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HCMA000062A/1985
HEADNOTE
Construction Sites (Safety) Regulations Cap. 59 Regulation 2(2)(a) "Contractor responsible for a construction site" Construction and Interpretation. Section 19 of Interpretation and General Clauses Ordinance CAP I.
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(1) |
The purpose of these regulations is to fix liability for failure to comply with the regulations on the contractor having the most responsibility at the construction site. That responsibility is intended to cover the whole site and is not limited to any particular part of it. Furthermore the regulations do not appear to envisage more than one contractor being responsible for a particular site from the commencement of the construction work until its ultimate completion.
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(2) |
As a matter of law the term "contractor responsible" in regulation 2(2)(a) of the Construction Sites (Safety) Regulations is not limited in its application to a contractor carrying out the actual physical work of construction at a site or any work involved in preparing for any operation referred to in Section 2(1)(a) of the Factories and Industrial Undertakings Ordinance CAP 59.
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(3) |
"CONTRACTOR" in relation to construction work means a person engaged in carrying out construction work. That is a person involved in carrying out, carrying into practice or carrying through construction work.
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(4) |
A contractor is said to be responsible for a construction site in Regulation 2(2)(a) "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". Construction site is defined as a place where construction work is undertaken. The word 'undertaking' in this context must have a construction associated with the words "carry out". Therefore it is a place where construction work is carried out, carried into practice or carried through. A person is undertaking construction if he is involved in that carrying out of the construction work there.
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A person can 'carry out' construction work without performing physical work himself. He is undertaking construction work if he is managing, organising or supervising it.
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'Is undertaking' implies that the contractor has made himself responsible for the carrying out of the construction work which has been commenced or entered upon.
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(5) |
'Principal Contractor' means the contractor from whom the other contractors derive their contracts. It has nothing to do with who does the most physical work. |
IN THE SUPREME COURT OF HONG KONG
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO. 62 OF 1985
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BETWEEN
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THE ATTORNEY GENERAL |
Appellant |
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AND
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JOHN LOK & PARTNERS & GEORGE WIMPEY INTERNATIONAL LTD. trading as JOHN LOK/WIMPEY JOINT VENTURE |
Respondent |
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Coram: Hon. Hooper, J.
Date of Hearing: 11 September 1985
Date of delivery of judgment: 27 September 1985
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JUDGMENT
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1. This is an appeal by way of case stated from the decision of the Magistrate at Western Magistrate's Court on the 26th of October 1983 when he dismissed an information preferred by the Appellant against the Respondent.
2. The information charged :-
"For that you (the respondent) on the 14th of January 1983 at 1 Queen's Road Central, Hong Kong & Shanghai Bank Redevelopment site - Access Caisson No. 5 in this Colony, being the contractor responsible for a construction site at 1 Queen's Road Central, Hong Kong & Shanghai Redevelopment site - Access Caisson No. 5 did fail to take such precautions as when necessary to prevent the workmen employed and working at the said construction site from being struck by any falling material or object"
3. The Magistrate upon hearing the information found the following facts, which are set out in para. 4 of the case stated.
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(1) On the 14th January 1983 at or about 11:30 a.m. a workman, WONG Yuk-ho (hereinafter referred to as the deceased), an employee of Nelson Construction Company, was killed as a result of being struck by a plank of wood whilst working at the base of access caisson number 5 at the Hong Kong and Shanghai Bank site (hereinafter referred to as the site).
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(2) Such precautions as were necessary to prevent the deceased being struck by the falling plank whilst he was working in caisson No. 5 were not taken.
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(3) The Respondent was appointed by the owners of the site who were referred to in an agreement as "The Employer" to act as what the parties to the agreement called "the Managing Contractor" for the site and as such was contractually bound under its agreement with the Employer to "manage, organize, supervise and co-ordinate and secure the execution and completion of the works" on the site. Its role was essentially to co-ordinate the efforts of a large number of contractors who were engaged to carry out the costruction works on the site and who did in fact carry out such works on the site.
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(4) The Respondent did not promise the Employer that it would carry out the actual physical works of construction on the site nor did it in fact do so. Indeed the Respondent expressly agreed with the Employer that it "shall not by itself or by its servants and/or agents execute any of the works" on the site.
