HKSAR v. Kone Elevator (HK) Ltd

[English Translation – 英譯本]

HCMA 571/2021

[2022] HKCFI 1976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 571 OF 2021

(ON APPEAL FROM ESS 506802 OF 2020)

________________________

BETWEEN

________________________

___________________________

REASONS FOR JUDGMENT

___________________________

A. Introduction

1.The appellant was charged with three summonses. The appellant pleaded not guilty. The trial was conducted before Mr Tsang Hing-tung, Deputy Magistrate (hereinafter “the magistrate”) sitting at the Eastern Magistracy. Charge 1 and Charge 2 concerned the Factories and Industrial Undertakings Ordinance (Cap. 59). For the summonses, Charge 1 involved sections 6A(2)(a) and 6A(3), while Charge 2 involved sections 6A(1), 6A(2)(c) and 6A(3). The magistrate found that the appellant was not guilty of the offences after trial. The appellant was only convicted after trial of Charge 3, which was “failing to ensure workman wearing suitable safety helmet” under sections 48(1)(b), 68(1)(a) and 68(2)(a) of the Construction Sites (Safety) Regulations (Cap. 59I) and was fined $4,500.

2.The appellant appealed against the conviction.

3.After the hearing, I allowed the appeal, quashed the conviction and set aside the fine. I also ordered that the costs arising out of the appeal and the trial of the summons involved in this appeal be awarded to the appellant, to be taxed if not agreed. Here are my reasons.

B. The facts

4.Mr Jones Tsui, Senior Public Prosecutor for the respondent, set out the facts of the case in his written submissions, which I have basically adopted.

B.1. Prosecution case

5.The prosecution case concerning Charge 3 is as follows:

a. The appellant was the contractor of a construction site of lift repair works at Harbour Building, No. 38, Pier Road, Central, Hong Kong.

b. The second prosecution witness, Yau Man-kee (PW2) had been employed as a mechanic by the appellant for six years. He was responsible for the repair and maintenance works for lifts.

c. On 17 June 2020, PW2 was assigned the maintenance work at Harbour Building, Central. Shortly after 2 p.m. that day, he arrived there with his master, Chan Bing-hang (Master Chan). Later, in response to the complaint and request from the management office, Master Chan and PW2 proceeded to the 17^th floor to inspect the “revolving light” (that is, the indicator) of Lift No. 5 as it stopped working.

d. PW2 claimed that the work was arranged by Master Chan who was also responsible for supervising it, and that he followed Master Chan’s instructions in respect of all the work at the scene.

e. The two of them first stopped the operation of the lift concerned and lowered the lift car by half a floor, then inspected the indicator. During that period, as PW2 was too hot and sweating, he took off his helmet and put it on the top of the lift car which had been lowered half a floor.

f. When PW2 took off his helmet, Master Chan did not stop him.

g. PW2 stated that he put the helmet on the top of the lift car. Since he was in a hurry, he forgot to put on the safety helmet before leaving the top of the lift car to go out to the lift lobby, standing on a metal stepladder to replace the light bulb of the indicator;

h. At the same time, an Occupational Safety Officer of the Labour Department (PW1) was carrying out an inspection on the 17^th floor of the government building concerned. PW1 saw that PW2 was in front of Lift No. 5 in the lift lobby on the 17^th Floor. He was not wearing any safety helmet while working on a metal stepladder. The witness had observed him for one minute. PW2 then went back on the ground himself.

i. PW1 stated that he did not see any helmet at the scene on the 17^th floor during his inspection.

B.2. Defence case

6.Through the cross-examination of PW3, who was the Service Operations Engineer employed by the appellant, and the testimonies of DW1, the Environment, Quality, Safety and Health Officer of the appellant company, and DW2, the expert witness, the appellant’s case is as follows:

a. There were two service engineers, fourteen registered lift practitioners and eight apprentices or assistant mechanics under PW3.

b. In respect of industrial safety, the appellant arranged a morning briefing every week, which was generally organized by Man Tat-yan, a senior supervisor, and PW3. Each briefing lasted for an hour and had a theme.

c. The witness stated that the appellant had provided helmets to employees (including PW2 and Master Chan) for them to use at work. The inspection of helmets was carried out by frontline employees during the morning briefing. All workers would receive safety training and were only allowed to go into the site when they obtained a green card. The company arranged regular morning briefings, with Mr. Man Tat-yan as the speaker. PW3 would also participate to offer assistance.

d. The appellant had already prepared a proper system of work and guidelines to prevent employees from not wearing helmets at work. They had provided relevant training, information and guidelines to Master Chan and PW2. They had also produced previous inspection records to prove that neither Master Chan nor PW2 was found any inadequacy in safety.

e. PW2 not wearing a helmet was wholly due to the foolishness of Master Chan and PW2. The appellant had taken all reasonable steps to comply with the requirement.

