R. v. Tam Ping Cheong and Another

CACC000355/1995

IN THE COURT OF APPEAL

1995, No.355
(Criminal)

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Coram: Hon. Power, V.-P., Mortimer and Mayo, JJ.A.

Dates of Hearing: 5 March and 4 June 1996

Date of Delivery of Judgment: 12 June 1996

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. Tam Ping-cheong, the 1st applicant, and Kwong Tim-yau, the 2nd applicant, faced a trial along with three other defendants. They were charged that on 2nd June 1993 they had, at Inland Lot No.7739, Java Road, North Point, in Hong Kong, unlawfully killed Fung Ka-hong.

2. Just after tea break on that afternoon the passenger hoist, which was a Wickham P310 rack and pinion type, operating on a site where Aoki's Corporation were erecting a building for the Hong Kong and China Gas Company, was ascending with workmen returning to their working areas on upper floors. When the hoist reached the vicinity of the 20th floor, one or two of the four bolts securing the back-up roller plate or the retaining roller bracket to the gearbox suddenly snapped. As a consequence the hoist's driving pinion became disengaged from the rack and the hoist fell downwards. The emergency brake system, which should have come into operation at this time, failed and the hoist fell to the podium on the third floor. Eleven workers and one operator who were in the hoist at that time were all killed.

3. It was the prosecution case that the worn driving pinion of the hoist, which was not then checked as it should have been, was the primary cause of the accident which assumed tragic proportions because of a consequential failure of the emergency brake. The Crown contended that each of the applicants had been so negligent in the way in which they dealt with the hoist that each was criminally responsible for the death that followed its fall.

4. There was evidence that there was considerable wear in the teeth of the pinion where they engaged with the rack and that this placed strain on the pad supporting the pinion resulting in the pinion disengaging itself from the rack.

5. The 1st applicant was the site structural engineer and the site safety supervisor. It is of some importance that while he held a higher certificate in civil engineering, there was no evidence that he had undertaken any mechanical engineering studies or had had any training in that discipline.

6. The 2nd applicant held a registered permit as an electrical technician and worked as an electrical engineer with D & N Co. Ltd. who were responsible for the installation and maintenance of the lift. He had considerable experience as regards the installation, maintenance and repair of passenger hoists. He had been responsible for assembling the hoist before it was taken to the Java Road site and it was he who had conducted a drop test to ensure that it was operating properly. He had also, on two later occasions, the most important of which was 12th May 1993, been called to the site to repair the hoist.

7. It was the Crown case that the 1st applicant had been grossly negligent in the performance of his duty as site safety supervisor and that the second applicant had been similarly negligent when installing and maintaining the hoist. It was the Crown case that if the 1st applicant had competently undertaken his duties as required by the Construction Sites (Safety) Regulations, particularly Reg. 5 and 35, and the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations, particular Reg.16 and 17, he would have detected the defects in the pinion at an early stage and would then have taken steps which would have avoided the accident. The Crown contended, in short, that, whatever his training in mechanical engineering, once he accepted the duties of site safety supervisor, he had to carry out those duties with proper care.

8. The judge, when summing up the case against the 1st applicant, reminded the jury that his responsibilities as site safety supervisor were set out in Reg.17 of the Factories and Industrial Undertakings (Safety Officers and Safety Supervisors) Regulations. He pointed out that these required him to assist the safety officer in carrying out his duties and to assist the safety officer and the proprietor or contractor in promoting the safety and health of the persons employed on the site. His duties included, among other things, preparing and submitting to the safety officer a weekly report in Form 3 as set out in the schedule to the regulations. This form is, in effect, as the judge pointed out, the general safety check on the site and it includes a report on machinery such as passenger hoists. He indicated that it was also the responsibility of the 1st applicant to complete a Form 1 each week setting out that the hoist had been inspected and was in safe working order. This form was the primary responsibility of the contractor but the contractor had appointed the 1st applicant as the person to undertake that responsibility. The judge reminded the jury that the crux of this matter was whether the 1st applicant was in breach of his duty of care by doing or, perhaps more importantly, by not doing anything in carrying out that duty which clearly he ought to have done. He told the jury that, when considering this matter, they should take into account -

(1) that the 1st applicant continued to sign Forms 1 and 3 right up to the time of the accident signifying that the hoist was in safe working condition when, according to the evidence, the hoist was running on a pinion which was far too worn to be safe and which was already manifesting signs of stress;

(2) that after the extension of the mast, he failed to see to it that the hoist was again examined by a surveyor and to see that the hoist was not again used until it had been re-examined.

