HKSAR v. Chun Wo Building Construction Ltd.

HCMA000749/1999

HCMA749/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.749 OF 1999

(ON APPEAL FROM TWS 19622 OF 1998)

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Coram: Hon Nguyen J in Court

Dates of Hearing: 17 August and 15 September 2000

Date of Judgment: 18 May 2001

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J U D G M E N T

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1. The appellant company was convicted by Mr Anthony Yuen, sitting in Tsuen Wan Magistracy, on 5 July 1999 of the offence of being a proprietor of an industrial undertaking at Tsing Yi Station Development at TYTL 132, Tsing Yi, where on 16 July 1998, a contravention occurred of failing to ensure that the provisions of Regulation 19(1) of the Factories and Industrial Undertakings (Electricity) Regulations were complied with, in that, when work had to be carried out on a conductor, no adequate precautions were taken, so as to ensure that the work might be carried out without undue risk from electrical hazard, contrary to Regulations 31(1) and (2) of the said regulations, and fined $15,000. The appellant now appeals against the conviction.

2. On 16 July 1998, a worker (the deceased) was instructed by a technician of the 1st defendant, Chui Yick Hung (the appellant being the 2nd defendant) to work on conduit boxes at the 2nd floor of the construction site in question. The deceased had five years' electrical work experience. Later in the same morning, the deceased was found electrocuted. The deceased was not a registered electrical worker under the Electricity (Registration) Regulations made under the Electricity Ordinance, Cap.406. The appellant was not a registered electrical contractor under section 33 of the said Ordinance, whereas the 1st defendant was.

3. The following facts were found by the magistrate :

(a) The appellant was the principal contractor of the site in question.

(b) The appellant subcontracted the whole of the electrical works to Trident which in turn subcontracted the whole of the works to Kingsbro which further subcontracted the works to the 1st defendant.

(c) The deceased was an employee of the 1st defendant. He had five years' electrical work experience yet he was not a registered electrical worker under the law.

(d) On the day in question, the deceased was instructed by PW1, a technician of the 1st defendant, to work on conduit boxes at the 2nd floor. He carried out the work on his own.

(e) PW1 had reminded the deceased to be careful, apart from that, it was left to the deceased to take whatever necessary precautions.

(f) The cable ends coming out from the conduit box in question could be traced all the way to a power distribution board located at Meter Room C at the 2nd floor.

(g) At the material time, there were two doors installed at Meter Room C - a permanent door installed by the appellant and a temporary door installed by the 1st defendant. The Meter Room C was used as a store-room of tools and the temporary door was installed for security purposes.

(h) The temporary door to Meter Room C remained open during working hours. After work, it was locked with a combination lock. Only staff of the 1st defendant, Kingsbro and Trident knew the number of the combination lock.

(i) The power distribution board had a cover which could be locked but was not locked at the material time. There was a cardboard fixed on the cover with Chinese characters to the effect that it was energised.

(j) Cause of death of the deceased was electrocution and he was electrocuted while working on the conduit box labelled "N2CP-B8".

4. The magistrate, relying on section 19 of Cap.1 which requires the court to give a fair, large and liberal construction and interpretation in order to ensure attainment of the object of the legislation, ruled that the appellant was "a proprietor" and that it had taken no precautions at all. The magistrate also ruled that the duty on the appellant could not be delegated to another and, therefore, the fact that the appellant had wholly subcontracted the electrical works to Trident was no defence.

Main ground of appeal

5. A number of grounds of appeal were advanced by Mr Jenkyn-Jones, appearing for the appellant, but as I see it, the main thrust of his appeal is that, even assuming strict liability attached to the offence, the appellant was not a "proprietor" within the meaning of that word as it is used in the Factories and Industrial Undertakings Ordinance, Cap.59 ("the Ordinance"). It is accepted by Mr Jenkyn-Jones and Mr Thomas Law, appearing for the respondent, that the construction site in question was an industrial undertaking to which the regulations (Factories and Industrial Undertakings (Electricity) Regulations) applied. The only question is : was the appellant the proprietor of the industrial undertaking?

6. "Proprietor" is defined in the Ordinance, Cap.59 as :

" 'proprietor' in relation to any industrial undertaking ... includes the person for the time being having the management or control of the business carried on in such industrial undertaking ... and includes a body corporate and a firm and also the occupier of any industrial undertaking ... and the agent of such occupier."

7. The argument on behalf of the appellant is that it was not the proprietor and that because of the absence of a statutory defence under the Electricity Regulations, that makes the submission even stronger. Alternatively, it was submitted that if the appellant were to be construed as a proprietor, then the legislation vis-a-vis him should not be construed as one of strict liability. In my view, that is a rather circular argument, and it seems to me that the first question to be resolved is whether the offence in question is one of strict liability.

Is the offence one of strict liability?