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(5) A company called Dragages et Travaux Publics ("Dragages") entered into a written agreement with the Respondent (which both parties called a "sub-contract") under which Dragages promised and agreed to carry out the main sub-structure works on the site. Dragages then sub-contracted parts of the sub-structure works to various companies including Nelson Construction Company which employed the Deceased. Nelson Construction Company were employed to do steel-fixing works on the site.
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(6) The other companies engaged by Dragages as sub-contractors were : Chun Kee Engineering and Construction Co. Ltd. (to carry out the False work system and structural steel work); Fook Cheong Construction and Engineering Co. Ltd. (to carry out the excavation works); P.S.P. Contractors and Tenders Ltd. (to carry out the substation No. 2 office extensions); Bachy Soletanche Group (to carry out the pipes diversion); Lai Nam Construction Engineering Co. (to carry out the carpentry).
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(7) In Addition to Dragages, the other companies which had entered into so-called "sub-contracts" with the Respondent on the relevant date were Bachy Soletanche (to carry out work in relation to ground water control and diaphram wall); B.S.C. Dormon Long Joint Venture (to carry out structural steel work); Andrew Lau and Associates (to carry out surveying work); Omtis Ltd. (to carry out survey works); Wai Ming Engineering Company (to carry out lighting and power work) and William Tong Ltd. (to carry out general building work).
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(8) The Notice to the Building Authority, Form 16, which had been signed on behalf of the Respondent as the registered contractor of the site and dated the 1st December 1981 under Regulation 20 of the Buildings Administration Regulations, Cap. 123 contained the following words :
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"We (the Respondent) 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."
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(9) I was not able to make any finding as to whether and if so precisely what surveying work was in fact carried out by the Respondent. I found that there was surveying work sub-contracted to Andrew Lau and Associates but made no finding as to precisely what that surveying work consisted of. I found that the Respondent did not seek or obtain any written consent of the Employer to carry out any surveying work itself. I found that the Respondent employed its own surveyors for the purpose of checking work carried out by the sub-contract surveyors, Andrew Lau and Associates, but I was not able to make a finding that the Respondent's Surveyors did in fact carry out any checking works. The evidence did not indicate precisely what the checking work involved and I was therefore unable to make any materiel finding about it. There was evidence that the Respondent checked the work of the surveyors employed to set out the works, but I was unable to make any finding as to what this checking involved or as to what the setting out of the work involved.
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(10) The Respondent was the only contractor with a direct contractual relationship with the Employer.
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(11) Dragages supplied and installed the safety fixtures and equipment in relation to caisson No. 5 in particular the wire mesh and safety sheeting.
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(12) The Respondent was "management contractor" pursuant to its agreement with the Employer which was called by the parties to it "the Principal Contract". The terms of the Principal Contract recited and provided inter alia that :-
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(i) the management contractor had submitted a Master Construction Programme to the Architects for approval for the execution of the works and all drawings and specifications were to be furnished by the Architects to the management contractor for tender purposes,
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(ii) the management contractor was responsible for "the true and proper setting out of the works and for the correctness of the positions, levels, dimensions and alignment of all parts of the works and for the provision of all necessary instruments, appliances and labour in connection therewith. If at any time any error should appear in the positions, levels, dimension or alignment of any part of the works the management contractor on being instructed by the Architects should ensure that such error was rectified to the satisfaction of the architects,
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(iii) the management contractor was to prepare all necessary programmes for the execution of the works and to provide the Architects and Employer with monthly progress reports,
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(iv) the management contractor was to provide competant supervision of the works,
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(v) the management contractor was to secure that any defects in the works occuring before Practical Completion due to materials or workmanship not in accordance with the agreement be made good at its own costs,
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(vi) the management contractor should not sublet any part of the works without the prior written consent of the Architects nor execute by itself or by its servants or agents any of the works without the written consent of the Employer,
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(vii) the management contractor was liable for and was to indemnify the Employer against any liability, loss or proceedings under any statute or at common law in respect of personal injury to or the death of any person arising out of or in the course of or caused by the carrying out of the works unless due to acts or neglect of the employer or the Employer's servants or agents,
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(viii) the management contractor was to arrange in the joint names of itself and the sub-contractors (as the Insured), a "Contractors All Risks" insurance policy to cover any loss or damage to the permanent and temporary works,
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(ix) the management contractor was at its cost to maintain for the benefit and in the joint names of the Employer, the sub-contractors and itself Third Party Insurance Covering the legal liability of the parties for accidental bodily injury to third persons or accidental loss or damage to third party's property arising out of the execution of the works.
