HKSAR v. Gammon Construction Ltd
Read the full judgment text of HCMA 426/2013 on BabelCite. This High Court CFI judgment was delivered on 28 February 2014.
1. This is an appeal against the conviction of the appellant by Ms Kathie Cheung Kit-yee, Magistrate, on two summonses alleging breaches of s.6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap. 59 (“the Ordinance”).
Cites 4 cases
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HCMA 426/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. HCMA 426 OF 2013 (ON APPEAL FROM ESS 21299-21300/2012) ____________
_______________ JUDGMENT _______________ 1.This is an appeal against the conviction of the appellant by Ms Kathie Cheung Kit-yee, Magistrate, on two summonses alleging breaches of s.6A(1), 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance, Cap. 59 (“the Ordinance”). 2.The summonses were issued consequent upon the death, on 3 December 2011, of one of the workers, LAM Ka-wong ("the deceased"), employed by the appellant on a construction site situate at 2 Eastern Hospital Road, Causeway Bay, Hong Kong ("the site"). It was an admitted fact at trial that the appellant was the proprietor, as defined in the Ordinance, of the industrial undertaking on the site. 3.The relevant portions of s.6A provide:
4.It was recognised at trial that the provisions of the Ordinance impose absolute liability on the appellant, but that a defence is created by s.18 of the Ordinance in these terms:
5.Section 7A of the Ordinance provides:
6.The magistrate, in her admirably concise Statement of Findings, summarised the basic events on 3 December 2011 thus:
The grounds of appeal 7.The Amended Perfected Grounds of Appeal against Conviction asserted nine grounds of appeal: a number of those grounds, in reality, are duplicates. In essence, there are four areas of complaint. 8.The primary ground of appeal and the primary issue at trial, amounted to whether the prosecution had proved, in respect of the first summons, that the appellant had failed to provide and maintain a system of work that was, in so far as was reasonably practicable, safe and without risks to health and, in respect of the second summons, had failed to provide such information, instruction, training and supervision as was necessary to ensure, so far as was reasonably practicable, the health and safety at work of all persons employed by the appellant. The parties accept that the summonses stand or fall together. 9.The second area about which complaint is made is that the magistrate erred in finding that the appellant had not made out the defence provided by s.18, with the added criticism that she had not determined the nature of the onus which the appellant was required to discharge to establish that defence. 10.The third area covered by the appeal complains that the magistrate wrongly found that the appellant had failed to comply with an applicable Code of Practice, with the added criticism that she had expressed the view that "... these non-compliances tend to show their system of work was unsafe" (emphasis supplied) without expressly stating whether she regarded the system of work that was in place as unsafe absent these non-compliances. 11.The fourth area complains that the magistrate erred in failing to find that the appellant had made out the defences of honest and reasonable mistake and due diligence. Neither of these defences was raised at trial: each has appeared, for the first time, in this appeal. 12.Although not reflected in the Amended Perfected Grounds of Appeal, the submission was made that the convictions “are clearly unsafe and unsatisfactory.” This is an appeal from a magistrate. That is not the test and has no relevance in appeals of this nature. 13.It is settled that an appeal from the decision of a magistrate is by way of rehearing. The utility of indulging in a trawl through a magistrate’s Statement of Findings, and listing detailed criticisms of it, is limited: lengthy elaboration of those criticisms during written or oral submissions as opposed to focusing upon the evidence and, if appropriate, legal principles, upon which the appellant relies in order to assist the appellate court in arriving at its decision, is also of limited practical use. Relevant principles 14.My attention was invited, on behalf of the appellant, to the decision of the English Supreme Court in Baker v Quantum Clothing Group Limited [2011] UKCS 17. That case dealt with s.29 of the Factories Act 1961 (UK) and were civil proceedings based on an alleged breach of common law or statutory duty which had been instituted by a group of employees who claimed to have suffered hearing loss as a result of being exposed to higher levels of noise than had been identified in a Code of Practice. It was suggested that this decision was of "critical importance" in interpreting the provisions of s.6A. I judge that it was unnecessary to go down that route as the manner in which the provisions of safety legislation generally is applied in Hong Kong is clear: the judgment is essentially consistent with that approach and adds nothing which would influence the outcome of this appeal. The extracts which follow summarise the exercises to be conducted and tests to be applied by a court. 15.In R v Nishimatsu Construction Co. Ltd. HCMA1441/1996 (unreported, 8 May 1997) Gall J identified the issue to be determined, in respect of an offence under Reg.38A(b) of the Construction Sites (Safety) Regulations, in these terms:
