HKSAR v. HIP HING CONSTRUCTION CO LTD.

HCMA 167/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 167 OF 2001

(ON APPEAL FROM KTS 12075/2000)

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J U D G M E N T

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1. This is an appeal against both conviction and sentence.

2. On 8 January 2001 the appellant was convicted after trial by a magistrate sitting at Kwun Tong Magistracy of an offence contrary to Regulation 38B(1) of the Construction Site (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap 59. A fine of $20,000.00 was imposed upon the appellant.

3. The offence of which the appellant was convicted was committed on 25 May 2000 at Sai Kung Town Hall which was at that time a construction site for which the appellant was responsible.

4. The offence came to light when an Occupational Safety Officer of the Labour Department made an inspection visit at about 10:50 am. During that visit he saw, and took photographs of, a worker standing astride an 'A' frame ladder whilst apparently carrying out some repairs to a fluorescent light fixture.

The appeal against conviction

5. For convenience, I set out hereunder Regulation 38B in full and also Regulations 38C and 38H as they too are relevant to this appeal:-

"38B. Prevention of falls

(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.

(2) For the purpose of paragraph (1), "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) Paragraph (1) shall not apply to any opening, corner, break or edge exposed in the course of demolition operations if adequate precautions have been taken to prevent any person from being exposed to the risk of falling therefrom.

(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 paragraph (1) shall comply with the provisions of the Third Schedule applicable to it.

(5) For the avoidance of doubt, it is hereby declared that -

(a) paragraphs (2) and (4) do not prejudice the generality of paragraph (1);

(b) the reference to working platform in paragraph (4) does not prejudice the operation of the provisions of the Factories and Industrial Undertakings (Suspended Working Platforms) Regulation (Cap. 59 sub. leg.) in relation to a working platform which is a suspended working platform.

38C. Safe means of support

Where work cannot be safely done on or from the ground or from part of a permanent structure, the contractor responsible for the construction site concerned shall provide, and ensure the use of, a scaffold, ladder or other means of support, all of which shall be safe for the purpose, having regard to the work to be done.

38H. Defences to regulations 38B(1) and 38C

(1) It shall be a defence for a contractor charged with an offence under regulation 38B(1) or 38C to show -

(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."

6. It was not in dispute that whilst the worker in question was doing whatever he was doing to the light fixture (and there was some dispute about that) the top of the ladder was 2.72 meters above the ground; that the legs of the ladder were 1.13 meters apart and that the feet of the worker himself were 2.39 meters above the ground i.e. he was .39 meters (or 16 inches) above the height limit specified in Regulation 38B(1). The light fixture was about 4.17 meters from the ground.

7. It follows from those measurements, that there was an obligation in law upon the appellant to "take adequate steps" to prevent the worker from falling whilst he was attending to the fluorescent light unless the taking of such steps as specified in Regulation 38B was impracticable.

8. Whilst at first sight it would appear from that Regulation that a contractor can only be said to have provided adequate steps by providing, using and maintaining one or more of the items or contraptions set out in paragraph (2) of the Regulation, I read paragraph (5)(a) as meaning that provision, use and maintenance of one or more of them may not be sufficient to prevent a fall and therefore, depending on the particular circumstances, further items or contraptions may be necessary.

9. I do not read paragraph (5)(a) as meaning that none of the items or contraptions listed in paragraph (2) need be provided used and maintained if the contractor is of the view that they are unnecessary to prevent a fall.

10. During the course of the trial before the learned Magistrate Mr Jenkyn Jones (who also appeared for the appellant in this appeal) sought to argue that if the appellant had in fact complied with Regulation 38C (or honestly and reasonably believed that there had been such compliance) by the provision of a ladder safe for the particular purpose then that would provide a defence to the information laid under Regulation 38B.

11. The learned Magistrate rejected that argument in convicting the appellant.

12. The grounds of appeal relied on by Mr Jenkyn Jones before me are as follows:-

"1.(a) The Learned Magistrate erred in law both generally and specifically in that he rejected the legal proposition and defence that compliance (or honest and reasonable belief of compliance) with the provisions of another rgulation (38C CSSR Cap. 59) would not be any defence under a summons for a different regulation (38B CSSR Cap. 59).

(b) Further by such an erroneous finding it is clear from the learned Magistrate's oral reasons for verdict that he excluded from his deliberation and consideration this defence (which arose on the Prosecution case) both when considering the submission of no case to answer and his verdict.

(c) In dealing with this issue in his formal reasons it is by way of post-rationalisation only, but in any event he further erred in finding the A frame ladder to be unsafe in all the circumstances of the case.