The judge reminded the jury that the breach of duty had to be gross telling them that this involved

"such a departure from a proper standard of care that it must have involved a risk of death to the deceased or, indeed, anyone else who travelled on that hoist, and was so obviously serious in all the circumstances that you, the jury, feel that it should be judged as criminal and should be punished as a criminal offence."

He reminded the jury that while the regulations did not determine the matter, they must be borne firmly in mind :

"as a measure of the responsibility which certain individuals had for ensuring that (they) were complied with."

He reminded the jury that the 1st applicant was not charged with breaches of the regulations but with manslaughter and that such a charge

"requires the prosecution to prove that he was grossly negligent, not just careless or haphazard about the way he performed his duties, and in order to decide whether he was, you will take into account of his situation, including his lack of experience in training in passenger hoists and the fact that he was not a mechanical engineer."

9. It was the argument of Mr. Griffiths, Q.C., with him Mr. Mayne, that when the conviction of the 1st applicant was examined against the background of all of the facts, this court must be left with a lurking doubt as to whether that conviction was safe and satisfactory. No complaint was made as to the directions given by the judge in his summing up, the appeal being based squarely upon the contention that when this court looked at the evidence in the round it must be left with the lurking doubt.

10. It was firstly contended that the 1st applicant was only a site safety supervisor who was clearly subordinate to the site safety officer who was required to be a qualified person and who was the principal safety officer on the site. The evidence was that the site safety officer was working on a part-time basis to earn a little extra money and was only, from time to time, briefly in attendance at the site.

11. The second matter upon which reliance was placed was the fact that the 1st applicant had no mechanical background. This, it was argued, did not disqualify him from being a site safety officer but clearly required him to rely upon others when it came to mechanical matters such as the mechanism of the hoist. It was pointed out in this regard that even if he had attempted a visual inspection of the hoist it is highly unlikely that he would have been able to detect anything wrong with it. He had, as have many people in their daily affairs, to rely upon the expertise of others which it is submitted he did.

12. It is the third submission that the 1st applicant relied upon D & N, the company responsible for maintenance of the hoist (at least until 24th May when the evidence indicated the responsibility of D & N to maintain the hoist came to an end) and was entitled to rely upon the expertise of that company when signing Form 1 and Form 3. It is pointed out further that even if D & N's responsibility did cease on 24th May the fact of the matter was that they sent personnel to the site after that date.

13. The fourth submission relies upon the reporting by the 1st applicant of the malfunctioning of the hoist to D & N on 12th May, 25th May and 1st June, the day before the accident. It is submitted that the 1st applicant was clearly relying, as he had to, upon the expertise of D & N in relation to the hoist.

14. We do not need to refer to the other points argued by Mr. Griffiths which for the most part involved criticism of those who appointed the 1st applicant as the site safety officer and of their failure to ascertain that he was properly instructed as to his duties in that regard.

15. The 1st applicant clearly relied upon the expertise of D & N. As soon as a malfunction was reported he sent for them. There is considerable force in the argument that, D & N having sent a technician to deal with the malfunction and the lift having recommenced operation, the 1st applicant was entitled to take the view that the lift was in proper working order. Having considered the evidence and bearing in mind that gross negligence had to be proved to establish guilt, as opposed to mere carelessness or inadvertence, we cannot help but be left with a lurking doubt as to the propriety of the conviction of the 1st applicant. That being so we allow the application, treat the hearing of the application as the hearing of the appeal and allow the appeal.