C. Grounds of Appeal

7.Mr Dixon Tse, counsel for the appellant, advanced five grounds of appeal to contend that the conviction was unsafe.

C.1. Ground of Appeal (1)

8.The magistrate misunderstood the onus of proof of the statutory defence under section 18 of the Factories and Industrial Undertakings Ordinance (Cap. 59). He was too onerous towards the appellant and did not correctly or properly take into account the evidence adduced by the appellant, which was sufficient to prove, on a balance of probabilities, that the appellant had already taken all reasonable steps to fully and effectively ensure that PW2 complied with the guidelines on work safety.

9.The relevant evidence of the appellant taking such steps includes the following:

(a) The appellant had produced the record of receipt (exhibit D6) to prove that the appellant did provide a safety helmet to PW2, and that PW3, the Service Operations Engineer, personally inspected it in front of PW2 every month and made a record (exhibit D24);

(b) In respect of training, PW2’s training record (exhibit D7) showed that since he joined the appellant company in May 2015, he had received a variety of training related to safety helmet. The relevant training materials were produced (exhibit D9, exhibit D10, exhibit D11 and exhibit D13);

(c) In respect of information, the appellant had various notices or documents at the workplace of PW2 and another Registered Worker (that is, Master Chan) who was more experienced than PW2, to remind them that they should wear safety helmets in the construction site. The relevant photos and documents (exhibit D4, exhibit D2, exhibit D3 and exhibit D5) were produced in court.

10.PW2 and PW3 testified that at the regular morning briefings, Man Tat-yan, the senior supervisor of the appellant company, would ensure that the frontline employees remembered to wear safety helmets on the construction site, and he would ask the employees to sign in confirmation on the briefing record. Various briefing records (exhibit D14), which had been signed in confirmation by PW2 and Master Chan, were produced.

11.The appellant had a sound penalty system to ensure that the employees took the above code of practice seriously. Relevant documents such as the Employee Handbook (exhibit D15), the Code of Practice which had been signed in confirmation by the employees (exhibit D16), notices (exhibit D17 and exhibit D18) and the warning letters received by PW 2 and Master Chan after the incident (exhibit D21) were produced.

12.Having referred to paragraph 4.8 of the Code of Practice for Lift Works and Escalator Works (exhibit D27) and taken into account that PW2 was a Registered Worker under the legislation, the defence expert witness, DW2, pointed out that in the lift repair industry, PW2 had complied with the requirement even if he worked alone: paragraphs 24 to 26 of the expert report by the defence expert witness, DW2. Therefore, the appellant’s request for Master Chan to be PW2’s supervisor exceeded the statutory requirement for the appellant to comply with its supervisory duty.

C.2. Grounds of Appeal (2)

13.The magistrate erred in convicting the appellant for the dereliction of Master Chan; especially according to the statutory requirement, the appellant was actually not required to arrange another person to supervise the work of PW2. The magistrate did not criticize any of the other steps taken by the appellant, but convicted the appellant merely because such further measures were invalidated by a person’s dereliction of duty. This is inappropriate and unreasonable.

C.3. Grounds of Appeal (3)

14.The magistrate erred in convicting the appellant for not calling Master Chan to give evidence in court. He did not correctly or properly consider that the law did not onerously require the appellant to completely avoid the dereliction of Master Chan; therefore, the evidence produced by the appellant was sufficient to support the statutory defence in section 18 of the Factories and Industrial Undertakings Ordinance (Cap. 59).

15.The measures taken by the appellant to supervise Master Chan included the following:

(a) The appellant produced the acknowledgement of the Job Inventory Plan signed by Master Chan (exhibit D31) which set out his duties to ensure, among others, the safety of other people and the correct use of personal safety equipment by other colleagues;

(b) The appellant produced the training records of Master Chan (exhibit D32) to prove that the training, including supervisory duties, was provided to him. DW1 gave evidence that the supervisory duties of Master Chan were also mentioned from time to time in the morning meetings attended by Master Chan.