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(13) Pursuant to the "Terms and Conditions of Subcontract" between Dragages and the Respondent :
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(i) Dragages undertook in its "sub-contract" to "provide and maintain at its own costs all lights, guards, fencing and watching when and where necessary or required by the Management Contractor or by a local or duly constituted authority for the protection of the sub-contract works or for the safety and convenience of the public or others".
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(ii) Dragages undertook "to comply with all relevant requirements of any legislation ... and any regulations ... made thereunder and all safety, health and welfare regulations applicable to work, people and the sub-contract works in force from time to time ..."." |
4. The contentions for the Appellant were set out in the case stated in paragraph 5 as follows:-
"5. It was contended on the part of the appellant that .-
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(i) The Respondent was the only contractor on the site and therefore the contractor responsible.
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(ii) In the alternative, if all other subcontractors were viewed as contractors, then the Respondent was the principal contractor.
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(iii) Alternatively, there are two limbs to the definition of contractor responsible. The second limb is "where there is more than one contractor undertaking construction work at the site, he is the principal contractor undertaking work there". As a matter of interpretation the principal contractor does not have to be undertaking construction work, only work, provided other contractors are undertaking construction work.
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(iv) All work performed by the Respondents are preparatory to any or all aspects of the actual construction work or an integral part in the construction of the building. As a matter of interpretation the definition of construction work in Section 2 of the governing ordinance, Cap. 59, in sub-section (b) does not limit "preparatory work" to the excavation to foundation stage, but to all preparatory aspects of the construction, erection, alteration etc., referred to in sub-section (a).
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(v) The Respondent could and did undertake surveying work which was preparatory to construction work.
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(vi) That the effect of the declaration by the Respondent that it was the registered contractor of the site (referred to at paragraph 4(8) hereof) included the assertion that it was appointed to carry out the building works. The Crown referred to Tom K. Engineering Construction Company Ltd. v. R. Criminal Appeal No. 2/1978. There it was held that a contractor who sub-contracted all the work and described himself as the registered contractor was the contractor responsible for the site." |
5. The Respondents contentions were set out in paragraph 6 in the following terms :-
"6. In reply it was contended by the Respondent that :-
(a) Regulation 2(2) (a) of the Construction Sites (Safety) Regulations, Cap. 59 provides that "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."
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(1)(i) The word "undertaking" in the phrase "undertaking construction work there" in Regulation 2(2)(a) means "carrying out" or "taking in hand'' construction work as that phrase ("construction work") is defined in section 2 of the principal Ordinance, Cap. 59. "Undertaking" in this context does not mean "promising to carry out". This is the interpretation which is to be preferred bearing in mind the interpretation of the ordinance as a whole, particularly bearing in mind that section 2(1) of the principal ordinance, Cap. 59 defines the word "contractor" in relation to construction works as meaning "any person or firm engaged in carrying out construction work". Support for this approach and this construction is to be found in the Australian case of McLeish v. F.T. Eastment and Sons Pty. Ltd. (1970) 71 State Reports (N.S.W.) 173 where the word "undertake" in a statute prohibiting the undertaking or carrying out of any electrical wiring work except under licence was construed as meaning "carrying out" and not "to enter into a contract" or "to give a promise".
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(ii) This interpretation is reinforced by the fact that the Respondent as registered contractor under section 9(3)(a) of the Buildings Ordinance, Cap. 123 was under an obligation to "give continuous supervision to the carrying out of the building works". In other words, it was not to carry out the works itself, but rather supervise the carrying out of those works by others.
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(iii) In so far as the English word "undertaking" has two meanings, the meaning more favourable to the Defendant should be preferred, this being a penal statute as long as that meaning does not do violence to the obvious intention of the ordinance.
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(iv) In this case the Respondent was not "carrying out" construction work on the site and could not therefore be a "contractor undertaking work there" and as such a "contractor responsible for the site" within the meaning of Regulation 2(2)(a).
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(2)(i) Further or in the alternative, if the word "undertaking" in Regulation 2(2)(a) does include "promising to carry out" construction work as well as actually "carrying it out" or "taking it in hand", then there is still a distinction recognized by the law between (a) undertaking or promising to do work and (b) undertaking or promising to have work done. In this case the Respondent did not promise the site owners to do the work but only to have the work done. Indeed the Respondent was forbidden by the terms of the contract with the site owners to do the work itself, but was employed to supervise the doing of the work by others.
