Secretary for Justice v. Hong Dau Construction Co Ltd and Another

HCMA 499/2017

[2018] HKCFI 2039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 499 OF 2017

(ON APPEAL FROM ESS NOS 39858 AND 39863 OF 2013)

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Before: Deputy High Court Judge C P Pang in Court

Date of Hearing: 31 January 2018

Date of Judgment: 7 September 2018

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J U D G M E N T

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1.This is an appeal by way of Case Stated under section 105 of the Magistrates Ordinance, Cap 227.

2.This case concerned a fatal industrial accident which happenedat the West Carpark, Paradise Mall, Heng Fa Chuen, Hong Kong (“the Site”). A truss-out bamboo scaffold had to be erected outside the external wall at level 3 of the Site for maintenance work to be carried out.  A scaffolder (“the deceased”) fell from the third floor of the Site to the ground when he stepped on the parapet wall, trying to return to the car park from the external wall.  He died later on the same day.

3.The 1^st respondent (“R1”) was the principal contractor for the whole of the Site.  R1 contracted out the whole maintenance work of the carpark to Oasis Well Limited, which contracted out the scaffolding work to the 2^nd respondent (“R2”).

4.At the trial, there were nine summonses (ESS 39855 – 39863/‌2013) and three defendants: D1 (R1), Oasis Well Limited (D2), and D3 (R2).They were respectively summonsed for four (ESS 39855 – 39858/2013), one (ESS 39859/2013), and four summonses (ESS 39860 – 39863/2013).

5.These summonses can be categorized into three sets.  The first set concerned the failure to provide and maintain a safe system of work by R2, contrary to sections 6A(1), 6A(2) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap 59 (“FIUO”) (ESS 39860/2013); and R1 and D2 being also the proprietors of the said industrial undertaking are guilty ofa like offence, contrary to section 13(1) of FIUO (ESS 39855 & 39859/2013).

6.The second set is that on the same date, R1 being the contractor responsible for the Site, and R2 being a contractor who had direct control over the work, failed to take adequate steps to prevent a person from falling from a height of 2 metres or more, contrary to regulations 38B(1), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations (“CSSR”) made under FIUO (ESS 39856, 39857, 39861 & 39862/2013).

7.The third set is that on the same date, R1 being the contractor responsible for a scaffold on the Site, and R2 being a contractor who had direct control over the scaffold work at the Site, failed to ensure that no such scaffold was erected except by workmen who were (i) adequately trained and possessed adequate experience of such work and (ii) under the immediate supervision of a competent person, contrary to regulations 38E(1), 68(1)(a) and 68(2)(a) of CSSR (ESS 39858 & 39863/2013).

8.After trial, the Deputy Magistrate (“the magistrate”) acquitted all the defendants of all their respective summonses and granted all of them costs of the trial, to be taxed if not agreed.

9.The prosecution applied to review the acquittal of only the third set of summonses against R1 and R2 (ESS 39858/2013 and 39863/2013) and the relevant costs order.  The magistrate dismissed the application and granted both R1 and R2 costs of the review application, to be taxed if not agreed.

10.The appellant sought a Case Stated under section 105 of the Magistrates Ordinance, Cap 227 to appeal against the acquittal of both respondents and the relevant costs orders. The stated case was signed by the magistrate on 6 September 2017.

THE FACTS

11.On 23 May 2013, two scaffolders of R2 were erecting truss-out bamboo scaffold outside the external wall of the carpark at level 3.  One of the scaffolders was Mr Kong Tak-kei (PW1).  The other one was Mr Chin Kwok-leung (the deceased). The deceased and PW1 had been assigned to erect scaffolds at the external wall outside vehicle parking spaces 3113 and 3114 at 3/F of the car park.

12.The work was part of a project of the Mass Transit Railway Corporation (“MTRC”) and subject to its supervision and control.

13.When the deceased intended to return from the external wall to the carpark, he stepped on the parapet wall, without attaching the safety harness to anywhere.  The deceased lost balance and fell from there to the ground floor.  The distance he fell was about 10.9 meters.  The deceased sustained multiple injuries and passed away on the same day.  At that time, PW1 was inside the carpark on 3/F, with half of his view of the deceased obstructed by a wall in the middle.

14.At trial, the prosecution called three witnesses.  Apart from PW1, they were the assistant project manager of D2 (PW2) and an occupational safety officer of the Labour Department as an expert (PW3).  R1 and D2 called one witness, namely a safety practitioner as expert (DW1).

15.Both PW2 and the boss of R2 were at the Site occasionally to check on safety matters and oversee the progress.[1]  PW2 said he was there to supervise the work.  PW2 had reminded PW1 and the deceased that they must clip onto the eye bolts before they went out to the external wall, and that they must remain clipped on until they had returned back into the carpark.

