The Queen v. Wellform Construction Co Ltd

CACC000774/1983

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 774 OF 1983

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BETWEEN

Coram: Garcia, J. in Court

Date: 23rd July, 1983

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JUDGMENT

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1. The Appellate Company is the contractor for a construction site at T.W.T.L. 258, Castle Peak Road Tsuen Wan, New Territories.

2. By October 10th, 1982, the building at the site known as the Nam Fung Centre had been completed except for the internal finishing structures, plastering and electrical and air-conditioning installations.

3. Among the internal structures are staircases leading up to the 15th floor and above and these staircases go around a stairwell all the way up the building from the 4th floor level. Between the 8th floor and the 4th floor levels, there were metal railings running all the way down the staircases but according to Mr. CHEUNG Kwok-chi, a Factory Inspector of the Labour Department, there were no protective fences or railings between the 8th and the 18th floors.

4. The stairwell was covered by horizontal timber boards to protect those working on the lower floors from falling objects and on the day in question such boards were placed in such a position that they sealed off the stairwells on the 8th, the 12th, the 18th and the 22nd floors. This was in the evidence given by the general foreman of the Appellant Company, but Mr. HO Kam-wan who gave evidence on behalf of the prosecution and who was a foreman of the Electrical Engineering Division of the Appellant Company, says that there were such boards on the 8th and the 12th floors, and 13th floor and up to the 18th and 22nd floors but on the day in question the boards between the 8th and 9th floors were dismantled as work had to be carried out on those floors, but as to who had dismantled and removed those boards none of the witnesses really seemed to know. There is some evidence from the general foreman of the Appellant Company, to the effect that it was the deceased who had removed those boards but this is pure conjecture on his part.

5. Bricks for constructing internal walls were stacked on each floor from the 8th to the 15th floors, and according to Mr. CHEUNG Kwok-chi, when he examined the site on 10th October 1982, some of the bricks were placed near the middle staircase on the 8th, 9th, 11th, 12th and 15th floors, but no brick work was carried on between those floors. Those bricks were to be used in construction work from the 15th floor upwards.

6. At about 2 p.m. on 10th October 1982, the deceased, CHAN Wing-kwan, an employee at the site, was working with LEUNG Kam-sun, an electrical apprentice with the Centre Engineering Company they having been assigned to work at the middle staircase of the building. Their work consisted in leading electrical wires up the staircase, connected to an electricity distribution board from the lower floors up to the upper floors - Leung was working on the 3rd floor while the deceased was working between the 8th and the 9th floors. Whilst they were engaged in this task the deceased had to stick his head out of the railings to give necessary instructions to Leung to slacken the wire in order to have it pulled up and whilst doing this it appears that he was struck by a brick which fell from an upper floor.

7. There were no witnesses to this accident and the deceased after being struck was found lying on the landing between the 8th and the 9th floors. Medical evidence indicates he died from a fracture skull as a result of the accident.

8. Following the accident, the Appellant Company was summonsed on 28th February 1983 for "failing to take such precautions as were necessary to prevent a workman, that is CHAN Wing-kwan, employed and working in the central stairwell of the construction site at the above address from being struck by a falling object, namely, a brick, while he was so employed and working, contrary to Regulations 49(1) and 68(1)(a) of the Construction Sites (Safety) Regulations, Cap. 59."

9. The Appellant Company was convicted and fined $50,000 for the offence, against which conviction and sentence it now appeals.

10. In addition to the general ground that the conviction was unsafe and unsatisfactory, the appeal is based on 2 main grounds:

11. Dealing with the second ground first, the evidence of the Factory Inspector was that only protective boards were placed on the 15th floor. This was found to be inadequate as there was no protection from objects falling from lower floors. It is not correct, in my view, to say that no other work was being carried out near the staircase on the day in question between the 8th and 15th floors of the construction site because both the deceased and LEUNG Kam-sun were working on the staircases as I mentioned earlier. In the circumstances which I have set out from the evidence given by the various witnesses, including the witness for the Appellant Company, the railings do not, in my view, constitute an adequate protection for those workmen so as to comply with the Regulation.

12. Submissions have been made with regard to the definition of the word "necessary" in the Regulation and I wish to drawn attention to the case of Knight v. Demolition & Construction Co. Ltd., Ransom v. Same.⁽¹⁾

13. Regulation 79(7) of the Building (Safety, Health and Welfare) Regulations 1948 of the United Kingdom reads as follows:

"Before demolition is commenced and during the progress of the work precautions shall, where necessary, be taken by adequate shoring or otherwise to prevent, as far as practicable, the part of the building or of any adjoining building the collapse of which may endanger any person employed."

14. Two workmen in that case were engaged in demolishing disused gas retort blocks in a retort house. They were killed whilst working under a wall of a brick arch which collapsed on them. The wall was not shored in any way.

15. Parker J. in dealing with the Regulation states:

"That paragraph contains two phrases of some difficulty namely, 'where necessary', and 'as far as practicable'. It is urged on behalf of the Defendants that 'where necessary' means only where found necessary by experience, as opposed to being found necessary, for example, in the light of after events as a result of some latent defect not reasonably anticipated. I do not think I need go further than to hold that it must, at any rate cover a case where, if the dangers had been appreciated, as I have held they should have been, any reasonable person. would say that precautions were necessary."

16. I think in this case the words "as are necessary" are analogous to the words "where necessary" and even if the learned magistrate had accepted the evidence of the witness of the Appellant Company, he was entitled to find that the precautions taken by the Appellant Company on 10th October were not adequate to comply with the provisions of the Regulation 49(1). I also agree with the learned magistrate that there is no basis for implying that the word "necessary" is qualified by the word "reasonable". I think the test here is whether any reasonable person would have considered the precautions taken by the Appellant Company on the day in question to be adequate in the circumstances.

17. Applying this test I cannot say that the magistrate came to the wrong conclusion when he found that the Appellant Company had not provided adequate precautions to prevent objects from falling on the deceased workman.

18. However, I think the Appellant Company stands on firmer ground in respect of the first ground of appeal. In this verdict delivered in Court on the day of trial the learned magistrate made the following remarks:

"This Regulation is mandatory in the sense that once the circumstances it sets out to prevent have in fact occurred, the burden passes to the defence to show that the demands of the section have been met in regard to precautions."

Nowhere in the relevant Regulation nor in the body of the Regulations, that is the Construction Sites (Safety) Regulations Cap. 59 can one find that the onus is on the Appellant Company to prove what the learned magistrate says that they have to prove. Even if the Regulations imposed strict liability on contractors and others to take necessary precautions to prevent accidents from occurring, the onus does not shift. The onus is always on the prosecution to prove the guilt of the defendant and it appears to me that if in reaching his verdict the learned magistrate had misapprehended the burden of proof as it appears he has, then the verdict cannot be cured by the application of the proviso as has been urged on me.

19. In the result, the conviction must be quashed and the fine, if paid, must be returned to the Appellant Company.

(1)     (1953) All E.R. 508.

Representation:

Mr. Conyngham for Crown.

Mr. Cunningham (Susan Liang & Co.) for Appellant.