HKSAR v. China State Construction Engineering Corporation

HCMA001188/2001

HCMA 1188/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1188 OF 2001

(ON APPEAL FROM KTCC 7747-8/2001)

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Coram: Hon Jackson J in Court

Dates of Hearing: 12 March 2002

Date of Judgment: 19 March 2002

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J U D G M E N T

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1.On 12 October 2001 the appellant was convicted after trial at Kwun Tong Magistrates Court of 2 offences contrary to the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations made under the Factories and Industrial Undertakings Ordinance Chapter 59. It was fined $25,000 in respect of the first offence relating to Regulation 7J, and $15,000 in respect of the second relating to Regulation 15B. The appellant appeals against its conviction for these offences.

2.The particulars of the offences were these:-

(a) The appellant

"on 30 October 2000 being the owner of a lifting appliance, namely a tower crane at Tseung Kwan O Area 74, Phase I did, before the lifting appliance was used, fail to ensure that every part of the load, namely a bundle of metal water pipes which was to be raised or lowered by the lifting appliance was securely suspended or supported; and adequately secured so as to prevent danger arising to persons or property as a result of the slipping or displacement of any part of the load." and

(b) The appellant

" on 30 October 2000 being the owner of a lifting appliance, namely a tower crane in an industrial undertaking at Tseung Kwan O Area 74, Phase I, where Mr Yip Kin Wa the person operating the lifting appliance did not have a clear and unrestricted view of the load carried by the lifting appliance, and such view was necessary for the safe working of the appliance, did fail to appoint and station such persons as might be necessary to give effective signals to the person operating the lifting appliance to ensure its safe working."

3.The relevant parts of Regulations 7J and 15B read as follows:-

"7J. Load to be safely secured

(1) The owner of a lifting appliance shall, before it is used, ensure that every part of any load to be raised or lowered by the lifting appliance is -

(a) securely suspended or supported; and

(b) adequately secured so as to prevent danger arising to persons or property as a result of the slipping or displacement of any part of the load.

(2) Where, by reason of the nature or position of the operation, a load is liable, while being moved on a lifting appliance or on lifting gear, to come into contact with any object so that the object may become displaced, the owner shall take all reasonable steps to ensure that no person lawfully on or near the industrial undertaking upon which the lifting appliance or lifting gear is being used is endangered by the displacement of the object.....

15B. Operation

(1) Where a person operating a lifting appliance -

(a) does not have a clear and unrestricted view of -

(i) the load carried by the lifting appliance;

(ii) its vicinity;

(iii) the point of attachment for a load where no load is being carried; and

(b) such view is necessary for the safe working of the appliance, the owner of a lifting appliance shall, subject to paragraph (2), appoint and station such persons as may be necessary to give effective signals to the person operating the lifting appliance to ensure its safe working.

(2) If it is impracticable to comply with paragraph (1), the owner of a lifting appliance shall ensure that effective signalling arrangements or other means of communication exist between the person operating the appliance and the person employed in the loading or unloading of the appliance to ensure its safe working."

4.The facts that gave rise to the proceedings in the Magistrates court can be shortly and immediately stated as follows:- On 30 October 2000 construction site workers were concerned with moving 'bundles' of water pipes from the ground into the second level of a structure through an opening in the roof of that structure. In the course of that operation a worker was injured by those water pipes which fell when they were dislodged whilst being lowered by the crane driver into the structure. I shall return in more detail to these facts later.

5.Mr Choy who appears for the appellant relies upon no fewer than 14 substantive grounds of appeal each one critical of the learned deputy Magistrate's reasons for verdict, which reasons extend to some 56 type written pages.

6.The grounds in relation to the Regulation 7J summons are these:-

"(1) The Magistrate misdirected himself on the issue of adequacy of "training", which represented a completely different matter with different standard of proof and applicable tests. This issue of adequacy of "training" was incorrectly applied to the case where in fact it was irrelevant to the issues in question regarding the summons.

