HKSAR v. Leighton Contractors (Asia) Ltd

HCMA 508/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 508 OF 2015

(ON APPEAL FROM TWS 19683 TO 19687 OF 2013)

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Between:

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J U D G M E N T

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1.This is an appeal against conviction by Mr Jim Chun Ki, Deputy Magistrate, of five offences contrary to the Factories and Industrial Undertakings Ordinance[1] and the Construction Sites (Safety) Regulations made under the Ordinance. The appellant was represented by Mr Halkes leading Mr Lo, who also appeared on behalf of the appellant before the magistrate.

Introduction

2.On 26 May 2010 the appellant entered into a contract with the MTR Corporation to build a tunnel from Tse Uk Tsuen to Shek Yam.  The work included the construction of two ventilation buildings at the Shing Mun Ventilation Building Site (“the site”). The appellant contracted the bar-fixing and formwork related to the ventilation buildings to Loyal Eastern Limited, a specialist contractor[2]. 

3.On 2 July 2013 an area of formwork at grid line 1/B-D on level 3 of the site was scheduled to be demolished/dismantled from a permanent wall[3].  This required a number of bolts and nuts at different locations to be unfastened and removed[4]. 

4.Three formworkers of Loyal Eastern Ma Chak Chuen (PW2), his son Ma Changdong and his brother Ma Chak Sum were assigned to unfasten and remove the bolts and nuts by using a metal tubular scaffold adjacent to the formwork[5]. While the work was being carried out tragically Ma Changdong fell from height and later died. 

5.The trial principally concerned whether sufficient safety measures had been implemented to prevent a fall from height. 

The offences

6.As a result of the accident the appellant was summonsed as follows:

“(1) being a proprietor of the industrial undertaking at the Shing Mun Ventilation Building Site under Express Rail Link contract 822 – Tse Uk Tsuen to Shek Yam Tunnels, in which an offence against the Factories and Industrial Undertakings Ordinance, had been committed, namely an offence of failing to provide and maintain a system of work for the removal of the bolts and nuts on the formwork, that were, so far as was reasonably practicable, safe and without risks to health of the persons employed by Loyal Eastern Limited at the industrial undertaking, contrary to Sections 6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance, had been committed by Loyal Eastern Limited, which was a proprietor of the industrial undertaking.

Contrary to Sections 6A(1), 6A(2)(a), 6A(3) and 13(1) of the Factories and Industrial Undertakings Ordinance (Summons No TWS19683/2013).

(2) being a proprietor of the industrial undertaking at the Shing Mun Ventilation Building Site under Express Rail Link contract 822 – Tse Uk Tsuen to Shek Yam Tunnels, in which an offence against the Factories and Industrial Undertakings Ordinance had been committed, namely an offence 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 persons employed by Loyal Eastern Limited at the industrial undertaking, contrary to Sections 6A(1), 6A(2)(c) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap 59 had been committed by Loyal Eastern Limited, which was a proprietor of the industrial undertaking.

Contrary to Sections 6A(1), 6A(2)(c), 6A(3) and 13(1) of the Factories and Industrial Undertakings Ordinance, Cap 59 (Summons No TWS19684/2013).

(3) being the contractor responsible for the construction site at Shing Mun Ventilation Building Site under Express Rail Link contract 822 – Tse Uk Tsuen to Shek Yam Tunnels, where work, namely the removal of the bolts and nuts on the formwork could not be safely done on or from the ground or from part of a permanent structure, did fail to provide, and ensure the use of the scaffold, ladder, or other means of support which was safe for the purpose, having regard to the work to be done.

Contrary to Regulations 38C, 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations (Summons No TWS19685/2013).

(4) being the contractor responsible for the construction site at Shing Mun Ventilation Building Site under Express Rail Link contract 822 – Tse Uk Tsuen to Shek Yam Tunnels did fail to take adequate steps to prevent a person on the site from falling from a height of 2 metres or more, namely the lower layer of the metal scaffold on the formwork located at grid line 1/B-D on level 3.

