Far Eash Fan Manufacturing Ltd v. The Queen

CACC000466/1980

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Coram: Roberts, C.J.

Date of Judgment: 13 June 1980

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JUDGMENT

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1. The defendant company appealed against its conviction on two charges of failing to guard dangerous parts of press tools and dies.

2. The charges alleged that these failures occurred at 162 Wai Yip Street, 5th Floor, Kwun Tong on 7th May, 1979, and 17th September, 1979.

3. It is not in issue that machines of the kind specified in the charges were in operation on the premises on the dates in question and that their unguarded condition did amount to the offences charged.

4. The sole question is whether or not it was the defendant company which owned and operated the presses. As to this, I am left in doubt, though this doubt is in part based upon material which was not available to the magistrate. The fact that I have felt obliged to quash the conviction should not be regarded as implying any criticism of the fair and careful manner in which he conducted the trial.

5. P.W.1 gave evidence that he was injured by an unguarded press at 162 Wai Yip Street and asserted that he worked at that address for "the Far East Manufacturing Limited" as a casual worker.

6. He was not cross-examined as to this by Miss Ho, who appeared at the trial on behalf of the defendants. But no significance can be attached to this omission by a laywoman, since it is clear from her evidence that she did not admit that the defendants owned the machine or employed P.W.1 and asserted that another concern, "the Far East Unlimited Company" was responsible; she added that action was taken in September 1979 by the Labour Department against that "Company".

7. P.W.2, a Labour Inspector, said that he found unguarded machines at a factory called the Far East Manufacturing Limited. He there met Mr. Lam Suen, who was in charge of the factory. He gave evidence that he saw a Business Registration Certificate in the office, but does not say what was on the certificate or which concern it related to.

8. He produced in evidence a Certificate of Incorporation and Business Registration Certificate relating to the defendants. The certificate shows the defendant company's address as 162 Wai Yip Street, 5th Floor.

9. Miss Ho gave evidence that the machinery and workers belonged to Far East Unlimited Company and that Mr. Lam Suen was foreman of Far East Unlimited Company.

10. Mr. CHOI Chi-ming, a director of the defendants, appeared on the appeal. He described himself as a director of the defendant company and repeated Miss Ho's story that that company was not running the factory at 162 Wai Yip Street and that the machines were the property of, and operated by, the Far East Electrical Manufacturing Company, which was a registered business separate from that of the defendants.

11. He admitted that both business as were conducted from the same premises and that he and SO Ming-hung were the partners of the Far East Electrical Manufacturing Company, which was operating the machines.

12. It is unfortunate that Mr. Choi did not choose to give evidence himself at the trial. Strictly, he did not give evidence at the appeal either, and I could merely have ignored it, on the ground that the magistrate was entitled to reach his conclusion on the evidence before him.

13. However, I was left with a remaining doubt lest the wrong defendant had been convicted and accordingly quashed the conviction, warning Mr. Choi that he might well hear more of this matter, since what he told me amounted in effect to an admission that his firm, of which he was a partner, had owned the offending presses at the material times.

14. It is for the Crown to decide whether or not to proceed against Mr. Choi as partner of the Far East Electrical Manufacturing Company and it may well be that it would feel it right to do so, unless he is correct in saying that that firm has already been prosecuted in relation to these offences.

Representation:

Mr. CHOI Chi-ming (authorised representative) for the appellant.

Miss M. Yip for the Crown/Respondent.