16. We turn now to the application of the 2nd applicant.

17. The 2nd applicant was the employee of D & N who were responsible for the assembly of the hoist and for the checking of its component parts before it was delivered to the site. He was also responsible for the conduct of the drop test of the emergency brake in the presence of the surveyor, and, on two occasions for the repair of the hoist. The judge rightly indicated to the jury that they may well consider that he had a duty of care to the users of the hoist. When outlining the evidence upon which the Crown relied against the 2nd applicant, the judge pointed particularly to the evidence that he had selected all of the parts of the hoist that went to the site, such as the motor and gearbox, including the pinion, and that he was the one who was supposed to ensure that all parts, including the emergency brake, were in working order. He told the jury that it was for them to decide as to the condition of the pinion when the 2nd applicant fitted it into the gearbox and as to the setting of the spring-pack and the emergency brake. He told the jury when considering whether or not the 2nd applicant had failed in his duty of care, they had to ask themselves whether the pinion he fitted ought not to have been fitted because it was too worn, whether the emergency brake was wrongly set and whether the drop test that he conducted was worthless as a test of the emergency brake. He told them also to consider what the 2nd applicant had done in response to reports that the lift was mal-functioning.

18. It was the prosecution case that whatever the 2nd applicant may have done prior to the installation he should have been alerted by the reports which he received of the need to look closely at the pinion and its engagement with the rack.

19. The judge told the jury that they must consider upon the evidence whether the 2nd applicant was responsible

(i) either for failing to ensure that the bolts in the emergency brake were at the proper setting before the drop test, and then for conducting a worthless drop test, or

(ii) for loosening the bolts after the drop test.

He gave the same directions with regard to the regulations that he had given when dealing with the 1st applicant.

20. The evidence at trial was voluminous. Every aspect of the installation of the hoist and of its mechanical failure was examined in minute detail in evidence which came both from laymen and from experts. The judge directed the jury's mind to the pertinent facts of this evidence and reminded them in the clearest terms of the standard and onus of proof and of the type of negligence that had to be proved for a verdict of guilty manslaughter to be returned. It is almost always possible for counsel for an applicant to point to matters of evidence to which the judge did not refer. The test, however, is not whether the judge referred to every possible matter that might have told in a defendant's favour but whether he gave proper directions as to the law, and there is no suggestion that he did not, and whether his canvassing of the evidence was fair and even handed and was sufficient to bring to the mind of the jury the principal matters with which they had to concern themselves.

21. The case against the 2nd applicant set out to prove gross negligence either in his failure to conduct a proper drop test and consequentially to ensure that the emergency brake was properly adjusted and/or in his failure at one time or another to inspect the rack and pinion and to ensure that it was in proper working order. One of the principle grounds for urging that there had been a failure properly to inspect the rack and pinion arose out of an alleged failure properly to inspect it after a complaint made on 12th May. This complaint was reported in a diary kept by D & N.:

"Donson - Mr. Tam informed that as for the passenger hoist at Java Road site, when carrying nobody, it seemed that the gear of the motor of passenger hoist could not reach. Also, the passenger hoist gave out noises and did not work. (Yau: went to repair it in the afternoon) (replied that it was due to ineffectiveness in the contact of electrical device. Repair had been effected. (Yau)" (Emphasis supplied.)

It appears, however, that the translation of the diary was not correct and this was corrected in a somewhat unusual way as can be seen from the following passage in the transcript of the examination in chief of PW16, Miss Tam Yuk-fung:

"Q. Move on please to 223. 12th May, Wednesday, an entry at 2.05. Is it in your handwriting?

A. Yes.

Q. Quite a long entry. Would you read it all to yourself please?

A. Yes.

Q. Will you take it slowly please and tell us what it means?

A. Mr. Tam of Donson called to say that it seemed that when the passenger hoist at Donson site was not occupied by anybody, it seemed that the motor of the hoist could not catch the pinion.

Court: "Engage"?

Interpreter: "Engage", I beg your pardon.

A. And the hoist was giving out some noises and it did not work. I wrote down what Mr. Tam said.

Q. This Mr. Tam, is he the same Mr. Tam that had telephoned you on the earlier occasion in relation to an earlier entry.

A. I believe so, but I have never seen him before, or seen them before.

Miss Toh: I am sorry, my Lord, I am a bit confused because, according to the court interpreter, she said that 'the pinion could not engage'. But, according to the certified translation, it says 'the gear of the motor of the passenger hoist could not reach'. I am just wondering if madam interpreter could have a look and see it, which version ...