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(ii) The distinction between (a) undertaking or promising to do work and (b) undertaking or promising to have work done is a clear and marked distinction and reflects the distinction between (a) cases where the promisor is under a primary obligation to carry out the work himself but may choose to sub-contract out all or part of the works while still remaining primiarily liable to execute them and (b) cases where the promisor has no such primary obligations and no such primary liability. The first class of case represents the position of the "Main Contractor" in the vast majority of building contract cases. The second class of case represents the position of a relatively recent and rather unusual type of contractor (of which the Respondent is one), the "Management Contractor'', who undertakes to the site owner to have the work done and to engage others to do it and to co-ordinate the efforts of those others. It would appear that the legislature did not have in mind the rather special role of the management contractor when Cap. 59 was enacted and the legislation ought not to be given an extended interpretation to meet a case for which provision has clearly not been made.
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(iii) In this context the case of Tom K. Engineering Co. v. R. Criminal Appeal 2/1978 relied on by the Crown counsel is distinguishable because that case was concerned with whether the Appellant was the "proprietor of an industrial undertaking" within the meaning of the Factories and Industrial undertakings (Abrasive Wheels) Regulations "having the management or control" ... of the industrial undertaking. The Appellant in that case was on the evidence the "main contractor" or "head contractor", having been appointed to carry out the building works. It therefore had a primary obligation to carry out those works and it was held that the fact that it subcontracted out the works to others could not relieve it, as main contractor, of the responsibilities which were imposed by that ordinance on those having the "management or control" of the undertaking. The question in that case was not whether the Appellant was the principal contractor carry out construction work on a construction site within the meaning of Regulation 2(2) of the Construction Sites (Safety) Regulations, Cap. 59.
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(iv) Crown Counsel in the present case relies on the fact that the Respondent signed a certificate known as Form 16 under Regulation 20 of the Building (Administration) Regulations, Cap. 123 giving notice that the person for whom the Building works were to be carried out had appointed the Respondent to be registered contractor in respect of those works. Although this was not required by Regulation 20 the standard form certificate, Form 16, included at the bottom an additional notice to the effect that the Respondent had been "appointed to carry out the building works". Although this was signed on behalf of the Respondent it did not accurately record the true position, which was that it had been appointed to ensure that others carried them out. There was a further undertaking under Regulation 20(b) undertaking responsibility for strict compliance with the provisions of the Buildings Ordinance and regulations. However, the form of the undertaking included the expression (which was not required by the Regulation) "we hereby undertake to carry out the above works in strict compliance with the Buildings Ordinance and regulations made thereunder". Again this did not reflect accurately the contractual promise made by the Respondent to the site owner. |
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(b) In relation to the words "construction work" in Regulation 2(2)(a) :
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(i) The phrase "construction work" is defined in section 2(1) of the principal ordinance. That is the relevant meaning. It is plain from the wording of section 2 that the type of work envisaged is the actual physical work involved in demolishing any old building and constructing a new one as distinct from work of a more intellectual nature such as preparing plans, survey reports, drawings, schedules, contracts, and so on. All the words in section 2(1) have this physical connotation: "construction, erection, installation, reconstruction, repair, maintenance, (including redecoration and external cleaning), renewal, alteration, improvement, dismantling or demolition of any structure or works". The wording of the second part of section 2(b) reinforces this interpretation. Section 2(b) refers to "any work involved in preparing for any operation referred to in paragraph (a), including the laying of foundations and the excavation of earth and rock prior to the laying of the foundations. These words differentitate the actual physical work of construction and preparatory from other types of wrok (which are also "preparatory" in one sense) such as preparing plans, drawings and so on.
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(ii) The type of work undertaking by the Respondent was not within this definition. |
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(c) In any event, even if the Respondent were a contractor carrying out construction work at the site, on the evidence and as a matter of fact the Respondent was not the principal contractor undertaking work there. The principal contractor carrying out construction word, on the site at the material time was Dragages." |
6. The learned Magistrate then set out his opinion on the law in paragraph 7 as follows :
"7. I, being of the opinion :
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(i)
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That I had to pay particular attention to the following sections of the principal ordinance, Cap. 59 and the Construction Site (Safety) Regulations :
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(a) |
Regulation 2(2);
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(b) |
The definitions of "construction site" and "sub-contractor" in Regulation 2(1);
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(c) |
The definition of "construction work" and "contractor" in Section 2(1).
