HKSAR v. China State Construction Engineering (Hong Kong) Ltd and Another

HCMA158/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.158 OF 2011

(ON APPEAL FROM TWS 12135 AND 12137 OF 2010)

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Before : Hon Pang J in Court

Date of Hearing : 9 September 2011

Date of Judgment : 20 October 2011

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J U D G M E N T

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1.The 1^st appellant, China State Construction Engineering (Hong Kong) Limited (“1^st appellant”) and the 2^nd appellant, Mak Yip Engineering Company Limited (“2^nd appellant”) were summoned before a Deputy Magistrate for their respective breach of Regulation 38D(a), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap. 59.

2.The 1^st appellant was the contractor responsible for the construction site in question which is a proposed shopping centre in the Discovery Bay North Development project.  The 2^nd appellant was a subcontractor of the 1^st appellant and was responsible for plastering and painting works on the site.

3.It was alleged that the appellants, in their respective capacities, did fail to ensure that a ladder was not used unless it was so designed and constructed that it did not collapse, overturn or move accidentally. 

4.The prosecution’s case was that on 9 March 2010, a worker surnamed Ho who appeared in the trial as PW1 fell from a defective ladder on which he was doing plastering work and sustained injuries.  It is alleged that the appellants were in breach of the regulations in question.

5.The appellants pleaded not guilty to the charges and were convicted after trial.  This is their appeal against their respective conviction.

6.At the trial the injured worker appeared as PW1 and gave an account of the incident.  He said at the time he was on an ‘A’ shaped ladder and was about to do plastering work on the area of the wall close to the ceiling.  He described the ladder as having 10 rungs and was secured by a rope at the second or third rungs in order to stop the ladder from accidentally spreading.  When he was about to sit on the top of the ladder, the hinges at the top broke apart and the ladder separated and collapsed.  PW1 fell and suffered injuries.  The other prosecution witnesses were not present at the scene when the incident took place and their evidence added little to the prosecution’s case.

7.Both appellants elected not to give evidence at the trial.  The defence contested the case on the credibility of PW1 and that he was not able to identify the actual ladder involved in the incident.  The defence also alleged PW1 had exaggerated his evidence, particularly on the height from which he fell in order to support a future civil claim for damages under the Workmen Compensation Ordinance.

8.At the trial there were produced a number of photographs depicting two different ladders.  The first was an ‘A’ shaped ladder which was photographed as standing intact and was estimated to be about 10 feet in height and had 10 rungs.  Other photographs showed a broken ladder which was separated on its top hinges.  The ladder should have been about 6 feet in height if standing intact and had six rungs.  One of the photographs Exhibit D3 showed PW1 lying on the floor next to the broken ladder.

9.By looking at the exhibited photographs, one could have come to the conclusion that PW1 had fallen off from the broken ladder when its hinges separated at the top.  But it was not the case, at least not so according to the evidence of PW1.

10.In his examination-in-chief, PW1 was asked to describe the ladder from which he fell.  This was his evidence :

“Q. Yes, so what kind of ladder?

A. It was a ladder of 10 feet.

Q. A‑shaped?

A. Yes.

Q. What kind of material?

A. Wooden ladder.

Q. How many rungs of the ladder?

A. Ten.

Q. Yes, when you worked on the ladder, how did you stand on the ladder?

A. That part was very narrow.  When I was about to sit down, the ladder separated.”

11.Based on his description, it was obvious that PW1 had fallen from a 10-foot ladder.

12.During cross-examination, PW1 was shown an exhibited photograph depicting a six rung ‘A’ shaped ladder separated at its hinges on the floor next to him.  PW1 confirmed that the picture showed him lying on the floor next to the broken ladder.  In response to counsel’s question whether he used the broken ladder in the photograph for his work and fell from it, PW1 answered in no uncertain terms :

“In fact, I didn’t use this ladder.”

Based on his account it was obvious that PW1 did not fall from the 6-foot ladder. 

13.Towards the end of PW1’s cross-examination, the defence applied to the Deputy Magistrate for leave to cross-examine PW1’s previous criminal conviction in order to attack his credibility.  Leave was granted and it was revealed and confirmed by PW1 that he had a string of criminal convictions dating back to 1987 which included offences of robbery, publication of obscene articles, assault occasioning actual bodily harm and sexual intercourse with an underage girl. 

14.At the close of the prosecution’s case the Deputy Magistrate found that the appellants had a case to answer.  The evidence at that stage remained that the prosecution was not able to produce the ladder which it alleged was unsafe for use under the circumstances.  The prosecution case rested solely on PW1’s description of the ladder and his account of how he sustained his injuries. 

