Lee Yu Kee Ltd. v. The Attorney General
Read the full judgment text of CACC 325/1981 on BabelCite. This Court of Appeal judgment.
1. On the 13th of May last year five workmen employed by the defendant company were engaged in the repair of damaged piping installed in a sewer in Kwai Chung. The actual site of the damage was underground and was approached through a manhole on the surface. In the course of the afternoon the workman who was for the time being down the manhole complained of a strong smell and collapsed back into the pit as he tried to climb out. His workmates hurried to the rescue but two of them were also overc
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CACC000325/1981
----------------- Coram: Cons, J.A. O'Connor & Silke, JJ. Date of Judgment: 2nd July 1981 ----------------- JUDGMENT ----------------- Cons, J.A.: 1. On the 13th of May last year five workmen employed by the defendant company were engaged in the repair of damaged piping installed in a sewer in Kwai Chung. The actual site of the damage was underground and was approached through a manhole on the surface. In the course of the afternoon the workman who was for the time being down the manhole complained of a strong smell and collapsed back into the pit as he tried to climb out. His workmates hurried to the rescue but two of them were also overcome. A third managed to escape by holding his breath as he climbed up again. The three who collapsed subsequently died. 2. Post-mortems were performed on the following day at the Kowloon Public Mostuary. The cause of death was certified in each case to be pulmonary congestion and oedema. It is not possible to determine with certainty what particular gas, if any, was the culprit for the sample tissues sent to the Government Chemist for analysis perished before examination through lack of proper refrigeration. It seems likely, however, from the evidence of an industrial hygienest, to have been hydrogen sulphide. 3. Two summonses were laid against the defendant company and the learned magistrate convicted on both. The first was under Regulation 9(1) of the Factories and Industrial Undertakings (Confined Spaces) Regulations which provides:
4. The second was under Regulation 6 which, taken together with Regulation 14(1)(a), provides:
Regulation 7 has no application to the instant circumstances. 5. It is conceded that the manhole was a confined space, that none of the equipment mentioned in either regulation was provided or used and that the defendant company is a proprietor of an industrial undertaking within the Ordinance under which the regulations are made. The correctness of the magistrate's decision turns solely upon Regulation 4. This provides:
6. It is the last three lines which are vital to our present consideration. They involve the prosecution in establishing two matters in any particular instance. The first is that fumes which are dangerous are liable to be present. The second is that the extent of their presence shall be such as to create a risk that persons there will be overcome. 7. There is no difficulty about the first requirement in this case. The evidence of the hygienest is that hydrogen sulphide is produced by the decomposition of organic matter and that it is always present to some extent in human sewage. But neither the magistrate nor counsel, so far as we can judge by the record, directed his attention to whether on that particular afternoon the level of hydrogen sulphide was liable to be sufficiently adverse, whatever degree of likelihood may be ascribed to the word "liable", as to which we express no opinion. Indeed the evidence, again as recorded, deals hardly at all with the matters which may have affected the level of gas on that afternoon. The conviction must therefore be quashed and the fines imposed thereon set aside. 8. Before we leave this matter we should add that Crown counsel, who is not the counsel who appeared before the learned magistrate, has been severely handicapped in his efforts to support the convictions by the thoroughly unsatisfactory state of the record of evidence. With every respect to the learned magistrate, parts of it are simply unintelligible, in particular the cross-examination of the hygienest, which incidentally is recorded by way of question and answer, a practice only recently discouraged(1). A suggestion that further and vital parts were not even recorded at all was not pursued before us. However, a brief examination of the magistrate's original manuscript notes indicates that he can have made no more than a cursory examination of them before certifying the transcript to be a "true copy". 9. We are all aware from personal experience of the difficulty in keeping an adequate and accurate record and yet allowing the case to proceed at a reasonable pace. Mistakes and omissions are therefore bound to occur from time to time. Nevertheless they will become apparent if, when a transcript is prepared for an appeal, a proper check is made. The transcript can then be noted accordingly. Representation: John H.N. Bleach (M/S. Peter Mark & Co.) for the Appellant. J.E. Halley, counsel for the Crown/Respondent. (1) CHAN Sun-chiu v. MA Man Civil Appeal 44 of 1981 |