HKSAR v. Sun Fook Kong Construction Ltd and Another

HCMA 298/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 298 OF 2009

(ON APPEAL FROM FLS 9592 & 9593/2008)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing:  18 November 2009

Date of Judgment: 18 November 2009

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J U D G M E N T

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1.The Appellant Companies were for each summoned for the offence of being the proprietor of an industrial undertaking, which is a site in Lok Ma Chau, on 14 April 2008, where a contravention of Regulation 6 of the Factories and Industrial Undertakings (Electricity) Regulations, Cap. 59, sub. leg. W occurred, namely that a live conductor, the power supply cable of an electric arc welding machine was not so insulated and further effectively protected where necessary so as to prevent electrical hazard so far as was reasonably practicable.

2.The Appellant Company pleaded not guilty and were represented by the same counsel as counsel on appeal, Mr Christopher Grounds leading Mr Jeffrey Chau. Both were convicted after trial and they now appeal against their convictions.

The Case for the Prosecution

3.The prosecution called three prosecution witnesses. The facts that were agreed, prior to the trial, were that the 1^st Appellant was the principal contractor on the site and the 2^nd Appellant was a sub-contractor on the site.

4.The prosecution then called PW1, Mr Wong, who was an Occupational Safety Officer of the Labour Department. Mr Wong testified that on the material day, he arrived at the site to conduct the safety inspection. He said that, after parking his car, before entering the construction site, he saw some staff from the Architectural Services Department (“the ASD”) accompanied by the safety officer of the 1^st Appellant. He said he then went into the construction site and he saw a male worker subsequently known as Mr Chu standing on a metal scaffold (Exhibit P-2, Photo 1) and engaging in welding work on the roof of the single-storey building in the construction site, using an electric arc welding machine. He said he observed the worker for a short while who, then, became aware of his presence and stopped working and came down from the metal scaffold. PW1 said he inspected Mr Chu’s green card and it was valid. He then inspected the welding machine and he traced the cable and he located the transformer of the welding machine.

5.Upon inspection, he said he found some damage to the outer layer of the power supply cable of the welding machine (Photos 6-8 in Exhibit P-2).

6.He used a multimeter and measured the voltage difference between the exposed conductor and the earth wire and the resulting reading was 223.5V.

7.He traced the power supply cable to the source of electricity. He found a power box. Apart from the welding machine used by Chu, several other plugs were connected to the panel. He said he took measurements of the voltage in each of the sockets.

8.He said people were walking through the passageway where the welding machine was placed. He did not take a photo of Mr Chu working on the platform during his welding nor was a witness statement taken from Mr Chu.

9.PW1 also said that there was no insulated box for holding the electrode holder and the remains of spent electrodes as seen in photo 1 of Exhibit P-1. He agreed that when Chu stopped welding, he placed the welding electrode directly on the scaffold instead of in an insulated box. It was put to him by Mr Grounds that it was very unsafe to put a hot welding electrode directly on the platform. PW1 admitted that he did not ask Mr Chu to put the electrode in an insulated box.

10.PW1 did not measure the size of the construction site, but he agreed that the site was about 77 feet long by 20 feet wide. PW1 also agreed with Mr Grounds that in the Code of Practice that a duty was placed on the employee to check the power cable of the welding machine before starting work.

11.The cross-examination lasted for quite some time and the learned Magistrate did put the salient points from the cross-examination into the Statement of Findings and I do not need to repeat them all here, I only need to pick out several points which is relevant to the present proceedings.

12.The defence case was put by Mr Grounds to PW1 that Mr Chu was not engaged in any welding work when PW1 arrived (which PW1 denied). Mr Chu and the other workers were attending a safety talk given by the Safety Officer and supervised by staff members of the ASD, PW1 denied that. PW1 also denied that he had asked Mr Wong (PW2), the foreman of the 2^nd Appellant, where the power box was, and PW2 led him to the power box and unlocked it for him.

13.When the power box was opened, all other plugs were lying at the bottom of the power box except for one plug connected to the electricity panel. PW1 denied that he and his colleagues plugged and unplugged various plugs into and from the sockets in order to work out which plugs are connected to which machine.

14.PW1 denied all the suggestions put by Mr Grounds.