(2) The Magistrate wrongly held that based on the "circumstance" of the case, extra precautions needed to be taken with regard to the lifting process. There was no justification, or credible reason provided in the decision for such a distinction at law.

(3) The Magistrate failed to correctly take into account evidence that the first load lift was executed safely; evidence that demonstrates that the system in place was adequate and sufficiently safe, had the crane operator adhered to the established system.

(4) The Magistrate wrongly held that a thin layer of oil made the load inherently more dangerous, and failed to give correct weight to the use of battens which was to increase friction. The prosecution did not provide credible or substantial evidence to prove that oil was a part of the case or a cause for concern or a cause of slippage of the load. Indeed, no dispute was taken on the point that wood battens increased friction and thus the safety of the load concerned.

(5) The Magistrate did not consider the point of there being no "safe system" available to protect against violent side impact when lifting or lowering a load. Notwithstanding evidence of use of an alternate method of rigging, recommended by the prosecution, such a rigging system was still unable to protect against load disturbance on impact as created by the irregular crane operation in any event.

(6) The learned Magistrate failed to warn himself that the evidence of the crane driver may be unreliable, given that he would have the motive of shifting his own responsibility in causing the accident onto the Appellant company. Further, insofar as he had admitted to any responsibility for the accident, the learned Magistrate failed to give proper weight to such admissions."

The grounds in relation to Regulation 15B are these:-

"(7) It is clear that there was a person stationed on the roof to signal and that the tower crane operator decided to lower a load out of his line of sight of his own volition. In the circumstances, no matter how many persons the Appellant stationed, the accident would still have occurred and the Magistrate erred in failing to address this point and erred in that he misdirected himself by setting an un-reachable standard upon the Appellant, thus denying the Appellant a defence at law.

(7A) The learned Magistrate misdirected himself that the Appellant bore the onus to show on a balance of probabilities that it was not necessary to do more than was in fact done to satisfy the statutory requirement.

(8) The Magistrate erred in finding the signalling system in use was not effective, when in fact the signalling system was effective. The Magistrate erred in finding that the signaller on the rooftop required a walkie-talkie, where in fact visual signals could be given effectively to the crane operator.

(9) The Magistrate erred in that the accident as described must correctly have been held to have arisen not because of a signalling "system failure" or lack of such system, but directly due to human error on the part of the crane operator, who did not await any signal to lower the load out of his line of sight but at his own discretion decided to lower the bundle; hence no signalling system was being used at the time the bundle was lowered, no signal to lower having been made or given.

(10) The Magistrate erred in wrongly interpreting evidence of the crane operator with regard to recognition of persons as precluding the ability of the crane operator to observe signals from persons clearly. Recognition being different in a substantive factual manner from any ability to see or observe signals.

(11) The Magistrate erred in finding that PW6 at roof level giving visual signals to PW7 was inadequate as a safe signalling system for load lowering and in subsequently finding "Nobody on the roof was assigned as signaller".

(12) The Magistrate erred in finding the presence of PW6 at roof level without a walkie talkie was of little utility when such a piece of equipment was as a matter of fact unnecessary and;

(13) The Magistrate erred in finding that a signaller was required at roof level with a walkie talkie at all times."

7.Before dealing with these grounds of appeal I will now return to some of the salient facts which gave rise to this prosecution.

8.The water pipes which were to be lifted through the roof of, and into, the structure were tied up in bundles of 5. The length of each bundle was 6 metres and the width was 1.08 metres. The roof opening of the structure into which the pipes were to be lowered measured 7.2 metres in length and 2.54 metres in width. That being so, plainly there was not much room for manoeuvre or for error on the part of the crane driver who, from his position in the cabin of the crane, could not see into the structure itself and thus the place within the structure where the pipes were to be placed.

9.There were workers inside the structure who were to realign the pipes once they had been lowered into the structure, and there were workers outside who were responsible for connecting the crane's hook to the wires wrapped around each bundle of pipes and for ensuring that each bundle was secure.