Mr. Mayne: Also, one particular point, my Lord. The Chinese expression used by the witness, and which madam interpreter did repeat, was 'N-G-A-R'. 'H-A-R-N N-G D-O N-G-A-R'. To my understanding 'N-G-A-R' is 'teeth', not 'pinion'. I was wondering whether madam interpreter could clarify that.

Court: Whose teeth?

Mr. Mayne: The motor, something to do with the motor.

Court: Yes. I only see one set of teeth at the motor.

Mr. Mayne: There would be the teeth on the rack and the teeth of the pinion.

Court: She was talking about the motor. Whose teeth are they, madam interpreter?

Interpreter: I believe it is teeth of the rack.

Court: 'Teeth of the rack'. Have you got the official translation there? Looks to be in pidgin English.

Interpreter: 'It seemed that the gear of the motor not reach.' Here, in the translation, '... could not reach'. Could not reach what?

Mr. Plowman: Precisely. I think we'd best take this in two phases. Firstly, madam interpreter should tell us whether we have a correct translation. Secondly, I can then ask the witness what she meant by what she wrote. But I think we must know first whether we have a correction translation. On the documents, I mean.

Can you look at the original entry, 2.05 at page 223, madam interpreter? Please compare it with the translation at 224 and tell us whether we need to make any amendment.

Interpreter: 'It seemed that the gear of the motor of the passenger hoist could not reach the teeth of the rack'.

Mr. Plowman: Are you saying, madam interpreter, after the word ...

Miss Toh: It doesn't. I disagree with that.

Mr. Plowman: I will try to deal with it in stages.

Are you saying, madam interpreter, that, looking at page 224, the translation should be amended by adding, after word 'reach', 'the teeth of the rack'?

Interpreter: Yes, that is my understanding in relation to the 'N-G-A-R'.

Mr. Plowman: My Lord, it would seem that Miss Toh does not agree with that. I am wondering whether we should send it back downstairs, to be looked at again.

Court: What do you say about that, Mr. Mayne?

Mr. Mayne: It is an important point so far as my case is concerned.

Court: Quite important.

Mr. Mayne: Because this is if it bears out what my instructions are and what I look at the interpretation of it, it could be vital, and a proper translation of it ...

Court: Do you agree with the translation?

Mr. Mayne: I would agree with the translation.

Court: '... could not reach the teeth of the mast'?

Mr. Mayne: '... the teeth of the rack; could not reach the teeth of the rack'.

Court: You accept that?

Mr. Mayne: Yes, I would accept that.

Court: Miss Toh?

Miss Toh: The reason I don't accept it because it says 'teeth'. But there could be teeth in the gearbox. It does not specify in the Chinese that it is the 'teeth of the rack'.

Court: It just says 'could not reach the teeth'.

Miss Toh: That could not be reached - the teeth.

Court: 'Could not reach the teeth'?

Miss Toh: Yes, then I would agree. But to add 'the rack', I would not because it could mean ...

Court: 'The gear of the motor of the passenger hoist could not reach the teeth'.

Madam Interpreter, are the words 'rack' an assumption?

Interpreter: Yes, it is an assumption.

Court: One mustn't do that. Mr. Mayne, would you agree with 'the teeth'?

Mr. Mayne: On the exact words used by the witness, those were the exact translation, exact phrase - 'could not reach the teeth'.

Court: We are going to ask her in a moment what she meant.

Mr. Mayne: Exactly! That is why I am not saying anything more than -- beyond what I said to my Lord earlier.

Court: If the strictly proper translation is 'could not reach the teeth', then we should leave it at that and then ask the witness.

Mr. Mayne: That is why when your Lordship asked me 'what teeth' I hesitated in putting my own interpretation on it.

Court: Mr. Plowman, let us add the words 'the teeth' there.

Mr. Plowman: Yes, my Lord, except that, as we all know, frequently in the Chinese language words have to be implied, which is what madam interpreter is quite correctly, perhaps doing.

Court: Should we rather not ask the witness what she meant by that? She wrote the entry. By a process of elimination, Mr. Plowman, we might get the teeth right.

Q. Would you please look, Miss Tam, at the first part of that entry at 2.05? You have written these characters arising from a telephone conversation with Mr. Tam?