16.The approach consistently adopted by the courts in Hong Kong was summarised by Lugar-Mawson J in HKSAR v Gold Ram Engineering & Development Ltd [2002] 2 HKC 600 where, in an appeal arising from a conviction under the Occupational Health and Safety Ordinance, Cap 509, he said at §18:
17.In determining whether or not the system of work in place at the time was safe Patrick Chan J (as he then was) in R v TSUI Wai Ping [1993] 2 HKC675, which also involved the Construction Sites (Safety) Regulations, said, at 684I:
18.In Gold Ram Engineering, at §27, Lugar-Mawson J adopted the test adumbrated by the House of Lords in Marshall v Gotham Co Ltd [1954] AC 360 (HL) expressing it in these terms:
19.In TSUI Wai Man Patrick Chan J went on to observe, at 685B:
The system of work in place 20.The appellant is a well-known company which has operated for many years in the construction industry in Hong Kong. The evidence before the magistrate as to the nature and extent of the system of work was largely uncontroversial and showed that there was a system of work in place which specifically dealt with lifting operations - a fact which is not disputed by the prosecution - and which workers involved in those operations were expected to follow in the execution of their duties. The system of work appears to have complied, with the minor exceptions which the magistrate noted, with those portions of the Code of Practice relevant on that occasion. 21.The site was a substantial one although the point where the accident occurred was a restricted space within the larger site. A mobile crane was to be used to lift metal bars from below a metal platform on which it stood from an area referred to as the basement level. There were two points of access to the basement level, one on either side of the platform. Each point of access was surrounded by guard rails constructed of substantial metal beams in parallel with one another and the ground, but with spaces between them. The mobile crane stood between the two sets of guard rails. It was intended that the mobile crane would lift materials from the basement level through one of the points of access and then deposit those materials back into the basement level through the other point of access. In order to do this the body of the crane and the jib was to turn, or slew as the witnesses termed it, about a pivot point whilst the tracks upon which the body of the crane and the jib were mounted would remain stationary. Because of the nature of the site and the position of the mobile crane the rear of the body of the crane, which comprised the counterweight to the jib, would pass close to one set of the guard rails when being slewed. That would create what was referred to as a "trapping zone" by which was meant that any person present in that zone ran the risk of being squashed between the counterweight and the guard rails. 22.Four persons were involved in the lifting operation. One was an employee in the basement whose function appears to have been to make it known when the materials were ready to be lifted. One was the crane operator, who testified as PW1. The other two were the deceased who was employed by the appellant and his colleague, Lo Siu-po who testified as PW2, who was employed by a subcontractor, Siu Wing Engineering Co Ltd. The deceased and Mr. Lo each occupied a post referred to as “signalman” or “banksman”. 23.One of the functions of each of them was to give instructions to the crane operator when he was satisfied that it was safe for the crane to be operated. The evidence showed them to have had responsibility, between them, for the safety of the operation and the area where it was being carried out. 24.Each of the four persons had in his possession a radio device which, if all were operated on the same channel, would enable them to communicate with one another or to overhear communications between other individuals. There was evidence that the radios had been tested that morning and found to be operative. 25.The mobile crane was fitted with an audible alarm which started when the crane began to move; closed-circuit television which the crane operator inside the cabin of the crane could use to observe, at least in part, to his rear: wing mirrors which were similarly used; tail rods attached to the rear of the counterweight - which, like the rest of the cabin, was painted a bright blue - the purpose of those rods being to push against any person who may be in a dangerous position and to alert them of the movement and presence of the crane. 26.The two signalmen were wearing reflective clothing to enhance the prospect of them being visible to others. The deceased also had a whistle in his possession: when he was asked whether the purpose of this whistle was to sound an alarm if it were necessary to bring the lifting operation to a halt Mr. Lo said that that was only one of the purposes, others including attracting the attention of workers to remind them that a lifting operation was underway. 