10.Before the accident occurred one bundle of pipes had been successfully placed within the structure without slipping, or being displaced. However, whilst that bundle was being lowered into the structure, the workers within it realised that some bamboo scaffolding which (in effect) lined the interior walls of the structure would impede their realignment of the pipes and the lower part of that scaffolding was then and there removed whilst that first bundle of pipes was suspended for about 10 minutes within the structure. By no means all of the scaffolding was removed: only that section of it which was likely to impede the realignment of the pipes.

11.Thereafter the wires around the second bundle of pipes were secured to the crane's hook and the load was lifted by the crane driver to a position above the structure. Without being given any signal that it was safe to do so, the crane driver proceeded to lower the bundle through the roof of the structure. He said that he did that because it was windy and (if that was correct) plainly he would find it difficult to align the load to a position where it might safely pass through the roof.

12.In the event part of the load, which appears to have been one of several wooden battens used to secure the bundle of pipes and to provide friction, caught on (or snagged) the bamboo scaffolding, which was within but towards the top of the structure, with the result that the load became unbalanced and the pipes fell.

13.Quite clearly, or so it seems to me, the likelihood of that happening should have been foreseen, given all the particular circumstances, and the appellant could not have complained had it been summonsed for an offence under Regulation 7J(2) which it was not.

14.In relation to the summons under Regulation 7J(1) the question of fact for the deputy Magistrate can be simply stated in the terms of that Regulation. Had the appellant, before using the crane, ensured that every part of the load was securely suspended or supported and adequately secured so as to prevent danger to persons or property as a result of the slipping or displacement of any part of the load?

15.In answering that question, again so it seems to me, it was largely immaterial (at least on one view), whether there was a subsequent accident or not, unless the cause of such accident could be directly attributed to an insecure or ill supported load which, on the evidence before the deputy Magistrate, it did not seem to be.

16.In answering the question in the affirmative the deputy Magistrate gave comprehensive reasons at paragraphs 43-48 for doing so. What he said was this - and in seeking to do justice to his diligent endeavours I make no apology for setting out those paragraphs in full:-

"43. In my judgment, in assessing whether the Defendant company, as the owner of the tower crane, had ensured or made sure that every part of the load to be raised or lowered by the tower crane was adequately secure so as to prevent danger arising to persons or property as a result of the slipping or displacement of any part of the load, the circumstances of the lifting operation must be taken into account since this part of the requirement had its emphasis on "every part" of the load being "adequately secure". Thus any potential danger in the course of the lifting operation that would give rise to the slipping or displacement of "any part" of the load (and by that I mean every component of the load that was actually lifted) had to be taken into account.

44. ...... the "load" to which the summons related, though briefly described in the summons as "a bundle of water pipes" must, in my judgment, mean in the context of the lifting operation the entirety of the components of the load actually lifted and lowered in the lifting operation, namely the bundle of water bundles as rigged. Thus the wooden battens inserted between the metal chain slings and the water pipes should be considered as a part of the load to which the summons related.

