HKSAR v. Modern Terminals Ltd

HCMA 680/2016

[2018] HKCFI 1003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 680 OF 2016

(ON APPEAL FROM TWS NO 17407 OF 2014)

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Before: Deputy High Court Judge Anthony Kwok in Court

Date of Hearing: 20 October 2017

Date of Judgment: 9 May 2018

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J U D G M E N T

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1.The appellant company was on trial before Deputy Magistrate Andrew Mok (“the magistrate”) in the Tsuen Wan Magistrates’ Court of the following two summons issued by the Labour Department following a fatal industrial accident:

(i)  “ Failing to ensure the safety and health at work of its employee, CHAN SIU HUNG, so far as was reasonably practicable, to provide and maintain a safe system of work, contrary to ss. 6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap 59 (the ‘FIUO’).”

(TWS 17406/2014)   

(ii)  “ Failing to ensure the safety and health at work of its employee, CHAN SIU HUNG, so far as was reasonably practicable, to provide such supervision as was necessary, contrary to ss. 6A(1), 6A(2)(c) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap 59 (the ‘FIUO’).”

(TWS 17407/2014) 

2.The magistrate ruled that there was no case to answer in respect of TWS 17406/2014 (“the safe system summons”) at the close of the prosecution case but convicted the appellant of TWS 17407/2016 (“the supervision summons”) after trial. 

3.The appellant was fined $30,000.

4.This is the appellant’s appeal against conviction. 

A CASE OVERVIEW

5.On 28 April 2014 at Berth 1 of Kwai Chung Container Terminal, New Territories, there was an accident in which a forklift truck operator Chan Siu Hung (the “deceased”) employed by the appellant reversed and fell into the sea with the forklift truck.  After the investigation by the Labour Department, the appellant was prosecuted for the above two summonses for failing to ensure the safety and health of the deceased at work.

6.As for the supervision summons, the appellant elected not to give evidence.  It is contended for the appellant that there is a variation of degree of necessary supervision in respect of workers with different experience.  The accident was an extraordinary event, and supervision could not prevent it because supervision is for normal work processes only.  

UNDISPUTED FACTS

7.According to the Admitted Facts (P1), it is not disputed that the appellant was the proprietor of the industrial undertaking at Berth 1 on the day of the accident. On that day, the deceased was an employee of the appellant.  The accident was captured in a CCTV footage (P5).

8.The mooring operation procedure, in which a forklift truck operator such as the Deceased also plays a part, was also not in dispute.

EVIDENCE OF THE PROSECUTION

9.In the morning of 28 April 2014, a container vessel arrived at Terminal 1, Kwai Chung for loading and unloading of containers.  Two mooring teams were assigned to assist in the mooring operation of the vessel which was going to be moored at Berth 1.  One team performed the work for the bow of the vessel while another team was for the stern.  Each team comprised a supervisor, three stevedoring workers and a forklift truck operator.  At the time of accident, the Deceased was operating a forklift truck to assist the mooring work.

10.Prior to the mooring operation, the Deceased stopped his forklift truck nearby a bollard where the mooring line would be secured over.  At the time of accident, the Deceased reversed his forklift truck towards the seashore when the stevedoring workers were picking up the heaving line (connected to the messenger of the mooring line) from the container vessel.  After a few seconds, the forklift truck overreached the rail of the quay crane, moved towards the edge of the berth and fell into the sea.  The deceased was certified dead after the rescue.

11.Subsequent investigation into the accident by a Divisional Occupational Safety Officer of the Labour Department, (PW10) (“the safety expert”), found that, in essence, there was no physical barrier provided and maintained to prevent overreaching the shoreline by forklift truck and the deceased was not provided with an adequate supervision during his work.

12.The prosecution called a total of 10 witnesses.  Apart from 3 officers from the Labour Department (PW8 – 10), the remaining witnesses were all those involved in the mooring operation including an operationsupervisor (PW5), two  stevedoring workers (PW1 – 2), a forklift truck operator (PW4), a quay crane operator (PW6), a harbour pilot (PW7) and a foreman (PW3).

