HKSAR v. Dickson Construction Co Ltd

[English Translation – 英譯本]
HCMA 487/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 487 OF 2003

(ON APPEAL FROM ESS NOS. 9742 & 9743 OF 2002)

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Before: Hon Deputy Judge Pang in Court

Date of Hearing: 11 September 2003

Date of Judgment: 11 September 2003

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JUDGMENT

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1.The Appellant company was convicted after trial on two counts of “being the contractor responsible for a construction site, failing to take adequate steps to prevent any person on the site from falling from a height of 2 metres or more”, contrary to regulations 38B(1), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations (Cap.59I, Sub.Leg.) (enacted pursuant to the Factories and Industrial Undertakings Ordinance, Cap. 59, Laws of Hong Kong), and was sentenced to fines of $50,000 and $45,000 respectively. The Appellant now appeals against both conviction and sentence.

Background

2.The Appellant was the contractor responsible for the construction site in question. On the day of the offence, a Safety Officer from the Labour Department carried out an on-site inspection at the site. In the course of inspection, he saw three workers erecting bamboo scaffoldings at two locations. They were working at a height of above 10 metres from the ground, but no work platform or safety net was in place. Furthermore, the three workers were likely to fall because they were wearing parachute-type safety belts with neither end ropes nor fall arrestors, and the safety belts were not attached to secure anchorage points or independent life-saving lines. This was the prosecution case.

3.On the other hand, the Appellant’s case was that the photographs adduced by the prosecution did not clearly show some of the circumstances as described by the Safety Officer, but instead indicated that the Appellant had provided the equipment needed. In any event, the Appellant argued, it was not possible to put in place a safety net at the locations in question.

The relevant statutory provisions

4.The dispute between the parties over the equipment relates to the relevant legislation. Regulation 38H of the Construction Sites (Safety) Regulations provides for a defence to an offence under regulation 38B(1). The relevant provisions in regulation 38H read as follows:

(1)        It shall be a defence for a contractor charged with an offence under regulation 38B(1) or 38C to show ―

(a)     that in all the circumstances of the case, it was impracticable to comply with all or any of the requirements of that regulation;

(b)     that ―

(i)      the contractor provided suitable and adequate safety nets and safety belts in lieu of complying with those requirements; or

(ii)     in all the circumstances of the case, it was impracticable to provide such safety nets and the contractor provided suitable and adequate safety belts in lieu of complying with those requirements; and

(c)     that all reasonably practicable steps were taken to ensure the proper use of the safety belts by the persons to whom they were provided. (L.N. 64 of 1999)

Proceedings at trial

5.The Safety Officer from the Labour Department was the only prosecution witness at trial.

6.The Appellant was not legally represented, and one Mr Yuen, an employee of the Appellant, appeared at trial on behalf of the Appellant. Mr Yuen neither gave evidence nor called any witness. The aforesaid defences were brought out during cross-examination.

The magistrate’s verdict

7.In any event, having heard all the evidence and submissions, the magistrate ruled that the Safety Officer was a veracious and reliable witness. The magistrate further held that there was considerable difficulty in putting in place safety nets at the locations in question, and therefore regulation 38H(1)(a) of the defence was satisfied; however, as the workers were not equipped with end ropes and fall arrestors and the safety belts were not attached to fixed life-saving lines, the workers were likely to fall, and therefore regulation 38H(1)(c) of the defence was not satisfied. For this reason, the Appellant was convicted on both counts.

Ground of appeal (1)

8.The Appellant contends that the magistrate misinterpreted the legal rights of and options open to the Appellant upon the establishment of a prima facie case against it.

9.This is what the magistrate said to Mr Yuen:

The first option is to remain silent and not to call any witness to testify; the second option is to call witnesses to testify.