27.This system of work had been in place for some six weeks by the time the accident occurred. That fact, of itself, does not necessarily mean that the system was a safe one any more than the fact that an accident occurred necessarily means that the system was unsafe. The role of the deceased and Mr. Lo 28.There was evidence that the deceased and Mr. Lo had been responsible for erecting plastic Mills-type barriers around the crane and a short distance from it so as to create an area which persons, including themselves, would not enter whilst the work was in progress. 29.The evidence was not entirely consistent either as to whether the deceased was still busy placing the barriers in position when Mr. Lo gave the instruction to the crane operator to lift or whether the placement of the barriers was complete, or as to where the deceased was standing in relation to those barriers when Mr. Lo gave the instruction to the crane operator. The crane operator was asked both in evidence in chief and in cross-examination if he knew where the deceased was when he was given instructions by Mr. Lo to which he replied that the deceased had been outside the barriers. 30.Mr. Lo was particularly equivocal on this point saying, at one stage, that he had erected the barriers "on my own" but then saying that the last time he had seen the deceased alive was when "He was doing that (sic) barriers." He went on to say that the last time he had seen the deceased alive "He was working on the barriers; I don't know whether he was in front or behind" the barriers. When he was asked if that was the position of the deceased when he had given the instruction to the crane operator he said "... I didn't pay much attention, I was working. When Ah Kei called up, I didn't know where he was. I'm not sure." In cross-examination Mr. Lo indicated that it was "Very rare, no." for the deceased ever to stand within the fenced off area. Perhaps the most significant point of this testimony goes to the issue of foreseeability: it would have been foreseeable that a signalman who was responsible for erecting barriers may do so from within the area demarcated by the barriers rather than from outside. 31.There was an unsuccessful attempt made at trial to suggest that the deceased was the more senior of two signalmen and was the person in overall charge of safety in connection with the lifting operation. It appears from the evidence that the deceased and Mr. Lo were equal in rank or status and that either of them could direct the crane operator whether to proceed with or to stop the lifting operation. The site foreman, Mr MAK Wah-shing, who testified as PW3, had been appointed by the appellant to be in charge of construction site safety in relation to transportation by the crane was quite clear in his evidence that "Both of them were signallers, there’s no superior." (Bundle - p 357J) 32.The written submissions in this appeal submitted on behalf of the appellant refer time and again to the deceased as "the safety boss" - a term repeated in the hearing. Such a descriptor, with its implication that the deceased was in overall control of the safety of the lifting operation, simply does not accord with the evidence. Indeed, if the deceased truly had held such a position, the complete failure to obtain clearance to commence operations from the deceased, would have worsened the appellant’s position. 33.There were two further areas where the submissions made on behalf of the appellant were inconsistent with the evidence at trial. The first, acknowledged by Mr. Reynolds who appeared for the appellant on appeal, was the submission that the use of the walkie-talkies relied on a system which was described as "a system of silence" by which was meant that there was no necessity for both of the signalman to authorise the crane operator to commence, it being sufficient for one of them to do so and the other to raise no objection. 34.The third submission which was unsupported by the evidence was that the accused had been leaning on the guard rails peering down into the basement at the time when he had been struck by the counterweight. Despite the demonstration by Mr. Reynolds in court, there simply was no evidence from any of the witnesses as to what the deceased had been doing or his bodily position at the time he met his death. 35.It was submitted on appeal that the deceased, a man who was himself jointly responsible for safety precautions invoked during lifting operations, had placed himself in what arguably was the single most dangerous area and at the worst possible time. The argument ran that this was such extreme conduct on his part that it would not have been reasonably foreseeable by the appellant: given the nature of the system of work which was shown to be in place at the time of the death of the deceased - whose death was a consequence of his own conduct which had been contrary to that system - that death could not be taken as demonstrating, or as leading to the inference, that that system was not safe, insofar as was reasonably practicable. 