GROUNDS OF APPEAL

13.Mr. Toby Jenkyn-Jones, counsel for the appellant, both at trial and in this appeal, advanced 5 lengthy grounds of appeal which can be summarized as follows:

(1)   the no case to answer verdict in respect of the safe system summons was inconsistent with the guilty verdict reached by the magistrate as according to the safety expert, necessary supervision was considered to be a sub-feature of and by itself independently sufficient to establish the safe system summons.  Further, the defence was also prejudiced in that although two defence expert witnesses were available and present in court, in light of the expert evidence, the appellant elected not to call evidence in respect of the supervision summons;

(2a)   the magistrate wrongly attached weight or ignored selected parts of the prosecution witnesses’ evidence and either unfairly took into account matters of no relevance or significance, or attached weight and drew inferences where none were merited; and

(2b)   alternatively, the magistrate’s approach in rejecting or accepting certain witnesses’ evidence was not justified on the evidence and no opportunity to address him on the appropriateness of such an approach or his conclusions was afforded to the appellant at any stage;

(3)   in convicting the supervision summons, the magistrate applied a legal test which exceeds the degree and level of supervision required by law and further ignored the important element of certainly achievable effectiveness. The magistrate wrongly found that increased supervision might have made a difference;

(4)   the magistrate, in rejecting the possibility that the accident was caused due to the loss of consciousness of the deceased, wrongly looked for positive confirmation of such a condition in the autopsy report and wrongly drew an adverse conclusion from the absence of such a finding, notwithstanding the absence of any expert evidence on the point.  No opportunity to address the magistrate on this point was provided either.  The magistrate should have looked at the inherent probabilities of the situation as evidenced by the CCTV footage and the evidence of the normal working procedures; and

(5)   further and alternatively, either independently or in conjunction with grounds 1 to 4 above, there is a lurking doubt as to the safety of the conviction.

MY CONSIDERATION AND VIEWS

The 1^st ground of appeal

14.In this ground, the appellant sought to argue that since the offence is failing to ensure health and safety at work (s. 6A(1)) and the references to safe system of work, safe plant, necessary supervision etc. (s. 6A(2)) within s. 6A FIUO were merely ways in which the offence may be committed but are not themselves separate offences.

15.In fact, following the no case submission, Mr. Jenkyn-Jones had made a legal submission that the two summonses should in reality be merged to allege one offence containing the particulars of the allegations from both summonses.  One of the complaints against the magistrate in this ground was that the magistrate never actually ruled upon the issue and in the circumstances of this case that failure created ambiguity and is clearly a procedural irregularity.

16.I really fail to see the logic of this so-called procedural irregularity.  Leaving aside the merit of the argument to consolidate the two summonses into one, the question of whether there should be one offence or two offences alleged in this case by the prosecution became wholly academic and of no relevance to the trial whatsoever after the magistrate had considered the no case submission and decided to dismiss the safe system summons at the close of the prosecution case.

17.From that point onward, the question of whether the court should amend the summonses by merging the two summonses into one was no longer a live issue in the trial anymore.  It is true that the magistrate never actually rules upon the issue but by his dismissal of the safe system summons itself, it is abundantly clear that the ruling sought by the defence to consolidate the two summonses was rather otiose.  After the ruling of no case in respect of the safe systems summons, the appellant was only facing one summon only and that was the supervision aspect in which it was alleged to have failed in its statutory duty towards its employee.  It follows that this argument raised by the defence is all water under the bridge and I can hardly understand how and why the absence of a positive ruling on the arguments by the magistrate would possibly give rise to ambiguity and even procedural irregularity.

18.Mr. Jenkyn-Jones’s argument on this ground also capitalized the fact that the safety expert from the Labour Department had at one point opined that the lack of supervision alone was considered to be sufficient to establish a failure to provide a safe system of work.  It was argued that therefore it is very difficult to understand how it could be possible for the magistrate to convict in relation to the supervision summons yet find there is no case to answer in respect of the safe system summon.

19.In reply, Ms. Money Lo, counsel-on-fiat on behalf of the respondent both at trial and in this hearing, submitted that firstly, the safety expert did not say that the supervision and the system of the mooring operation were inextricably linked.  All along, the safety expert only emphasized the building of kerbs/barriers at the quay edge as the crux of the safe system.  Second and foremost, a fair reading of the safety expert’s evidence in context shows the measures he recommended for supervision could beimplemented without the building of kerbs/barriers, and this was also his conclusive opinion in answer to the magistrate’s question after re-examination.

20.In any event, I also cannot see the force of the appellant’s argument as clearly a magistrate’s duty is to try the case before him according to the evidenceas presented and certainly he is not bound by the opinion as expressed by an expert witness during the trial even when his view was not challenged by the defence.