A. Yes.

Q. You have written 'It seemed that the gear of the motor of the passenger hoist could not reach the teeth'. What did you mean by that when you wrote it?

A. I don't know. I just wrote down what Mr. Tam told me.

Q. Did he explain it in any greater detail beyond that which you have recorded?

A. No. He did not explain anything to me at all.

Q. The next sentence reads 'The passenger hoist gave out noises and did not work'?

A. Yes.

Q. What does that mean?

A. I don't know. I just wrote down what he told me word by word.

Q. When you wrote in the earlier passage 'the teeth', what 'teeth' were you referring to?

A. I don't know. I just wrote down this word because of the sound.

Q. Then we have an entry, a bracketed entry prefaced by the Chinese character 'Yau'?

A. Yes.

Q. Again, is that Kwong Tim-yau?

A. Yes.

Court: Mr. Cunningham, I do beg your pardon, I did not ask you about that - the matter of the teeth.

Mr. Cunningham: No, I did not have anything to say.

Mr. Plowman: We have a lot of Cantonese speakers here, but not all of them can read characters.

Q. When did you write the bracketed portion?

A. I am not sure about the sequence, but it is possible that it was subsequent to the phone call.

Q. The phone call from Mr. Tam?

A. Yes.

Q. What does that mean - that first bracketed portion?

A. It is possible that I had informed Mr. Kwong about it and he said that he would go in the afternoon, and that is why I wrote this down. (Emphasis supplied.)

Q. Are you recording there something that was doing to happen or something that had happened?

A. Something which was going to happen.

Mr. Plowman: Again, madam interpreter, would you please check the translation? It says 'went to repair it in the afternoon'. Shouldn't it be 'would go to repair it in the afternoon'?

Interpreter: In Chinese it means both.

Q. You have a second bracketed entry: 'Replied that it was due to ineffectiveness in the contact of electrical device. Repair had been effected. (Yau)' ?

A. This was not written down by me.

Q. I see. Can you tell us who it was written by? Whose handwriting was it?

A. I don't know.

Mr. Plowman: Madam Interpreter, are you looking at this bracketed portion to the left-hand side. Does my Lord have it? Large brackets, square brackets.

Court: In different ink.

Mr. Plowman: Different ink and it is alongside what appears to be an asterisk.

Q. Can you identify that handwriting?

A. Either it is Doreen's or is the new colleague's.

Q. It has 'Yau' written in brackets?

A. Yes.

Q. Is that intended to be a signature?

A. No, it is not a signature.

Q. Do you know when this was written in relation to the time that you wrote the 2.05 entry?

A. I don't know. It was put there subsequently.

Q. You don't know when subsequently?

A. Because I did not witness who wrote it down.

Q. Now, would you look at the - on the same page alongside an asterisk, is there a further entry? Is that in your handwriting?

A. Yes.

Q. Is the entry number 1 prefaced by the character for 'Yau'?

Q. Yes.

Q. We can all see what you have written. Will you now tell us what it means please?

A. This record was made subsequent to the fact that Kwong Tim-yau had attended the repair, and that is why I made a record of it here.

Q. Did you make it on the same day, the 12th, or some other day?

A. On the 12th, the same day.

Q. And who would have given you that information?

A. Either it was Mr. Kwong who reported to me what he had done or I made a record of it because I was aware that what he would do at that time. (Emphasis supplied.)

Q. Before we leave page 223, would you look at both the 11th and 12th May and tell me if there is anything that is relevant?

A. No."

That this diary entry assumed considerable importance can be seen from the following passage which appears towards the beginning of the summing-up

"There is also the matter of the repair he conducted on the hoist on the 12th May, the D & N's diary entry concerning a phone call from Mr. Tam, presumably the first defendant, from the Java Road site which suggested that there was a problem with the engagement of the pinion and the rack, and the further entry that the 2nd defendant dealt with the matter as an electrical fault, and possibly a problem with the pinion and the rack as suggested in the message.

The prosecution say that the 2nd defendant ought to have been alerted to the need to examine the pinion and its engagement with the rack and you will remember Mr. Nottage saying that he was astonished that that had not been done. Then at least, say the prosecution, if he was not properly instructed by his firm to carry out routine maintenance on the hoist, he at least then should have looked closely at the pinion, and its engagement with the rack, and in failing to do so he was, they say, in clear breach of his duty of care." (Emphasis supplied.)