45. As to the potential dangers that should have been taken into account, ....... the first was the danger that a part of the load lifted may be displaced upon contact with external objects. Although this danger may be present in different sorts of lifting operations, the particular circumstances of the present case were such that this danger was more serious, bearing in mind the lifting operation ...... required the lowering of the load through a roof opening to the Second Level of the chiller plant structure and the fact that scaffolding was erected on one side of the roof opening concerned vertically into the void area of that roof opening. This danger was much more serious ...... because of the presence as part of the load of wooden battens which were liable to be displaced upon contact with external objects since they were inserted between the metal pipes and the metal chain slings and merely held together as part of the load by compression exerted by the metal chain slings against the battens on one side and possibly, depending on the position of battens, by compression exerted by the weight of the water pipes against the battens on the other side. If one wooden batten was displaced, the metal chain sling with which the wooden batten was previously in contact would come into contact with the metal pipe and the frictional forces applicable to the same metal chain sling (but at different sides of the bundle) would become unbalanced and would cause the metal chain sling to displace or slip along one side of the bundle. Although DW1 disputed the suggestion that the wooden battens could be easily displaced upon contact with external objects apparently by reference to the compression exerted by the metal chain slings and applied along the length of the battens, I declined to accept this line of argument. ...... In my judgment, DW1's argument in this respect ran contrary to the evidence of PW1 and PW2 (which was not subject to any, or any serious challenge by the defence) and did not address the presence of two factors: the first being the presence of external objects, namely bamboo poles, which might come into contact with the wooden battens tangentially; and the second being the presence on the surface of the water pipes a thin layer of oil which had the effect of reducing the frictional force between the water pipes and the wooden battens. The presence of a thin layer of oil on the surface of the water pipes was the second danger inherent in the lifting operation. It is plain that the frictional force between a metallic surface with a thin layer of oil thereon and a wooden surface is less than the frictional force between a clean metallic surface and a wooden surface.

46. I held in my Verdict that the prosecution had shown beyond a reasonable doubt that the Defendant company, as the owner of the tower crane, had failed to ensure or make sure that, in the light of the potential dangers set out, every part of the load to be raised or lowered by the tower crane was adequately secure so as to prevent danger arising to persons or property as a result of the slipping or displacement of any part of the load (including the wooden battens). Firstly, the rigging method in fact used, namely a pair of single choker hitches, failed to address those potential dangers or to address them adequately. I accepted the expert evidence of PW10 that double wrap choker hitches should have been used since this method of rigging would have the effect of compressing the load more tightly and would have increased the security of the load. The defence disputed the opinion of PW10 in this respect on two issues. The defence first criticised the reference by PW10 of para. 4.3.6 of the BSI Lifting Slings publication. Paragraph 4.3.6 refers to a double wrap basket hitch, which like the double wrap choker hitch, wraps round the load twice and the last sentence of that paragraph plainly illustrates the advantage of the choker hitch over the basket hitch in terms of the security of the load. This however does not detract from the comparison between the single choker hitch and the double wrap choker hitch where the difference is between the number of times the sling or wire is wrapped round the load. This criticism was in substance a red herring. The second criticism of the defence was that it was not suitable or appropriate to use a pair of double wrap choker hitches because the final position of the hitches might vary and cause imbalance. I declined to accept this argument because this suggestion applies equally to a pair of single choker hitches. I note ...... that it was further suggested that the hitch position for single choker hitches could be adjusted more easily than the hitch position for double wrap choker hitches. I did not find this suggestion to be of substance since this was a bare assertion unsupported by any authoritative literature and ran contrary to the quotation in the Rigging Manual at p. 137 that DW1 agreed to be correct. In any event, the trial lifting of the load would have been an opportunity for the hitch positions to be checked and the balance of the load ensured.

47. Secondly, I accepted the expert evidence of PW10 that the insertion of wooden battens between the water pipes and the metal chain slings had the disadvantage of the battens being easily disturbed by external objects and thus disturbing the stability of the load. I had earlier in paragraph 45 ...... explained why the disturbance of the wooden battens by external objects was a very serious potential danger in the lifting operation ...... and would not repeat my reasoning here. There was plainly no realisation on the part of those involved in the rigging and inspection of the load at the trial lifting to this very serious potential danger.

48. Lastly, I found that on the evidence none of the workers involved in the rigging and the inspection of the load at the trial lifting had received any formal training on rigging methods. ...... The state of training and safety awareness of those involved in the lifting operation was in my judgment a factor that contributed to (albeit in lesser significance than the matters stated in paragraphs 46 and 47 above ...... and certainly did not cause on its own) the inadequate security of the load."

17.In relation to the summons under Regulation 15B the question of fact to be decided by the deputy Magistrate was this (given that it was not disputed that the crane driver did not have a "clear and unrestricted view..." and that "such view was necessary..."):-

"Had the appellant appointed and stationed such persons as were necessary to give effective signals to the crane driver to ensure the crane's safe working?"