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(ii)
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That the legislation I had to construe placed the responsibility for the site on the sole or principal (in the sense of "main") contractor (if more than one on the site) carrying out the actual physical work of construction on the site in which "construction work" is defined in section 2(1) of the principal ordinance.
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(iii)
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That the Respondent was not carrying out such work as defined in section 2(1) on the site and that its responsibility was confined to overseeing an and co-ordinating the work of others on the construction project.
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(iv)
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That the Respondent had no primary obligation to carry out the actual physical works of construction on the site.
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(v)
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That the Respondent did not undertake to carry out the actual physical works of construction of the site.
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(vi)
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That this was a penal statute and had to be strictly construed.
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(vii)
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That the wording in Form 16 signed on behalf of the Respondent did not prevent me from coming to the conclusion that the Respondent was not the contractor responsible. Moreover, I did not feel that the term "registered contractor" in the Buildings Ordinance was necessarily synonymous with "contractor responsible" in the Regulations I had to construe.
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(viii)
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That on the material before me, the Respondent was not the principal contractor within the meaning of Section 2(2)(a) of the Construction Sites (Safety) Regulations. |
7. As a result of that opinion, the Magistrate held that the Respondent was not the contractor responsible in Regulation 2(2)(a) of the Construction Sites (Safety) Regulations and dismissed the information.
8. The Magistrate sets out the questions of law arising on his statement for the opinion of this Court as follows :
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(1) Was I correct in holding as a matter of law that the term "contractor responsible" in Regulation 2(2)(a) of the Construction Sites (Safety) Regulations applies only to a contractor carrying out the actual physical work of construction at the site or any work involved in preparing for any operation referred to in Section 2(1)(a) of the Factories and Industrial Undertakings Ordinance, Cap. 59 ?
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(2) Was I correct in holding as a matter of law that the wording of Form 16 (referred to in paragraph 4(8) above) did not prevent me from coming to the conclusion that the Respondent was not the contractor responsible?
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(3) Was I correct in holding as a matter of law that the Respondent was not the principal contractor undertaking work at the site within the meaning of Section 2(2)(a) of the Construction Site (Safety) Regulations, Cap, 59?
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(4) Having made the findings of fact set out in paragraph 4 above, was I entitled as a matter of law to hold that the Respondent was not the "contractor responsible" for the construction site at No. 1 Queen's Road Central under Regulation 49(1) of the Construction Sites (Safety) Regulations, Cap. 59?" |
9. The first question arises as a result of the Magistrate's stated opinion in paragraph 7(ii) of the case stated. It seems that some of the contentions of counsel for the Respondent found favour with him. Unfortunately, skilful and persuasive as the contentions of counsel for the Respondent were, I do not think that they get at the real intention of the legislation in question.
10. In construing this Legislation the Magistrate was bound first of all to have regard to the provisions of section 19 of the interpretation and General Clauses Ordinance, Cap. 1.
11. S. 19 provides :-
"An ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the ordinance according to its true intent, meaning and spirit.''
12. This provision has given statutory recognition to what has been called the "purposive" approach to interpretation. It is a provision which applies in Hong Kong to penal legislation as well as non-penal and the Courts are bound to follow it.
13. The "Construction Sites (Safety) Regulations" are clearly concerned with safety in construction sites and to fix liability for failure to comply with the regulations on the contractor with the greatest responsibility at the construction site. That responsibility is intended to cover the whole site, and is not limited to any particular part of it. Furthermore, the regulations do not appear to envisage more than one contractor being responsible for a particular site from the commencement of the constraction work until its ultimate completion. To my mind, there can be no doubt that the person with the greatest responsibility in respect of the construction site as a whole so far as the terms of the contracts are concerned must be the Respondent. It is clear from the facts found by the Magistrate that the Respondent was under a contractual obligation to "manage, organize, supervise and co-ordinate and secure the execution and completion of the works" on the site. It is clear from the terms of the contract as set out in the Magistrate's findings in para 4. (12) that the Respondent had by far the greatest responsibility at the site. All these obligations were to continue until ultimate completion. It is clear from the Magistrate's finding that construction work had started at this site and the Respondent's responsibilities in relation to the construction work had actually commenced.