36.Why the deceased was in that position at that time and what he was doing there is, of course, pure speculation: there is simply no evidence to explain his conduct. The appellant suggests that he was acting in a manner forbidden by the system of work - in effect, was on a frolic of his own. That might be - but it is equally possible that he saw himself as being about the discharge of his duties of employment concerning something which he perceived may adversely affect safety on the site. No one will ever know. Whatever the situation truly may have been I am satisfied that the possibility of presence of the deceased inside the safety barriers was something which was reasonably foreseeable by the appellant. Was the system that was in place safe, so far as is reasonably practicable? 37.Whether a system of work is safe in so far as is reasonably practicable is a case-specific conclusion based on an assessment of the evidence before the court. 38.The element that, in the present instance, prevents the system from being safe, so far as is reasonably practicable, is immediately identifiable: it is the absence of a requirement that where there are two signalman, each of whom is responsible for safety in that area and each of whom has the power or authority to authorise the commencement of lifting, each be required to give that authority to the crane operator before lifting commences. 39.The photographs of the crane demonstrate that this was a very large piece of equipment. They demonstrate also, with the application of commonsense, that the view of a signalman standing on, for example, the right-hand side of the crane would be restricted as to what was happening on the left-hand side of the crane. It is correct that the crane operator would be in an elevated position between the two signalmen and have something of a bird’s eye view of the situation around him but there was clear evidence that his view also would be impeded in certain respects, albeit that he testified that he took steps to minimise this disadvantage. 40.To require each signalman to confirm, independently, to the crane operator that it is safe for him to lift is fundamental to the efficacy of the system of work. 41.It cannot sensibly be suggested that to require both signalman , one employed by the appellant and one by a subcontractor, to communicate to the crane operator that it is clear to proceed would be disproportionate or imposing too high a standard or burden on the appellant. Nor could it sensibly be suggested that such a course would not be reasonably practicable. 42.Each signalman already has that authority and each already had the means of doing so or whether through the radio apparatus or by hand signals. To require this to be done would not be seeking to achieve perfection nor is it obvious only with the benefit of the clarity of vision provided by hindsight. The provision in the system of such a requirement would cure what is an obvious defect: it is that omission which results in the system not being safe so far as is reasonably practicable. 43.Although the evidence showed that there were daily meetings on the site during which the question of safety was discussed and instructions given, there was no evidence that the appellant instructed the deceased or others at those meetings to the necessity for both signalmen to provide the go ahead to the crane operator. It is clear that, on the contrary, it did not do so. It follows that the appellant had failed to provide the necessary information, instruction and training as was necessary necessary to ensure, so far as is reasonably practicable, the safety at work of all persons. 44.As to the contention that the deceased was the author of his own misfortune and his conduct was not reasonably foreseeable by the appellant, I can do no better than quote the magistrate with whose views I agree:
45.I turn now to the remaining areas which were the substance of complaint on this appeal which may be dealt with shortly. Defence under s.18 46.The magistrate found that the appellant had failed to make out the defence provided by s.18. I agree, as will be self-evident from the aforegoing: the respondent established, beyond reasonable doubt, that there was no substance in the contention that it was not reasonably practicable to do more than actually had been done. 47.She was criticised for not having identified the nature of the onus to be borne by the appellant. The respondent indicated in the course of this appeal that, whilst it would not concede in general that it is an evidential burden, it would accept that be so for the purposes of this appeal. That is a sensible approach to adopt as it imposes the least burden on the appellant: it follows that if it failed to discharge an evidential burden it also would have failed to discharge a substantive burden. I have proceeded on that basis. The breaches of the Code of Practice 48.The two matters which the magistrate correctly identified as being breaches of the Code of Practice related, first, to a failure to post certain warning notices and, second, to ensure that the counterweight of the crane was painted distinctively. The respondent accepted that neither of these breaches advanced its case. For what it is worth, if that had been the only evidence against the appellant I would not have confirmed the conviction. The complaint concerning the magistrate’s use of the expression that these non-compliances are "…relevant as to tending to establish or negative liability" ignores the fact that she was simply following the language of s.7A(5) of the Ordinance. Defences of honest and reasonable mistake and due diligence 49.The hearing before the magistrate lasted for seven days. The appellant was represented throughout by counsel. Every possible avenue which possibly might have availed the appellant was explored on its behalf. A closing submission 25 pages in length was submitted on behalf of the appellant. I can find not the vaguest reference in the proceedings before the magistrate to the fact that the appellant sought to rely on the defences of either honest and reasonable mistake or due diligence. 