HKSAR v. Kwan on Construction Co Ltd

HCMA 11/2017

[2018] HKCFI 1640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 11 OF 2017

(ON APPEAL FROM KCS 38506 OF 2015)

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J U D G M E N T

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1.The Appellant was summonsed for an offence contrary to regulations 18A(a) and 19 of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, Cap 59J (“the Regulations”)[1] and was convicted after trial by a Deputy Magistrate (“the Magistrate”).

2.The Magistrate ordered the Appellant to pay a fine of HK$7,000.

3.The Appellant now appeals against the conviction only.

PROSECUTION CASE

4.The Appellant was the principal contractor responsible for the infrastructure works on a construction site (“the Site”).

5.The Appellant was also the owner of two polyester flat webbing slings (“the two fibre slings”) at the Site.  (See Appeal Bundle 45; photo of the two fibre slings)

6.It is not disputed that on 6 May 2015, PW1 (an Occupational Safety Officer of Labour Department) inspected the Site and found two workers lifting a stack of triangular metal frames with a mobile crane.  The mobile crane raised the stack of triangular metal frames from a lorry compartment, then suspended and lowered it onto the ground.  The stack of triangular metal frames was tied by the two fibre slings and the upper ends of the sling legs were directly connected to the hook of the mobile crane.  The upper ends of the sling legs were not connected by a shackle, ring or link.  (See Appeal Bundle 43, 44, 46 & 47; photos of the Site)

7.It is the Prosecution case that the Appellant failed to ensure that the two fibre slings were not used in raising or lowering or as a means of suspension when the upper ends of the sling legs were not connected by means of a shackle, ring or link of adequate strength, which is contrary to regulation 18A(a) (“the regulation”) of the Regulations.

DEFENCE CASE

8.At the trial, it was the Defence case that the two fibre slings fall outside the scope of the regulation for the following reasons:

(1) The regulation uses “double or multiple sling” (singular noun) and “upper ends of the legs” (plural noun), which means shackle, ring or link of adequate strength are only required when there is more than one “upper ends of the legs” in one “double or multiple sling”.  This may refer to a Y-shaped sling but not two independent slings because each sling has one upper end only but not “upper ends” as specified in the regulation.  Hence regulation 18A(a) is not applicable to the two fibre slings used in this case.

(2) “Fibre sling” is not included in the definition of lifting gear stipulated in regulation 3 and it has different properties and legal status from chain sling and rope sling.

(3) Without expert evidence, “fibre sling” cannot be read into “lifting gear”.

9.A defence witness, the project director of the Appellant, gave evidence of his personal views that (1) using a shackle cannot improve the safety of a sling and (2) a shackle is only applicable to chain sling and metal sling as the eye of a fibre sling can be directly set onto the hook.  However, the witness agreed that he had referred to the reference document (exhibit D3) before purchasing the fibre slings in question, and it is clearly stated in “Important Warning and Information” on page 7 of D3 that a fibre sling must be used with appropriate gear, hook and shackle.

10.The Magistrate found the defence witness’ evidence unreliable.

11.The Magistrate relied on section 7(2) of the Interpretation and General Clauses Ordinance (Cap 1) and construed that words and expressions in the singular include the plural.  Having considered that the two polyester flat webbing slings in the present case were connected to the crane and raised and lowered a stack of load, the Magistrate ruled that the two fibre slings were “double sling” within the ambit of the regulation.

12.In this appeal, the Appellant relies on Grounds 1, 3 and 4 of the Perfected Grounds of Appeal dated 10 February 2017, Ground 2 having been abandoned.

13.It is the contention of Mr Bruce SC, for the Appellant, that the construction of the regulation contended for by the Magistrate cannot stand.

14.Mr Eddie Sean, for the Respondent, supports the findings of the Magistrate and submits that the regulation clearly covers the two fibre slings, no expert evidence is needed for the interpretation of the regulation.

DISCUSSION

Ground One

“The learned Magistrate was erred in law in applying Section 7 of the Interpretation and General Clauses Ordinance, Cap. 1 to Section 18A of the Factories and Industrial Undertaking (Lifting Appliances and Lifting Gear) Regulations (‘the Regulations’) where the context does not admit such application.”

15.Section 7(2) of Cap 1 states:

“Words and expressions in the singular include the plural and words and expressions in the plural include the singular.”

16.Mr Bruce SC submits that section 7(2) of Cap 1 should be read in conjunction with section 2(1) of the same Ordinance which states:

“Save where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument, the provisions of this Ordinance shall apply to this Ordinance and to any other Ordinance in force, whether such other Ordinance came or comes into operation before or after the commencement of this Ordinance, and to any instrument made or issued under or by virtue of any such Ordinance.” (emphasis provided)

17.It is submitted that the deliberate use of singular and plural forms in the regulation[2] clearly demonstrate its legislative intent to make different meaning on “double sling” or “multiple sling’ from two individual slings.  In the context of the regulation and the deliberate use of singular and plural forms, a contrary intention has been shown such that section 7(2) of the Ordinance should not be applicable to interpret regulation 18A(a).

