The Queen v. Chan Ka Kui

Case No.HCMA 674/1984

Court

High Court CFI

Date20 Dec 1984

Judge—

Case Document

100%Judiciary

HCMA000674/1984

Construction Sites (Safety) Regulations

Liability of contractor responsible for site for sub-contractor's failure to comply with regulations.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 674 of 1984

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BETWEEN

THE QUEEN

Respondent

AND

CHAN KA KUI trading as 3 Dimensional Interiors

Defendant

_____________

Coram: The Hon. Mr. Justice Bewley

Date of Hearing: 12 November 1984

Date of Delivery of Judgment: 20 December 1984

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JUDGMENT

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1. This is case stated by Mr. R.B. Venning, sitting in Western Magistracy, following his dismissal of an information charging the respondent with failing to ensure that every dangerous part of machinery, namely the revolving cutting blade of a circular saw, was securely fenced, contrary to Regulation 44(1)(c) of the Construction Sites (Safety) Regulations Cap. 59.

2. Upon the hearing of the information, the following facts were admitted:

	(a)	The Respondent was the contractor responsible for the internal decorative construction work at 19-27 Wyndham Street, Upper Ground Floor, Central, Hong Kong.
	(b)	On the 14th day of September, 1983 an accident occurred at the aforesaid construction site which resulted in injury to a worker, namely, Mr. MA Kam-shing (hereinafter called the victim).
	(c)	The investigation by a Factory Inspector revealed that at the time of the accident the victim was operating a circular saw to cut away a portion of a wooden plank which formed a member of a dining table. No top guard was provided to fence the revolving cutting blade of the circular saw.
		When he was pressing the wooden plank right of top of the revolving cutting blade with his left hand holding the leading edge of the plank, the plank was suddenly dragged by the saw blade and bounced back towards him. His left hand was brought to contact with the revolving cutting blade. As a result, one phalange of his left middle finger was amputated and his left ring finger was lacerated.

3. The victim gave evidence and stated that he was employed by Mr. Lo Yim-bun. It was admitted by the respondent that Mr. Lo was his sub-contractor.

4. The case was defended on the basis that the proper defendant was Mr. Lo, being the sub-contractor in charge of the machinery that caused the injury, and not the respondent, the contractor in charge of the site.

5. Regulation 44(1) provides:-

6. A contractor shall ensure that -

	(a)	every flywheel and moving part of any prime mover;
	(b)	every part of transmission machinery; and
	(c)	every dangerous part of other machinery (whether or not driven by mechanical power),
	for which he is responsible is securely fenced to the satisfaction of the Commissioner unless it is in such a position or of such construction as to be as safe to every workman on the construction site as it would be if it were securely fenced.

7. The learned magistrate took the view that the regulation imposes duties on the contractor who is responsible for the particular machinery, about which complaint is made, and not upon the contractor who is responsible for the construction site.

8. The question of law arising from this decision is whether the contractor responsible for a construction site, per se, is responsible for ensuring the fencing of such parts of machinery as is required by Regulation 44.

9. 'Contractor' is defined by Section 2 of the Ordinance as' any person or firm engaged in carrying out construction work by way of trade or business, either on his own account or pursuant to a contract or arrangement entered into with another person, including the Crown or any public body'.The definition thus includes a sub-contractor, who is specifically defined by Regulation 2 as a person employed by a contractor to perform construction work under a contract for services.

10. Regulation 2(2) provides:

11. For the purposes of these regulations -

	(a)	a contractor is responsible for a construction site if he is undertaking construction work there or, where there is more than one contractor undertaking construction work at the site, if he is the principal contractor undertaking work there;
	(b)	a contractor is responsible for any plant referred to in these regulations if it is located at a construction site for which he is responsible.

12. On the face of it, therefore, the principal contractor is responsible for all duties subsequently imposed on a contractor by the regulations.

13. The question of law arises from the different wording of the regulations. There are 75 regulations casting various duties or obligations on contractors. In 36 of these, the contractor, upon whom the duty is cast, is described as the contractor responsible for the construction site. In the remainder, (except for Regulation 67), he is described variously as the contractor responsible for the lifting appliance, the gantry, the mechanical equipment, the work etc. Regulation 67 requires all contractors to keep certain records.

14. Because of the difference in wording, the magistrate decided that Regulation 2(2) applied only to situations where the contractor was described as being the contractor responsible for the construction site.

