HKSAR v. China Overseas Building Construction Ltd

HCMA448/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE 

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 448 OF 2006

(ON APPEAL FROM KCS 31375 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Dates of Hearing : 19 and 31 January 2007

Date of Judgment : 12 February 2007

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J U D G M E N T

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1.The appellant company was convicted after trial of an offence of failing to ensure the safety of premises being a construction site of which it was the occupier, contrary to sections 7(1)(a) and 7(2) of the Occupational Safety and Health Ordinance, Cap. 509 (“the Ordinance”).  It appeals that conviction.

2.The prosecution case at trial was that the appellant, a construction company, occupied as the principal contractor and had control of a site in West Kowloon where building work was being undertaken.  On the charged date a worker on the site employed by a sub-contractor was killed while operating a concrete pumping machine (“the pump operator”).  The sub-contractor was responsible for the supply, installation, maintenance and operation of the machine.  That machine supplied concrete to the upper levels of a building under construction on the site.  The machine in turn was supplied with concrete directly from trucks which drove onto the site.  Those trucks, when they arrived at the site, frequently had to wait while another truck unloaded its concrete into the pumping machine.  The trucks were directed into their proper positions by a workman who was employed by a different sub-contractor, and who was responsible also for ensuring all the concrete in the truck had been emptied into the pump (“the concrete worker”). 

3.On the day in question the concrete worker had left his post temporarily as a result of illness.  The pump operator had therefore assumed both jobs.  That meant, in addition to operating the pump, he had also to direct the trucks into position and scrape out the dregs of the concrete in the mixers on the trucks.  There had to be concrete in the pump at all times for it to operate.  The pump operator, it may reasonably be thought, worked under some pressure.

4.At some time in the afternoon the pump operator directed a newly arrived truck into a position next to the concrete pump and parallel to an unloading truck.  Very shortly afterwards, he was seen slumped next to the pump by the drivers of the two trucks.  He was taken to the hospital but subsequently died as a result of massive internal bleeding caused by what was, in the opinion of the government pathologist, the application of an external blunt force to the right side of the body which ruptured his liver. 

5.Precisely how the deceased received this injury was not directly known, but the trial magistrate inferred that the deceased had, in some way, been struck or crushed by one or both of the trucks he had been dealing with next to the pumping machine.

6.Mr Jenkyn-Jones for the appellant relied on a number of grounds of appeal, but an issue arose which formed no part of the original arguments of counsel and upon which I heard further argument.  

7.The issue was quite simply whether the appellant was rightly convicted as the occupier of the premises under the provisions of section 7(1)(a) of the Ordinance.

8.It is convenient here to set out sections 6 and 7 of the Ordinance in their entirety for both are relevant to the issue raised : 

Section 6 :

“RESPONSIBILITY FOR SAFETY AND HEALTH OF EMPLOYEES AT WORK

(1)   Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees.

(2)   The cases in which an employer fails to comply with subsection (1) include (but are not limited to) the following―

(a) a failure to provide or maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health;

(b) a failure to make arrangements for ensuring, so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances;

(c) , so far as reasonably practicable, the safety and health at work of the employer’s employees;

(d) as regards any workplace under the employer’s control―

(i) a failure to maintain the workplace in a condition that is, so far as reasonably practicable, safe and without risks to health; or

(ii) a failure to provide or maintain means of access to and egress from the workplace that are, so far as reasonably practicable, safe and without any such risks;

(e) a failure to provide or maintain a working environment for the employer’s employees that is, so far as reasonably practicable, safe and without risks to health.

(3)   An employer who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine of $200000.

(4)   An employer who fails to comply with subsection (1) intentionally, knowingly or recklessly commits an offence and is liable on conviction to a fine of $200000 and to imprisonment for 6 months.”

Section 7 :

“(1)     If an employee’s workplace is located on premises that are not under the control of the employee’s employer, the occupier of the premises must ensure that-

(a) the premises; and

(b) the means of access to and egress from the premises; and

(c) any plant or substances kept at the premises,

are, so far as reasonably practicable, safe and without risks to health.

(2)   An occupier who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine of $200000.

