HKSAR v. Kwan on Construction Co Ltd

HCMA 11/2017

[2019] HKCFI 474

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 NO 38506 OF 2015)

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D E C I S I O N

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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, made under Factories and Industrial Undertakings Ordinance, Cap 59 (“the Regulations”).  It was found guilty after trial.  The appellant appealed its conviction.  I dismissed the appeal on 17 July 2018.  The appellant now applies for certificate under section 32(2) of the Court of Final Appeal Ordinance, Cap 484, that points of law of great and general importance are involved in my decision.

2.The two points of law of great and general importance which the appellant asks this court to certify are:  (1) on a proper construction, is section 7 of the Interpretation and General Clauses Ordinance, Cap 1, applicable to interpret regulation 18A(a) of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, Cap 59J; (2) in construing the meaning of “double or multiple slings” in regulation 18A of the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, Cap 59J, is it outside the knowledge of the court or outside the experience of an ordinary juror to understand the meaning of “double or multiple slings” without any expert evidence in support.  

3.The respondent opposes the application, submitting that the two proposed points of law are not reasonably arguable.

The facts of the case

4.On 6 May 2015, an occupational safety officer of the Labour Department inspected a construction site and found two workers lifting metal frames with a mobile crane.  The metal frames were tied by 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. 

5.It is the prosecution case that the appellant failed to ensure 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) of the Regulations.

Submissions

6.Mr Chan, counsel for the appellant in this application, submits that as had been put forward by senior counsel representing the appellant in the appeal hearing, the proper interpretation of regulation 18A(a) of the Regulations hinges upon the proper construction of section 7(2) of the Interpretation and General Clauses Ordinance, Cap 1, namely: whether, on a proper construction and in the light of the deliberate use of singular and plural forms, regulation 18A(a) only applies to double sling or multiple sling, but not to two individual slings. 

7.It is submitted that the regulation is open to more than one reasonable interpretation.  Moreover, there is a lack of definition on what is “single”, “double” or “multiple” sling.  It is argued that “double sling” and “lifting gear” are apparently terms of art and have technical context which are required to be explained by expert evidence.

The Court’s consideration

8.To be successful in this application, the appellant must persuade this court that there is a point of law of great and general importance involved in my decision.  Moreover, the point is reasonably arguable.

9.The first proposed point of law was in fact ground 1 in the appeal.  I rejected this ground of appeal, giving my reasons at paragraphs 26 to 28 of the judgment.  At paragraph 26, I said:

“… 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 reference to the angle between the sling legs would make no sense at all.”

10.I also gave my reasons at paragraph 28 of the judgment:

“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.”

11.While the construction of a statute is a question of law, whether two fibre slings fall within the ambit of double or multiple sling under regulation 18A is a decision which is very much fact sensitive, depending on factors including the structure and material of the objects in question.

12.Moreover, section 7 of Cap 1, by virtue of section 2, shall apply to all ordinances or instruments generally, unless a contrary intention of the legislature can be shown.  It would be very difficult to argue that section 7 of Cap 1 is not applicable to the interpretation of regulation 18A of the Regulations.

13.Counsel at the appeal hearing failed to demonstrate a contrary intention of the legislature that section 7 of Cap 1 does not apply to regulation 18A(a), nor could Mr Chan in his submission today. 

14.I do not find that the first proposed point of law is of great and general importance; nor is the point reasonably arguable.

15.As regards the second proposed point of law, it concerns grounds 3 and 4 of the appeal.  I explained my reasons for rejecting these grounds at paragraphs 40 to 54 of my judgment.  I just quote one main reason given at paragraph 43 of the judgment: 

“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.”

16.In my judgment, whether a court or jury requires the assistance of an expert in making a decision depends on the facts and evidence in each individual case. The second proposed point of law is not a true question of law.  In any case, the point is not reasonably arguable.

Conclusion

17.For the reasons given, I refuse to grant the certificate.

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

Mr Pakco Chan P F, instructed by S K Wong & Co, for the appellant