15.Then PW2 was called. PW2 was employed by the 2^nd Appellant as a foreman on the site. He was, in fact, tendered for cross-examination.

16.PW2’s evidence in brief was that he was on the site on the material day. He and six other construction workers arrived on the site at about 9:00 a.m. or 9:30 a.m. All of them attended a safety talk, which began at about 10:00 a.m. The safety talk was given by PW3, the Safety Officer of the 1^st Appellant, and was attended by staff of the ASD.

17.The place of the safety talk was about 4 feet away from the metal scaffold shown in Exhibit P-2, Photo 1 on which PW1 alleged he had seen Mr Chu working on.

18.PW2 said that the Labour Department officers arrived, PW1 was one of them. There were altogether three Labour Department officers. The talk stopped when they arrived and resumed after they left the site.

19.Upon their arrival, the Labour Department officers inspected the works. After a while, PW2 said he heard officer Wong (PW1) cry out something from the corridor. PW2 went to the corridor and saw Wong and Chan squatting down, saying that the wires were torn. They were twisting and poking at the cables, and looking at a multimeter.

20.PW2 said he checked the light of the welding machine at this point and found that the light on it was not on. PW2 then unlocked the power box at the request of the officers. Upon unlocking the box, there was one plug connected to the electricity panel which is the right-most one in blue in Photo 10 of Exhibit P-2. PW2 explained that in the morning prior to the arrival of the Labour Officers, he had opened the power box to allow the plug to be connected to the electricity panel by someone who was not involved in the Appellants’ construction works, because that person was carrying out works near the Appellants’ site, and wanted electricity.

21.After he unlocked the power box, PW2 said he saw the Labour Department officers using the multimeter to take measurements, and plugging and unplugging the plugs in the power box.

22.Officer Wong (PW1) informed PW2 that there was a scratch on the cable of the transformer, and asked him whose transformer it was. PW2 asked Chu to come forward, and then PW1 took down Chu’s green card number.

23.PW2 said that the normal practice was that he kept the power box locked and he was the only one with the code to the combination lock. When a worker needed to conduct welding work, PW2 would have to unlock the power box to provide power to the machine.

24.PW2 said that he would check if welding work was needed to be done. He had to check the transformer including the power cable that is safe before opening the power box and plugging the machine to the power supply. And also that the welders have a duty to check the condition of the power cable as well. If he found any tear on the power cable, he would first unplug the machine, coil up the cable and put it to one side, and place a warning sign nearby.

25.He gave a general account of what is normally done. He also said that there is a residual current device installed in the electricity panel in the power box which is shown in Photo 10 of Exhibit P-2. He explained that there is a tripper in the residual current device which will operate to cut off the electric current when electricity leakage occurs.

26.PW3 is the Safety Officer of 1^st Appellant. He was tendered for cross-examination and his evidence is generally in agreement with PW2. He said that he was at the material time on site because he was conducting a safety talk. The talk was scheduled to commence at 10:00 a.m. and, before that, he had drawn up a schedule of the talks for the month of April 2008 and that was produced as Exhibit D-8.

27.This talk was funded by the ASD, and the ASD would visit the site to ensure that the safety talk had actually taken place.

28.So on that day of 14 April 2008, two ASD officers attended the safety talk and he also had an attendance sheet to record the names of those who attended the talk. This was produced as Exhibit D-5. One of the names on that sheet was Mr Chu.

29.The subject of the talk that day was welding and the use of protective personal equipment. It was shown on Exhibit D-6. It states on page 2 of the document that the speaker should spend 15-20 minutes for explanation and questions and answers. PW3 said he followed the guidelines.

30.PW3 said that the second part of the talk took about 15 to 20 minutes. PW3 said the safety talk was conducted next to the metal scaffold which was shown in Photo 1 of Exhibit P-2 and there was no one doing work on the scaffold during the safety talk. He said that during the talk three Labour Department officers arrived at the site. Upon their arrival, the talk was stopped and he started talking with the Labour officer surnamed Chan. PW1 went into the corridor on his own. PW3 said he heard PW1 cry out, asking Mr Chan, the other Labour Officer to get a multimeter for him. Mr Chan got the multimeter and PW3 went with him to meet PW1.

