Chan Ping Pui v. R.

HCMA000928/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.928 OF 1996

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Coram : Hon Gall, J. in Court

Date of hearing : 13 November 1996

Date of judgment : 13 November 1996

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J U D G M E N T

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1. The appellant was convicted by the magistrate on 10th July 1996 on one count of being a contractor carrying out construction at premises at 5-7 Perth Street, Homantin, dropped or allowed to fall debris from the building in the course of construction or repair.

2. The offence as set out in s.4B(2) of the Summary Offences Ordinance Cap.228 reads :

"(2) If anything is dropped or allowed to fall from any building in the course of the construction, repair or decoration of the building or part thereof, to the danger or injury of any person in or near a public place, the principal contractor on the site and the contractor carrying out the construction, repair or decoration commits an offence and is liable to a fine of $50,000 and imprisonment for 1 year."

3. There is no objection by the appellant to the findings of the magistrate that debris dropped from the premises into a public place nor that it was to the danger or injury of any person in or near that public place. The sole issue is whether or not the appellant was proved to have been a contractor. In the evidence before the learned magistrate, there is one question and answer which could lead him to that conclusion. At p.17 of the transcript is a question by the court :

"Court : How did you know that Mr Chan was the 'Supervisor'?

A. He claimed himself to be the proprietor of the decoration of that building."

That is further affected by the cross-examination of the same witness who at p.19 was asked :

"Q. Going back to the employment card, did it say on it the capacity in which Mr Chan was employed?

A. Yes.

Q. Which was?

A. My English is not good, but I think it said 'Supervisor'."

The magistrate ought further to have taken into account the evidence of the appellant which was uncontradicted where at p.22 he says :

" Address as per summons. Construction site supervisor, employed by Fai Tat Construction Company. Its English name is Bolton Construction Company Limited. I was employed by them on 10.8.95."

If this uncontradicted evidence was accepted by the magistrate, then a doubt must exist as to the corporate nature of the company employing the appellant. If it is a limited company, then, unless a contractual relationship could be shown between the appellant and the principal contractor at the building site separate from that entered into by the limited company, he could not be a contractor on the site.

4. These matters were not resolved by the learned magistrate who directed his mind principally to whether or not a supervisor could be a contractor within the terms of s.4B of the Ordinance in the absence of any further evidence showing a contractual relationship between that supervisor and the principal contractor, or the owners of the premises where the decoration or construction work was being carried out.

5. I do not accept his argument that a supervisor, if he is managing, organising or supervising work at such a premises in the absence of any contractual relationship, is a contractor for the purposes of the section. I am not satisfied that the magistrate has resolved the inherent contradictions in the case as to the position of the appellant in relation to the construction works and I must have a doubt as to the appropriateness of the conviction. The appeal against conviction is allowed and the fine is remitted.

Representation:

Mr Eddie Sean, S.C.C., for Crown

Mr John Scott Q.C., inst'd by M/s Kwok & Chu, for Appellant