18.In answering that question in the affirmative what the deputy Magistrate said in his reasons for verdict (at paragraphs 50-59) was this:-

"50. I then considered the evidence relating to KTS 7748/2001 as amended, namely, the evidence relating to the appointment and stationing of persons who were to give effective signals to the tower crane operator to ensure the safe working of the tower crane.

51. Regulation 15B(1) of the Regulations prescribes two conditions the satisfaction of which would require the appointment and stationing of such persons as may be necessary to give effective signals to the operator of the lifting appliance to ensure its safe working. ......"

52. ...... on the basis of the evidence of PW7, the licensed tower crane operator, ...... those two conditions were satisfied. PW7 did tell the court that during the lifting operation, the bundle of water pipes would be lowered below the roof opening beyond a point where any part of the bundle would remain visible. He also told the court that he did not have a full view of the bundle when it was being suspended above or near the roof opening. ...... The lifting operation in the present case involved, inter alia, the lowering of bundles through a roof opening into an enclosed space. A clear and unrestricted view of the bundle was clearly necessary to ensure, among other things, that the bundle was in appropriate positions with respect to and away from various external objects in the course of the lowering and would not collide or come into contact with any such external objects and accordingly the safe working of the tower crane.

53. The final and crucial issue that I then had to decide was whether the Defendant company failed to appoint and station such persons as may be necessary to give effective signals to PW7 to ensure the safe working of the tower crane. As I had indicated earlier in paragraph 27 of this document, the Defendant company would have, if it chose to contend in that matter, the onus to show on a balance of probabilities that it was not necessary to do more than was in fact done to satisfy the requirement in reg 15B(1). ......

54. Miss Haldane relied on the evidence given in respect of the raising and lowering of the first bundle to show that there was an effective signalling system in place during the lifting operation. She submitted that the said signalling system worked well for the second bundle up to the time when PW7 took the initiative himself ......

55. Miss Haldane's submission, in my judgment, omitted the part of the provision that required there be appointed and stationed persons as may be necessary not just to give effective signals to PW7 but also that the giving of effective signals by such persons appointed and stationed by reason of necessity was for the purpose of ensuring the safe working of the tower crane. Therefore, ...... I could not take a superficial view and accept that the Defendant company had discharged its burden merely because the first bundle was raised and lowered successfully without incident under the signalling system adopted there and then. Rather ...... I was obliged to examine the signalling system adopted during the lifting operation and decide on this issue of whether the particular requirement was discharged by what was in fact done. Or in other words, whether it was not necessary to do more than what was in fact done.

56. I ...... reviewed in the course of considering my Verdict the testimonies of the witnesses of fact concerning the signalling system that was in fact adopted during the lifting operation. I did not find any significant discrepancy in their testimonies. I had summarized the testimonies of those witnesses into a description of the signalling system adopted during the lifting operation in question in paragraph 59 below of this document.

57. Mr Hui for the prosecution criticised the signalling system described above in three ways. The first criticism was that one signaller should be appointed and stationed at all times during the lifting operation on the roof level as opposed to PW5 going to roof level to give signals at some stage of the lifting operation. The second criticism was that only one walkie talkie was in use at all times and at the chiller plant structure. The third criticism was that nobody who had received formal training in signalling was appointed and stationed at any place during the lifting operation to give signals.

58. In considering whether it was not necessary for the Defendant company to do more than what it had in fact done in appointing and stationing such persons to give effective signals to PW7 to ensure the safe working of the tower crane, I bore in mind that what it was "necessary" to do in the context of the case need not encompass what was "desirable"; ...... and that one was not concerned in the present case with the cause of the incident but rather whether the Defendant company had discharged the statutory requirement imposed by reg 15B(1).

