Lo Hing Tang t/a Lo's Engineering Co v. The Queen

CACC001395/1983

IN THE HIGH COURT

BETWEEN

Coram: Deputy Judge Souyave

Date: 16th December, 1983

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JUDGMENT

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1. The appellant, Mr. Lo Hing-tang, trading as Lo's Engineering Company, was convicted by the Magistrate's Court of an offence contrary to Regulations 11(1) and 18(1) of the Factories and Industrial Undertakings (Cartridge Operated Fixing Tools) Regulations, Cap. 59. The particulars of the offence were that on the 25th November 1982 at ML 701, 702, 321, RP and 526 RP Electric Road, Hong Kong, he was the contractor engaged in construction work on a construction site at the aforesaid place in respect of which the provisions of Regulation 11(1) of the Factories and Industrial Undertakings (Cartridge-Operated Fixing Tools) Regulations were contravened in that a cartridge-operated fixing tool marked "Impex Komet 1B" was used by a person who did not hold a certificate of competency. He was sentenced to pay a fine of $500 and further to pay $500 towards the cost of the prosecution. This appeal was again conviction only and here are my reasons for dismissing it.

2. The prosecution case was based on agreed facts, admitted under section 65C of the Criminal procedure Ordinance, and on facts, adduced in evidence by the prosecution and uncontradicted or unchallenged by the appellant at the trial. The appellant called no evidence at the trial. The facts on which the learned Magistrate acted were as stated hereafter.

3. At all material times, (1) the construction site under reference in the charge was a building construction site where the construction of several blocks of residential buildings took place. (2) Hing Kee Construction Co. Ltd. was the main building contractor at the said site (3) Young's Engineering Co. Ltd. was an air-conditioning installation sub-contractor employed by the aforesaid main building contractor at the said site. (4) the appellant, Mr. Lo Hing-tang, trading as Lo's Engineering Co. was a sub-contractor employed by Young's Engineering Co. Ltd. at the said site to erect and install air-conditioning works there and to supply labour for the said air-conditioning installation works. On the 25th November 1982, on the said construction site, a worker by the name of LI Sek-tong, who was employed by the appellant at the site, used a cartridge operated fixing tool, marked "Impex Komet, 1B" (being a tool approved under the Factories and Industrial Undertakings (Cartridge-operated Fixing Tools) Regulations) in that it is an instrument designed and used for driving pins into structural materials, the driving force being derived from a cartridge). The said LI Sek-tong did not on the 25th November 1982 hold a certificate of competency to use the abovementioned tool.

4. On that date, the said LI Sek-tong went into the Headquarters of the appellant on the construction site which are lined with wood but are basically an orthodox metal container. He took out the Komet gun from its box, did not break it open to see if it had a cartridge in it, but put it against the wall and pulled the trigger. He did not expect an explosion but it seems likely that he believed that even if the thing went off the spike would not pass through the wall. The fixing spike went out through the wall, hit a metal door jamb and ricocheted at an angle and went through the head of another worker on the site with fatal results. Li Sek-tong had no certificate of competency to use that gun and had had no training to use that gun, had used it on behalf of his employer, quite extensively both on the site in question and other sites.

5. The learned Magistrate held as follows :

"In the event the Court finds that the proper meaning of regulation 11(1) when read with the definition of "contractor" in the head ordinance fixes the responsibility on the defendant not to allow the gun to be used by anyone other than a person with a certificate of competency and consequently the defendant must be convicted."

6. In this appeal, the appellant raised the same point as that raised before the learned Magistrate, namely, that the words "the contractor" in regulation 18(1) refer to the main contractor on the particular site and not to a sub-contractor. This raised a question of interpretation of these words found in that regulation.

7. The factories and Industrial Undertakings (Cartridge-operated fixing tools) Regulations, with which we are concerned in the charge in this case under regulations 11(1) and 18(1) thereof, were made under section 7 of the Factories and Industrial Undertakings Ordinance, Cap. 59.