(3)   An occupier who fails to comply with subsection (1) intentionally, knowingly or recklessly commits an offence and is liable on conviction to a fine of $200000 and to imprisonment for 6 months.”

9.It can be seen from the facts found by the magistrate, and not in dispute at the trial, that the appellant, while not the employer of the workmen at the concrete pump (i.e. the pump operator and the concrete worker) was the principal contractor of the construction site and had control of it.  Both “occupier” and “employer” are defined in section 3 of the Ordinance :

“ ‘employer’(僱主) means a person who employs natural persons under contracts of employment or apprenticeship;

…

‘occupier’ (佔用人), in relation to any premises or workplace, includes a person who has any degree of control over the premises or workplace …”

10.It is plain that the provisions of section 6 of the Ordinance do not apply to the appellant, and that is why no doubt the charge against the appellant was brought pursuant to section 7.  But there are significant differences in the duties of an employer pursuant to section 6 of the Ordinance and those of an occupier of premises pursuant to section 7.

11.The most significant difference so far as this appeal is concerned is that while an employer is specifically expressed as being responsible for providing safe systems of work for his employees, the occupier of premises is not expressed as being so responsible, but simply as being responsible for the safety of the premises.

12.The magistrate found in the present case that the site (or that part of it around the concrete pump) was unsafe because firstly, a signaller, i.e. someone with training or instructions as to how to safely direct the concrete trucks entering, unloading at and leaving the area around the concrete pump was required; and secondly, that it was an unsafe practice for the pump operator to double up with the duties of the concrete worker should the latter be absent.  In that regard he said :

“76.  I therefore find that, for the sole reason that a signalman was not provided, the concrete worker not being properly trained or briefed in signaling work, the Defendant Company had thereby failed to ensure that the premises was safe in its failure to ensure that a properly trained and briefed signalman was assigned to work at the area … to guide the reversing trucks into position, so that the blind spots of the truck when reversing will be covered and the workers in that area protected from the danger of being run over by the trucks.

77.   I find also that the area foreman would not have stopped the work at the pumping machine area even if he found that the concrete worker was away from his position.  I find that such failure to notice that, once the concrete worker was gone there would not have been any signalman and the reversing truck would have to either reverse blindly or the pump machine operator would have to double up as a signal person, is a failure on the part of the Defendant Company to ensure the safety of the pumping machine area.  If the Defendant Company had performed its duty to ensure the safety, they would have properly briefed the area foreman what to do if the situation had arisen, and that is to stop the concreting work …”

13.It is in my view clear from the magistrate’s findings that the faults he found related to the system of work which was used in the operation of the concrete pump.  He made no finding that the physical site itself was, for any reason, unsafe.  Indeed, to the contrary, he specifically found that it was properly provided with warning signs, fencing and safety mirrors and the like. 

14.The question which needs to be addressed therefore is whether a defective system of work of itself can result in a breach of section 7(1)(a) of the Ordinance pursuant to which the appellant was convicted.  

15.I appreciate that the purpose of the legislation is “to ensure the safety and health of employees when they are at work” : see section 2(a).  But the legislation creates criminal offences and must be read in that light.

16.The starting point is the structure of sections 6 and 7.  Section 6 provides instances of particular failures of an employer to provide for the health and safety of his employees.  In addition to an employer being held liable for a failure to provide a safe system of work (a duty which is not limited to occasions when the employee is working at a workplace under the employer’s control), the employer is liable for “a failure to maintain the workplace in a condition that is, so far as reasonably practicable, safe and without risks to health”, though this latter liability exists only when the workplace is under the employer’s control.

17.Section 7 applies only when the employee’s workplace is located on premises which are not controlled by the employer.  In those circumstances, the occupier of the premises is required to ensure the premises are safe so far as is practicable.

18.There is a plain demarcation between the two sections as to the nature of the differing responsibilities of an employer and an occupier of premises.  In my judgment, the language of the legislation clearly distinguishes between the different concepts of “system of work”, “workplace” and “premises”.  It clearly intends to demarcate the boundaries between the duties and responsibilities of an employer of workers and an occupier of premises where those workers are employed. 