59. I held ...... that the Defendant company had not discharged its burden to show on a balance of probabilities that it was not necessary to do more than was in fact done. In my judgment, it was necessary, in the circumstances of the case, to appoint and station a signaller who could give effective signals to the tower crane operator from the roof level at all times to ensure the safe working of the tower crane. What was in fact done, namely the presence of PW6 at the roof level without walkie talkie equipment to communicate with PW7 and the appointment of an itinerant signaller, namely PW5, to go from the Ground Level to the roof to give signals via walkie talkie to PW7 under a prior arrangement for PW7 to suspend the load above or near the roof opening whilst waiting for instructions from PW5, did not meet the statutory requirement. This is because the arrangement for suspension pending at least the arrival of PW5 at the roof level itself created a period of time (in terms of minutes) where no person at the roof level could give effective signals to PW7. Although PW6 claimed that he gave hand signals to PW7 from the roof level, PW7 said in his evidence that whilst he could see from his cabin high above the roof level a lot of people at the roof level, he could not recognise any of them. Hence the mere presence of PW6 without a walkie talkie at the roof level during that time must be of little utility. The said period of time with no effective communication was, in my judgment, of significance in terms of the safe working of the tower crane. Indeed PW10 commented that a load should not be allowed to be suspended in the air for too long and DW1 agreed that comparatively speaking, the less time the bundle being left in the air, the less risk would be involved. The roof opening was surrounded by parapet walls and guard rails. The width of the bundle was about 42% of the width of the roof opening. The crane operator, sitting in his cabin high above the roof level, clearly had difficulty to gauge the position of the bundle relative to the roof opening, particularly as a result of the vertical distance between them (namely, the cabin and the roof opening). This is so even though the crane operator himself had a clear and unrestricted view of the top and sides of the bundle. Whilst PW6 could stabilise the bundle to keep it from swinging, he could not, by himself, lift up the bundle himself or correct the position of a bundle that had been lowered to a position too close to the parapet walls or too close to the edges of the roof opening. DW1 opined that suspending the bundle in the air was not a hazardous state of affairs. That might well be correct if the bundle was not close to a roof opening surrounded by parapet walls and guard rails. Indeed DW1 agreed during cross-examination that there should have been a person to overlook the process of the bundle being lowered into the roof opening and to give effective signals. The risk that the bundle (including the metal chain slings and the wooden battens) might be disturbed upon collision or contact with the edge of the roof opening, the parapet walls, the guard rails or even with the protruding bamboo poles if it was lowered too low into or near the roof opening, was, in my judgment, a real risk that clearly justified the appointment and stationing of someone with suitable communication equipment at the roof level (a much better observation position than the cabin of the tower crane operator) to give effective signals to the tower crane operator) to ensure the safe working of the tower crane. No such person was appointed and stationed at the roof level at all times during the lifting operation."

19.I now come to deal with the grounds of appeal which I have set out above.

The first ground

Mr Choy for the appellant sought to say in his argument before me that the issue of 'training' was irrelevant and therefore inadmissible; that it related to the issue of disposition and was highly prejudicial and that it should not have been considered at all by the deputy Magistrate, let alone relied upon.

20.With the greatest respect I simply do not follow that argument or Mr Choy's reference to Makin v A.G. of New South Wales [1984] AC 57 and R v Tsang Wai Ki & Anor [1996] 3 HKC and other cases in support of it in relation to the present case. It cannot, in my view, be seriously suggested in this case that evidence of a lack of training equates to evidence of a predisposition to misconduct or to evidence of other crimes. This ground of appeal fails.

21.The second ground

There was every justification, in my view, for the deputy Magistrate to say that in the circumstances of this case extra precautions were needed. Indeed he set out in considerable detail why that was so.

This ground of appeal also fails.

22.The third ground

Given the evidence of the prosecution's expert which the deputy Magistrate accepted - and which he was perfectly entitled to accept - he concluded that the system employed was neither adequate nor safe. The fact that the first load of pipes was successfully moved without incident (apart from the necessity of dismantling some of the scaffolding) does not mean that that load was sufficiently secure.