18.Mr Bruce SC submits that regulation 18A(a) appears to be indicating a “Y-shaped” sling instead of two individual slings which means that shackle, ring or link of adequate strength is only required when there is more than one “upper ends” of the legs in one “double or multiple sling”.  The “double or multiple sling” (in singular noun) does not cover the two independent fibre slings used in this case.

19.The Respondent supports the Magistrate’s ruling that section 7(2) of Cap 1 does apply to the regulation. 

20.Mr Sean submits that there are two possible reasons why the singular form is used to express two or more independent slings: (1) the singular expression includes the plural, or (2) because it is referring to “a double or multiple sling set”.

21.It is submitted that in construing the regulation, the Court should consider the statute as a whole and take a purposive approach, bearing in mind the legislative intent.  Mr Sean relies on the judgment of Hartmann J, as he then was, in Super Lion Enterprises Limited and 193 Others v The Commissioner of Rating and Valuation HCAL 71, 95, 96, 110, 78 - 92, 134, 148 - 152/2005 and 13, 17, 22 - 24, 48, 52/2006.

22.The Respondent refers to regulation 18A(b),[3] which requires that the safe working load of any sling legs not be exceeded as a result of the angle between the sling legs.  Moreover regulation 18(1)(b)[4] also requires a table showing the safe working loads of the lifting gear be posted in a prominent position, and in the case of a multiple sling, the safe working load at different angles of the legs shall also be shown.  Therefore, in the case of a double or multiple sling, the Regulations expects angles between sling legs.

23.It is further submitted that section 19 of Cap 1[5] deems an Ordinance to be remedial and requires the Court to interpret it fairly, largely and liberally to best ensure the object of the Ordinance be attained to its true intent, meaning and spirit.  Bearing in mind the statutory purpose of the Regulations is to encourage contractors/owners to take proactive steps and diligent measures to protect the health and safety of workers from accidents in the construction industry, it is proper for the Court to hold the wider construction, that the singular (“sling”) includes the plural (“slings”) to best ensure workers’ safety and remedy the problem as intended by the Regulations.

24.Considering the Regulations as a whole, including the provisions on sling leg angles, Mr Sean contends that the regulation could not have intended to restrict its regulation to a single sling with multiple legs as the Appellant contends.

25.I agree with the submissions of the Respondent.

26.In my view, the argument of Mr Bruce SC that regulation 18A(a) only indicates a “Y-shaped” sling instead of two individual slings does not sit well with the references to “the angle between the sling legs” in regulation 18A(b), which is provided in the same regulation, and under regulation 18(1)(b).  If the appellant’s interpretation is to be taken, then when both upper ends of the Y shaped sling having been connected by a shackle as required by regulation 18A(a), there would be no angle at all between the sling legs.  The references to the “angle between the sling legs” would make no sense at all.

27.In my judgment, “any double or multiple sling” in regulation 18A(a) refers to a set of lifting gears including two or more slings.  There is no reason that the set as a whole should be expressed as a noun in plural form.

28.In any case, I do not find that the fact that singular and plural forms are used in regulation 18A(a) proves a contrary intention so that section 7(2) of Cap 1 is not applicable to the regulation.

29.Ground 1 therefore fails.

Ground Three

“The learned Magistrate was erred in law in concluding that the two fibre slings that are said to have been used in the alleged offence is within the meaning of ‘double sling’ in the Regulations when the ‘double sling’ is a term of art and has a technical context which is required to be explained by expert evidence.”

30.Mr Bruce argues that the prosecution did not have any expert witness to offer his opinion on the meaning of “double or multiple slings” in the regulation.  Neither the Labour Department’s Code of Practice for Safe Use of Mobile Cranes (Exhibit P6), Occupational Safety & Health Council’s “Safe Lifting” (Exhibit D1), nor “A Guide to the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations” (Exhibit D2) have any introduction or definition on what is single, double or multiple sling.

31.It is submitted that without any expert evidence in support, it is outside the knowledge of the court or outside the experience of an ordinary juror to understand the meaning of “double or multiple slings”.

32.It is further submitted that the Prosecution has to prove that the two fibre slings were “used in raising or lowering or as a means of suspension”.

33.“Raising or lowering or as a means of suspension” is defined under regulation 3 which means “raising or lowering or as a means of suspension of a load on a lifting appliance or lifting gear”.