16.PW2 and DW1 gave evidence that the management of the appellant would carry out regular inspections four times a year and other irregular spot checks to ensure that PW2 and Master Chan complied with the code of practice and that Master Chan undertook the supervisory work. The inspection records (exhibit D30) showed that between June 2019 and May 2020, both of them did not indicate any insufficiency in safety during at least 13 inspections in that year.

17.The Code of Practice and the notices that each employee had to sign (exhibits D16 to D18) repeatedly mentioned that each employee, irrespective of ranks, had the duty to pay attention to whether there was any unsafe condition around them, report to their superiors and always pay attention to the safety of their partners. The appellant stated that this further strengthened the supervisory system of the appellant.

18.Besides, PW2 confirmed that in fact Master Chan would monitor his execution of safety measures during work, and had reminded him about or supervised him in the matter of safety measures.

C.4. Grounds of Appeal (4)

19.Without the support of evidence, the magistrate erred in drawing an inference that Master Chan “turned a blind eye” to the unsafe act of PW2 taking off his helmet; especially PW2 gave evidence that “a few minutes after” he had taken off his safety helmet, it was immediately discovered by the officer of the Labour Department. During the trial, there was no evidence to show that “in these few minutes” Master Chan saw or was aware that PW2 had taken off his safety helmet. The appellant said that the Court of First Instance should correct this finding of facts of the magistrate which was obviously wrong and deviated from the principle.

C.5. Grounds of Appeal (5)

20.When finding a case to answer, the magistrate did not consider that the lift indicator in this case was not an integral part of the building, and erred in finding that section 48 of the Construction Sites (Safety) Regulations (Cap. 59I) was suddenly applicable to the lift lobby on the 17^th floor which was accessible by other users of the building in this case due to PW2’s changing of the bulb of the lift indicator in question.

D. Discussion

21.After considering the above five grounds of appeal, I was of the view that the issue as to whether or not the place of offence was a “construction site” should be addressed first. If the place of offence was a “construction site”, then had the appellant already proved on the balance of probabilities that the appellant company had taken all reasonable steps under practicable circumstances to satisfy its duty?

D.1. Was the place of offence a “construction site”?

22.In his statement of findings, the magistrate did not make any ruling on whether or not the place of offence was a “construction site”. He only cited the provisions of section 6A (general duties of a proprietor) and section 18 (onus of proving limits of what is practicable, etc.) of the Factories and Industrial Undertakings Ordinance (Cap 59). It appeared that the magistrate concentrated on the provisions concerning the first two summonses that he had found not guilty.

D.2. Relevant provisions

23.Since an appeal is a “retrial”, both the appellant and the respondent agreed that I could make a ruling on this area according to the testimonies and evidence of this case.

24.Both the appellant and the respondent relied on the interpretation of “construction site” in section 2 of the Construction Sites (Safety) Regulations (Cap. 59I):

“Construction site means a place where construction work is undertaken and also any area in the immediate vicinity of any such place which is used for the storage of materials or plant used or intended to be used for the purpose of the construction work.”

25.According to the interpretation of section 2 and its Schedule 3 of the Factories and Industrial Undertakings Ordinance (Cap. 59):

“Construction work means —

the construction, erection, installation, reconstruction, repair, maintenance (including redecoration and external cleaning), renewal, removal, alteration, improvement, dismantling, or demolition of any structure or works specified in Schedule 3;”

“Any building, edifice, wall, fence, or chimney, whether constructed wholly or partly above or below ground level.”

D.3. Submission of the Appellant

26.The appellant submitted that when considering this case, the court must note that the lift works and the general construction site works were different in terms of the regulatory systems and actual operation.

27.With respect to the regulatory systems, the general construction site works are regulated by the Factories and Industrial Undertakings Ordinance (Cap. 59) and the Construction Sites (Safety) Regulations (Cap. 59I), which stipulate the general duties of an employer and certain matters that must be ensured by a contractor (e.g. workers wearing safety helmets). However, the specific methods and steps to be taken are not stipulated; therefore, each case depends on its factual circumstances.

28.On the other hand, apart from the requirement of the above regulations, the lift works are also regulated by the Lifts and Escalators Ordinance (Cap. 618). Section 145 empowers the Director of Electrical and Mechanical Services to issue any code of practice, namely the 175-page Code of Practice for Lift Works and Escalator Works, 2018 edition, applicable to this case (exhibit D27(3)), with detailed stipulation on the actual steps to be taken by the appellant in respect of the skills and industrial safety when carrying out actual lift works. The relevant requirement has a certain statutory status in this case, as stated in section 145:

“The Director may issue any code of practice that in the Director’s opinion is suitable for providing practical guidance in respect of any matter concerning the safety of lifts or escalators, including providing practical guidance in respect of the use and operation of lifts or escalators and providing practical guidance to persons who carry out any lift works or escalator works.”