21.It is very important to bear in mind that Mr. Jenkyn-Jones was not trying to argue in this ground that the magistrate is convicting the appellant on a case on a basis different from that presented by the prosecution.  He was merely complaining that the magistrate did not closely follow the safety expert opinion which wasnot contradicted by the defence at trial.  Upon closer examination of the prosecution case, I totally agree with the submission by the respondent and I have to say the appellant has misread the opinion expressed by the safety expert as a whole.  It is clear to me that the lacking of necessary supervision was never really the basis as specifically alleged in relation to the safe system summons.  Rather, the safety expert also focused his criticism on the fact that no physical barrier was erected to protect the edge of the berth to prevent a risk of fall for forklift truck and it was exactly upon this basis only that the magistrate came to the decision to dismiss the safe system summons as he found that “there is a lack of evidence that erection of the barrier or the kerb is reasonably practicable …”.

22.Mr. Jenkyn-Jones also argued that by failing to rule one way or the other upon the application to merge, the appellant was deprived of information concerning the magistrate’s approach that may well have altered its decision whether to call defence evidence.  He submitted that if the court had made it clear that it considered the unnecessary supervision charge to be an independent charge and that it did not consider the evidence of the safety expert in this regard to be of any relevance or significance, then the appellant may well have called at least one of the two defence expert witnesses who were ready and available to give evidence and who had dealt with the question of supervision comprehensively in their reports.

23.This argument was totally unfounded as I cannot find a word about “supervision” in his ruling of no case in respect of the safe systems summons by the magistrate upon a careful reading of the transcript (see appeal bundle p. 698H–T).  It naturally and logically follows that, despite the opinion as expressed by the safety expert, the magistrate’s decision to dismiss the safe system summons has had nothing to do with the allegation of the lacking of necessary supervision.  Coupled by the opposite ruling that there was a case to answer in respect of the supervision summons, there must be evidence which were supporting the allegation and the supervision aspect must be an independent case that the appellant has to meet in the trial.

24.Whether a defendant should or should not give evidence or call any defence witness is always a difficult decision in the trial.  The defendant does not have to give evidence as of right but on the other hand, it means that there is nothing from the defendant to undermine, contradict or explain the evidence put before the court by the prosecution.  In this case, it should be noted that the safety expert called by the prosecution was not refuted by any positive expert evidence from the defence.

25.The decision in this case not to call their own safety expert was a matter for the defence and must be an informed decision by the appellant upon considered legal advice.  It is all a matter of choice and consequence.  A defendant cannot now turn round and complain that the court did not make it clear to them that a particular witness is or is not to be believed at the half-way stage and thereby adversely affected his or her decision to give evidence or not.  After all, Mr. Jenkyn-Jones knows it too well that it is never the practice of the court to give any reason when it rules that there is a case to answer in respect of a certain charge.  The appellant in this case therefore should never expect the magistrate to inform them at that stage about his preliminary finding on the supervision aspect of the opinion given by the safety expert and any subsequent complaint that the defence case was thereby prejudiced would not be valid.

26.Based on the above reasons, the 1^st ground of appeal was not made out.

The 2^nd ground of appeal

27.This ground of appeal consists of two sub-grounds which criticized the magistrate’s approach and assessment of certain prosecution witnesses and can be conveniently dealt with together.

28.Mr. Jenkyn-Jones gave a few examples and criticized the magistrate’s approach to assess the evidence of the stevedore worker PW1 (Chung) and the operation supervisor PW5 (Wong).  It is submitted that the magistrate’s approach in this regard was not justified and has resulted in favorable evidence that should have been weighed in the appellant’s balance being ignored.  Furthermore, the fact that favorable evidence may have been elicited during cross-examination but not during examination in chief tends to ignore the purpose of cross-examination. 

29.In addition, it was further submitted that the magistrate at paragraph 64 of the Statement of Findings reached his own interpretation of what he believed he saw in the CCTV footage (P5).  Since the video is of low quality, the appellant said the finding that the forklift truck was heading towards two human figures (and hence that it was involved in normal mooring work) was unsustainable.  In any event, no opportunity to address the court on his interpretation of the video was solicited from the magistrate.