This ground of appeal fails.

23.The fourth ground

I need say no more as regards this ground of appeal than that oil acts as a lubricant and plainly it would have at least some bearing upon the question of whether or not its presence on the pipes might affect the security or the stability of the load. The prosecution expert gave evidence about that and the deputy Magistrate accepted that evidence.

24.The fifth ground

The point of this ground of appeal, if I fully understood it, was that on the evidence of both the prosecution expert and the defence expert the accident which occurred could have happened whatever 'slinging' method for lifting the metal pipes had been used, and that therefore the accident could not be attributed to an insecure system of hoist but only to the actions of the crane driver who (it was suggested) was engaged in a frolic of his own.

25.With respect, that argument ignores the point which I have been at some pains to make that the fact of the accident was likely immaterial to the fundamental question which the deputy Magistrate was obliged to ask in respect of Regulation 7J(1) and which I have set out above.

This ground of appeal too must fail.

26.The sixth ground

It became plain to me, when hearing this appeal, that this ground cannot relate to the Regulation 7J conviction but only to the Regulation 15B(1) conviction. The reason for that is that the crane driver in his evidence said nothing which was adverse to the appellant in relation to that first conviction.

As to the Regulation 15B(1) conviction the deputy Magistrate plainly accepted the crane driver's evidence concerning the absence of the 'designated signaller' from the roof at the time of the accident and prior to it, and also his evidence about the fact that whilst there was a group of persons on the roof and that one of them may have been signalling to him he did not recognise those people.

27.The learned deputy Magistrate was clearly made aware of the defence suggestion that the crane driver might be trying to shift the blame from himself onto the appellant but he was plainly unimpressed by it given the weight of all of the evidence concerning the inadequacy of the signalling system and its operation which effectively left the crane driver in a quandary and without proper assistance or direction whilst he was trying to perform what must have been an extremely difficult manoeuvre.

28.In my judgment all of that is quite apparent from a reading of the deputy Magistrates reasons, and it was not incumbent upon him to address the matter complained of either more fully or more directly. This ground of appeal fails as do grounds (7), (8), (9), (10), (11), (12) and (13) for the same reasons. Each of those grounds relate to facts found by the deputy Magistrate which facts he was perfectly entitled to find on the evidence before him.

29.Ground 7A

The remaining ground of appeal relied upon by Mr Choy relates to what he described as the "reversal of the legal burden of proof".

30.During the course of the hearing of this appeal I was presented with a great deal of argument about this matter both from Mr Choy and Mr Cheung. I was also referred to a number of authorities.

31.This ground of appeal relates only to the conviction concerning Regulation 15B(1) and complaint is made that the deputy judge was in error when he said that there was a burden upon the appellant to "show on a balance of probabilities that it was not necessary to do more than was in fact done" which onus (if not the standard) is provided for in Section 18 of the principal ordinance (Cap.59).

32.Mr Choy's argument about this finds (so he says) support in the judgments in R v Lambert [2001] 3 WLR 206 (HL), and insofar as those judgments which, on the face of it, support his argument are at variance with what was said in Attorney General of Hong Kong v Lee Kwong Rut and Attorney General of Hong Kong v Lo Chak Man and Another [1993] 3 AER 939 (as considered in R v DPP ex parte Kebeline [1999] 4 AER 801) he argues that such can be distinguished.

33.In essence, so Mr Choy argues,

"as their Lordships in Lambert held that the word 'prove' as used in the reversal of burden of proof clause in s.28 of the Misuse of Drugs Act 1971 should be interpreted to mean 'adduces sufficient evidence to raise the issue' and once this has been done the prosecution again shoulders the burden of proof, the same approach should be adopted in interpreting s.18 of Cap.59 because the protection of the presumption of innocence is in fact doubly entrenched in the Basic Law".