15.As correctly identified by the trial Deputy Magistrate, the entire case rested on the credibility of PW1 and this was how he dealt with the issue.  He said :

“8. PW1 had criminal convictions, one of which was for dishonesty. I therefore reminded myself to exercise extra special care when considering the veracity of his evidence and before accepting and convicting upon it as he clearly had a benefit to gain in this case. Even after so doing, I found that I could accept his evidence as honest and reliable even though I rejected his evidence about the ladder that he had used.” [My emphasis]

16.At paragraph 18 of the Statement of Findings, the Deputy Magistrate went on to say :

“18. I accepted PW1’s evidence that he had not used the ladder seen in photograph, Exhibit D2, but I did not accept his evidence that he had used a ladder which was higher than the 6 rung ladder seen in photograph, Exhibit D3. I found in this regard that the height of the work place PW1 described was 3 metres (10 feet) and I found that a 10 foot ladder would still have been too high for PW1 to do his work …”

17.The photograph marked Exhibit D2 referred to by the Deputy Magistrate depicts an intact ‘A’ shaped ladder with 10 rungs reaching all the way to the ceiling area.  The Deputy Magistrate found that PW1 could not have fallen from this ladder which was intact.

18.So it must be the case when PW1 said he had used neither ladder depicted in the photographs, there was a third ladder in existence which was also broken and separated at its hinges but was somehow neither produced as an exhibit at the trial nor photographed for record for the trial.  That is if PW1’s account is to be believed.

19.With the above in mind I find the subsequent findings by the Deputy Magistrate to be somewhat baffling.  At paragraph 21 of the Statement of Findings he said :

“21. I found therefore that PW1 had fallen from a ladder which had collapsed on him as he said. In this regard I noted that the 6 rung ladder seen in the photograph Exhibit D3 was separated at its top point where one would have expected the hinges to be located. This, with the weight that I could attach to the photograph, gave some support to PW1’s evidence of the reason for his fall from his ladder. I further found it was reasonable for a person about to work at height to have his feet on the 3^rd or 4^th rung of a 6 rung ladder so that he could sit on the top of the ladder.

22.     I considered carefully whether this finding in relation to the ladder used by PW1 caused me to find that I could not rely on the rest of PW1’s evidence as honest and reliable.  In this regard, I could not pinpoint exactly why PW1 should lie in relation to the ladder he had used although I had strong suspicions. …”  [My emphasis]

20.While it is open to the Deputy Magistrate to accept part of the evidence of PW1 and reject the rest, the Deputy Magistrate was clearly labouring under the difficulty that he found PW1 had lied in relation to the ladder an issue which is crucial to the prosecution case.  Confronted with this dilemma, it would have been a very difficult exercise indeed for the Deputy Magistrate to pick and choose from the evidence of a witness whose credibility was very much in doubt.

21.Nevertheless at paragraph 26, the Deputy Magistrate went on to find the following :

“26. I found after considering this situation that I could accept the rest of PW1’s evidence as true and reliable as I found that I was sure that he had been plastering at height at the location stated and that he had suffered a fall from an “A” ladder that had collapsed on him. I also found that I was satisfied beyond reasonable doubt that the work PW1 was doing could not be done safely from the ground or from a structure. I further found that I was satisfied beyond reasonable doubt that the defendant had not taken any action to prevent the use of this ladder when clearly there was a high risk of PW1 falling off the ladder if he lost balance whilst holding his working tools and plastering, making it unsafe for him to use. I also found that I was satisfied beyond reasonable doubt that the ladder used was not designed or constructed or modified to stabilize it for his use so that it did not collapse.” [My emphasis]

22.One must wonder how, without the benefit of seeing the actual ladder involved or at least a picture of it, could the Deputy Magistrate made the above findings.  Without this crucial evidence, one must be force to conclude that the trial Deputy Magistrate had descended into the realm of speculation of a ladder and its alleged defects.  It appears the Deputy Magistrate had not considered whether PW1 could have fallen and injured himself from a ladder which was properly fitted and was safe to use under the circumstances.  The prospects of PW1 exaggerating his evidence to enhance his claim in a subsequent civil claim could not have been ruled out in view of what the Deputy Magistrate said in paragraph 22 of his Statement of Findings.  The fundamental flaw in this case remains that there the Deputy Magistrate could only act on the PW1’s suspect allegation of a defective ladder which collapsed and causing PW1 to fall and injure himself. 

23.Counsel for the appellants raised four grounds of appeal and all were critical on the alleged erroneous manner in which the trial Deputy Magistrate had resolved the credibility of PW1 and which complaints I find justified.

24.For the reasons given, the convictions of the 1^st and 2^nd appellants are unsafe and unsatisfactory.  The appeals are allowed and the convictions quashed.  The fines, if paid are returned to the appellants.

Mr Tsang Ting Hang, Michael, PP of Department of Justice, for the Respondent

Mr Wong Ting Kwong, Peter, instructed by Messrs Chan, Evans, Chung & To, for the 1^st and 2^nd Appellants