30.Before I turn to the arguments, it is always important to bear in mind that the magistrate has had the advantage of seeing and hearing the witness and is in a better position to assess his credibility.  It is for that reason that an appellate court will only depart from a magistrate’s determination of a witness’s credibility if it is “plainly wrong”.  (see HKSAR v Fok James Alistair [2015] 4 HKC 247)

31.Reading the Statement of Findings as a whole, the magistrate was meticulous and gave in-depth analysis into the evidence given by individual witness and reached a separate finding of their credibility and/or reliability based on the merit of their evidence.  Despite the criticisms levied by the appellant, I would not say that the magistrate’s finding cannot reasonably explained or justified and there is simply no basis for me to disturb his assessments.

32.The criticism by the appellant that there was no basis for the magistrate to say that there was motive for Chung not to tell the truth because he was of the same team of the deceased and he could be blamed morally or legally was unjustified.  It was contended that neither the prosecutor nor the appellant had ever made such a suggestion nor invited the magistrate to do so.  However, the magistrate’s assessment of an individual witness should not be bound by the positions adopted by the parties in the proceedings.  What the magistrate has done was no more than an attempt to exercise more caution when dealing with Chung’s evidence taking into account his job position and his role in the accident and I could not see how he could be blamed for being perhaps over cautious in his approach to assess an individual witness’s credibility.

33.Another example cited by the appellant was the magistrate’s finding that it was unreasonable for Chung to not notice the forklift truck and that thereforehe was not forthcoming about how the forklift truck fell into the sea.  The appellant contended that it was an event that happened unexpectedly and quickly.  The court was invited to view the CCTV footage.  The appellant maintained that not noticing the forklift until the last moment was wholly consistent with the fact that Chung was engaged in his work and had no reason to expect the forklift truck to appear there and then.

34.In reply, Ms. Lo properly drew my attention to the same paragraph of the Statement of Finding where the magistrate explained that the forklift truck was travelling at low speed (about 1.57 km/h), and in particular it was a much larger object than a person, and therefore it was unreasonable for Chung not to notice it until the last moment of falling into the sea.

35.I have also viewed the CCTV footage myself and I agree with the respondent that the footage is wholly consistent with the magistrate’s finding that there is nothing inconsistent with the forklift truck being engaging in normal mooring work process and the stevedores did not run away until it reached the edge of the quay.

36.Mr. Jenkyn-Jones also complained that the magistrate attached unduesignificance to the fact that Chung accepted suggestions put forward by the defence. This, he argued, completely ignored the fact that those instructing the defence counsel were extremely familiar with the daily operations of the terminal and the fact that there was no prohibition on putting leading questions to witnesses in cross-examination.

37.However, the magistrate’s criticism was not without basis.  The magistrate has a genuine cause for concern as he explained in paragraph 11 of the Statement of Findings:

“ … However, not long after he testified that most messengers would be 5 to 6 feet (which corresponds to 1.5 m to 1.8 m), he agreed with the proposition put forward by the defence that an average messenger is 6 to 10 m long without any hesitation. Chung’s apparent readiness to agree to propositions put forward by the defence has caused me to doubt the credibility and reliability of his evidence.”

38.Mr. Jenkyn-Jones also complained that the magistrate’s finding that Chung often changed his answer at paragraph 12 of the Statement of Findings.

39.The way Chung changed his evidence was as follows: during examination-in-chief, Chung had repeatedly answered that the messenger had been pulled onto the shore by him and his colleagues, this was also his answer in the beginning of cross-examination, but after viewing the CCTV footage and prompting by defence counsel, he changed his answer to say the messenger was not yet pulled onto the shore.  Under re-examination, Chung changed his answer again to say the messenger was pulled onto the shore.

40.Mr. Jenkyn-Jones submitted that the fact that Chung was prepare to change his evidence and agree to the suggestion by the defence is something that should redound to his credit and the fact that he changed his evidence again in re-examination merely illustrated that he had a very poor memory.

41.The comments made by Mr. Jenkyn-Jones of Chung’s performance in the witness box was biased.  Based on his constant change of positions, the evidence of Chung was at least unreliable.  The magistrate had the advantage of seeing and hearing Chung in the witness box and according to his findings, there was a tendency for him to readily agree to the questions and suggestions by the defence counsel.  The magistrate was obviously not impressed with his evidence and he was wholly justified in finding that Chung was not forthcoming about how the accident occurred and he often changed his evidence completely within a short period of time and therefore rejected his evidence.

