-ming told the magistrate that he had 15 years experience in construction work. He said that the appellant had not given him instructions on safety measures although Kong Kee, the subcontractor, had told him to be careful and to use safety belts.

6. At the conclusion of the prosecution case, the magistrate rejected a submission of no case to answer and exercised his discretion under section 27 of the Magistrates Ordinance, Cap. 227 charge by deleting the words "the window sill of Room 652, 6th floor" and substituting its place "the canopy at the 6th floor level external to the building of".

7. The defence was that it was the practice of the appellant to inform the foreman to make sure that the workers wore safety belts. This had been done both verbally and in writing. Foremen and workmen were required to sign a notice aril a notice signed by Fung Chun-ming was produced. A defence witness also said that there were regular site inspections at frequent intervals and whenever a worker was found without wearing safety belts they would be stopped from work.

8. The magistrate found that the canopy, which was without the support of iron rails, was a dangerous place and further the appellant must have foreseen the danger because of the nature of the work undertaken by Fung Chun-ming. It was unlikely that Fung would wear a safety belt and in the absence of that there was no similar safety equipment provided such as a life line which the factory inspector maintained to be a necessary alternative. The magistrate came to the conclusion that the appellant had hot taken all reasonable steps to ensure workers in particular Fung Chun-ming to remain on dangerous place with safety belts. He found the appellant guilty and imposed a fine of $3,000.

9. The main grounds of appeal argued by Mr. Rimsky Yuen were that the magistrate had no jurisdiction or power to amend the summons as he did at the trial and further or in the alternative, if the magistrate had the jurisdiction or power to amend he had wrongly exercised his discretion. Counsel also submitted that for these reasons the magistrate should have held that there was no case for the appellant to answer.

10. Section 27 of the Magistrates Ordinance provides:

    (1) Where it appears to the adjudicating magistrate that there is -

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and the evidence adduced an support of it,

he shall, subject to subsection (2) -

(i) amend the complaint information or summons if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the complaint, information or summons.

    (2) The adjudicating magistrate shall amend the complaint, information or summons where -

(a) the defect or variance mention in subsection (1) is riot material; or

(b) any injustice which might otherwise be caused by, an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses.

    (4) In this section, "amend" includes the substitution of another offence in place of that alleged in the complaint, information or summons.

11. This section not only gives a magistrate very wide power to amend which includes the substitution of a completely different offence it in fact places an obligation on him to do so. The section is mandatory subject to no injustice being caused to a defendant and the compliance of the procedure under subsection (3).Mr. Yuen who also appeared before the magistrate told me that he was given an opportunity to call and recall witnesses as a result of the amendment.

12. Mr. Yuen while agreed that the magistrate had very wide power to amend but contended that since the amendment here was so substantial that he said amounting to the substitution of a completely new charge and this offended against section 26 of the Magistrates Ordinance and section 17 of the Factories and Industrial Undertakings Ordinance, Cap. 59. Section 26 provides that any complaint or information in respect of an offence, other than an indictable offence must be made or laid thin 6 months from the time the matter arose.

13. Section 17 of Cap. 59 enacts that:

(1) prosecutions for offences against this Ordinance may be brought in the name of the Commissioner for Labour and may commenced and conducted by any officer of the Labour Department.

(2) save as provided in subsection (1) no prosecution for an offence against this Ordinance shall be commenced without the written consent of the Commissioner for Labour.

14. I do not agree that the amendment was so substantial as to change the nature and character of the charge. The time, date and place of the charge remained the same. The canopy was located on the same block and it was just below the window sill of Room 652. The appellant was the contractor responsible for the whole site and not just the window sill. Whether it was the window sill or the canopy it was still part of the construction site for which the appellant was responsible. The appellant was responsible for all the dangerous places that were to be found on their construction site. The Canadian decision in The Queen v. Hawthorne reported in Canadian Criminal Cases Vo1 II 468, which was relied upon by Mr. Yuen, dealt with an entirely different situation. In that case, Hawthorne was originally charged with illegal selling of liquor on 15th April and the information was laid on 11th May but during the trial on 29th May the date of the offence was amended to 16th April. The time for laying information for this offence was limited to 30 days and it was held that the amendment was caught by the period of limitation. Of course, illegally selling liquor on 15th April was a different offence from one committed on the 16th April. For that particular offence, the date was most important and most material to the charge.

15. I am satisfied that the amendment in the present appeal is not, one of such a substantial nature and character so as to constitute a new or different charge and therefore it was not caught by section 26 of the Magistrates Ordinance. It certainly did not contravene the provisions in section 17 of the Factories and Industrial Undertakings Ordinance because as the heading on the summons indicated the prosecution was brought and commenced in the name of the Commissioner for Labour and subsection (2) clearly had no application. I am also satisfied that no injustice was or could have been caused to the appellant by the amendment.

16. Grounds 4, 5 and 7 were not seriously argued or relied upon by Mr. Yuen and it is not necessary for me to deal with them. Suffices that the magistrate was entitled to the conclusion that he had reached on the facts.

17. Ground 8 alleges that the conviction is unsafe and unsatisfactory which is really a general ground tied up with the other grounds.

18. Ground 6 criticized the magistrate of having, failed to give any or any sufficient reasons for the conviction in his statement of findings and in so far as he did give reasons, those reasons erroneous in law and/or in fact. Mr. Yuen cited a decision of Huggins J. (as he then was) in Lam Poon Ho v. The Queen Criminal Appeal No. 289 of 1971 and in particular at pages 3 and 4 where the learned judge had this to say:

(a) that a magistrate should not attempt to advance arguments showing that his decision was correct or cannot be upset on appeal;

(b) that the statement of findings in the present case is not an attempt to reproduce an oral judgment previously given in open court;

(c) that the statement of findings should have been confined to recording the findings made at the time of the conviction and not have included expressions of the learned magistrate's opinion at the date when he wrote his statement of findings.

19. I agree that the magistrate fell into these errors but in my judgment this does not invalidate his findings on the main issues upon which the appellant was convicted.

20. In this connection, I would refer to two decisions of the Court of Appeal on what is required in a statement of findings by a magistrate. The first one is Chan King man and others v. The Queen in which it was held that in stating his reasons for verdict, a District Judge is under no obligation to set out his mental processes in full. His only statutory duty is to record a short statement of the reasons for the verdict. The second case is Sheik Abdul Rahman Bux and others v. The Queen Criminal Appeal No. 756 of 1981 and this is the relevant part of the judgment:

"The decision of the Court of Appeal in The Queen v. Chan King-man (1980) HKLR 105 which sets out the obligations of a District Judge in preparing the short statement of his reasons for verdict should be followed also by magistrates."

21. I would advise magistrates to take note of these decisions when they are preparing their statements of findings.

22. The appeal is dismissed.