29.The defence expert witness DW2 also emphasized in paragraph 4 of the Expert Report that “when considering whether or not the defendant, being a registered contractor, complied with the practical guidance when using and executing and carrying out lift works, the code of practice issued by the Electrical and Mechanical Services Department was considerably relevant”[1].

D.4. Submission of the respondent

30.The respondent stated that any lift maintenance would also be defined as construction work. The definition of maintenance was also considerably wide, including redecoration and external cleaning which were unrelated to the structure of a building.

31.The respondent said that the lift indicator was an integral part of the lift; otherwise, the appellant would not have been asked to carry out emergency repair. Even though the lift could still move up or down functionally, if its indicator was defective, it would not be provided for public use.

32.Therefore, the repair of the lift indicator was definitely construction work. When the workers in this case repaired the lift indicator, they had to enter the lift shaft to work and it was not a simple work procedure. When repairing the indicator, they might encounter various risks; for example, hitting their heads when climbing up or down, or falling down while working at height.

D.5. Discussion

33.In my opinion, it is arguable whether or not the area in front of Lift No. 5 in the lobby on the 17^th floor in question was a “construction site”. Even if the inside of the lift shaft or the top of the lift car where PW2 and Master Chan were situated when carrying out the tests was a “construction site”, when PW2 returned to the lift lobby and stood on the trestle ladder to change the bulb outside the lift door, I really do not see how that lift lobby would become a “construction site”.

34.I consider that one has to use common sense when considering the word “maintenance”. I do not agree that the change of the “burnt out” bulb was maintenance as stated in law, so that the lift lobby became a “construction site”. Furthermore, even if the lift shaft was a “construction site”, the lobby in the immediate vicinity of the lift shaft did not conform to a “construction site” as stated in law either because the place was not in the vicinity of the area which was used for the storage of materials or plant intended to be used for the purpose of the construction work.

35.Furthermore, according to the evidence of this case, PW2 and Master Chan went to the government building in question not to repair the “revolving light” of Lift No. 5 on the 17^th floor, but to carry out maintenance works of the lifts in that building. In the management office, they were asked to carry out emergency repair of the “revolving light” on the 17^th floor, but the testimonies showed that the above works were not emergency works. It was only under the urge of the management staff and after asking his superior (Martin) for instructions (but yet to receive an answer) that Master Chan went with PW2 to find out why the “revolving light” of Lift No. 5 did not light up. It should be noted that “the revolving light” was only the indicator of its lift showing at which floor the lift had arrived. Having no indicator did not mean that the lift could not be used, but it would only cause inconvenience to passengers. This is because the passengers would only realize that the lift had arrived or nearly arrived by the sound emitted when it had reached the floor where they were or the other floors close to that floor. I do not agree with the respondent that the indicator was an “integral” part of the lift.

36.Under all the circumstances of this case, I find that the lift lobby where PW2 situated was not a “construction site”. Therefore, although he admitted that he forgot to wear the safety helmet because he was anxious and had a momentary urge for expediency, the appellant company would not have breached the relevant provision (namely, section 48 of Cap. 59I, Laws of Hong Kong) for PW2’s failing to wear a safety helmet.

Did the appellant succeed in having a defence according to the requirement of Section 18, Cap. 59?

37.I further consider that if the lift lobby where PW2 was situated was a “construction site”, did the appellant manage to establish a defence according to the requirement of Section 18?

38.I cannot ignore that the appellant adduced a great deal of information and called their expert witness in the trial to show the briefings, guidance and supervision etc. that the appellant company had given their employees (including PW2 and Master Chan). The magistrate accepted the evidence provided by the appellant as facts. The most important point was that among the spot checks of more than ten times, neither PW2 nor Master Chan was ever found of any irregularities. The appellant company also provided them with regular inspections on their safety equipment, such as safety helmets, etc.

39.There was no dispute that PW2 himself was a qualified lift worker. He did not need any supervision from his seniors at all. One must understand that PW2 went with Master Chan to the government building to carry out maintenance works. It was out of emergency they proceeded to the 17th floor to inspect the “revolving light” of Lift No.5. It was on this basis Master Chan and PW2 went to the 17th floor together.