34.Mr Cheung, on the other hand, argues that those judgments in Lambert upon which Mr Choy relies are inapplicable to s.18 of Cap.59 which does satisfy the criterion of proportionality whereas s.28 of the English Misuse of Drugs Act 1971 arguably does not.

35.Mr Cheung goes on to say this:-

"In interpreting the reverse onus provision, a court may usefully consider three questions,

(1) What do the prosecution have to prove in order to transfer the onus to the defence?

(2) Does the burden imposed on the accused relate to something which is likely to be difficult for him to prove, or does it relate to something which is likely to be within his knowledge or to which he has ready access?

(3) What is the nature of the threat faced by society which the provision is designed to combat?

For Regulation 15B(1) The prosecution has to prove that the defendant did not appoint and station persons to give effective signals to the person operating the lifting appliance to ensure its safe working. The onus will be transferred to the defence that necessary persons had been appointed and stationed. (2) The burden imposed on the accused does not relate to something which is likely to be difficult for him to prove. All he has to prove is that, on a balance of probabilities, necessary number of persons were appointed and stationed in the circumstances. (3) R 15B is an offence of strict liability. The reverse onus in s.18 of Chapter 59 is not inconsistent with the Bill of Rights.

A strict responsibility is acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The promotion of health and safety and the avoidance of pollution are among the purposes to be served by such controls. These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. Many may carry with them no real social disgrace or infamy (R v Lambert). Provisions under Chapter 59 are such provisions. The principle in Lambert does not apply."

36.Finally in relation to this ground of appeal Mr Cheung suggested to me that even if the learned deputy Magistrate was in error concerning the burden and standard of proof he would nonetheless have found the appellant guilty in respect of this Regulation because of the absence of the designated signaller and that I should still reject this appeal.

37.For what it is worth that final submission cannot, in my view, be correct if for no other reason than that if I accepted it I would be adopting a proviso which is not available to me in considering Magistracy appeals.

38.Having considered all of the argument and the authorities concerning this ground of appeal it is, in my view, without merit. In his judgment (concerning an appeal arising out of a conviction under the Construction Site (Safety) Regulations) in HKSAR v China Civil Engineering Construction Corporation HCMA 1020/2001 Deputy High Court Judge McMahon had this to say concerning such regulations:-

"In my view these offences are offences of strict liability. That is, it is not required of the prosecution, so far for example as Regulation 39(1) is concerned, to prove the offender intended to fail to erect a structure so as to prevent workmen being endangered.

It seems quite plain to me that the offences are sufficiently ones directed to concerns of public interest and policy, namely the safety of persons employed in the construction industry so as to displace the presumption that mens rea is an element of the offences. The purpose of the legislation of which these regulations form a part is that of the promotion of worker, and to some extent also, public safety in the context of the construction industry in Hong Kong.

Regulations such as the present imposing strict liability on individuals and corporations responsible for the operation of construction sites would promote such safety by enhancing the vigilance of those responsible for the safety of workers and the public in the environs of construction sites. Gammon (HK) Ltd v Attorney General [1985] AC 1 and Attorney General v Fong Chin Yue [1995] 1 HKC 21.

Further the offences are ones of "mala prohibita" rather than ones of "mala in se". The offences are regulatory in nature and are not directed against any inherent evil in the conduct of individuals....

....The onus of proving (the) defence (of honest and reasonable belief in compliance) given the important purpose the regulations are directed at, i.e. preserving the safety of workers, must be upon the alleged offender. In my judgment the standard of proof is on the balance of probabilities: Attorney General v Fong Chin Yue (supra)."

39.I respectfully agree with that in relation to Regulation 15B(1) of the Regulations with which I am presently concerned.

40.The appellant's appeal against conviction in respect of both Regulation 7J(1) and Regulation 15B(1) is dismissed.

Representation:

Mr Cheung Wai sum, DPGC for DPP, for the Respondent

Mr Edwin Choy, instructed by Messrs Halkes Dundon, for the Appellant