The matter is referred to again at p.34 of the summing up where the judge said:

You must, however, decide whether the 2nd defendant knew or ought to have known that while the worn pinions might drive the cage up and down rack, it would inevitably cause stress damage to other parts of the hoist mechanism. The evidence is that no such thing had ever happened before and, no doubt, you will wish to keep that in mind. No such cage had fallen as a result, members of the jury, so far as we know of the plate bending and the bolts breaking and the back-up roller becoming disengaged."

22. The judge referred to this again at p.138 when he said:

"When (Joseph Lau Kam-yau an employee of the Hong Kong agents for Wickham Hoists was) referred to the D&N diary entry for Java Road for 12th May - a telephone call, as you know, from the first defendant - and when it was said that the hoist was carrying nobody, it appeared that the gear of the motor of the passenger hoist could not reach the teeth, and also that the hoist gave out noises, would not work; he would expect he said that whoever responded to that call would firstly check the teeth of the pinion and the rack. He said he had never seen a pinion so worn before in operation of the hoist, and he would expect the hoist to have been very noisy and to shake a lot, and the cage might jerk and slip he said with that pinion on it." (Emphasis supplied.)

The judge returned at p.164 to the diary entry saying:

"He (Mr. Nottage, the prosecution expert witness) thought that the message in the D & N diary entry of 12th May which suggested that the rack and pinion were separated was also possibly consistent with the process having begun. It was certainly his view that whoever was called out to answer that complaint should have had a look at the engagement of rack and pinion. If he had, he said, he would have had to condemn the pinion, and the use of the hoist with that pinion would have been stopped there and then." (Emphasis supplied.)

23. The judge said, when referring to the evidence of the second expert, that Mr. Eastop had agreed that the slipping of the hoist reported in mid May was consistent with the process of the separation of the pinion teeth from the rack having begun, and he also agreed that the D & N diary message of 12th May could be consistent with that also although he had more to say about that message. The judge went on to detail what more Mr. Eastop had said as follows:

"The man called out as a result of the 12th May diary entry might have first seen if the motor was working and, if not, why, and he would probably get the lift working again. If the rack and pinion were not engaging, as the message suggested, then the hoist would not go up the rack, he said. So if, having seen to the motor, he sees the hoist going up the rack, he might not check the pinion or its engagement with the rack, assuming everything to be in order, and assuming it was another misleading message about what was going on, which are not unusual on building sites.

Once again, that is his view what might have happened, and you must decide if you accept that. Do you think a quick check of the pinion was called for as a result of that message? All agree that if that had been done, the pinion would have been changed immediately and probably the accident would not have occurred." (Emphasis supplied.)

24. It is plain from the above that the jury might well have come to the conclusion that anyone who ignored a message which said that the teeth of the rack were not reaching with the pinion might well be regarded, if he didn't inspect the rack and pinion, as being grossly negligent. Miss Toh, who appears for the 2nd applicant, complains, in Ground 2(d) that, when referring to the crucial phone message received by D & N staff on May 12th 1993, the learned trial judge said that it suggested that "there was a problem with the engagement of the rack and pinion" which did not accurately reflect the evidence. Whatever the validity of this criticism it seems to us clear that before the contents of the message could be used against the 2nd applicant, there would have to be evidence that the message had been passed on to him. Initially Miss Toh concentrated her attack upon the way in which the judge dealt with the contents of the diary entry submitting that his "interpretation of the May 12th call was crucial" and that he did not fairly deal with the words of the entry when saying it "suggested a problem". She submits that the judge's use of the word "problem" worked unfairly against the 2nd applicant as the words actually recorded were much more ambiguous. There may, however, as we have indicated, be a more fundamental objection to that evidence. In the passage to which we have already referred at p.682 the witness had said:

"It is possible that I had informed Mr. Kwong about it and he said that he would go in the afternoon, and that is why I wrote this down."

Mr. Plowman later in his examination returned to that answer and the following passage occurred:

"Q. Now, in answer to a question this morning you said 'It is possible that I told Kwong about it and he would go that afternoon.'?

