Ykk Ap Hong Kong Ltd v. HKSAR

FAMC No. 45 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 45 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 140 OF 2004)

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Between

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Appeal Committee : Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing : 3 December 2004

Date of Determination : 3 December 2004

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.The applicant seeks leave to appeal on the substantial and grave injustice ground.  It was the principal contractor responsible for a scaffold in a construction site which collapsed resulting in one dead and 16 injured.  It was convicted of having failed to ensure that the scaffold was safely designed and constructed.

2.The main complaint is that the magistrate did not give any reason for preferring the opinion of the prosecution expert (PW15) to the opinion of the defence expert (DW1) on the safety or otherwise of the scaffold in question, alternatively it is submitted that the magistrate should have preferred the defence expert and that if he had done so, there would be no sufficient evidence and no basis for convicting the applicant.

3.What gives rise to the complaint is that the magistrate in his statement of findings said that he found that all the witnesses from the prosecution and the defence were honest.  That included both PW15 who said the scaffold was not safe and DW1 who said it was.  Yet, counsel submits, the magistrate failed to state why he chose PW15’s evidence and concluded that the scaffold was not safe.  Reading the statement of findings, it is obvious by his lengthy recital of PW15’s evidence that the magistrate preferred PW15 because of his much more detailed analysis and reasoning.  On the other hand, although DW1 said the scaffold was safe, he also agreed that the code of practice should have been complied with, that the scaffold should have been designed by a structural engineer and that metal brackets should have been installed.  DW1’s agreement on these points could be said to support PW15’s conclusion.

4.Apart from the conclusion that the scaffold was not safe, there is nothing in DW1’s evidence which could be said to be fundamentally contradictory to PW15’s evidence.  That being the case, there is clearly a legitimate basis for the magistrate to accept PW15’s evidence and conclusion.  There is sufficient evidence before the magistrate to justify the conviction and he had given his reasons in his findings and conclusion.

5.We do not think it is reasonably arguable that there has been a departure from accepted norms to the applicant’s prejudice.  The application is dismissed.

Mr Kelvin Leung (instructed by Messrs Wong Poon Chan Law & Co.) for the Applicant

Mr Cheung Wai-sun, Mr Joseph Wong and Miss June Cheung (of the Department of Justice) for the Respondent