42.Mr. Jenkyn-Jones was also critical of the magistrate’s approach to the credibility of Wong’s evidence in paragraph 17 of the Statement of Findings.  It was contended that the magistrate was unreasonable when he did not believe Wong had no idea how far his colleagues were from him and what they were doing, and did not notice the forklift truck until it was already at the edge of the quay.  Again, it was emphasized that the event of falling into the sea was so sudden and unexpected and there is no particular reason why Wong should have been looking at it before the accident.

43.Ms. Lo replied by saying that Wong was also in the same team with the deceased just as Chung and for the same reason, it was justified for the magistrate to approach his evidence with greater caution.  As the forklift truck was a much bigger object than a person and was travelling at slow speed, it was unreasonable for Wong to only notice the forklift truck at the very last moment.

44.In relation to Wong’s evidence, the magistrate gave the following comments:

“ 17. At the time of the Accident, Wong was walking towards the bow of the ship from the stern, and at some point he would stop and wait for the forklift truck to bring the eye splice of the mooring line to him. I could not believe that under those circumstances, Wong would have no idea how far his other colleagues were from him and what his other colleagues were doing, and he would not notice the forklift truck until it was already at the edge of the quay. Similar to the case of Chung, I find Wong not forthcoming about what actually happened at the time of the Accident.”

The finding by the magistrate that Wong was not a credible and reliable witness could not be faulted and he gave cogent reasons as to why he rejected Wong’s evidence.

45.As for the CCTV footage, the magistrate gave a detail description of what he noticed as appeared in the footage:

“ 64. Further, I do not accept the OSO’s [safety expert’s] evidence that in the CCTV footage, the forklift truck was just moving towards the direction of the sea. I have carefully reviewed the CCTV footage from the time when the Deceased’s forklift truck appeared (9:16:22) to the time when it was on the rail of the quay cranes (9:16:29). During this period (9:16:22 to 9:16:29) the Deceased’s forklift truck is seen to be heading towards a human figure at an angle. After the Deceased’s forklift truck fell into the sea, it became apparent that the human figure was actually two humans when they ran back towards the quay. I find what I see in the CCTV footage suggests that the forklift truck was moving directly towards mooring workers.”

46.The magistrate was fully entitled to come to this conclusion after carefully reviewing the CCTV footage.  The relevant CCTV footage was opened on the evidence in this trial and everyone involved in the trial who has viewed the same footage can form his or her own opinion.  In this regard, a magistrate is no different from any expert witness or counsels from both sides except that he is the one who is tasked to rule on the matter and reach a finding of fact.

47.In my view, the CCTV footage was a formal exhibit in the trial and was there for everyone to view and comment.  The fact that a magistrate disagrees with a particular opinion of an expert witness and comes to his or her own conclusion in his final analysis based on an open evidence such as an expert report or CCTV recording is just a common occurrence in any trial process and it certainly does not call for further submission from counsels on every point of disagreement before a final decision can be made. The complaint by the appellant for lacking of opportunity to address the court on the matter is therefore not justified.

48.The 2^nd ground of appeal fails.

The 3^rd ground of appeal

49.In this ground, Mr. Jenkyn-Jones submitted that there is ample legal authority to confirm that it is not reasonably practicable, nor is it expected that workers should be watched continuously. The legal obligations do not require that workers need babysitters.  The extent of supervision depends on the nature and complexity of the job and experienced workers can be expected to perform routine tasks without constant supervision.  The prosecution has not suggested any means by which the forklift truck could have been prevented from running into the sea through supervision.  The safety expert did say that forklift truck drivers need to be watched or monitored during the mooring process, but that did not mean that they should be watched ceaselessly.

50.Mr. Jenkyn-Jones also criticized the magistrate of introducing the notion that an experienced forklift truck driver like the deceased required more supervision because he had just come back to work after a two-week holiday. It was also complained that no opportunity was given to the defence to address the magistrate on this point.

51.Mr. Jenkyn-Jones submitted that it was unclear precisely what actionsthe magistrate had in mind that could have been necessary and effective supervision,especially since the CCTV revealed the incident was sudden and of only 6 seconds’ duration.

52.In order to deal with the arguments, it is obvious that the issue of necessary supervision provided by the appellant needs to be closely examined. I must emphasis, however, that as magistracy appeal takes the form of re-hearing and as such, I am not reviewing the magistrate’s decision for possible error.  I am considering the matter afresh on the basis of evidence that had been adduced at the trial.

