HKSAR v. Sang Hing Civil Contractors Co Ltd and Others

HCMA34/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.34 OF 2011

(ON APPEAL FROM STS 5860-5861, 5863-5864 & 5866-5867 OF 2010)

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BETWEEN

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Before : Hon Pang J in Court

Date of Hearing : 15 April 2011

Date of Judgment : 19 May 2011

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J U D G M E N T

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1.The 1^st appellant Sang Hing Civil Contractors Company Limited (“1^st appellant”) and the 2^nd appellant Chit Cheung Construction Company Limited (“2^nd appellant”) were each convicted of a set of two summonses. The 1^st summons in each set (STS 5860/2010 and STS 5863/2010) alleged that the appellants, being the contractor responsible, did fail to ensure safe access to and egress from place of work was provided and/or maintained, contrary to regulations 38A(2) of the Construction Sites (Safety) Regulations, Cap. 59I made under the Factories and Industrial Undertakings Ordinance, Cap. 59.

2.The 2^nd summons in each set (STS 5861/2010 and STS 5864/2010) allege the appellants, being the contractor responsible, did fail to take adequate steps to prevent a person from falling from a height of more than 2 metres, contrary to regulation 38B(1) of the Construction Sites (Safety) Regulations, made under the same ordinance.

3.The 3^rd appellant Ho Kam Wing trading as Wing Cheung Kee Engineering Company (3^rd appellant) faced two similar summonses (STS 5866/2010 and STS 5867/2010) in its capacity as the contractor who had direct control over the construction work.  The summons as were issued under regulations 38AA(2) and 38B(1A) of the Construction Sites (Safety) Regulations.

4.All three appellants pleaded not guilty to the summonses in the magistracy and were convicted after trial.  This is their appeal against their respective convictions. 

5.The construction site in question was located at Cheung Shue Tan, Tai Po Mei, New Territories.  The 1^st and 2^nd appellants were the contractors responsible for the site formation and engineering infrastructure works under government contract number TP/2007/02.  

6.Part of the works under the main contract was sub-contracted to the 3^rd appellant. 

7.On 31 December 2009, a female worker surnamed Lau who was employed by the 3^rd appellant as an electric arc welder fell off a steel beam on which she was squatting and injured herself.  

8.At the material time Madam Lau was assigned to carry out welding works at the site.  It was not in dispute that she fell from a steel beam which was at a height of some 2.5 meters from the bottom of an excavation trough. 

9.Photographs and diagrams exhibited at the trial show the relative position of two steel beams.  The first beam which is referred to as “the red beam” spans the width of the excavation trough. The beam measured about 5.5 m in length and 300 mm in width.  It was 2.6 m from the bottom of the trough.  The evidence at the trial was however uncertain whether both ends of the red beam were securely anchored or embedded into the sides of the trough.  It is apparent from the photograph that the side slope were made up of loose soil and rock particles. 

10.Embedded along the slope of one side of the trough and at a height of about 2.6 m from the bottom is another steel beam which is referred at the trial to as “the green beam”.  The side slope is at approximate 60 degrees with the bottom of the trough.  One end of the green beam is perpendicular to and in contact with the red beam forming an “L” shape structure.  On the day in question the injured worker was assigned to weld the two beams together.  The exhibited photographs shows clearly that there were no guard-rails installed on either beam. 

11.At the trial the prosecution called two witnesses.  Madam Lau, who gave evidence as PW1 said that on the day in question she was assigned to do welding works in excavation site.  However her supervisor did not tell her the specific safety measures to be taken nor did he tell her the route that she should take to get to the spot where the welding was be done.  She told the court that there were two possible routes and she had taken the shorter route as it was more convenient. Whichever route she took, there were no guard rails installed along the slope so as to prevent a person walking along the slope from falling into the excavation trough.

12.The 2^nd prosecution witness Mr Hon was called to give expert opinion on the safety measures taken at the site in question.  The content of his report which produced as a prosecution exhibit was not challenged.  It would be useful to note his observations in respect on the issue of safe access and egress to the spot where the welding works were to be performed.  He said:

“6.3 In view of the absence of ladder provided in position along the said inclined & vertical surface of the excavation and no other fall-arresting system was provided in place for continuous fall protection, the I/P was liable to fall from the ground level to the landing place of the first layer of excavation which was 3.3m below and even down to the bottom of the excavation.

