HKSAR v. Otis Elevator Co (HK) Ltd

HCMA154/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 154 OF 2008

(ON APPEAL FROM ESS 3664 OF 2007)

----------------------

----------------------

Before:  Hon. Pang J, in Court

Date of Hearing:  30 July 2008

Date of Judgment:  30 July 2008

----------------------

J U D G M E N T

----------------------

1.This is an application by Otis Elevators (Hong Kong) Limited, pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance, for certification of three points of law of great and general importance.

2.The first point centres on the issue of whether the lift mechanism in a lift machine room in a residential building is a construction site within the meaning of the Factories and Industrial Undertakings Ordinance, Cap. 59, so that anyone found working inside the area, including those whose duties do not include lift maintenance, are within the ambit of the Construction Site Safety Regulations.

3.The point was decided at the trial on the evidence before the magistrate whose finding was upheld on appeal.  Whether the area concerned was a construction site is a matter of fact and not law. 

4.Point 2 is whether the Applicant was correctly charged under section 44(1)(c) of the Construction Site Safety Regulations when the Applicant could have been charged under the Lifts and Escalators (Safety) Ordinance, Cap. 327. 

5.I would have thought that this would have been raised as a preliminary issue before the trial magistrate.  The fact is that it was not; nor was it raised at the appeal before this Court.  This is, therefore, an entirely new issue.  In any event, it is the prerogative of the Secretary for Justice to charge a particular defendant under a particular legislation which he considers appropriate. 

6.I would therefore decline to certify the first two points.

7.The third point here is whether, when a verdict is given by a magistrate which has, of necessity, required a consideration of legal issues, it is obligatory for the magistrate to give oral reasons for his verdict upon delivery of it?  Was HKSAR v Sin Chi Yin, and the line of authorities preceding it and decided thereafter, correctly decided?  

8.I think it is time that the duty of a magistrate, whether he is required to give reasons and, if so, in what detail, when he convicts a defendant after trial, for the Court of Final Appeal to give proper guidance on this subject. 

9.I would therefore certify the third point raised for consideration by the Court of Final Appeal.

Ms Mary Sin, Senior Assistant Director of Public Prosecutions, for the Respondent

Mr Clive Grossman, SC, leading Mr Toby Jenkyn-Jones and Mr Nicholas Lau, instructed by Keith Lam Lau & Chan for the Appellant