53.In the present case, the first issue to be decided is whether there was evidence to support a finding that there was a failure by the appellant to provide necessary supervision.  If there was no such evidence or the evidence adduced does not support such a finding, then that is the end of the matter and the appellant must be acquitted.  

54.If there was evidence to support such a finding, the second issue to be decided is whether the prosecution can prove beyond a reasonable doubt that the appellant has failed to ensure that, so far as is reasonably practicable, necessary supervision was provided.  In this context, it is open to the appellant to rely on thegeneral defence provided under s. 18 of FIUO to show, on a balance of probabilities, that it is not reasonably practicable to provide necessary supervision, or that he has taken all reasonable or practicable steps to satisfy the duty imposed.  

55.As for the first issue, the finding of the magistrate was that the operation supervisor’s (“So Ba”) job responsibility included communicating with pilots as well as looking out for the safety of mooring workers and forklift truck operators.  However, at the time of accident, when the mooring operation has already started, he was 50 feet away from the deceased.  He was not even aware of what the deceased was doing and he was busy communicating with the pilot until a mooring worker called for him and told him that the forklift truck had fallen intothe sea.  In other words, this is a definitely not a case where better supervision can be provided with hindsight. It is rather a case where there is a lack of supervision in toto.

56.As said, the defence elected not to give evidence and as such there was nothing to challenge, contradict or undermine the safety expert’s conclusion on necessary supervision.  It also means that the appellant chose not to avail itself of the general defence as provided in s. 18 of FIUO.

57.Because of this restriction, I can see that the whole tenor of the arguments by Mr. Jenkyn-Jones on the second issue was not so much about the appellant not able to provide necessary supervision but rather the effectiveness of any supervision to prevent the forklift truck from falling into the sea.

58.Ms. Lo replied in her submission that the safety expert opined that a supervision of keeping an eye on thing generally was enough and there was no need to stare at the forklift truck driver ceaselessly.  The magistrate gave his finding that given the slow speed of the Deceased’s forklift truck at the material time, it would not need ceaseless observation to become aware that it had gone on the rail of the quay cranes.

59.The magistrate gave a detailed account as to why he agreed with the opinion of the safety expert in relation to the appellant’s failure to provide necessary supervision to ensure the health and safety at work of the deceased and I would emphasize on the following points:

(a)  “So Ba” [the operation supervisor] himself confirmed in his evidence that even for the experienced forklift truck drivers he did need to watch them for every single mooring line;

(b)  the safety expert’s opinion that forklift truck drivers need to be watched, or monitored, during the mooring process was accepted by the magistrate.  This is far from babysitting, and there is no evidence this was impracticable;

(c)  the safety expert’s evidence that the forklift truck was travelling at about 1.57 km/h at the time of the accident, a relatively low speed.  The magistrate found that So Ba was not aware of the accident until he was informed by a member of the stern team that the forklift had fallen into the water;

(d)  since the forklift truck was travelling at such a low speed, it would not require ceaseless observation for one to become aware that it had gone on the rail of the quay cranes; and

(e)  the magistrate found that it was due to a lack of necessary supervision that “So Ba” who was responsible for the safety of the deceased failed to be aware that the forklift truck operated by the deceased had gone on the rail of the quay cranes.  The forklift truck continued to move towards the edge of the quay and then fell over the edge.

60.I only need to refer to the evidence given by the operation supervisor in this regarded during the trial as recorded by the magistrate:

“ 46. I have carefully considered the evidence of ‘So Ba’ on this aspect. He accepted in examination in chief that he was responsible for the safety of both the bow and stern mooring teams, and there was a need for him to watch workers for every single mooring line, even for veteran forklift truck drivers. He however explained there was no need for forklift trucks to go beyond the rail of the quay cranes. Normally forklift trucks would stay on the quay and not move about until the heaving line was tossed onshore. He would observe the forklift drivers so as not to allow them to cross the rail of the quay cranes. He said that he never saw any forklift truck cross the rail of the quay cranes during mooring work. He said that for forklift drivers who were relatively green, they would have to be reminded quite frequently, but most of the forklift truck drivers were experienced veterans who were very familiar with the work and they knew how to do it. Nevertheless, he accepted that there was still a need for him to watch these veteran workers for every single mooring line.

47. It is apparent from the evidence of ‘So Ba’ that his supervision on his fellow workers very much depended on his fellow workers taking care of themselves and exercising self-discipline. For example, after ‘So Ba’ testified that the mooring workers would also shout instructions to forklift truck drivers, telling them where to go, he was asked whether the workers knew they were entrusted with such responsibility. ‘So Ba’ simply replied that the workers would have to give such instructions because they were the closest to the forklift truck drivers.