Contrary to Regulations 38B(1), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations (Summons No TWS19686/2013)

(5) being the contractor responsible for a scaffold at the lower layer of the metal scaffold on the formwork located at grid line 1/B-D on level 3 on the construction site at Shing Mun Ventilation Building Site under Express Rail Link contract 822 – Tse Uk Tsuen to Shek Yam Tunnels, did fail to ensure that the scaffold was not used unless a report had been made and signed by the person carrying out the inspection of the scaffold, in an approved form containing the prescribed particulars which included a statement to the effect that the scaffold was in safe working order.

Contrary to Regulations 38F(1)(b), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations (Summons No TWS19687/2013).”

7.Loyal Eastern were also summonsed with what were described at trial and in this appeal as “mirror” summonses.  Loyal Eastern pleaded guilty to all summonses except for the summons contrary to regulation 38F(1)(b), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations.  The convictions of Loyal Eastern were not however admitted as part of the prosecution case against the appellant. 

Prosecution case

8.The prosecution called eight witnesses.  Facts were also admitted pursuant to section 65C of the Criminal Procedure Ordinance[6]. The trial lasted fourteen days with evidence heard on ten days, the transcript of which is over 500 pages.  The expert reports and exhibits also extend to over 500 pages of the appeal bundle[7].

9.The magistrate succinctly summarised the evidence of each witness[8].  Ng Shui Cheong (PW1) testified as to the contractual relationship between MTR Corporation and the appellant. 

10.Ma Chak Chun (PW2) together with Ma Changdong and Ma Chak Sum were required to work at height on a metal tubular scaffold adjacent to the formwork shown in the photograph exhibit P3A[9].  Safety harnesses with double lanyard were provided to carry out the work.

11.The scaffold consisted of two layers, an upper and lower layer with a working platform at each layer.  The lower working platform (sometimes referred to as the middle platform), is best seen on photographs exhibit P3F, H, I & J,  While working on the lower working platform Ma Changdong fell to his death, which fall was witnessed by Tang Wai Tang (PW3), a worker of Loyal Eastern. 

12.The prosecution case in summary was that no safe system of work was provided: the lower layer of the scaffold had not been inspected and certified before use; the working platform at the lower layer of the scaffold was substandard; it was reasonably practicable to provide a suitable and sufficient lower working platform; and the provision of a safety harness with double lanyard was not sufficient to protect workers from the hazards of working at height and was only to be used where other safety measures were not practicable.  Further, no one having stopped or warned the three workers from carrying out the work, no relevant safety training was given and safety supervision was inadequate.

13.Shum Hong Wing (PW6), a safety officer with the Labour Department, testified as to his investigation into the accident.  PW6 measured the lower working platform to be 2.01m from the ground and identified six problems with the lower working platform, including that there were areas without toe-boards; parts of the guard rails were missing and that voids were created resulting in a worker liable to fall a distance of 2.5m.  The prosecution also relied upon the evidence of Choi Kai Yiu (PW8), also a safety officer with the Labour Department, who was called as an expert witness on occupational health and safety.

14.Szeto Wan Yuen (PW4), responsible for providing training and supervision for Loyal Eastern, was tendered for cross-examination; To Ka Kin (PW5), Senior Site Agent for the appellant, testified as to the contractual relationship with Loyal Eastern and Ho Chi Cheung (PW7), a foreman with Loyal Eastern testified as to the assignment of the work to Ma Chak Chuen, Ma Changdong and Ma Chak Sum. 

Defence case

15.In summary the defence case was that there was a safe system of work and that proper training, instruction, information and supervision had been provided.  The demolishing/dismantling of the formwork included the dismantling of the scaffold. The provision of a lower working platform was therefore not reasonably practicable whereas the provision of a safety harness with double lanyard was appropriate and represented adequate precaution for the work being performed. 

16.The defence also relied on the statutory defences in section 18 of the Ordinance that it was not reasonably practicable to do more than was in fact done; Regulation 38H that it was impracticable to comply with the requirements of the regulations because the scaffold was being dismantled; and the common law defence of honest and reasonable belief that the regulations had been complied with. 

17.In support the defence called one witness Lo Wai Leung, who gave expert evidence on occupational safety and health management[10].  The defence also relied on the evidence of PW4, PW5 and PW7 to show that proper training, instruction, information and supervision was provided.

