Attorney General v. Harbour Engineering Co. Ltd.
|
CACC000807/1977
-----------------
----------------- Coram: Trainor, J. Date of Judgment: 19th August, 1977. ----------------- JUDGMENT ----------------- 1. This is an appeal by way of case stated at the request of the Attorney General. 2. An information was laid by the Commissioner of Labour against the respondent alleging that the respondent, being the proprietor of an industrial undertaking which was a construction site on which the edge of a box channel, which was liable to be dangerous to persons, was not securely fenced to a height of not less than three feet in accordance with regulation 24(a) of the Factories and Industrial Undertakings Regulations (to which I shall hereafter refer as the Regulations), made pursuant to the Factories & Industrial Undertakings Ordinance (Cap. 59), as read in conjunction with regulation 42 of the Regulations, committed an offence under regulation 45(c) of the Regulations. There was a reference to regulation 67 of the Construction Sites (Safety) Regulations but as it merely revoked regulation 42 as it then was and substituted a new regulation of the same number I shall only refer to it briefly again. 3. The facts alleged by the Commissioner of Labour were conceded by the respondent, and the learned magistrate considered that on them he would have found the charge proved provided that the construction site of the respondent fell within the provisions of regulation 24(a) of the Regulations. 4. Regulation 24(a) reads as follows:
Commissioner means the Commissioner of Labour. 5. A registerable workplace is stated in s.2 of the Ordinance to be "any factory, mine, quarry or place required to be registered or provisionally registered under section 9(1)". 6. Section 9(1) reads:
7. What places the legislature intended to be covered are there set out and, conspicuously, a construction site is not included. "Construction work" is not a dangerous trade nor a scheduled trade, as set out in the first and second schedules to the Ordinance, and therefore the Ordinance does not require a place where construction work is carried on to be registered. 8. Section 7(1) of the Ordinance so far as it is relevant reads:
"industrial undertakings" according to section 2 of the Ordinance includes "any construction work". 9. I have already cited the regulation which the respondent is alleged to have transgressed, regulation 24 of the Regulations, and the appellant alleges he did so transgress by reason of regulation 42. (I earlier mentioned that the original regulation 42 was revoked and replaced, but I must confess that the reason for this escapes me as the replacing regulation is the same, verbatim, as the one it replaces). Regulation 42 reads:
It will be noted that the regulation recognises that the Ordinance does not require a construction site to be registered, that it is not, "a registerable workplace" within the definition, but the Commissioner presumes to provide for the omission of the legislature, at least for the purposes of regulation 24. 10. As I pointed out earlier the legislature does not purport to cover "a construction site" in a "registerable workplace" and I think emphasis may be placed on the word "place", but it was the argument of counsel for the Crown that as s.7(1)(h) enables the Commissioner by regulations to prescribe and provide for ensuring the safety of persons in "industrial undertakings" it enabled him to include "work site" in "registerable workplaces" by reason of "construction work" being included in the definition of "industrial undertakings". 11. I think the fallacy in his argument is that he is accepting "construction work" and "construction site" as being the same thing, and, therefore, the Commissioner having power to make regulations for "construction work" has power to legislate for areas or places where construction work is carried on. 12. The power of the Commissioner to create offences must be strictly construed, and where the legislature sets out or describes places to which the legislation extends those places may not be added to by subsidiary legislation unless the enabling the Ordinance expressly authorises such additions. Where the legislature permits subsidiary legislation to prescribe and provide for ensuring the safety of persons engaged in "industrial undertakings", and therefore construction works, it does not thereby authorise subsidiary legislation generally applicable to every place where construction work is carried on. The power conferred by section 7(1)(h) is a power to make provisions for the safety of workmen engaged in construction work; it is not a power to bring places wherein construction work takes place within the ambit of the enabling legislation when that legislation did not think it necessary to do so. Were it otherwise one might find provision in subsidiary legislation for matters not referred to or contemplated in the enabling legislation and a glaring inconsistency resulting. Section 28 of the Interpretation and General Clauses Ordinance provides that
If subsidiary legislation purports to provide that "a registerable workplace" includes a construction site notwithstanding that a construction site is not required to be registered under section 9(1) of the Ordinance it is unquestionably inconsistent with the provisions of the Ordinance. 13. I do not think it is necessary to develope the point that subsidiary legislation cannot amend the principal legislation, and "amend" includes, inter alia, "add to or vary" (s.3 Interpretation Ordinance), therefore "registerable workplace" must have throughout the subsidiary legislation the meaning it has in the Ordinance. But the Interpretation Ordinance further provides:
The result therefore is that "registerable workplace" can have no meaning other than that given to it in s.2(1) of the Ordinance. 14. Had the Commissioner legislated for the safety of persons engaged in the industrial undertaking of construction work, and if the respondent had infringed that legislation then the respondent might have been answerable for a breach of the legislation. But as the Commissioner decided to legislate in a way that was inconsistent with the Ordinance he acted ultra vires the powers conferred on him and the learned magistrate was quite right in holding so and dismissing the information. Representation: Mr. Graham, c.c. for Appellant Mr. Mok (Ng & Lee) for Respondent |