48. I do not accept that ‘So Ba’ had carried out sufficient observationsto know the true picture of how forklift trucks would move under different scenarios during mooring because in addition to ensuring the safety of workers and forklift truck drivers during mooring, ‘So Ba’ was also entrusted with the task of communicating with the pilot whenever a ship berths.  I find the evidence of ‘So Ba’ only represents only his expectationof what mooring workers and forklift truck drivers would do under different scenarios during mooring and may not represent the true picture.”    

61.It is clear from the evidence of the operation supervisor that the supervision at the time of the accident was inadequate.  His supervision on his fellow workers very much depended on his fellow workers taking care of themselves and exercising self-discipline.  It is obvious that more can be done to provide necessary supervision to forklift truck drivers.  I totally agree with the magistrate’s observation that the operation supervisor was entrusted with just so many tasks during the mooring operation that it would be simply too difficult for him to keep a watchful eye on the mooring workers and forklift driver at the same time.  The present case was a glaring example of how inadequate supervision has prevented the forklift truck driver from going beyond the rail of the quay cranes during the mooring operation.

62.Therefore, the appellant’s allegation that no supervision can be effective to prevent the accident in the circumstances must be flawed.  I also agree with Ms. Lo that the appellant’s submission is based on its false premise that the supervision necessary was to prevent the accident with the forklift truck driver having lost his consciousness. The law is that prosecution does not need to establish a causal relationship between the breach and the injury (see HKSAR v Gammon Construction Ltd (2015) 18 HKCFAR 110, at p. 118 para 9).

63.Ms. Lo correctly identified that in this case, the supervision necessary is to prevent the risk of falling into the sea.  Exhibit P15 (the safety document of the appellant) stipulates that the supervision for preventing the risk of falling into the sea is to ensure that the forklift trucks do not operate on or beyond the rail of the quay cranes.

64.Mr. Jenkyn-Jones questioned the magistrate’s conclusion that actionswould have been taken to prevent the accident had there been necessary supervision. He was critical that the magistrate failed to specify what actions could have been taken.  In this regard, Ms. Lo referred me to the appellant’s safety document P15 that stipulates:

“ Unless permission is given by the responsible operation supervisor, the forklift truck should not be operated near the rail of the quay crane close to the sea in order to prevent the fall of the forklift truck … into the sea.”

65.The safety expert also pointed out in his report that no signaler was provided to direct and regulate the movement of the forklift truck during mooring work.  Based on the evidence adduced at the trial, in this re-hearing, I come to the conclusion that the necessary supervision in this regard must be the deployment of more manpower such as signalers behind the forklift truck to assist the operation supervisor to keep an eye on the driver.  As a signaler would be standing in a relatively close distance with the forklift truck driver, he would be in a better position and be able to effectively alert the driver not to go off the rail and to always keep a safe distance from the edge of the kerb.  Incidentally, there was also no evidence in the trial from the defence to say the provision of necessary supervision (such as deploying a signaler to the forklift truck driver) was unreasonable or impracticable.

66.Finally, Mr. Jenkyn-Jone’s argument about the magistrate introducing the notion that an experienced forklift truck driver required more supervision because he had just come back to work after a two-week holiday is largely a red-herring.  The question is never whether more or less supervision was necessary for a veteran or green driver.  In any event, the operation supervisor himself had already said in evidence that even for the experienced forklift truck drivers, he did need to watch them for every mooring line.  The fact remains that it was the finding by the magistrate that unfortunately in this case the operation supervisor failed to carry out his responsibility to supervise the deceased at work in the mooring process. There was in effect no supervision at the time of the accident.

67.This ground also fails.

The 4^th ground of appeal

68.This whole ground revolves around the suggestion by the appellant in the trial that it was highly possible that the deceased had lost his consciousness before the forklift truck fell into the water (“the possibility”).  Mr. Jenkyn-Jones submitted that on the evidence, it is impermissible for the magistrate to dismiss thepossibility and draw any conclusion as to the state of the deceased’s consciousness by reference to the autopsy report just because there was no reference to it. 

69.It was even contended that the magistrate would require specific evidence on the point from a qualified pathologist before he could reach a legitimate conclusion.