2.(a) The Learned Magistrate erred in finding DW1 neither honest nor reliable without good foundation and in particular he erred in rejecting the Defence evidence with regard to the practicability of compliance with Regulation 38B(1) by reference to his own "common sense"; personal opinion and the limited information provided by Exhibits P.4A & P.4B.

(b) Having wrongly rejected the Defence evidence, he consequently rejected all legitimate defences arising even on the prosecution evidence and in so doing, he failed to consider the whole circumstances of the case, or reached wrong conclusions thereon."

13. Putting it shortly what the learned Magistrate said at the time of convicting the appellant was that he rejected the evidence of its single witness regarding the precise nature of the work being done to the fluorescent light and regarding the practicability of erecting a platform. He went on to say that he also rejected the evidence of that witness to the effect that the appellant had an honest and reasonable belief that Regulation 38B(1) had been complied with by the provision of the ladder.

14. He went on to say this:-

"The defence also mentioned regulation 38C, with particular reference to the A-frame ladder that was used by the worker in question. I take the view that the duties and obligations of a contractor under the regulations are cumulative. It is not for the defendant to say that they had complied with some other regulation or that they had honest and reasonable belief that some other regulation had been complied with and thus they should not be held liable for breach of the regulation for which they were prosecuted."

15. In his written statement of findings the learned Magistrate said this in relation to the evidence of the appellant's witness:-

"I inferred that the repair work being carried out involved at least the removal of the cover for the light fixture, the removal of the existing light tube, the handling of wires for the light fixture and the putting back of a light tube (whether it be the one removed or a new one). It was certainly not the simple exercise of taking out one light tube and putting in a new one as DW1 tried to portray.

DW1 also talked about the manpower required in relation to the setting up/removal of a working tower, the time required and the costs. Amongst other things, he said that it would take almost 1/2 day and 1 to 2 persons to clear the floor for erection of the platform. The condition of the floor could be seen from Exhibit P4A and B. The Court must be allowed to use its common sense. The assertion of DW1 of almost 1/2 days' work just to clear the floor must be regarded as a gross overstatement, if not a lie.

I found DW1 neither an honest nor reliable witness. I rejected his evidence."

16. In relation to appeal Ground 1(c) what the learned Magistrate said was this:-

"[As to a] belief in compliance with [the] Regulations. I accepted that the standard of proof was on a balance of probabilities. The Defendant ran this defence based on the evidence of [its witness] for reasons stated ... ... I rejected his evidence. This line of defence failed."

17. In the course of hearing argument concerning the defence of honest but mistaken belief I was referred inter alia to the authorities of AG v. Fong Chin Yue and others [1995] 1 HKC 21, HKSAR v. Paul Y - ITC Construction Ltd [1998] 3 HKC 189, HKSAR v. Hop Shing Loong Lighting Ltd HCMA 605/98 and HKSAR v. Leighton Contractors (Asia) Ltd HCMA 1255/1999.

18. In consequence of that argument I accept the proposition that compliance (or honest and reasonable belief of compliance) with the provisions of one regulation may in certain circumstances be a defence to an information filed in respect of another 'associated' regulation but that does not in my view assist the appellant in the furtherance of his appeal against conviction given the conclusions - oral and in writing - of the learned Magistrate.

19. With the greatest respect given what he did say it seems to me that this appeal against conviction has about it an air of unreality.

20. The fact of the matter is that the learned Magistrate found (and this seems to me to be a matter of common sense) that it is inherently dangerous (or certainly unsafe) for a man to do work which necessitated him standing astride the top of an 'A' frame ladder and stretching upwards with no other support. Because of the height of the ladder and the height of the light fitting there existed a real danger that the worker might fall unless other adequate steps were taken such as the use of a more stable platform.

21. That said it must also follow, as night follows day, that if the 'A' frame ladder was not adequate to satisfy Regulation 38B then nor was it safe for the purpose for which it was being used in terms of Regulation 38C.

22. Going on from there, the learned Magistrate was plainly of the view on the evidence that was before him - and again applying his common sense - that it was practicable to use a more stable platform and that if (which he clearly had good reason to doubt) - the appellant honestly believed that the use of the 'A' frame ladder was safe for the purpose for which it was being used then such belief was unreasonable.

23. For what it is worth, having read the relevant parts of the transcript and the learned Magistrates reasons, in my judgment he could not have come to a different view.

24. For these reasons the appeal against conviction is dismissed.

The appeal against sentence

25. The appellant was fined $20,000.00 for this offence. I am in no doubt whatsoever having read the mitigation set out in the transcript and bearing in mind in particular the fines generally imposed for offences committed at great height on building sites which have resulted in fatal or serious injury, that the fine imposed in this case was manifestly excessive. The appropriate fine in my view should be one of $3,000.00 and in substituting that sum for the sum of $20,000.00 I allow the appeal against sentence.