16.PW1 confirmed that he and the deceased were “competent persons” for the purpose of erecting scaffold, though they were not appointed in writing.  Apart from PW1 and the deceased, there was no other “competent person” supervising them. 

THE VERDICT

17.The magistrate found, insofar as the third set of summonses are concerned, that the prosecution had not proved that there was no immediate supervision of a competent person for these reasons:

(a)  Both PW1 and the deceased were “competent persons” for the purpose of the work.

(b)  PW1 agreed that the deceased supported and supervised him.

(c)  PW1 knew that the main duty of a “competent person” was to ensure the safety of the workmen erecting scaffold.

(d)  PW1 said that he had reminded the deceased by (i) asking the latter to be careful, (ii) asking the latter to raise it if PW1’s assistance was needed, and (iii) voicing out and communicatingwith the latter when he (PW1) saw anything went wrong.  Thus there was a reasonable doubt that PW1 might have supervised the deceased.

(e)  PW1 and the deceased could do “immediate supervision” while being engaged in the work because:

(i) The Chinese version for “immediate” in reg. 38E is “直接” which literally means “direct”.  The magistrate opined that a “competent person” being involved in the erectionof scaffold could also “directly” supervise other workmen.

(ii) The magistrate accepted DW1’s evidence.

THE REVIEW HEARING

18.The prosecution accepted that PW1 and the deceased were “competent persons”, but did not accept that any of them was under the “immediate supervision” of the other.  Its arguments were threefold:

(a)  “immediate supervision” cannot be done by a “competent person” who is doing scaffolding work;

(b)  even if it can, neither PW1 nor the deceased supervised the other; and

(c)  even if there was supervision of any of them, it was not “immediate”.

19.The prosecution relied on the English case of Maloney v A. Cameron Limited[2], Court of Appeal, which was concerned in part with reg. 6 of the Building (Safety, Health and Welfare) Regulations 1948. Its wordings were similar to reg. 38E of the CSSR in the present case.

20.On whether a “competent person” while engaged in scaffolding work can supervise another workman, the respondents submitted that there is no legislative provision which does not allow this.  The respondents relied on Owen v Evans & Owen (Builders) Ltd[3] and submitted that the  word “immediate” only means that there must not be any intermediary between the person supervising and the person being supervised.  It does not require “constant” or “full-time” supervision, nor does it preclude the supervisor from involving in the work itself.  They also relied on PW1’s evidence that “When I see anything went wrong, I would have to voice it and communicated it with [the deceased]”.

THE MAGISTRATE’S RULING ON REVIEW HEARING

21.The magistrate refused the appellant’s application for review for the following reasons:

(1)  there is no legislative provision additionally requiring that the “competent person” is not to be engaged in the work;

(2)  the question of safety of workers was already addressed, canvassed and considered at trial, albeit under summonses which are not the subject of review or appeal;

(3)  the authorities cited by the appellant do not resolve issue in this case, as the magistrate did not find that a workman can supervise himself but that a workman, being a “competent person”, can supervise another workman;

(4)  “immediate supervision” does not mean that every act must be closely supervised.  The supervision needs not be close, constant, continuous, unremitting or unintermittent, and may suffice even when the “competent person” is absent at times; and

(5)  it would be absurd to suggest that reg. 38E allows a “competent person” responsible for supervision to leave the workplace on occasions but prohibits him from engaging in the work there.

22.The magistrate also accepted the evidence of DW1 that:

(1)  it was not the practice in Hong Kong that the “competent person” performing supervision could not be involved in the scaffolding work;

(2)  it was the internal guideline of MTRC that where there were less than 10 workmen, the “competent person” responsible for supervision could be engaged in the work; and

(3)  in the present case, it was not practical nor necessary to assign another “competent person” with the sole duty of supervising the workmen, given (i) the small scale of the scaffold (6.3 metres in length and 0.75 metre in width for that outside vehicle parking space 3113) and (ii) there were only two workmen while both were “competent persons”.

23.The magistrate found that PW1 and the deceased supervised each other and their supervisions of each other were “immediate”. He therefore confirmed the acquittals of the respondents.

THE QUESTIONS THIS COURT IS ASKED

24.The questions of law arising from this Case Stated for the opinion of this court are:

(1)  Did the magistrate err in holding that under regulation 38E, workmen can be under the immediate supervision of a competent person who is engaged in the erection of scaffold?

(2)  If the answer to (1) is “No”, were the magistrate’s findings that there were reasonable doubts that each of PW1 and the deceased was under the immediate supervision of the other perverse?