The magistrate’s findings

18.The magistrate explained why he accepted the prosecution evidence, save for part of PW4’s evidence and the evidence of PW7, and why he rejected the evidence of the defence expert.  The magistrate was satisfied the prosecution had proved beyond reasonable doubt all the elements of each summons and that the defence had failed to prove the statutory defences and common law defence. 

Grounds of appeal

19.By notice of appeal dated 29 July 2015 the general grounds of appeal were that the convictions were against established principles of law and were unsafe and unsatisfactory.  Perfected grounds of appeal were filed on 11 January 2016 arguing thirteen grounds.  Amended grounds of appeal were filed on 5 February 2016 arguing only three grounds of appeal. 

20.Ground 1 is that the magistrate frequently entered the arena rendering the trial unfair.  Ground 2 complains that the magistrate erred in accepting Choi Ka Yiu (PW8) as an expert witness and wrongly assessed the evidence of the witness.  Ground 3 complains that the magistrate erred in finding the evidence of Szeto Wan Yuen (PW4), To Ka Kin (PW5) and Ho Chi Cheung (PW7) required corroboration because they had “an axe to grind” in that they may be liable for the accident.

The respondent’s submission

21.Mr Eddie Sean, for the respondent, submitted that there is no substance in the allegations the magistrate was biased or had entered the arena; that PW8 was correctly ruled an expert witness and his evidence properly assessed; and that the findings in relation to PW4, PW5 and PW7 were findings the magistrate was entitled to make.   

Discussion

22.A magistracy appeal is conducted by way of rehearing on the evidence before the trial court supplemented by any further evidence the appellate court may admit. This requires the appellate court to review the evidence and reach its own conclusion about the guilt of the appellant[11].

23.Where a magistrate has made an error the test to be applied in determining whether the error should lead to the appeal being allowed is whether it is just for such an order to be made[12].

Ground 1: The magistrate entered the arena

24.The first ground of appeal complains that such an error was made in that the magistrate entered the arena frequently thereby rendering the trail unfair. 

25.In his written submission Mr Halkes lists a total of thirty occasions when the magistrate entered the arena[13]. To understand the context in which the magistrate made the comments complained of by Mr Halkes I have read the parts of the transcript referred to by Mr Halkes together with the evidence preceding those parts. 

26.The interventions complained of by Mr Halkes can be broadly categorised as follows: where the prosecutor asks for time or the magistrate asks if he needs more time; the magistrate asking the prosecutor to go directly to the issues and to ensure he has not overlooked anything; the magistrate asking the prosecutor to pay attention; the magistrate asking the prosecutor to ensure all demonstrations made by a witness are narrated into the court record; the magistrate seeking clarification and ensuring questions have been understood; and where objections were made by Mr Halkes to questions asked by the prosecutor. 

27.Mr Halkes submitted the pivotal moment was during the examination of Ma Chak Chuen (PW2) when the prosecutor said he had one final question to ask[14]. The magistrate, concerned only background information had been covered, expressed the view he did not think the prosecutor had only one question to ask.  This intervention Mr Halkes submitted prompted the prosecutor to ask ninety five more questions[15].

28.After only eleven more questions were asked Mr Halkes objected to the questioning on the grounds of repetition.  On being asked by the magistrate if he needed time to revise his notes and prepare his questioning the prosecutor asked for five minutes[16]. Mr Halkes submitted that before standing the case down the magistrate wrongly made enquiries from the prosecutor as to a roadmap of the evidence of the remaining witnesses and in doing so indicated what evidence he expected PW2 would be asked about[17].

29.Mr Halkes submitted that these interventions occurring at such an early stage of the trial contaminated the whole of the prosecution case resulting in an unfair trial[18]. In my view there was nothing wrong in the magistrate, who was clearly concerned whether the prosecutor had only covered background information, asking the prosecutor to make sure he had in fact finished his examination of the witness and at the same time to outline the evidence of the remaining witnesses. 