40.In my opinion, it is also arguable for the magistrate to find Master Chan “turned a blind eye” to PW2’s act (that is, taking off the safety helmet).

41.First of all, the magistrate said that he was satisfied with the testimonies of PW1 and PW2 but their testimonies in relation to Master Chan were inconsistent.

42.PW1 stated that when he saw PW2, another worker (that is, Master Chan) was working on the top of the lift car. He did not see what Master Chan’s both hands were doing but believed that he was “dealing with the electric wires”. After that, PW1 stated:

‘Q: All right, look at Photo (2). Is there any connection between Photo (2) and Photo (1)?

A: Photo (1) was taken at the first instance when I arrived at the scene. Photo (2) was [taken] after Yau Man-kee returned to the ground, and after Mr Chan Sing-hang left the top of the lift car, the lift car of the lift top, and they closed the lift car door, and facilitated our inspection. And the whole inspection was carried out with the company of these two workers.’[2]

(Emphasis added)

43.According to PW1, Master Chan left the top of the lift car in front of him. However, PW2 testified:

‘A: And then normally I quickly – at that time on the top of the lift car but I was sweating so I took it off. After that, it so happened that the master asked me to go out to change [it], Master Chan asked me to go out to change the indicator light, so at that time I put it down on the top of the lift car, I was just too anxious and then went out to change it.

Coram: Hold on. That means, you…

Mr Prosecutor, could you ask [him] all over again? Since you are like this, just one sentence, the facts of your case are not specific enough.

MR YUNG: Sure, let me do it again.

Coram: Yes, you should.

Q: On that day, you initially were working on the top of the lift car.

A: Yes.

Q: So, at that time you were wearing a safety helmet, weren’t you?

A: Yes.

Q: And then?

A: And then, I sweat, I wiped my sweat off, put it down on the lift – put – at the time when taking the helmet off and putting it on the top of the lift car, Master Chan asked me to go out to change the indicator light. So I went out to the lobby, I mean, went out to the floor level, was it the case? And changed – changed the indicator light.

Q: When you were going out, you didn’t wear a safety helmet?

A: Correct.

Coram: Why didn’t you wear it?

A: Too anxious, forgot.

Q: Did anyone stop you?

A: No.

Q: So for how long you hadn’t worn a safety helmet?

A: A few minutes.

Q: When did you put it on again?

A: A few minutes after I had gone out, I was caught by the Labour Department. After that – after that when I put it on again, didn’t put it on because I had been caught by the Labour Department.

Q: All right. So you didn’t put it on after that. So when did you find your helmet? Didn’t find – did you find your helmet?

A: Because at that time, Master Chan said [he] had looked for it, had looked for it – after had looked for the indicator light, he would release the lift car after ten minutes. So, he took my helmet and the equipment which were placed on the top of the lift car, took our equipment and got down there. And after I was caught by the Labour Department, down there he fetched the helmet and gave me.

Q: ‘Down there he fetched the helmet’, what does it mean? Where was the “down there”?

A: Lob – lobby.

Q: Was ‘down there’ the lobby?

A: Yes, the lobby on the ground floor G.

Coram: What? You mean, the lift – initially [you] were working on the top of the lift car.

A: Yes.

Coram: And because you sweat, you put the helmet down.

A: Yes.

Coram: The helmet was put on the top of the lift car.

A: Yes.

Coram: After that, Master Chan asked you to – to go to the floor level, to go out to the floor level to repair or to deal with the indicator light.

A: Yes.

Coram: So, you were out there, on the ladder shown in Photo (1), you carried out the work procedure.

A: Yes.

Coram: And then, when did Master Chan take the helmet and the equipment down to the ground floor?

A: Yes.

Coram: No, when did he do it?

A: When?

Coram: Right.

A: After I was repairing it, after I was caught, ten minutes after that.

Coram: (You) were repairing it, you were caught …

A: After…

Coram: You mean, people from the Labour Department came to visit.

A: Right.

Coram: Only by then did he take (them) down?

A: Yes. He – he, Master Chan had been on the top of the lift car.

Coram: I don’t quite understand.

A: Because I was the only one who was out there. Master Chan had been inside the top of the lift car.

Coram: The top of the shaft, right?

A: Yes.

Coram: Right.

A: So, he – he released the lift car, and he left there from the top, he took with him the stuff and left. He didn’t leave on that floor.’ [3]

… …

‘Coram: So what happened to him next? He and you had already separated from each other.