6.4 Similarly, as there was no fall protection on the sheet pile and no fall-arresting system provided/installed in place, she was liable to fall from the sheet pile to the bottom of the excavation when she walked along the top of the unprotected sheet pile to the location for electric arc welding work.

6.5 In view of the above, the route from ground level of the excavation to the work location for electric arc welding was considered unsafe and not suitable.

6.6 Hence, suitable and adequate safe access to and egress from the work location for carrying out electric arc welding work, such as secured ladders, temporary stairways with sufficient foothold and handhold, etc, should be provided in position and properly maintained.” [My emphasis]

13.In respect of the issue of preventing a person from falling from height, the reports says:

“6.7 When the I/P was conducting electric arc welding work at height, she was not protected by any fall prevention facility. Since there was no safety net erected below the position of welding work, she was liable to fall from the unprotected sheet pile for a height of 2.6m to the bottom of the excavation. Although the I/P was provided with a waist-type safety belt, no suitable anchorage or other fall-arresting equipment was provided for the attachment of safety belt.

6.8 To prevent the I/P from falling from height when conducting the welding work, suitable fall protection facilities, such as working platform(s) fitted with safe access/egress, suitable guard-rails, etc., should be provided.  Any person working at height should have continuous fall protection and at no time be totally unprotected.” [My emphasis]

14.A defence witness Mr Wong gave evidence at the trial.  Mr Wong was a registered safety officer who was responsible for overseeing the safety compliance issues of the site.  It was his duty to patrol the site everyday and each patrol would last between 45 minutes to an hour.  He said he had conducted safety training courses for the workers and the injured worker had attended such courses. 

15.Mr Wong indicated to the court, by references to the exhibited diagrams and photographs the proper route which the injured worker should have taken in order to reach the spot where welding was to be done.  He said welding works should be performed on a metal ladder which was provided by the contractors and not by squatting on the steel beam.  Mr Wong specifically indicated that one Mr Lee, a co-worker of the injured person, was detailed to hold and secure the ladder while the injured worker was performing the welding works on the ladder.  

16.It was the appellants’ contention at the trial as well as on appeal that it was neither foreseeable that PW1 would get to the welding spot by the route she had taken nor that she would do the welding while squatting on the red beam instead of using the ladder as instructed.  In having done so, the appellants contend that PW1 was on a frolic of her own. 

17.In my view, the place of work in this case must be the spot where the welding was to be performed by PW1.  At the trial, the defence indicated on the exhibited diagram the “safe” route which was suppose to be taken by worker.  One must note, however, it is apparent from the exhibited photographs that no guard rails or other safety devices which installed along the so called “safe” route to prevent a person from falling.

18.Without any such safety devices, the appellants’ argument of lack of foreseeability hardly carries weight at all.  A worker walking along that part of the slope was simply not protected by any safety devices to prevent him from falling.  There was no evidence at the trial that the appellants had taken any positive steps to address the specific safety hazards a worker faced when walking along the slope.

19.Turning now to the 3 summonses charging the appellants with failure to prevent a person from falling from height.  Even if the injured worker had obeyed the instructions of the appellant and perform the welding work on a stepping ladder held securely a co-worker, this arrangement, in the opinion of the persecution expect witness is nevertheless unsafe.  The reason being that the worker had to perform welding work with one hand holding the protective face shield and while the other operating the welding torch.  With both hands occupied, the worker had to rely on an independent anchoring safety device to prevent her from falling.  In this case, however, no such device was supplied by the appellants.

20.Moreover the ladder in the vicinity was resting on loose ground at the bottom of the excavation trough.  The lower end of the ladder was immersed in water.  There was a real possibility, according to the expert witness’ uncontradicted evidence, that the soil was unstable and the ladder was liable to topple over.

21.It was not open to the appellants to suggest that the injured worker was on a frolic of her own where there no safety device installed on the red beam or on the side slope, to prevent a worker from falling into the trough. Further, it was not open, in my view, to the appellants to rely on the defence of honest but mistaken belief that the safety measure were adequate because there was none.

22.The evidence in this case against the three appellants was overwhelming.  The grounds of appeal and the arguments advanced by counsel for the appellants are entirely without merit, on the findings by the trial magistrate cannot be faulted.  The convictions are neither unsafe nor unsatisfactory.  For the reasons given the appeals against convictions are dismissed. 

Ms Virginia Lau, SPP of the Department of Justice, for HKSAR

Mr Albert Y.Y. Poon, instructed by Messrs Kwan & Chow, for the 1^st to 3^rd Appellants