30.As was said in R v Saville[19]:

“If the presiding judge perceives the risk of a case going off on a wholly wrong basis, whether because of some legal technicality which has been overlooked, or because of some lacuna in the evidence, it is not incumbent on him to grit his teeth, remain silent and watch justice miscarry – for it is no less a miscarriage of justice when an accused person escapes conviction through inefficiency or carelessness on the part of the Crown than when he is convicted as a result of a comparable error on the part of the defence. Rather it is the duty of the judge to ensure that criminal proceedings are tried fairly and efficiently, and to intervene as necessary to ensure that goal is achieved.”

31.The magistrate was doing no more than trying to ensure the prosecutor had not overlooked any relevant matters.  Other interventions including to clarify matters; ensure demonstrations were properly narrated into the record and to deal with objections raised by Mr Halkes are part of every trial.  Whether taken individually or collectively I find nothing unfair in the way the magistrate conducted the trial.  I am satisfied that a fair-minded and informed observer would not have concluded that there was any real possibility that the court was biased for the prosecution or by reason of those interventions that the trial was unfair.  This ground of appeal fails. 

Assessment of witnesses

32.The second and third grounds complain that the magistrate wrongly assessed the evidence of PW4, PW5, PW7 and PW8.  In reaching its own conclusion the appellate court will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed and will only differ from a finding of fact or assessment of credibility when satisfied that the magistrate was plainly wrong[20].

33.In deciding whether a magistrate was plainly wrong an appellate court should objectively determine whether the finding as to credibility of a witness was one that no reasonable magistrate could have reached[21].  The appellate court is not however entitled to take on a fact finding role based solely on the transcript[22].

34.No complaint is made as to the evidence of the other witnesses[23], in particular the evidence of PW3 that he witnessed the deceased fall from the lower working platform shown in photograph, exhibit P3A, which fall PW6 said was more than 2m from the ground. 

Ground 2 – Expert Evidence

35.Ground 3 falls into three parts: first that the magistrate erred in ruling PW8 an expert witness; second, the magistrate failed to assess or correctly assess the evidence of the expert and third, the magistrate failed to warn himself that the expert was an employee of the prosecution. 

Was PW8 an expert witness?

36.I have read the evidence relating to the issue of expertise[24]; the curriculum vitae attached to PW8’s report[25]; and the submissions made to the magistrate by Mr Halkes.[26]  Save to emphasise that PW8 did not have any significant relevant qualifications Mr Halkes, in arguing this ground of appeal, adopted his submissions made to the magistrate[27].

37.Although PW8, a registered safety officer, did not have any formal qualifications relating to safety he had substantial working experience, including seven years directly related to construction safety, which involved carrying out inspections and accident investigations on construction sites.  PW8 had been involved in many cases relating to work-at-height safety such as use of improper working platform. 

38.PW8 attended various seminars and short courses in safety and health management to update his knowledge in occupational safety and health.  PW8 prepared expert reports in fourteen cases, two or three of which he was required to give expert evidence in court.

39.Considering PW8’s extensive working experience in construction site safety, including issues of safety when working at height and that he attended seminars and courses to update his knowledge on occupational safety and health, I am satisfied the magistrate was correct in ruling PW8 an expert witness on occupational safety and health management[28].

Assessment of PW8’s evidence

40.Mr Halkes submitted there was a glaring error in the entire evidence of PW8 in that he consistently showed a total misunderstanding of the legislation and the term applicable to the test at law[29]. Mr Halkes submitted at trial PW8, at the behest of the prosecutor and with the acquiescence of the magistrate, was permitted to essentially re-write the whole of his evidence from what was feasible to what was practicable[30]. 

41.It is clear from the transcript that the change from feasible to practicable arose from a translation error[31]. After the court asked to be addressed upon whether this was a translation error, Mr Halkes eventually accepted that throughout his evidence PW8 had used the same Chinese characters originally translated as feasible and subsequently translated as practicable.  After the luncheon adjournment Mr Halkes confirmed there was no material irregularity in matters relating totranslation.

Practicable

42.Mr Halkes submitted the use by PW8 of the term practicable was not the correct test in law, which was reasonably practicable[32]. PW8 having giving his evidence of what could actually be done the finding of the magistrate as to what was reasonably practicable was one Mr Halkes submitted the magistrate was not entitled to make[33].