THE APPELLANT’S SUBMISSIONS

25.Mr Sean, SADPP for the appellant, submits that if a competent person is himself performing scaffolding work, a large part of his concentration would be on performing the scaffolding work, for example 95%, and only a small part of his concentration will be on the supervision of another scaffolder say for example 5%.  It is submitted that this cannot be the intention of the legislature and is inconsistent with the interpretation in the decision of Maloney[4] that:

“ …a man cannot, however competent, supervise himself…There must be some person—not the workman himself—‌who is ‘immediately’ responsible. The word ‘immediate’ is, I think,directed to this relationship rather than intended to indicate that every act should be closely supervised. In some cases the supervision may have to be closely supervised. In some cases thesupervision may have to be constant and relate to every act that isdone—where, for instance, great danger and difficulty is involved.”

26.In the present case, PW1 admitted that half of his view of the deceased at the material time was obstructed by a wall in the middle.  It is submitted that supervision must be made conscientiously by the competent person judging from the circumstances of the scaffolding.  It must not be fettered by the competent person’s own scaffolding work commitments.  In this case at the material time the deceased was working on installing metal brackets outside the external wall of car parking space 3114, while PW1 was busy doing his own work installing metal brackets outside the external wall of car parking space 3113.  They could not be supervising each other.

27.Mr Sean draws an analogy with the role of a lifeguard in a swimming pool.  He submits that even if all the swimmers happen to be lifeguards enjoying a swim for pleasure, it does not mean a lifeguard overseeing the swimming pool is not necessary.  A lifeguard plays the role of having a bird’s eye view to see if any swimmer is in trouble and can give assistance if needed.

THE RESPONDENTS’ SUBMISSIONS

28.Mr Jenkyn-Jones for R1 submits that the appellant has confused the purposes of supervision envisaged by reg 38E and the general safety provisions of CSSR, the former only aiming at making sure that the scaffolditself is structurally safe.  There are other regulations (such as 38B and 38C) which are directed specifically at the safety of the workers.  The focus of supervision under reg. 38E is not aimed primarily at the safety of the workersengaged in the task of erection or dismantling, but at the unsafe consequence of allowing a badly built scaffold to be erected.

29.It is submitted that as there is no definition of “immediate supervision” provided by CSSR, effective supervision does not preclude the competent person’s involvement in the work itself.  The most logical interpretation of immediate supervision is that the supervisor must be physically on hand or on the site to confirm and adjust (if necessary) the proper physical construction of the scaffold as it progresses, and that he be available to respond quickly when consulted and that he be in a position to personally inspect and review progress.  Both PW1 and the deceased were working as a team keeping an eye on each other’s work and if they spotted anything wrong they would voice it out.  There is no reason why the two competent persons could not supervise each other.

30.Mr Jenkyn-Jones further submits that both Owen and Maloney do not envisage the kind of supervision contended by the appellant, as the word “immediate” was interpreted as indicating relationship between worker and supervisor. Effective supervision does not preclude involvement in the work itself.  It may and often does demand active involvement. It is submitted that the magistrate cannot be faulted in his analysis and decision that the prosecution failed to prove the relevant offence beyond reasonable doubt. 

31.Mr Richmond, counsel for R2, basically adopts the submission of R1.

THE COURT’S VIEW

The 1^st Question

32.The supervision required by law under reg. 38E is “immediate supervision”. 

33.I agree with the judgments in Maloney and Owen on the interpretation of “immediate supervision”.  Immediate supervision means that there should be direct supervision in the sense of there being no intermediary between the supervisor and the workman being supervised.  The extent of supervision required is a question of degree and must be related to the nature of the work in hand, the structure being built, and the competence of the workmen actually performing it.

34.In my judgment, supervision involves the act of watching a person or activity and making certain that everything is done correctly and safely.  Whether a workman is under the immediate supervision of another is a question of fact.

35.The extent of the supervision required would depend on the particular circumstances of each case.  It must commensurate with the danger and difficulty in the work.  In some cases, the supervision may have to be constant and relate to every act that is done, where great danger and difficulty is involved.  In other cases, where there is no risk and the workers are competent, the supervision may be less intensive.

36.The work in the present case was the erection of truss-out scaffold at the external wall of the car park at a height of almost 11 metres.  PW1 and the deceased had to work outside the external wall, drilling on the external wall to install eyebolts and metal brackets to form the foundation layer of a working platform.  They had to wear their safety harnesses with their lanyards clipped on to the eyebolts in their work.  It was a highly dangerous work at height.

37.Mr Jenkyn-Jones submits that reg. 38E only aims at making sure that the scaffold was structurally safe and not at the safety of the scaffolders engaged in the task of erection or dismantling of scaffolds, as there are otherregulations such as regs 38B and 38C of CSSR, which are directed specifically at the safety of the workers.  I cannot agree with such contention.

38.In my view, while there are also other general requirements of safety measures required by CSSR, reg. 38E is a specific legal requirement aimed at the safety and health of workers engaged in the erection, alteration and dismantling of scaffold.  The design and structural safety of the scaffold is dealt with by reg. 38D.  Reg. 38F further requires that the scaffold is not used for the first time unless it has been inspected by a competent person.  The general and specific regulations work together in ensuring the safety of the scaffolders.