15. Mr. O'Mahony, for the Crown, contends that this is wrong. He submits that the omission of these words is deliberate, in order to provide a discretionary power to prosecute a sub-contractor in a proper case.

16. He relies on Tom K. Engineering & Construction Co. Ltd. v R. ⁽¹⁾ This case concerned the Factories and Industrial Undertakings (Abrasive Wheels) Regulations, Reg. 17(1) of which provides that the proprietor of any industrial undertaking, who contravenes certain other regulations, shall be guilty of anoffence. The question that arose was whether the appellant was the proprietor of an industrial undertaking. The definition of "proprietor" included the person for the time being having the management or control ... of any industrial undertaking ... It was submitted that the appellant was not in control of the construction work, because he had sub-contracted to a person who gave evidence that he was responsible for the whole of this operation.

17. A certificate was put in evidence which included the following paragraph:

"We, the said Tom K. Engineering & Con-struction Co. Ltd.., registered contractor,... confirm that we have been appointed to carry out the above described building works and we hereby undertake to carry out the above works in strict compliance with the Buildings Ordinance and regulations made thereunder."

18. In the course of his judgment, Huggins, J.A. said:

The "above described works" are of course the building of the retaining wall to which I have referred. Now it is argued on behalf of the Appellant that the undertaking related solely to the quality of the finished work. I am unable to accept that interpretation of this certificate. In my view it is clear that the contractors were undertaking not only in relation to the quality of the finished work but to the manner in which the work was carried out. The Buildings Ordinance and the Regulations made thereunder are very largely concerned with the manner in which work is to be done and it is quite clear to my mind that this is what was 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. I am not satisfied that the learned magistrate did not have regard to all the evidence when coming to his conclusion as to the Appellant's being a proprietor, but clearly he was very largely governed in his decision by this certificate and it seems to me that the other evidence merely goes to the degree of responsibility or blame-worthiness which must attach to the various persons involved. 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.'

19. Miss Plumptre, for the respondent, submits that the Crown's proposition puts both contractor and sub-contractor in a difficult position, each tending to leave responsibility to the other.

20. Does the regulation mean that a sub-contractor, who brings his crane onto a building site, sheds responsibility for it, even in the absence of the principal contractor? Miss Plumptre suggests that the sub-contractor must carry the primary burden in such a dangerous situation.

21. Reg. 43 provides that the contractor responsible for the site must ensure that the workers use goggles. Miss Plumptre seeks to draw a distinction between the paramount duty to enforce safety measures of this nature and the responsibility for the safe working of individual machines. She points out that all regulations dealing with specific machinery refer to the contractor responsible for that piece of machinery; regulations dealing with a broad duty refer to the contractor responsible for the site. It fellows, she says, that there must be a good reason for the distinction.

22. Mr. O'Mahony submits that, in this case, there was no evidence that Mr. Lo was a sub-contractor in control of this particular piece of machinery; in such circumstances, it is proper that there should be a responsible person, who is easily identifiable, who can be prosecuted when the regulation is infringed.

23. I agree. The words of Reg. 2(2) plainly impose, responsibility on the principal contractor. He is the person responsible for the plant on the site. There is nothing absurd or illogical about this. As pointed out by Mr. O'Mahony and Huggins J.A., it may be possible and desirable to prosecute the sub-contractor, who is primarily involved with the wont but, if not, there is an easily identifiable person who is responsible for the site.

24. Miss Plumptre's argument overlooks the whole purpose of the legislation. 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 principal contractor responsible for ensuring that only competent workmen operate the machinery, but the sub-contractor may also be prosecuted.

25. Reg. 43, which requires the contractor to provide goggles in certain circumstances, excludes a sub-contractor because the regulation refers to the contractor responsible for the site. Here it is not intended that a sub-contractor should have any liability.

26. I am satisfied that the reason for the omission of the words "responsible for any construction site" in Reg. 44 is to catch both principal contractor and sub-contractor. For these reasons, I would answer the question for decision in the affirmative and allow the appeal accordingly. The case is remitted to the magistrate for continuation of the trial.

	(E. de B. Bewley)
	Judge of the High Court

(1) Criminal Appeal No. 2 of 1978.

Representation:

Mr. P.J. O'Mahony, Senior Crown Counsel, for Appellant

Miss Jane Plumptre (D.L.A.) assigned for the Respondent