43.I disagree.  It was for the magistrate to determine, having heard all the evidence including expert evidence and any defence evidence, what was reasonably practicable and in terms of the statutory defence whether the defence had proved that it was not reasonably practicable to do more than was in fact done.

PW8 an employee of the Labour Department

44.Mr Halkes submitted that the magistrate in considering the evidence of PW8 failed to warn himself that the witness was an employee of the Labour Department[34].  In his closing submission to the magistrate Mr Halkes submitted that the lines between independent expert and departmental investigator had been very substantially blurred[35].

45.In considering the evidence of PW8 the magistrate could not have overlooked that PW8 was an employee of the Labour Department.  There is no merit in this complaint.

Memory test

46.Mr Halkes further criticises the magistrate when stating that the assessment of PW8’s evidence was not a memory test[36]. Evidence was given over 10 days between 17 September 2014 and 29 May 2015.  The first six witnesses gave evidence in September and October 2014 after which there was a long adjournment pending the hearing of an appeal by the Court of Final Appeal[37]. PW7 gave his evidence in April and May 2015 followed by PW8. 

47.During cross-examination there were occasions when Mr Halkes reminded PW8 of the evidence of earlier witnesses.  In his closing submission to the magistrate Mr Halkes commented on the fact PW8 had missed certain parts of the evidence[38].  Whilst on an initial reading it is not clear what the magistrate is referring to when saying that the assessment of PW8’s evidence is not a memory test, I am satisfied having read the transcript of PW8’s evidence that the reference to a memory test is to address the submission made by Mr Halkes.

48.Considering PW8 gave evidence over six months after most of the other prosecution witnesses, it is not at all surprising he would need to be reminded of some of the evidence given by those witnesses.  The magistrate acknowledged this and in doing so found this did not affect the credibility or reliability of PW8’s evidence[39]. Having considered the criticisms made by Mr Halkes of the prosecution expert the magistrate remained impressed by the evidence of the expert and found him to be a credible and reliable witness[40].

Defence expert

49.There are no grounds of appeal complaining the magistrate was wrong in his findings with regard to the evidence of the defence expert.  The magistrate carefully considered the evidence of the defence expert and concluded that he had reservation in accepting his evidence[41].

50.In court Mr Halkes submitted that by saying he had reservation in accepting the evidence of the defence expert it is not clear whether the magistrate in fact rejected the evidence of the defence expert.  Whilst it would have been better had the magistrate specifically said he rejected the evidence or placed no weight on the opinion of the defence expert it is quite clear from his statement of findings read as a whole and in particular paragraphs 39-46, that he does reject the evidence of the defence expert. 

51.The magistrate gave cogent reasons why he did not accept the evidence of the defence expert, in particular why he rejected the expert opinion that there was a safe system of work; that the appellant had provided sufficient training, instruction and supervision; and that the three workers were dismantling the scaffold[42].

52.Having reviewed the evidence of both the prosecution expert and the defence expert I cannot say the magistrate was plainly wrong to accept the evidence of the prosecution expert and reject the evidence of the defence expert.  I agree with the magistrate.  I find no merit in the criticism made of the magistrate with regard to the expert evidence.  This ground of appeal fails. 

Ground 3 – Wrong assessment of evidence favourable to the defence

53.Ground 3 complains that the magistrate erred in making a finding that the evidence of Szeto Wan Yuen (PW4); To Ka Kin (PW5) and Ho Chi Cheung (PW7) required corroboration because they had “an axe to grind” on the basis they may be held liable for the accident.  This Mr Halkes submitted was not part of the prosecution case; was never put to the witnesses and therefore the defence did not have the opportunity to deal with this[43]. 

54.PW4 was responsible for checking working platforms on behalf of Loyal Eastern; PW5, the site agent of the appellant, was responsible for the work progress on the site and PW7, a foreman with Loyal Eastern, gave instructions for the work to be carried out. 

55.Although the magistrate may have wrongly used the expression “an axe to grind”, taking into account the duties of the witnesses, in particular PW4 and PW7, it is not surprising the magistrate considered the witnesses may in some way be liable for the accident. 

56.Mr Halkes submitted that this reasoning repeatedly led to the magistrate rejecting evidence favourable to the defence[44]. In court Mr Halkes submitted that the magistrate was not warning himself to be careful but creating a reason to reject evidence favourable to the defence. 