A: So he asked me, at that time, asked me to go out to change it, after changing it, after installing it – to meet down there after tidying up the things.

Coram: Yes.

A: When he found that I took so long but didn’t show up down there, he came back and came up to look for me.

Coram: I see. Right, what happened next?

A: And then, were questioned together by the Labour Department.

Coram: Yes.’[4]

(Emphasis added)

44.According to the testimony of PW2, Master Chan did not leave the lift shaft on the 17th floor. He only proceeded to the lobby of the 17th floor subsequently.

45.With regard to the location where Master Chan went in and out, the testimonies of PW1 and PW2 were different from each other. I am of the opinion that an irresistible inference of Master Chan “ignoring it even when he saw it” could not be drawn. Although PW2 claimed that nobody stopped him, it did not mean that Master Chan saw PW2’s act without stopping him. In this case, no evidence showed what Master Chan was doing when PW2 took off his helmet.

46.Furthermore, even if Master Chan did not stop PW2 knowingly he had taken off his helmet, was it equivalent to the dereliction of the appellant company?

47.I have pointed out that the steps that the appellant company had taken included briefings, regulation and supervision, and spot checks, etc. The respondent failed to point out, in the circumstances of the present case, what else the appellant company could have done apart from acting like a nanny by sending more people for supervision and inspection.

48.The respondent also agreed that it was impracticable to arrange supervisory staff ‘rank by rank’ and that it would cause the appellant company unnecessary expenditure.

49.The magistrate emphasized that the appellant company had not called Master Chan and therefore the court did not have the evidence of quality to draw an inference that the appellant company had met the requirement of the Ordinance.

50.The magistrate held:

“48. Master Chan was crucial in the defence case. However, Master Chan did not come to testify in court. The court has no evidence of quality to infer that the defendant had met the requirement of the legislation, that is the requirement of ‘taking all reasonable steps to ensure that no workman remains on the site unless he is wearing a suitable safety helmet’. Based on the evidence and testimonies before me, it is my decision that the defendant failed to satisfy the onus of proof on the balance of probability as required under Section 18 of the Factories and Industrial Undertakings Ordinance, Cap. 59.”

51.I do not agree with the magistrate’s view. Like what the appellant said, PW2 was a qualified professional. If Master Chan were not present and PW2 took off the safety helmet because of sweating in violation of the regulation, the appellant company would not have breached the law at all, the reason being that the appellant company would have taken the reasonable and practicable steps. However, if Master Chan had, for unknown reasons, failed to stop PW2 and consequentially the appellant were held to have violated the regulation, such ruling would have been unreasonable.

52.Since the evidence showed that PW2 and Master Chan all along had good records with no irregularities found, it was not possible or necessary for the appellant company to supervise PW2’s (and Master Chan’s) work at every second like a nanny would have done. The appellant company had no reason to doubt that PW2 and Master Chan would have committed any irregularities when they proceeded to work in the building in question, and thus had to take any corresponding steps.

53.I am of the view that whether it was on purpose or unintentional that Master Chan did not stop PW2 from taking off his safety helmet, it would have imposed too much burden to require the defence to call Master Chan to come to the trial and to admit on oath that he might have made a mistake. Moreover, the information showed that Master Chan had provided his deposition and the prosecution could have summoned him to testify in court.

54.In fact, in terms of all the testimonies and evidence, and all the circumstances of this case, whether Master Chan had testified or not, the appellant company has proved, on the balance of probability, that it had taken reasonable and practicable steps to “ensure” PW2 not to breach the regulation. The requirement stipulated by the legislation is not a hundred-per cent perfect “utopia”.

E. Verdict

55.Given the above reasons, I allow the appellant’s appeal against the conviction, quash the conviction and set aside the fine.

F. Costs

56.The appellant’s appeal is allowed and the costs should follow the event. I have been informed that the appellant company was awarded the costs of the two summonses which were found not guilty in the trial. Therefore, the appellant requested to be awarded the costs for the trial of the summons involved in this appeal.

57.The respondent has no objection to the application.

58.I order that the costs arising out of the appeal and the trial of the summons involved in this appeal be awarded to the appellant company, to be taxed if not agreed.

Mr. Tsui Wo Chung, Jones, Senior Public Prosecutor of the Department of Justice, for the respondent.

Mr. Siu Chung Dixon Tse, instructed by Ip, Kwan & Co., for the appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Ms. Jenny Chung, Solicitor.