34.Mr Bruce SC submits that the technical term “lifting gear” has a unique definition under regulation 3, which consists of two parts: (a) a chain sling, rope sling or similar gear; and (b) a link, hook, plate clamp, shackle, swivel or eyebolt.  Mr Bruce argues that the definition does not include “fibre sling”.

35.Further, as seen in the Appendix of “A Guide to the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations (Exhibit D2), testing or thorough examination is not required before the use of a fibre rope or fibre rope sling (Form 6) and thorough examination in the preceding six months is not required (Form 7).

36.Form 6 and Form 7 are both applicable to chains, ropes and lifting gear.  It is contended that the regulation of fibre rope or fibre rope sling is different from chain, rope or other lifting gear.

37.Mr Bruce SC submits that “double sling” and “lifting gear” are terms of art and have technical context, which are required to be explained by expert evidence.  Without any expert evidence in support, the Magistrate must be erred in making the factual finding that the two fibre slings were used in the way as a “double sling” and included in the definition of “lifting gear”.

Ground Four

“The learned Magistrate was erred in law in saying that in using two slings together in lifting objects in weight, it must be using in a way of “double sling” without any expert evidence and there is no satisfactory basis for saying that two slings is a double sling.”

38.Similar to Ground 3, Senior Counsel for the Appellant submits that, without expert evidence in support, the Magistrate’s fact finding that the use of two individual fibre slings in lifting the load is equivalent to “a double sling” must be wrong.

39.I will deal with these two grounds together.

40.I respectfully do not accept the argument that the Magistrate needed expert evidence to construe whether the lifting gear used by the Appellant in this case, namely, the two polyester flat webbing slings, fall within the ambit of “double or multiple sling” under regulation 18A of the Regulations.  This term consists of simple language.  The interpretation of the term does not require any scientific opinion or information.

41.In interpreting the Regulations, the court should adopt a purposive approach.  The statutory language is construed, having regard to its context and purpose.  The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law.  (HKSAR v Cheung Kwun Yin, FACC 11/2008, (2009) 12 HKCFAR 568)

42.The statutory purpose of the Regulations is clearly to encourage contractors/owners to take diligent measures to protect the health and safety of workers in construction sites.

43.In my view, it does not require any expert evidence to understand that when multiple slings are hinged altogether on the hook of a crane directly without a shackle, the ends of the slings might overlap and rest unevenly at an angle of the U shape of the hook.  It might be easier for a sling to come off the hook.  Therefore, a ring or shackle linking the ends of the slings together before they are hinged to the hook of the crane would provide better safety measure.

44.In any case, in my judgment, the Magistrate is plainly right to hold the wider construction, that the singular (“sling”) includes the plural (“slings”) to best ensure workers’ safety and remedy the problem as intended by the Regulations.

45.I also do not accept the argument that a sling made of fibre or polyester material is not a “lifting gear”.

46.Neither a definition for “sling” nor a definition as to the meaning of “double or multiple sling” is provided in the Regulations.

47.However, regulation 3 provides that “lifting gear” means “a chain sling, rope sling, ring or similar gear, and a link, hook, plate clamp, shackle, swivel or eyebolt.” (emphasis added)

48.In my view, it is futile to refer to the testing or examination procedures in respect of a fibre rope or fibre rope sling.

49.A sling used in raising or lowering a load is a gear for such purpose, whatever material it is made of.

50.Regulation 18A refers to a sling but does not mention about a fibre rope, fibre-rope sling or fibre sling.

51.However, regulation 18 (1)(d) provides:

“no chain, rope or lifting gear (except a fibre rope or fibre-rope sling) shall be used unless it has been tested and thoroughly examined…” (emphasis added)

52.Regulation 18(3)(b) also states:

“Paragraph (1)(g) shall not apply to a rope or sling if -

…

(b) in the case of a fibre rope or fibre sling, its safe working load can be ascertained from…” (emphasis added)

53.It is clear that while “fibre rope”, “fibre sling” or “fibre-rope sling” are expressly excluded in regulations 18(1)(d) and 18(3)(b), they are not however expressly excluded from regulation 18A.

54.In my judgment, in the context of the regulations, lifting gear must generally include a fibre sling.  A fibre sling is a lifting gear covered by regulation 18A.  The argument that a sling used in raising or lowering a load is not regulated by the regulation because it is made of fibre cannot hold water.

55.Accordingly, I find all the grounds of appeal fail.

CONCLUSION

56.The Magistrate’s interpretation that the fibre slings used in this case fall within the ambit of regulation 18A(a) is plainly correct.  The conviction is neither unsafe nor unsatisfactory.  The appeal against conviction is therefore dismissed.

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

Mr Andrew Bruce SC and Mr Dick Lee, instructed by Hui & Lam LLP, for the appellant