57.With respect this submission misunderstands what the magistrate said.  All the magistrate was saying is that without corroboration their evidence was to be approached with caution.  Corroboration was of course not required and indeed there is no finding of corroboration. 

58.Having warned himself of the need for caution the magistrate carefully considered the evidence of the three witnesses.  The magistrate did not repeatedly reject their evidence.  The magistrate in fact accepted the evidence of PW4 save for that concerning morning meetings[45]; accepted all the evidence of PW5[46] and only rejected the evidence of PW7[47]. 

59.I am satisfied that the magistrate did not have to indicate how he would approach the evidence of the witnesses and that in respect of some of the witnesses their evidence would be viewed more carefully in the absence of corroboration. 

60.Further, although the witnesses were called in the prosecution case essentially they were all tendered for cross-examination.  In my view the prosecution would not have been able to put these matters to the witnesses as that would have been tantamount to cross-examination. 

61.Having reviewed the evidence of the three witnesses I cannot say the magistrate was plainly wrong in his finding as to the credibility and reliability of these witnesses.  I agree with the magistrate.  This ground of appeal fails.

Rehearing

62.Responding to the grounds of appeal is only an intermediate step.  The court is required to conduct a rehearing to determine whether it is satisfied beyond reasonable doubt of the guilt of the appellant[48].

Proprietor/contractor responsible

Summons TWS19683/2013 & TWS19684/2013

63.In respect of summonses TWS196835/2013 and TWS19684/2013 the appellant was prosecuted by virtue of section 13 of the Ordinance as proprietor of the industrial undertaking in which an offence against the Ordinance had been committed by Loyal Eastern. 

64.The prosecution were required to prove that Loyal Eastern had committed the offences particularised in each of the summonses.  The appellant in contesting that Loyal Eastern had committed the offences relied on the statutory defence provided in section 18 of the Ordinance, namely that it was not reasonably practicable to do more than was in fact done[49].

65.The magistrate found the appellant was the proprietor of the industrial undertaking[50].  Upon proof that Loyal Eastern committed the offences particularised in each of the summonses the appellant, being the proprietor, was by virtue of section 13 also guilty of the like offences. 

TWS19685/2013; TWS19686/2013 & TWS19687/2013

66.In respect of summonses TWS19685/2013; TWS19686/2013 and TWS19687/2013 the prosecution were required to prove the appellant was the contractor responsible of the site and for the scaffold.  In Paul Y General Contractors Ltd v HKSAR[51]the Court of Final Appeal held that the regulations cast a wide net and include a contractor whose responsibility covered the whole site and not just the contractor who did the physical work.  In finding that the appellant was the contractor responsible the magistrate referred to this decision[52].

67.Notwithstanding that at the commencement of the trial it was admitted the appellant was the proprietor of the industrial undertaking[53] and was the contractor responsible of the site[54], Mr Halkes nevertheless submitted the prosecution had failed to prove the appellant was the proprietor and the contractor responsible[55].  No complaint however is made in the grounds of appeal that the magistrate was wrong in finding the appellant was the proprietor or the contractor responsible. 

68.Having reviewed the evidence including the admitted facts and the evidence of Ng Shui Cheong (PW1) that the MTR contracted to the appellant the building of a tunnel from Tse Uk Tsuen to Shek Yam, which included the construction of two ventilation buildings at the Shing Mun Ventilation Building Site, I am satisfied the magistrate was correct in finding the appellant both the proprietor of the industrial undertaking and the contractor responsible for the site and the scaffold used at the site. 

Directions of law

69.The magistrate correctly directed himself on the law, including that the duties placed on the appellant as proprietor and contractor responsible are non-delegable[56] and that the burden of proof was on the appellant to satisfy the statutory defences on a balance of probabilities[57]. No criticism is made of the magistrate in this regard.