50.Similarly, when the appellant's first Perfected Grounds of Appeal and written submissions and authorities, all dated 15 August 2013, were filed there was simply no reference either to the fact that the appellant relied on either or both of these defences or the fact that the magistrate had failed to deal with them. 51.The availability of the defence of honest and reasonable belief, for which the shorthand "common law defence" has evolved, was considered by the Court of Final Appeal in HIN Lin Yee v HKSAR (2010) 13 HKCFAR 142 in which the court considered the appropriate approach in Hong Kong towards offences of absolute liability. One facet of that judgment centred upon whether the common law defence remained available to an accused person where the statute which created the charged offence also provided for, as in the Ordinance, a statutory defence. 52.The court held:
and
and
and
53.The terms of s.18 of the Ordinance which create the special defences appear in §4 above. As indicated above I take the same view as did the magistrate that the evidence at trial established beyond reasonable doubt there was no substance to the appellant's assertion that it was not reasonably practicable to do more than actually had been done. 54.Section 6A imposes a duty on the appellant to ensure the safety of persons employed by it at the site, but the extent of the duty is qualified by providing that it must discharge that duty "so far as is reasonably practicable": s.18 then provides a specific defence which goes straight to the issue of that qualification, enabling an accused to escape liability by proving that it was not reasonably practicable to do more than was in fact done to satisfy the duty, or that it has taken all practicable steps to satisfy the duty. 55.It cannot be that the legislature intended that, if an accused failed to bring itself within the terms of the defence, it would then still be possible for the accused to turn around and say that, even so, it honestly believed on reasonable grounds that it had done so. The effect would be to render the legislation meaningless. In my judgment the common law defence is not available to the appellant in these proceedings as it is inconsistent with the statutory defence. 56.Insofar as the defence of due diligence is concerned, in HIN Lin Yee Ribeiro PJ noted at §124 that:
continuing at §179:
57.Although Ribeiro PJ was there dealing with the provisions of s.70 of the Public Health and Municipal Services Ordinance, Cap 132, I judge that in these proceedings the defence of due diligence would not be available to the appellant: it would overlap almost entirely with the common law defence, certainly “sufficient to indicate an exclusionary legislative intent for present purposes.” 58.I would add that, even if either or both of the defences had been available, it is self-evident that neither would have succeeded on the evidence in this matter. 59.I acknowledge that it is accepted that where there arises from the evidence a potential defence that is either not relied upon, whether tactically or due to oversight, or even is expressly disavowed, there remains a duty on the judge to direct a jury as to the availability of that defence: similarly a judge sitting alone should also indicate, albeit perhaps in the briefest of terms, that the defence has been considered. As neither of these defences was available to the appellant, there is no justification for the criticism of the magistrate not dealing with them. Conclusion 60.I am satisfied that the appellant was correctly convicted by the magistrate on both summonses. The appeal is dismissed and both convictions are confirmed. 61.There is a question of costs. This matter was originally listed for hearing on 27 August 2 013 but was adjourned on the application of the appellant which was granted leave to file Amended Perfected Grounds of Appeal. Bokhary J reserved the question of costs of that day. I can see no reason why the appellant should not be ordered to pay the costs occasioned by that adjournment. This does not seem to me to be a matter where it is otherwise appropriate to make any order as to costs. 62.There will be an order nisi, returnable within 14 days, that the appellant is to pay the costs of the 27 August 2013 occasioned by the adjournment. Other than that I make no order as to costs.
Mr Andrew Li, SPP, of the Department of Justice, for the respondent Mr Guy Reynolds and Mr Raymond Pierce, instructed by Munros Solicitors, for the appellant | ||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCMA 426/2013