8. First, it is necessary to transcribe the material parts of the two regulations referred in the charge, namely regulations 11(1) and 18(1) as well as 18(1A)(a). They read:

9. The terms "contractor" and "construction work" are not defined in the Regulations concerned but the terms "construction site" is defined therein in regulation 2 as follows :

10. For the terms "contractor" and "construction work" one has to turn to the Ordinance Cap. 59 where they are thus defined:

11. '"construction work" means -

"contractor" in relation to construction work, means any firm or firms engaged in carrying out construction work by way of trade or business, either on his own account or pursuant to a contract or arrangement entered into with another person, including the Crown or any public body.'

12. The Third Schedule, referred in the meaning of the term "construction work", specifies certain structures and works. For the purpose of this case, the relevant item is item 1 which reads :

13. Having referred to the relevant legal provisions, including the definitions of the terms "contractor", "construction work" and "construction site" occurring in the legislation concerned, it is, I think necessary before expressing my opinion on the interpretation of the words "the contractor" in regulation 18(1) to decide whether the said regulation creates an absolute offence in the sense that mens rea is not required for its commission.

14. As I have already stated earlier, the Regulations with which we are concerned were made under section 7 of the Factories and Industrial Undertakings Ordinance, Cap. 59, and in this connection particular attention need be called to subsection 1(h), (i) and (a) thereof which read:

The term "industrial undertaking" in section 2 of the Ordinance includes any construction work. I may perhaps add that Part II of the Regulations, which embodies regulations 4 to 17, has as heading "Duties of contractors, Proprietors and Operators". In the Regulations, "operator" means a person using or employed in using a tool, and "tool" means a cartridge-operated tool.

15. It is clear that regulation 11 imposes a duty on proprietors, contractors and operators for the purpose of ensuring the safety of persons in industrial undertakings. While such regulation imposes such a duty on those persons,regulation 18(1) goes on to say that the contractor engaged in construction work on a construction site - - - - - - in or in respect of which that regulation is contravened commits an offence. In my view, regulation 18(1) creates an absolute offence of which the contractor engaged in construction work on a construction site is guilty if it is proved that in or in respect of such work on such site there has been contravention of regulation 11 by himself or by any of his workers in the course of his employment in such work and on such site.

16. In the result, I am of the opinion that the words "the contractor" in regulation 18(1) cannot mean any contractor or the main contractor but the particular contractor engaged in a construction work on a construction site in or in respect of which regulation 11 has been contravened and that for that particular contractor to be responsible for the contravention of that regulation it must be proved that there has been a contravention thereof by himself or a person for whom he is responsible, say, one of his employees in the course of his duty in such work and on such site.

17. Was there evidence proving that the appellant was such a contractor?

18. The admitted facts were that the appellant was a sub-contractor on the construction site concerned to install air-conditioning works in the residential buildings erected thereon. The installation of such works in the buildings fell within the term "construction work" in section 2 of the Ordinance as being installation of works, which include "any building" as specified in item 1 of the Third Schedule to that Ordinance. The site concerned fell within the definition of"construction site" in that it was a place where "construction work" was undertaken. Considering the definition of "contractor" in section 2 of the Ordinance, the appellant fell within that term by reason of the fact that although he was a sub-contractor, he was a person engaged in carrying out construction work by way of trade or business pursuant to a contract or arrangement entered into with another person. Finally, there was the uncontradicted and unchallenged evidence from Li Sek-tong, the employee of the appellant, that, in the course of his employment with the appellant in the construction work on that site, he had been allowed to use the tool concerned quite extensively, although he held no certificate of competency to use such a tool, and that on the material date it was in the course of his employment there with the appellant that he used it.

19. In my view on the law and on the facts, the appellant was rightly convicted by the learned Magistrate of the offence laid in the charge against him under regulations 11(1) and 18(l) of the Factories and Industrial Undertakings (Cartridge-Operated Fixing Tools) Regulations Cap. 59.

20. This appeal against conviction was dismissed.