31.PW1 told Mr Chan that there was some scratches on the cable of the welding machine, and asked the foreman who the machine was used by, then PW2 asked Chu to come over.

32.Mr Wong (PW1) then asked PW2 where the power box was. PW2 then took PW1 to the power box, which was locked. The power box was unlocked and then PW3 saw the Labour Department officers plugged and unplugged the plugs in the power box, and inserted the needles of the multimeter into the electricity panel and some photos were taken. When the Labour Department officers left the site, PW3 continued his safety talk.

33.Apart from nine exhibits being tendered by the defence, both Appellants elected not to give evidence and no defence witnesses were called.

34.The learned Magistrate then considered and analysed the evidence. At the end of his analysis, the learned Magistrate considered that PW1 was a reliable and honest witness and PW2 and PW3 were not honest and reliable witnesses.

35.The learned Magistrate considered that they were not honest and reliable witnesses because, I quote from the learned Magistrate’s Statement of Findings at paragraph 67, he said:

“As for PW2’s evidence, I find that he is unclear and evasive in respect of material aspects of the case, such as when the relevant welding machine was last used before 14 April 2008, and whether he had inspected the cable of the machine on that occasion.”

36.PW2 was the foreman on site. The inconsistency pointed out by the learned Magistrate was based on the fact that PW2 was asked whether he had inspected the cable of the machine and PW2’s answer was that under normal practice he would check the cable of welding machine before it is plugged in for use and then PW2, as I have noted, explained what had happened if he found the cable to be damaged. He said in answer to a question that if he found the cable was damaged, he would unplug the machine.

37.The learned Magistrate said that he was being inconsistent because he had said that the normal practice was to make sure that the cable is intact before plugging in the machine, but the question was asked if he found it to be damage then what would he do. He would then unplug it from the machine. I am not sure that is an inconsistency so much as perhaps misunderstanding of the question. Secondly, the learned Magistrate said that PW2 was very ambiguous in his answer to prosecution counsel’s questions during re-examination because he was asked when the relevant welding machine was last used before 14 April, PW2 had replied that it was last used by Chu on the previous Friday. PW2 said that he had checked the condition of the machine’s cable before it was used on Friday, and he did not see any scratch on the cable. However, the learned Magistrate said PW2 subsequently seemed to have retracted from that stance and said that in fact, that particular welding machine may not have been the one that was used on Friday. And again, I am not sure having read the transcript whether PW2 was in fact inconsistent or he corrected himself because he thought further about it and clarified that he was not sure that Chu might have been using the same machine on Friday.

38.We must not forget that this is a construction site and in the normal working of a construction site, it is not practicable for the foreman to remember exactly which machine was used by exactly which worker, he can only give an account of what the normal practice is. In this particular incident because some defect was found on the cable, he was asked when it was last used and his initial answer was Friday. After he thought about it he said he was not sure if it was exactly the same machine.

39.But the learned Magistrate however considered these inconsistencies to be so material that it affected the reliability of the evidence of PW2. Furthermore, he said PW2 was being employed by the 2^nd Appellant and therefore has an interest in giving evidence favourable to the Appellants. And thus for those reasons, he rejected PW2’s evidence and said he was not honest and reliable.

40.As for PW3, the learned Magistrate said likewise and I quote from the learned Magistrate’s Statement of Findings, paragraph 71, he said:

“likewise cannot be regarded as an independent witness as he is the safety officer and employee of D1.”

41.So this was topmost in the learned Magistrate’s mind. Then he goes on to consider PW3’s manner in giving his testimony and said he was eager to agree with what is favourable to the Appellants. I pause here to note that he was tendered for cross-examination by the prosecution. So the bulk of the questioning would have been done by defence counsel.

42.The learned Magistrate said he found him to be “rigid”, and I do not understanding what he meant, and “appears to be trotting out a story fabricated in advance to exonerate the Appellants” and therefore found PW3 not an honest and reliable witness.

43.The learned Magistrate then dealt with the documents produced by the defence, which was tendered in the cross-examination of PW3. These are documents which supported the evidence of PW3. The learned Magistrate found that there was no evidence to dispute the veracity of the documents. The learned Magistrate however made the observation that, of course, the documents do not testify to the fact as to how long the talk lasted. Although the workers’ names were put on the attendance sheet, it does not say how long they remained in the talk, he noted.

