The Queen v. Ng Jing Yee and Another

HCMA000500/1985

IN THE SUPREME COURT OF HONG KONG

Appellate Jurisdiction

Magistracy Appeal No.500 of 1985

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BETWEEN

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Coram: Hon. Barnes, J. in Court

Date(s) of hearing: 1st and 2nd October, 1985

Date of delivery of judgment: 5th November, 1985

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JUDGMENT

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BACKGROUND

1. Three workmen were killed and one injured when they were buried under a pile of debris during the demolition of a four storey factory building at 55 Hoi Yuen Road, Kwun Tong at about 8 a.m. on 24th April 1982. The tragedy occurred when that part of the second floor above where they were working suddenly collapsed and fell on them. A building surveyor and two structural engineers on subsequent inspections of the site concluded that the only reasonable explanation for the collapse was that the floor had been loaded with debris beyond its carrying capacity.

THE CHARGES

2. Regulation 10 of the Buildings (Demolition Works) Regulations ("the Regulations") provides:-

"No floor, roof or other part of a building that is being demolished shall be so overloaded with debris or materials as to render it unsafe or liable to become unsafe. "

Regulation 13(4) of the Regulations provides:-

"In the event of a contravention of regulation ... 10 ... the registered contractor appointed in respect of the demolition works shall be guilty of an offence ..."

3. Section 40(2B) of the Buildings Ordinance ("the Ordinance") provides:-

"Any person (whether or not an authorized person, a registered structural engineer or a registered contractor directly concerned with any site formation works, piling works, foundation works or other form of building works who --

4. By section 2 of the Ordinance "building works includes any kind of demolition".

5. The 1st Appellant was at all material times the registered contractor in respect of the demolition work being done at the site where the tragedy occurred. He was, therefore, charged with two offences: One, contrary to section 40(2B)(b) of the Ordinance, and the other, a contravention of regulation 10 of the Regulations.

6. The 2nd Appellant, who was the 1st Appellant's "representative" on the site, was charged with an offence contrary to the same section of the Ordinance "for that being the site foreman directly concerned with the [demolition] he permitted [it] to be carried out in such manner, etc."

7. Both pleaded not guilty but were found guilty after trial in the Magistrates Court. They now appeal against those convictions.

THE APPEAL

8. Since three experts had seen overloading to the point of collapse as the cause of the tragedy how could there be any fault in the findings of guilt? Mr. Martin Lee, Q.C., for the first Appellant -- and Miss Yew for the second Appellant adopted this part of his submissions -- has argued that the verdicts cannot be supported because the trial magistrate failed to consider important evidence led by the Defence.

9. The Defence called one of the two structural engineers earlier mentioned. At the trial he resiled from his earlier opinion and offered an alternative explanation for the collapse. This explanation came to dominate the proceedings to such an extent that the evidence he gave touching the real issue was completely overlooked by the learned magistrate when reaching his findings.

THE CASE THE PROSECUTION SOUGHT TO PROVE

10. In opening the Prosecution case before the learned magistrate Mr. Duckett, Q.C., said: -

"The Prosecution case is that the piling of debris on the second and third floors of this building was inherently dangerous. It relies on photographs of the scene taken after the collapse to establish that fact. The effect of rain or any other factors present in the structure of this building does no more than worsen an already dangerous method of carrying out demolition work. It is not necessary in these proceedings for the Prosecution to establish the cause of the collapse that resulted in the death of the three workmen. "

At the hearing of this appeal he said:-

"The Prosecution called two witnesses to say primarily that the debris shown in the photographs was excessive and that as a result the operation was dangerous. That evidence was not challenged in cross-examination. The Defence called Mr. Philcox who did not contradict the evidence that these heaps of debris were dangerous. Quite apart from the collapse it's the remaining heaps which were three or four metres high which were dangerous. That has been the Prosecution case throughout."

The Prosecution, therefore, sought to prove both types of offences, that is, the offences against the Ordinance itself and the contravention of the Regulations by proof of a common basic "actus reus", namely, a breach of Regulation 10 by overloading the 2nd and/or 3rd floor(s) with debris or material to such an extent as to render either or both unsafe or liable to become unsafe.

THE EFFECT OF REGULATION 10

11. The effect of Regulation 10 is --

Where any part of a debris laden floor collapses there is an irresistible inference that a breach of Regulation 10 has occurred: the load must have exceeded the maximum. That inference is not displaced by evidence that there were factors other than the load which contributed to the cause of the collapse. Proof of other factors contributing to the cause reason of their weakening effect on the strength of the floor merely amounts to proof that the maximum was lower than it would have been had those factors not been present. They do not negate the fact that the load exceeded the maximum. Such factors could have an exculpatory effect only if they were so insidious that their presence would be unsuspected by a prudent demolition contractor. In the absence of evidence of the presence of such undetectable factors, and of evidence that the cause of the collapse was wholly unrelated to the load, evidence that a debris laden floor has collapsed proves a breach of Regulation 10.

12. In this case the Prosecution did not seek to prove that kind of breach, apparently because there was no direct evidence that the collapsed floor was loaded with debris at the time of the collapse.