19.It seems to me that by its plain language section 6 intended an employer to be responsible for the system of work which his employees used.  If such a responsibility had been intended to be cast upon an occupier of premises then, in my view, there was nothing to prevent equally clear language being used in section 7.  Indeed the use of the specific phrase “system of work” in section 6 and its omission in the immediately following section 7 argues strongly in favour of the proposition that the legislature did not intend occupiers of premises to be responsible for the “system of work” adopted by employees of other persons working within the premises.  Equally the categories of matters the occupier must ensure are safe as set out in section 7(1)(b) and (c) of the Ordinance are matters relating to the physical state of the premises or the things upon it.  Whereas the matters an employer must ensure are safe pursuant to section 6 include not only the physical aspects of the workplace, but also non-physical aspects such as training, instruction and supervision of workers and the making of arrangements to ensure the safe use and handling of items on the site. 

20.It is plain that the duties of an occupier pursuant to section 7 are not intended to be so wide ranging as the duties of an employer pursuant to section 6.  In my judgment section 7 plainly is intended to refer to the safety of the physical premises and the machinery and substances upon it, and not the systems of work adopted.

21.There can be seen, if that is the case, that there is considerable policy common sense in that view.  It would mean, for example, that an occupier of commercial premises which were being renovated so far as its electrical wiring was concerned would not be responsible for the safety of the system of work adopted by the professional electricians provided by a contractor whereas their employer, the contractor, would be.  That would, on its face, seem to be a perfectly sensible result. 

22.One matter concerned me however.  A situation may well arise where there are premises upon which there is a worksite where employees of a contractor (or sub-contractor where the principal contractor controls the whole of the site) are working who are partially at least subject to the authority and therefore the directions of the occupier or principal contractor.

23.If the occupier or principal contractor requires the work to be done in a particular way which is unsafe, then pursuant to the above construction of section 7, he may not be liable as his directions would go only to the system of work, and if the premises are themselves safe then no liability would attach to him.   That would seem to run counter to the purposes of the legislation.  

24.Nevertheless, I am satisfied that possibility should not interfere with an interpretation of the legislation based upon a plain construction of the language used.

25.There are other provisions made by the Hong Kong legislature, particularly by way of the Factories and Industrial Undertakings Ordinance, Cap. 59, which allow such a problem to be addressed.  In that regard I note that by way of section 13 of that Ordinance, it is provided that :

“(1) Except as may be otherwise provided by regulations made under this Ordinance, the proprietor of every industrial undertaking in or in respect of which any offence against this Ordinance has been committed shall be guilty of a like offence, and shall be liable to the penalty prescribed for such offence.

(2)   It shall be no defence to a prosecution of the proprietor of an industrial undertaking for an offence against this Ordinance that the offence was committed without his knowledge or consent or that the actual offender has not been convicted of the offence.”

26.That would mean that the proprietor (which includes occupier) of an industrial undertaking (which is defined broadly and which would include the workplace relevant to the present appeal) would be liable where an offence perhaps by an employer has been committed against the provisions of the Factories and Industrial Undertakings Ordinance.  That seems to have been a course available to the prosecution in the present case. 

27.More generally the Commissioner for Labour has wide ranging powers under the Factories and Industrial Undertakings Ordinance to make regulations in respect of industrial undertakings so as to impose duties on proprietors of and contractors and persons employed at industrial undertakings : see section 7(1)(o) of the Factories and Industrial Undertakings Ordinance.  The breach of any such regulation may be made an offence : see section 7(5) of that Ordinance.

28.In short, given the scope of existing and available legislation which either does or could make provision for an occupier of an industrial undertaking to be liable for any unsafe system of work he directs to be instituted, I do not think the plain meaning of “premises” in section 7 of the Ordinance needs to be enlarged so as to include an unsafe system of work instituted by a contractor or sub-contractor on the premises.

29.That being so, and there having been nothing established as to the premises in the present case being themselves unsafe, the appeal is allowed, the conviction is quashed and the sentence imposed on the appellant is set aside. 

Mr Cheung Wai Sun, SADPP and Ms Agnes Chan, SGC of the Department of Justice, for HKSAR

Mr Toby Jenkyn-Jones, instructed by Messrs C.W. Yuen & Co., for the Appellant