A. Yes.

Q. If you had spoken to Kwong about it, would you have relayed to him that which Mr. Tam had told you when he called you?

A. Yes.

Q. As it is recorded?

A. Yes."

She was, quite clearly, not able to say that she had passed on the message to the 2nd applicant. She was doing no more than saying what she would have told him if she had passed the message on. The summing up, however, proceeded upon the basis that the message either as recorded in the diary as originally translated or in the form of the translation eventually agreed upon in court was passed on to the 2nd applicant

25. As this court was concerned by this aspect of the matter the parties were recalled and allowed to make further submissions. Miss Toh sought to add a further ground of appeal as follows:

"3. That there was no evidence properly to leave to the jury that A2 was specifically told about the specific complaint made by Donson on 12th May 1993 as recorded in the diary of D & N Co. Ltd. (Ex.31). It is further submitted that although A2 made a cautioned statement (Ex.P69) the answers he gave to questions 4 and 5 are ambiguous and do not prove his knowledge at the time when he went to the Donson site on 12th May"

There being no objection from Mr. Reading the amendment was allowed.

26. Mr. Reading then submitted that the jury could properly have inferred from the entry read in its entirety that the message had been passed on to A2. He placed particular reliance upon the words:

"(Yau went to repair it in the afternoon)(replied that it was due to ineffectiveness in the contact of the electrical device. Repair had been effected (Yau)."

27. We cannot agree. We do not consider that those words would allow any clear inference to be drawn that the words of the message had, as recorded, been passed on to A2.

28. Mr. Reading also relies upon the following answers in Ex.69 the cautioned statement of A2:

"Question 4: How many times have you been to the construction site in question since the drop test?

Answer 4: Two times only, to my memory, one on (1 character deleted) 15.3.1993 and one on 12.5.1993. Thereafter I did not go there until the evening of the day when the passenger hoist incident took place.

Question 5: You have mentioned (you) went to the construction site on 15.3.1993 and 12.5.1993, for what purpose did you go to the construction site?

Answer 5: I remember (I) went there at the Company's command; on both occasions there were some faults with the passenger hoist, the construction site telephoned my Company, who thus sent me to fix it. According to the record kept by the Company (1 character deleted), the motor was reported to be very noisy on 15.3.93. I went to the construction site accordingly and concluded from the finding that the noise of the motor was due to the insufficient lubricant applied to the gear box. The noise was gone after I had added some lubricant to the gear box. On 12.5.93 it was reported that, when the passenger hoist was empty, the motor did not appear to be able to lock into the teeth and was generating noise and that the hoist was not moving. Here I conducted an inspection there and found that an electric wire inside the electric box (that is the control box) had come loose so that it was in a state of poor connection and therefore the hoist failed to move at times. There was nothing wrong after I had connected it in place. On both occasions, after repairs, I also watched to see if the passenger hoist was moving properly and then left when there was nothing special." (Emphasis supplied.)

He submits that the answer to Question 5 establishes that A2 was fully aware of the nature of the complaint made on 12th May 1993 regarding the lift hoist. We cannot agree. It seems to us likely that A2 was making the statement after having been shown the diary. That this is a real likelihood is indicated by his use of the words "according to the record kept by the company".

29. However even if it might have been open to the jury to infer knowledge from the answers this was never left to them. The basis upon which the matter proceeded was that the message itself had been passed on to A2. If it had been left to the jury that they might infer knowledge a very careful direction would have been necessary.

30. It was not open to leave the matter to the jury on the basis upon which it was left, i.e. that there was direct evidence from Miss Tam that she passed on the message to A2. On the contrary the jury should have been told that there was no evidence from Miss Tam to establish that the message was passed on to the 2nd applicant. This was a serious misdirection of fact upon which, as we have shown above, considerable reliance was placed. The application must be allowed and the conviction must be quashed.

31. The appeal for the 2nd applicant must also be allowed.

Representation:

Mr. John Reading and Ms. Crabtree (Crown Prosecutor) for the Respondent.

Mr. John Griffdiths, Q.C. & Mr. Mayne instructed by Messrs. Pang, Tang, Wan and Choi for the 1st Applicant.

Ms. Esther Toh assigned by D.L.A. for the 2nd Applicant.