13. Where a debris laden floor is sustaining its load it is self-evident that the load does not exceed the maximum. But it does not necessarily follow that there is no breach of Regulation 10. There will be a breach of Regulation 10 if the load is equal to, or so close to, the maximum that there remains a risk, if precautions are not taken, that the safety gap between load and maximum could be bridged. If that gap could be bridged because, for example, workmen or the weather or both could increase the load (the workmen by dumping more debris, the weather by dumping rain) there is a breach. If precautions have been taken to prevent the load increasing but none to prevent the gap being bridged by a decrease in the maximum through the deteriorating strength of the floor there is a breach.

14. Photographs taken about two weeks after the collapse showed the floors in question still holding the loads referred to by Mr. Duckett in his opening address in the Magistrates Court. In order to prove a breach of Regulation 10 the Prosecution therefore had to prove, in respect of at least one of those loads, that --

THE EVIDENCE FOR THE PROSECUTION

15. The Prosecution called two witnesses from the Buildings Ordinance Office: Mr. LIU, a surveyor and Mr. CHOI, a structural engineer.

16. Mr. LIU said that he visited the site within an hour of the accident. He saw a heap of debris on the 2nd floor measuring "20-30 metres in diameter and three to four metres at its highest point" and formed the opinion "it was dangerous". In his view, the overall "accummulation was excessive and one of the worst on sites [he] had ever seen in Hong Kong". In his experience the accummulation on a "suspended floor averaged approximately a few inches to one foot on a normal site". In cross-examination he said:-

In re-examination he said:-

" On this site ½ metre and I would be alarmed. "

17. Mr. CHOI said that after visiting the site on 26th April 1982 and seeing the debris mentioned by Mr. LIU he checked the original plans of the building. From them he discovered that the "design strength" or "permissible load on the floors when used for factory purposes was 7.5 kilonewtons per square metre". From this figure he estimated that a load of debris 1.8 metres high (he did not mention a base area) would cause a floor slab to collapse. The learned magistrate then asked --

"Why did three to four metres still there not cause a collapse in front of your eyes?"

and he replied --

"Concrete, safety factor three to four (sic)... As a matter of theory would collapse over 1.8 Whether or not it actually will depends on actual strength of slab .... Collapse point in practice will depend on amount over design limit".

Later in his evidence-in-chief, he said that three heaps of debris on the second floor were "dangerous".

18. In cross-examination he gave the following evidence:-

THE EFFECT OF THE PROSECUTION EVIDENCE

19. Although the Prosecution sought to put before the court through the evidence of Mr. CHOI a set of figures showing how the type of breach of Regulation 10 they had to prove had occurred, the attempt failed. Mr. CHOI could not, with the figures he produced, demonstrate such a breach even when specifically invited to do so by the learned magistrate. In addition, he, along with Mr. LIU, had to concede that he did not know the actual strength of any floor on which any load in question was deposited. Proof of the Prosecution case therefore came to rest upon their expert opinions that any heap of debris, more than .5 metre high in the case of Mr. LIU or more than 1.8 + ? metres high in the case of Mr. CHOI, on a floor in that type of building was "dangerous".

THE EVIDENCE FOR THE DEFENCE

20. The defence called Mr. PHILCOX, a structural engineer formerly with the Buildings Ordinance Office, but, since the 1960's following his profession in private practice. Most of his evidence was concerned with his explanation of how the accident might have been caused and why he resiled from his earlier opinion about that cause. He was, however, asked about the loads which the Prosecution witnesses had described as dangerous and about Mr. CHOI's "theory that debris in excess of 1.8 metres constituted a danger". His comment was --

"I believe the evidence of my own eyes and photos. Due to arching action, high concrete strength does safely sustain 10 or 12 feet of rubble. " (He did not mention any base area).

THE EFFECT OF THE DEFENCE EVIDENCE

21. An evaluation of this evidence was crucial in order to determine whether the Prosecution had proved the actus reus they sought to prove. The evidence could not be rejected in its entirety because expert opinion was unanimous that arching does have an effect with a heap of rubble. The variance in the opinion related to the extent of the effect. What the learned magistrate had to decide was whether Mr. CHOI was right in his opinion that the effect was negligible. If he was sure that he was then he could reject Mr. PHILCOX's opinion because that opinion was obviously based on an arching effect greater than "negligible". Having found a basis for rejecting that opinion he could then rely on the Prosecution evidence to find the actus reus proved. If, however, he could not be sure that Mr. CHOI was right about the extent of the arching effect, then he had to decide whether the evidence supported a finding that the concrete in the floor in question was not of high strength. If he was sure that it was not of high strength he could find that Mr. PHILCOX's opinion was not in conflict with Mr. LIU's and Mr. CHOI's opinions that the heaps were dangerous and accordingly find the actus reus proved. If he could not be sure then he could not be satisfied beyond a reasonable doubt that any of the loads shown in the photographs was "dangerous'. He would then have had to find the Appellants not guilty.

DID THE MAGISTRATE EVALUATE THE DEFENCE EVIDENCE?