8. In determining that question, regard should be had to the test laid down by Lord Scarman in Gammon (Hong Kong) Limited v. AG [1985] AC 1 which was repeated by Bohkary JA (as he then was) in AG v. Fong Chin Yue & Others [1995] 1 HKC 21 at page 29 :

"(1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence;

(2) the presumption is particularly strong where the offence is 'truly criminal' in character;

(3) the presumption applies to statutory offences, and can be displaced only if this is clear or by necessary implication the effect of the statute;

(4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue;

(5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act."

9. The purpose of the Ordinance is clearly to enact laws to ensure that places of work, including factories and industrial undertakings, should be safe for the people working therein. The regulations made under the Ordinance apply to quarries, construction sites, lifts, cargo and container handling, abrasive wheels, work places in compressed air, work places where there may be spraying of flammable liquids, guarding and operation of machinery, suspended working platforms, confined spaces and safety management. Clearly the statute is concerned with an issue of public safety, and it can readily be said that the creation of strict liability for all offences created under this Ordinance will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of prohibited acts.

10. In relation to the offence in question, as was pointed out by the appellant, there is no statutory defence to the offence, and the offence itself, under regulation 19 of the Electricity Regulations, is so wide that even if the conductor or apparatus to be worked on were to become accidentally live, then a failure to provide adequate precautions so as to ensure that the work may be carried out without undue risk from electrical hazard breaches the regulation. In my judgment, therefore, the offence in question is clearly one of strict liability.

Is the appellant the proprietor or a proprietor?

11. "Proprietor" is not defined as such in the Ordinance and the so-called definition only tells us who can be included within the definition. What then is the "proprietor"? It is defined in the New Shorter Oxford English Dictionary as "a person holding something as property; an owner, especially of a business, as a shop, restaurant etc. or of land." As Huggins JA (as he then was) in Tom K. Engineering and Construction Co. Ltd v. The Queen, Criminal Appeal No. 2/1978 said at page 2 of the judgment :

"I emphasise that one word because quite clearly there may be cases where the proprietor is what he purports to be - what the very word conveys or connotes - that is the owner. ....."

12. In the instant appeal, the evidence showed beyond any doubt that :

a. the appellant was, at all material times, the registered contractor of the site;

b. the appellant was also the principal contractor of the electrical installation works on the site;

c. the appellant employed a safety officer at the site to oversee the general safety matters arising from the construction works at the site;

d. the appellant imposed a fine system on all the sub-contractors and workers on the site for breaching any safety measures;

e. the appellant employed a foreman on the site for the overall co-ordination of all sub-contractors;

f. the appellant was the one to decide that only workers who had attended certain industrial safety courses were permitted to work on the site; and

g. the appellant had the ultimate control of the Meter Room C, in which a power distribution board was wall-mounted for the supply of electricity to the accident scene where the deceased worked :

i. the appellant alone had the custody and control of the keys to the permanent doors to the Meter Room C;

ii. the appellant could have access at any time it wished. The sub-contractor who had the keys to the temporary doors was obliged to comply with the appellant's request for access. The appellant had the power to order the sub-contractor to dismantle the temporary doors; and

iii. the temporary doors were installed only with no objection from the appellant.

Given all the above matters, I am of the view that the magistrate was entitled to rule that the appellant was a proprietor and, in my view, the magistrate was correct in so holding.

Was the obligation on the proprietor delegable?

13. The argument for the appellant was really that because the appellant was not a registered electrical contractor under the Electricity Ordinance, Cap.406, in order for it not to breach section 34 thereof, it could not do business as an electrical contractor or contract to carry out any electrical work. That is, of course, true and that is in fact what the appellant did not do, namely to try and carry out the electrical work itself which is why it sub-contracted the whole of the electrical works to a company called Trident. It is not clear whether Trident was a registered electrical contractor, but in any case, Trident then sub-contracted the whole of the works to Kingsbro, another firm. Again, it is not clear if Kingsbro was a registered electrical contractor, but Kingsbro, in turn, further sub-contracted the works to the 1st defendant. The 1st defendant was a registered electrical contractor.

14. The argument for the appellant is that because of the prohibition contained in section 34, as mentioned above, the appellant, not only could not do the works itself, but could not even attempt to supervise or to co-ordinate or monitor the efforts of the sub-contractor to ensure that the Electricity Regulations and other regulations were complied with. I do not accept that. The clear obligation upon the appellant was to provide adequate precautions to ensure that the work might be carried out without undue risk from electrical hazard. Mr Law, for the respondent, submitted that the appellant could lawfully have :

(1) supervised and co-ordinated the sub-contractors and their workers to ensure that they took the safety measures;

(2) themselves taken safety measures, like briefing workers to put a plastic tape over a particular switch so that it could not be touched;

(3) checked and ensured that the regulations were observed by the sub-contractors; and

(4) appointed a sub-contractor to carry out the work competently.

I agree with that submission.