14. It has been contended by the Respondent that it is not a contractor within the meaning of these regulations. I find that contention hard to accept. The Magistrate held the Respondent was the only contractor with a direct contractual relationship with the employer. "Contractor" is defined in relation to construction work as meaning "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". This definition involves giving a meaning to the words "engaged in carrying out construction work". If one looks at the Oxford Dictionary, one will find that the phrase "engaged in" is given the meaning "involved in". I think that is an appropriate meaning in the present context. Adopting that construction, a contractor is a person involved in carrying out construction work. Furthermore given their normal meanings the words "carry out'' also mean "carry into practice" or "carry through".
15. On the facts found by the Magistrate, the Respondent was very much involved in the carrying out, carrying into practice or carrying through of the construction work on this site. Indeed, it was more involved than any other contractor.
16. A "contractor" is said to be "responsible for a construction site" in Regulation 2(2) (a) "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." Furthermore, "construction site" is defined as being a place where construction work is undertaken. I have reached the conclusion that in the context of this regulation, the word "undertake" must have a construction associated with the words "carry out". A construction site would therefore be a place where construction work is carried out, carried into practice or carried through. And a person is undertaking construction work there if he is invo1ved in that carrying out of the construction work there.
17. A person can carry out, carry into practice or carry through construction work without actually performing the physical work himself. There have been many cases where a principal contractor has contracted for the carrying out of the work, but has in fact sub-contracted the whole of the operation to someone else. Indeed, the case of Tom K. Engineering & Construction Company Ltd. was one such case. In my view, he can carry out the construction work even though he does not perform the physical work involved in the operation. He is undertaking construction work there if he is managing, organizing or supervising etc. the work. I am of the opinion that there is an implication in the use of the words "is undertaking" that the contractor has made himself responsible for the carrying out of construction work which has been commenced or entered upon. 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. The definition of "construction work" is very wide and in my view, there can be no doubt,even if a more limited view were taken,that the Respondent contracted to perform construction work itself when it bound itself to perform survey work and to be responsible for the setting out of the work and for the provision of appliances and labour in connection therewith. There can be no doubt in my mind that the Respondent had the primary responsibility for carrying out this construction work. I hold the answer to the first question is "no".
19. So far as the second question is concerned, strictly speaking, the Magistrate was correct in the sense that the wording of Form 16 under the Buildings(Administration) Regulations did not necessarily prevent him from reaching the conclusion he did. Form 16 was evidence for the purpose of showing that the Respondent had itself admitted that it had been appointed to carry out the building works and had undertaken to carry out the works is strict compliance with the Buildings Ordinance and Regulations made thereunder. It was not conclusive evidence, since it related to different legislation where different definitions are employed.
20. It was, however, relevant in showing that in building legislation the registered contractor with the administrative responsibility under Regulation 41 of the Buildings (Administration) Regulations of giving continuous supervision to building works to ensure that they are carried out in accordance with the provisions of the ordinance and regulations, is regarded as carrying out the works. This conforms to the meaning of the words "carry out" which I have adopted.
21. This evidence did not prevent him from reaching the conclusion he did. But it was relevant and he should have held that the Respondent was "engaged in carrying out construction work". The answer is therefore a qualified "yes".
22. So far as question 3 is concerned, I hold that the Magistrate was not correct in holding that the Respondent was not the principal contractor undertaking work at the site. Although the term "principal contractor" is not defined in the ordinance, nevertheless it must mean at law the head contractor or the one contractor from whom the other contractors derive their contracts, whether directly or through other contractors. It is analogous to a tenancy. Just as you may have a principal tenant from whom sub-tenants derive their tenancies, so you may have a principal contractor from whom sub-contractors derive their contracts. In this case the Respondent was the only contractor with a direct contractual relationship with the employer. There was a provision that the Respondent should not sublet any part of the works without written consent of the architects. The question whether one is a principal contractor has nothing to do with who performs the physical work. In many cases, more physical work may be performed by a sub-contractor. A sub-contractor is of course defined as "a person employed by a contractor to perform construction work under a contract for services". The legislation therefore recognizes a distinction between carrying out construction work and performing construction work. I hold that the answer to question 3 must be "no".
23. It follows from what I've already said that the answer to question 4 must also be "no".
24. In the circumstances, I allow this appeal and remit this case to the Magistrate for him to enter a conviction and to pass such sentence as he may think appropriate in all the circumstances.
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(N.B. Hooper) |
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Judge of the High Court |
Representation:
Mr. I.G. Cross (Sr. Asst. Crown Prosecutor) for Attorney General/Appellant
Mr. Adrian Huggins (Denton, Hall & Burgin) for the Respondent
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