10.The above criticism is accepted by the Respondent. It is pointed out that, upon establishment of a prima facie case, the magistrate should have explained to the Appellant that it had the right to choose between giving evidence by itself and remaining silent; and apart from this, whether the Appellant elected to give evidence or remain silent, it had the right to choose between calling witnesses to testify or not doing so. In other words, the following options were open to the Appellant: (a) the Appellant gave evidence and called witnesses; (b) the Appellant gave evidence but did not call any witness; (c) the Appellant remained silent and did not call any witness; and (d) the Appellant remained silent but called witnesses.

11.In the passage cited above, however, the magistrate only explained options (c) and (d) and did not explain options (a) and (b), and therefore erred in this respect.

12.As for the consequences of the error, the Appellant cited the case of Ngo Ngan-ting [1976] HKCLR 143, which shows that, even where the magistrate has explained to the Appellant all its rights in relation to giving evidence and calling witnesses, the conviction may still be quashed if the relevant record is unclear.

13.In any event, matters did not come to an end at that point. The magistrate further explained the Appellant’s rights in the following terms:

The defendant is a limited company and, as such, is different from a natural person. Mr Yuen, you are conducting the defence on behalf of the defendant company today in the present case.

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If you have a witness to call, and that witness is another witness, it is of course fine.

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But if you, Mr Yuen, will be giving evidence as a witness for this company, there will be a problem because, generally speaking, a defence witness does not sit in the court listening to the trial before he gives evidence.

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But [if] I do not know whether you understand this situation. It is because, if you listen to the trial here and then conduct the defence here, and will also give evidence as a witness in the proceedings, then there will be a – the prosecution may raise doubts about the credibility of your evidence.

14.The Appellant also complains of the above explanation, and again the Respondent concedes that the magistrate’s explanation was erroneous. The reason is, in attending the trial on behalf of the Appellant, Mr Yuen had effectively stepped into the shoes of the Appellant. If he elected to testify at trial, he would be testifying as the Appellant and not as a defence witness. In other words, he also had the right to attend the whole of the proceedings. The only thing he could not do was to withhold his testimony until after the witnesses whom he called had testified.

Ground of appeal (2)

15.Here, the Appellant contends, and the Respondent agrees, that the magistrate had not clearly explained the statutory defence.

16.This is how the magistrate explained the statutory defence:

There is one more point, which is that in the present case, there is a legislative provision that provides a defence to the offence under [regulation] 38B(1). This provision is to prove, if you raise this provision that the statute provides you with, i.e. the provision that provides for exemption from liability, which is contained in [regulation] 38H, then the burden of proving that the exemption applies will rest upon you, upon the defendant.

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The standard [of proof] is on a balance of probabilities, do you understand?

17.In fact, in relation to the provision on exemption from liability in the present case, the burden of proof was on the Appellant. This situation is similar to ordinary cases that involve statutory presumptions. The magistrate must clearly explain what a statutory defence is and point out that the Appellant could discharge the burden of proof by giving evidence by itself or calling witnesses to give evidence or relying on prosecution evidence. The magistrate must also explain the relevant standard of proof.

18.The magistrate, however, only drew the Appellant’s attention to the existence of a statutory defence in this case without explaining the contents of the relevant provision. The explanation given by the magistrate was inadequate, particularly in view of the complicated nature of the relevant provision.

19.As regards the consequences of an inadequate explanation, the Appellant cites another case Fung Kam-wa [1988] HKC 752. The appellant in that case was charged with avoiding legal liability by deception. The offence involved a statutory presumption, and as the relevant records did not show that the magistrate had provided the appellant with the necessary explanation, the appellant’s conviction was quashed.

Judgment

20.I agree that the magistrate had failed to provide a clear and accurate explanation of the Appellant’s rights and options at law as well as the relevant statutory defence, as a result of which the Appellant did not receive a fair trial. For this reason, I allow the appeal, set aside the Appellant’s conviction and sentence, and order that the case be remitted to the magistracy for a re-trial before another magistrate.

Ms Mary Sin, Senior Assistant Director of Public Prosecutions and Ms Kathie Cheung, Government Counsel, for the HKSAR.

Mr Louis Fung, instructed by Knight & Ho, for the Defendant.

Translated by Mr. Edmund Cham, Solicitor