Otis Elevator Co (HK) Ltd v. HKSAR

FAMC No. 49 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 49 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO. 154 OF 2008)

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing: 29 October 2008

Date of Determination: 29 October 2008

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

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Chief Justice Li:

1.The applicant was convicted by the Magistrate (Mr A Wahab) of contravention of regulation 44(1)(c)[1] of the Construction Sites (Safety) Regulations Cap. 59 (“the Regulations”) and was fined $5,000.  Its appeal against conviction was dismissed by the Court of First Instance (Pang J).

2.The applicant was the maintenance and repair contractor of the lifts of Gardenview Heights, a multi-storey residential building at Tai Hang Drive.  Leakage of oil was found at the driving motor of one of the lifts.  The applicant sent three technicians to repair the driving motor in question which was located in the lift machine room at the top of the building.  The process included testing and fine adjustment after repair.  During testing and fine adjustment, the hand of one of the technicians was trapped and injured by the steel gear of the driving motor in motion.  At the time of the accident, the protection guard of the driving motor, which had to be removed to effect the repair, had not been re-installed.

3.At the hearing, the applicant seeks leave and the requisite certificate on the basis that two points of law of great and general importance are involved.

4.The first point of law is formulated as follows:

“(a)   Is the machine room of a lift mechanism in an occupied residential building a construction site within the meaning of the Factories and Industrial Undertakings Ordinance Cap 59 (sub leg I) Construction Sites (Safety) Regulations?

(b)    Does the machine room of a lift become a construction site as defined when only routine maintenance, routine inspection and necessary consequential mechanical adjustment work are being carried out in the machine room, to the machinery?”

5.Both (a) and (b) essentially relate to the meaning of construction site in the Regulations.  Regulation 3 applies the Regulations to all construction work and all construction sites.  Regulation 2 defines construction site to mean “a place where construction work is undertaken …”.  Construction work is defined in the Factories and Industrial Undertakings Ordinance Cap. 59 itself, under which the Regulations are made, to include repair and maintenance of any building.  Section 2(1) and the Third Schedule.

6.The courts below were plainly right in holding that the lift machine room in question was a construction site.  The driving motor was an integral part of the lift system which was part of the building.  That being so, the repair work to the motor was repair and maintenance of the building, constituting “construction work” within the statutory definition and the lift machine room, being a place in which this construction work was undertaken, was a construction site within the Regulations.  In our view, no reasonably arguable case has been made out that the lower courts were incorrect in so concluding.  The fact that the repair work was of a routine nature cannot affect this conclusion.

7.The second point of law is formulated as follows:

“Where a verdict is given by a Magistrate which has of necessity required a consideration of legal issues, is it obligatory for the Magistrate to give reasons for his verdict upon delivery of it?  Was HKSAR v Sin Chi Yin [1999] 2 HKC 403 correctly decided?”

8.At the close of the prosecution case, the defence had submitted no case to answer relying on three arguments, including the argument on the meaning of construction site.  The Magistrate ruled there was a case to answer.  The defence advanced two further points without calling any evidence.  At the conclusion of the trial, the Magistrate gave his oral verdict:

“Though Counsel tried his best to persuade me that the Prosecution had erred in law and also the Prosecution case had failed to prove the guilt of the Defendant, I was of the view that the Prosecution had proved beyond all reasonable doubt the guilt of the Defendant Company.  The Prosecution has succeeded to establish the guilt of the Defendant Company, I therefore found the Defendant guilty.”

The Magistrate was plainly rejecting the arguments the defence had advanced on all issues, including legal issues.  Subsequently, the Magistrate prepared his Statement of Findings which set out fully his reasons on all issues.

9.After examining the oral verdict and the subsequent Statement of Findings, the Judge held that the conviction was neither unsafe nor unsatisfactory.  He was plainly right to do so and there is no reasonable argument to the contrary.  That being so, although the second point of law had been certified by the Judge, we are not prepared to grant leave on it.

10.Accordingly, the application for leave and the requisite certificate is dismissed.

Mr Clive Grossman SC, Mr Toby Jenkyn-Jones and Mr Nicholas Lau (instructed by Messrs Keith Lam Lau & Chan) for the applicant

Ms Mary Sin (of the Department of Justice) for the respondent

[1]    Regulation 44(1)(c) provides:

(1)   The contractor responsible for any prime mover, transmission machinery and other machinery (whether or not driven by mechanical power), and any contractor who has direct control over any construction work which involves the use of the prime mover, transmission machinery and other machinery, shall ensure that –

(a)    …

(b)   …

(c)    every dangerous part of the other machinery,

are effectively guarded unless they are in such a position or of such construction as to be as safe to every workman on the construction site as they would be if they were effectively guarded.