Findings of fact

70.After consideration of all the evidence the magistrate set out at paragraph 48 of his statement of findings the facts the prosecution had proved beyond reasonable doubt.  The magistrate went on to find that it was reasonably practicable to provide a lower working platform for the removal of the bolts and nuts[58]; a safe system of work should ensure workers are reminded of the safety risks and precautions to be adopted in respect of the work to be carried out[59]; the foreman and safety officer should have ensured the lower working platform was certified before allowing the workers to carry out their work and should have stopped the workers working on the lower working platform[60]; and the appellant should have ensured that any safe system of work was followed and observed and not relied on their subcontractor[61].   

71.The magistrate was satisfied the prosecution had proved all the elements of each summons beyond reasonable doubt and the defence had failed to make out the statutory defences provided by section 18 of the Ordinance; Regulation 38H and the common law defence[62].

72.Having read the transcript of the evidence, the expert reports, the submissions made at trial and considered all the exhibits, I cannot say the magistrate was plainly wrong in his assessment of the credibility of the witnesses and his findings of fact. 

73.I agree with the magistrate the three workers were dismantling the nuts and bolts of the formwork and not demolishing/dismantling the scaffold[63].  The working platform on the lower level scaffold, which was not certified, was clearly substandard making the work carried out by the three workers dangerous, with workers liable to fall from height.  I agree with the magistrate that it was reasonably practicable to provide a suitable lower working platform for the work to be done safely. 

74.The fact the deceased together with his father and uncle were able to work at height by using a substandard working platform showed there was a failure to provide and maintain a system of work, that was, so far as was reasonably practicable, safe and without risks to health and that the workers had not been provided with instruction and supervision as was necessary to ensure, so far as was reasonably practicable, their health and safety.

75.Szeto Wan Yuen (PW4), who was responsible for providing training and supervision on behalf of Loyal Eastern and who signed the certificate of safety[64] for the upper scaffold, was not told the threeworkers were to use the lower scaffold that morning.  Had PW4 known he would have ensured the scaffold was safe before work commenced[65].

76.The fact PW4 did not know the workers were working on the scaffold and therefore did not check the working platform also shows there was a failure to provide and maintain a system of work, that was, so far as was reasonably practicable, safe and without risks to health and that the workers had not been provided with instruction and supervision as was necessary to ensure, so far as was reasonably practicable, their health and safety. 

77.No suitable lower working platform having been provided it follows that there was also a failure to provide and ensure the use of a scaffold which was safe for the purpose, having regard to the work to be done; and a failure to take adequate steps to prevent a person from falling from height of 2 meters or more. 

78.I agree with the magistrate by not providing a suitable lower working platform to enable the work to be done safely the appellant had failed to make out the statutory defences provided by section 18 that it was not reasonably practicable to do more than was in fact done and by regulation 38H that it was impracticable to comply with Regulations 38B and 38C; and had failed to make out the common law defence. 

79.As pertinently pointed out by the magistrate the fact a suitable upper working platform had been provided showed it was reasonably practicable to provide a lower working platform to enable the workers to perform their work and not simply rely on the safety harnesses with double lanyard[66]. 

80.I agree with the magistrate the provision of a safety harness with double lanyard, which was a safety measure of last resort, did not satisfy the statutory defences.  In making this finding the magistrate took into account, contrary to that asserted in the third ground of appeal, the evidence of safety training.  Notwithstanding this evidence the magistrate found the statutory defences were not made out[67].   

81.I find nothing unreasonable, illogical or inherently improbable in the magistrate’s findings or that the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence.  The magistrate gave cogent reasons for his findings.  I cannot say he was plainly wrong.  I agree with the magistrate.

82.The appeal being a rehearing I have carefully considered all the evidence in the appeal bundle.  I have considered each summons separately.  I am satisfied beyond reasonable doubt that Loyal Eastern committed the offences particularised in summonses TWS196835/2013 and TWS19684/2013 and that the appellant is guilty of the like offences by virtue of section 13 of the Ordinance.  I am satisfied beyond reasonable doubt as to the guilt of the appellant of summonses TWS19685/2013; TWS19686/2013 and TWS19687/2013.  I am satisfied the appellant failed to prove the statutory defences and the common law defence.

83.The appeal against conviction is dismissed. 

Mr Eddie Sean, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent

Mr Adrian Halkes leading and Mr Alan Lo, instructed by Pinsent Masons, for the appellant