39.With respect to the magistrate, his focus on the general duties under sections 6A and 13 of FIUO was misplaced.  Such general requirements on the contractor does not negate the specific safety requirement under reg. 38E.

40.The prosecution case was not confined only to the very time when the deceased fell to the ground.  As Mr Jenkyn-Jones fairly and correctly accepts, the allegation of the summonses was in respect of the whole day on 23 May 2013 when the scaffold outside the car park was erected.

41.I have read the transcript of the evidence of PW1.  It can be clearly seen that on the day of the offence, both PW1and the deceased were assigned to erect truss-out scaffold at the external wall outside vehicle parking spaces 3113 and 3114 at level 3 of the car park building. Both of them had to work at the external wall.[5]  In my judgment, when a worker isperforming the erection of scaffold at height, a large part of his concentration would be on his own work and his own safety, instead of other workers’.  It is so whether or not the scaffolders happen to be qualified as “competent persons”.  Erecting scaffold at external wall at height is an extremely dangerous work.  It is natural that scaffolders will focus on their own workand safety rather than the work of their co-workers.  Moreover, a scaffolder while working is required to secure his safety belt to a secure anchorage.  His movement is therefore restricted and he might not be able to give immediate assistance to his co-workers when help is asked for.

42.In my opinion, when a person must pay most of his attention to his own work and safety, he cannot be said to be supervising another.  It could not have been the intention of the legislature that two workers involved in erecting scaffold on external wall at height are allowed to “supervise” each other for the purpose of protecting their safety.

43.DW1 said it was not the practice in Hong Kong nor a legal requirement that the “competent person” doing supervision could not be involved in the scaffolding work.  He referred to the internal guideline of MTRC that where there were less than 10 workmen, the “competent person” responsible for supervision could be involved in the work.

44.I do not have the benefit of reading the relevant guideline in itswhole context.  In any case, it is not binding on this court, nor is the opinion of DW1 as a safety expert.  Whether a competent person involved in work can still be supervising other workers would depend on the particular circumstances of each case, including what kind of work the competent person is involved.  He may be involved in very small jobs which would not absorb his attention to the workers erecting the scaffold.  The MTRC internal guideline is therefore of no assistance to the court.

45.My answer to Question 1 is therefore: Yes.

The 2^nd Question

46.I will also answer Question 2 for the sake of completeness.

47.I would quote the relevant evidence of PW1:

Under examination in chief

“ Q So, can you tell the court, when you were erecting the scaffold,how can you have the spare time to supervise the safety of another person simultaneously?

…

A Whether I supervised him? Supervise? No, but I reminded him.

…

Q My question is: can I say that all you did was not a supervisory role?

A   I agree.”

Under cross-examination

“ Q And is it correct, also, that the system that you engaged was something like a buddy system: you would support and supervise each other?

A   You may say so.”

Under re-examination

“ Q Did you need to do your normal work when you were supervising the deceased person?

A Yes.

Q Are you saying that you did your work and supervised the deceased person simultaneously?

A You--well, I won’t use the word ‘supervise’; I’ll use the word ‘remind’.

Q My question is: when you were doing your normal work, how did you have the time to supervise the deceased person?

COURT He said he didn’t supervise; he reminded him

…

COURT … so your question should be, ‘How did you remind him when you were doing your own work?’, right?

…

A   When I see anything went wrong, I would have to voice it and communicated it with him.”

(Emphasis added)

48.In my judgment, it is clear from the evidence of PW1 that he was not assigned with the duty of a supervisor, nor was he acting as a supervisor of the deceased.  The “buddy system” was not an immediate supervision of each other.  With respect to the magistrate, I would find that no reasonable tribunal applying proper considerations would have any doubt that PW1 and the deceased were not under the immediate supervision of each other.

49.It follows that my answer to Question 2 is: Yes.

CONCLUSION

50.In my view, on the uncontested evidence of the case, there was ample evidence for the prosecution to prove the summonses under reg. 38E against R1 and R2 beyond reasonable doubt.  The acquittals of both R1 and R2 must be reversed with convictions entered against them accordingly.  It follows that the costs orders against the prosecution in respect of these two summonses for the trial and the review hearing should also be rescinded.  In my judgment, it would be in the interest of justice that the case should be remitted back to the magistrate for mitigation and sentence.

51.The appeal by the Secretary for Justice is allowed.  I make the above-mentioned orders accordingly.

Mr Eddie Sean, SADPP and Mr Prakash Daryanani, SPP, of the Department of Justice, for the appellant

Mr Toby R W Jenkyn-Jones, instructed by Cheng, Yeung & Co, for the 1^st respondent

Mr Martyn Richmond, instructed by Munros, for the 2^nd respondent