70.Although Mr. Jenkyn-Jones stressed that the possibility is legitimately and reasonably suggested by the factual circumstances of the case, there was the countering evidence from the operation supervisor that the deceased just returned from a two-week holiday and he was very fresh, and they joked and chatted just before the accident.

71.There is no doubt that as a trier of the facts, the task of the magistrate is to determine the case on the evidence before him and it is entirely proper for him to be refused to be drawn into the realm of speculation.

72.To be fair to the magistrate, what he really said about this possibility as suggested by the defence can be found in para. 71(g) of his Statement of Findings:

“ There is no evidence in the case as to why the Deceased would continue to drive his forklift truck across the rail of the quay cranes towards the quayside once the forklift truck was on the rail of the quay cranes. On this aspect, the defence suggested that the Deceased may have lost his consciousness, but there is nothing from the Autopsy Report of the Deceased (P9) that suggests that the Deceased lost his consciousness before the forklift truck fell into the water. I do not accept that necessary supervision should be considered in the context of preventing this Accident. The amount of supervision necessary would be to not allow any forklift truck to operate on or beyond the rail of the quay crane without permission,as mentioned in ‘Procedures and Safety Points to Note for Vessel Berthing/‌ Unberthing’”;

73.In the above paragraph, it can be seen that the magistrate did not even dismiss the possibility.  Obviously, he was just making a remark that what the defence had suggested was not supported by any medical evidence before him.  If anything, it was only a fair and neutral comment by the magistrate regarding the state of the evidence.  Instead of dismissing the possibility forthwith, the magistrate just went on to reiterate in the same paragraph, and in my view, properly, that he did not consider that “…necessary supervision should be considered in the context of preventing this Accident”.  .

74.This observation must be correct.  As stated in paragraph 62 above, the Court of Final Appeal had already held that the prosecution does not need to establish a causal relationship between the breach and the injury (see HKSAR v Gammon Construction Ltd (2015) 18 HKCFAR 110, para. 9):

“ 9. An allegation of an offence against s.6A of the Ordinance does not depend upon the occurrence of the accident, and, if an accident occurs and an employee is injured, the prosecution, in order to make out its case, does not need to establish a causal relationship between the alleged breach and the injury. …”

Based on this legal proposition which was adopted by the magistrate, the argumentby Mr. Jenkyn-Jones on this ground was once again another example of red-herring especially when the allegation by the prosecution in this case was a total lack of supervision during the accident.

75.For the sake of argument, even if the deceased was really unconscious at the time as suggested by the appellant, had necessary supervision been implemented and carried out, the driving of the forklift truck by the deceasedwould be closely monitored by the operation supervisor and possibly other assistant workers such as signalers, they would have noted the abnormality of the movement the forklift and as submitted by Ms. Lo, given the open design and the slow speed of the forklift truck, effective actions could have been taken at an early stage to prevent the accident from happening.

76.In Gammon Construction Ltd (supra), Gleeson NPJ also said the following when he commented on the construction of s. 6A:

“ 21. In a case where a worker has been injured, and the circumstances of the accident are relied upon as evidence of a breach of s.6A, negligence on the part of the worker is not itself an answer to the charge. The duty to ensure safety, qualified as it is by reference to reasonable practicability, extends to protect workers who fail to take reasonable care of their own safety. …”

Based on the above, the possibility as suggested by the appellant in this case is of course not itself an answer to the charge.  In this case, the line of argument pursued at the trial and in this appeal by Mr. Jenkyn-Jones was that the accident was due to the possibility suggested and perhaps the misfortune of the deceased and it had nothing to do with the lack of necessary supervision provided by the appellant.  It is clear that this ground failed both on law and the facts of the case.

The 5^th ground of appeal

77.This is only a general ground and by reasons of my conclusions of the first four grounds of appeal, the conviction of the supervision summons is neither unsafe nor unsatisfactory.

CONCLUSION

78.For these reasons, I am satisfied that the magistrate fairly and properly considered the issues raised in the trial according to the law and the evidence adduced by the prosecution and he was not plainly wrong in his findings as to the credibility of the prosecution witnesses.  I find no basis to interfere with the magistrate’s finding of facts and the conclusion that he has reached.

79.The appeal against conviction is without merit and is accordingly dismissed.

Ms. Money Lo, counsel-on-fiat, for the respondent

Mr. Toby Jenkyn-Jones, instructed by Mayer Brown JSM, for the appellant