44.The learned Magistrate said that he found that the mere fact that the safety talk had been conducted is not inconsistent with PW1’s evidence because it is possible for the talk to have finished and the workers just started their work by the time PW1 arrived at the site.

45.The learned Magistrate then said that he did not agree with the submission of the defence that it was suspicious that the prosecution did not call Mr Chu, nor Chan and Man, the other two Labour Department officers.

46.He said rightly that the prosecution and defence have the right to choose whether or not to call a certain witness and so the court should not speculate. And then he dealt with the law in the case and at the end of the day then convicted both Appellants of the charge.

47.Before even going to the legal aspect of the case, the facts of the case, as I have indicated to counsel, mystified me. Here we have three prosecution witnesses, one prosecution witness claimed that he saw Mr Chu welding when he arrived on the site and then sell discovered the broken cable, the other two prosecution witnesses gave a directly contradictory account of what happened. It therefore then fell upon the learned Magistrate to try and work out the chaotic impact of these prosecution witnesses’ evidence. The fact of the matter is that if the prosecution felt that PW2 and PW3 were unreliable witnesses and their testimony ought not to be relied upon, then they should not have called them as prosecution witnesses.

48.Mr Hui, for the Respondent, submitted that the prosecution felt that witness statements had been taken from them, it was only fair to call these witnesses since they have laid claim on them. That is not a valid reason. On many occasions though the prosecution may have taken statements from witnesses and when they subsequently felt were unreliable and were not telling the truth, then they, the prosecution would then pass the witness statements to the defence and tell the defence that they will not be calling these witnesses because they do not accept the reliability of their evidence and it is for the defence to call them. Here the prosecution actually called these two witnesses, PW2 and PW3. The prosecution seems to be saying, by doing this, that ‘I am not sure who’s telling the truth, let the court decide’.

49.A prosecutor has the duty to know beforehand what his case is and to present that case to the court, and to present that case in such a manner that the defence knows exactly what case they are meeting. And that’s why the prosecution has the absolute discretion at the end of the day to call certain witnesses and decide not to call other witnesses. They cannot to be forced by the court to call a witness whom they do not consider is a reliable witness and who will give evidence which they consider to be not honest or truthful. There may be cases where certain witnesses’ statement or evidence may be a problem to the prosecution’s case, however, in the circumstances of that particular case because of fairness, the prosecution may tender that witness. However, it is not the case here. Here we have two prosecution witnesses whose evidence are completely at odds with the evidence of PW1.

50.The duty on the prosecution to call or offer to call witnesses is clear and that can be seen in Criminal Evidence in Hong Kong, Bruce and McCoy at Chapter 9 at paragraph 453, where it is stated that the prosecution’s duty is to call all the witnesses to prove the primary facts, or offer to call such witnesses unless for good reason, they regard the witnesses’ evidence as “unworthy of belief”.

51.Here we have the prosecution tendering two witnesses, PW2 and PW3 who at the end of the day, the prosecution is saying are unworthy of belief.

52.As I have indicated, the learned Magistrate’s analysis of PW2 and PW3’s evidence leaves much to be desired and it seems that he had, at the back of his mind, the main factor why he did not believe PW2 and PW3, which is the fact that they both worked for the Appellant companies. In my reading of their evidence, I do not find that the inconsistencies of such importance that it made their evidence unreliable and unworthy of belief.

53.Having read the evidence of the witnesses, the Statement of Findings and submissions of both counsel, and I am grateful to both counsel for their very detailed submissions in this case which have assisted the court greatly.

54.At the end of the day, I find that there is a lurking doubt. I am unable to see on the evidence how the case has been proved beyond a reasonable doubt. The evidence is such that the credibility of PW1 remains a factor, an issue which has not been satisfactorily proved.

55.I find therefore that the convictions are unsatisfactory and unsafe, so the appeal is allowed. The convictions are quashed.

Mr Martin Hui, Senior Public Prosecutor, for the Respondent

Mr Christopher Grounds and Mr Jeffrey Chau, instructed by Messrs Or & Lau, for the Appellants