15. The finding that the appellant was a proprietor within the meaning of the Ordinance, to my mind, is consistent with the obligations imposed upon it by the law, and the finding also sits comfortably with the provisions of section 13 of the Ordinance which read as follows :

"1. Except as may be otherwise provided by regulations made under this Ordinance, the proprietor of every industrial undertaking in, or in respect of which any offence against this Ordinance has been committed, shall be guilty of a like offence, and shall be liable to the penalty prescribed for such offence.

2. It shall be no defence to a prosecution of the proprietor of an industrial undertaking for an offence against this Ordinance, that the offence was committed without his knowledge or consent or that the actual offender has not been convicted of the offence."

16. The obligation imposed by the Ordinance on the appellant was the primary responsibility of ensuring that the works carried out on the site complied with the Ordinance and the regulations made thereunder. The appellant was the registered contractor and the principal contractor of the works at that site. The fact that the appellant sub-contracted the work to others did not relieve it of its responsibility imposed on it by the law. Such responsibilities were not delegable. In Tom K. Engineering and Construction Co. Ltd v. The Queen, (supra) Huggins JA at page 4 said :

".... the purpose of this certificate - to ensure that a responsible contractor was going to carry out the work in a responsible manner - and the fact that he sub-contracts does not, and I agree with the learned magistrate in this respect, relieve the head-contractor of responsibility for ensuring that the work is carried out in a proper manner in accordance with the Ordinance and the Regulations. Indeed, I am satisfied that the whole purpose of this form of certificate is to ensure that work is done properly and in a manner which will take proper notice of the dangers involved to workmen. ...."

Further, at page 5, he said :

".... I have no doubt in my own mind that the sub-contractor could equally have been prosecuted for this offence but it seems to me that the object of having registered contractors is to ensure that there is a responsible contractor who is primarily responsible and it may or may not be proper to bring a prosecution against sub-contractor as well."

17. In AG v. John Lok & Partners and George Wimpey International Limited trading as John Lok/Wimpey Joint Venture [1986] HKLR 325, Hooper J said at page 335 :

".... It would be ludicrous if a head contractor or principal contractor having made himself responsible for the carrying out of certain works could avoid liability under these provisions by saying that though work had begun, he had not himself performed any physical work or acted in accordance with his contractual obligations. The whole purpose of this legislation is to make sure that the person having the primary responsibility under the contracts in relation to the carrying out or carrying into practice or carrying through the construction work, should be responsible for the site where that construction work has commenced."

18. In AG v. Chan Ka Kui [1984] HKC 569, Bewley J said :

".... The draftsman has clearly made the distinction in order to catch the principal contractor, in circumstances where danger might be caused by a sub-contractor, who might not be easily identifiable, but also to make it possible to prosecute a sub-contractor in a proper case. Thus, reg 45, for example, makes the contractor responsible for ensuring that only competent workmen operate the machinery, but the sub-contractor may also be prosecuted."

Can there be more than one "proprietor"?

19. The appellant argues that the scheme of interpretation does not suggest equal responsibility, and that for the purpose of these regulations there should be one, not two or more proprietors. I cannot agree with that submission. Even though in Regulation 31 of the Electricity Regulations, it shall be the duty of "the proprietor of every industrial undertaking" to ensure that the provisions of certain regulations are complied with, in my view, that does not mean that there can only be one person who can be held responsible but means that the duty falls on every person or company which can legally be held to be the proprietor.

20. In the instant appeal, as I have found above, the proprietor was the appellant and includes the sub-contractors who had the management or control of the business carried on in such an industrial undertaking. It is known that the 1st defendant was prosecuted for the same offence arising from the same accident.

21. In addition, in Tom K. Engineering, (supra) Huggins JA spoke of the sub-contractor standing a similar chance of being prosecuted and in AG v. Chan Ka Kui, (supra) Bewley J spoke of the possibility of prosecuting a sub-contractor in a proper case. In AG v. Shun Shing Construction and Engineering Co. Ltd [1986] HKLR 311, the Court of Appeal, in dealing with a provision in the Construction Sites (Safety) Regulations, said at page 314 :

".... The whole scheme of the legislation is that the head contractor shall have the same responsibility for some of the statutory safety precautions when work is done by a sub-contractor as if the head contractor had done the work itself. The reasoning behind this is that it will assist in the enforcement of the regulations by encouraging the head contractor to do more 'by supervision or inspection ... or by exhorting those whom [it] may be expected to influence or control, which will promote the observance of the regulations' Lim Chin-aik v. Reg. [1963] AC 160, 174."

22. It was also held in that case that the duty on the head contractor could not be delegated and that was a duty under Regulation 37(2) of the Construction Sites (Safety) Regulations.

23. For the reasons which I have given above, and in the light of the rulings in law which I have made, I do not think it is necessary to deal with the rest of the grounds of appeal raised by the appellant. The appeal against conviction is accordingly dismissed.

24. I am grateful to Counsel for their assistance in this matter.

Representation:

Mr Thomas Law, DPGC & Mr Henry Hung, GC of Department of Justice, for HKSAR

Mr Toby R.W. Jenkyn-Jones, instructed by Messrs Johnson, Stokes & Master, for the Appellant