22. The learned magistrate handed down a written "Judgment" at the time he delivered his verdicts. In his Judgment he said:-

"The Prosecution allege that the second floor collapse, with its tragic consequences, was due to the piling of debris on the second and third floors of the building during demolition to the extent that a floor became so overloaded as to render it unsafe or liable to become so. This is part of the substantive allegation that the works were being carried out in such a manner as was likely to cause a risk of injury to persons.

The Defendants each deny the allegations in their separate capacities as summonsed, and an expert witness called for the First Defendant advances an alternative theory for the collapse based in general terms upon an inherent structural defect in a column head or 'capital' supporting the second floor of the building ...

All the evidence points to building works being carried on at the site in a manner as was likely to cause a risk of injury. Indeed, on 24th April, injury which in 3 cases was fatal to persons did occur. However it is not necessary for the Prosecution in this case to show the cause of the collapse that resulted in the tragedy. That, in essence, is what the Defence ... have attempted to do, largely through the expert evidence of the vastly experienced and extremely amiable and helpful Mr. Philcox.

Insofar as it can be directly relevant I reject Mr. Philcox's theory as to the cause of collapse

..........

It is wholly clear to me that on 24th April 1982 works were carried out on the site in a manner likely to cause risk. That is all I really am concerned with. Much of the Prosecution evidence in support of that is I find uncontested. The floors were clearly overloaded. CHAMBERS 20th Century Dictionary, New Edition, 1984, defines 'overloading' as to 'burden excessively'. The photographs and the evidence of [Mr. LIU and Mr. CHOI] are unanswerable in my view. Certainly the floors must have been rendered liable to become unsafe at the very least and I do not see how D1 can in all conscience argue against that, even though that of course is what he has done ....

To conclude, Mr. Philcox's evidence does not nullify the Prosecution contention which in essence is that this was an inherently dangerous operation made more so by the manner in which it was carried out ......"

23. In the first paragraph of the passage just quoted the learned magistrate states that the Prosecution alleged that the collapse "was due to the piling of debris ...." This is a misdirection Mr. Duckett had made it clear that it was the debris on the second and third floors as shown in the photographs which formed the basis of the Prosecution case and that, therefore, it was no part of his case to show what the collapse "was due to". He was not seeking to prove the "collapsed floor" type of breach of Regulation 10.

24. In the third paragraph, after having said in the first what the Prosecution alleged, he went on to say, in effect, that it was not necessary for the Prosecution to prove what they alleged.

25. That confusion probably arose because the learned magistrate lost sight of the real issue in the case. By failing to focus on the real issue he adverted only to that part of the Defence evidence which concerned the cause of the collapse. As a result he made no reference to the evidence relevant to the issue of whether there was a risk that whatever safety gap existed whilst the loads were being held could be bridged and thereby cause a further collapse. He therefore cannot be taken to have rejected that part of the Defence evidence on the basis that his finding that "the floors must have been rendered liable to become unsafe" necessarily implied that he rejected the evidence. His Judgment indicates that he thought that if the Defence theory regarding the cause of collapse was rejected there was nothing left "to nullify the Prosecution contention ..."

In his Statement of Findings he said:-

"............ I rely in the main upon my Judgment as my Statement of Findings and Reasons for decision ... As to the Defence and the evidence called, in particular the expert evidence of Mr. Philcox .... I heard it, considered it carefully, and rejected it. It was interesting evidence but I found it to be interlinked evidence of assumption and theory, and evidence therefore, in the light of the strong prosecution evidence, which did not raise reasonable doubts on the Prosecution Case. "

26. Mr. Duckett submitted that this extract indicates that the learned magistrate did consider and reject Mr. PHILCOX's "arching effect" evidence. There is  again, however, no reference to the evidence and the description of the rejected evidence indicates that he was referring to the evidence regarding the cause of the collapse. Mr. PHILCOX had said in evidence that some of the photographs indicated that at least one column had a structural defect. His "theory" was that if two of the columns formerly supporting the collapsed floor had been similarly defective then that could have caused the floor to collapse independently of any load upon the floor. There was no evidence to show whether or not any of the columns formerly supporting the collapsed floor was similarly defective. The lack of such evidence formed the basis of a submission by Mr. Duckett in the lower court that Mr. PHILCOX's opinion was based on two assumptions of fact", a submission which the learned magistrate accepted. The references to "assumptions" by both Mr. Duckett and the learned magistrate and to "theory" by the learned magistrate are to the evidence regarding the cause of the collapse and not to the evidence regarding the arching effect with a heap of rubble.

27. The Judgment and Statement of Findings indicate that the learned magistrate completely overlooked this important part of the Defence evidence and so did not make the evaluation of it which was crucial in determining whether the Prosecution had proved the actus reus they sought to prove.

CONCLUSION

28. Verdicts arrived at in this way are unsafe and unsatisfactory.  The appeals must therefore be allowed.

Representation:

Mr. A.P. Duckett, Q.C. and Mr. J.L. Abbott for the Crown.

Mr. Martin Lee, Q.C. and Mr. H.L. Wong (C.T. Chan & Co.) for 1st Appellant.

Mrs. Lily Yew N.K. Tsang & Co.) for 2nd Appellant.