HKSAR v. Gammon Construction Ltd

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)

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REASONS FOR DECISION

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1.On 28 February 2014 I dismissed an appeal by the applicant against the decision of a magistrate convicting the applicant, after trial, on two summonses relating to offences under the Factories and Industrial Undertakings Ordinance, Cap. 59, (“the Ordinance”).

2.The applicant sought a certificate, in respect of three questions which it asserted are of great and general importance, to the Court of Final Appeal. I was not satisfied that any was of great and general importance and refused the application. These are my reasons for so doing.

3.As is apparent, I believe, from my judgment the fundamental question which faced the magistrate, and this court on appeal, was a factual one. It was not disputed that there was a system of work in place on the construction site where an accident occurred killing an employee of the applicant: the issue was whether that system of work was safe in so far as was reasonably practicable. That depended on findings of fact and is case-specific.

4.As to the first question sought to be certified, I dealt at paras. 14 to 19 of my judgment with the principles which, in Hong Kong law, are well-established to be applied in offences of this nature and applied those principles. It was submitted that there are divergent views between other jurisdictions, as well as internally within those same jurisdictions, as to the standard of care to be applied: there seem to me to be no inconsistencies in the way the legislation has been applied over the years in Hong Kong.

5.As to the second question, I assumed - and the respondent in the appeal conceded - for the purposes of this appeal that the onus imposed on the applicant by s. 18(1) of the Ordinance is evidential in nature: see para. 47. That, to my understanding, was the position contended for by the applicant. It is the most favourable position for the applicant in these proceedings. It follows that if the applicant failed, as it did, to discharge the lowest burden it would have failed to discharge any higher burden.

6.The third question sought to deal with the issue of whether a magistracy appeal will be allowed on the simple basis that the magistrate’s decision is “unsafe and unsatisfactory”. The decision of the Court of Final Appeal in HKSAR v CHOU Shih Binh (2005) HKCFAR 70 settled the nature of a magistracy appeal at §19.

7.If there was sufficient evidence before the court a quo to satisfy the intermediate appellate court, which is required to make its own determination when hearing the appeal, of the guilt of the appellant the issue of whether the magistrate’s decision is unsafe and unsatisfactory will be subsumed by the decision on rehearing. If the intermediate appellate court, for whatever reason, is not satisfied of the guilt of a convicted person, then the appeal will be allowed: it is a semantic exercise to categorize this as determining the magistrate’s decision to have been unsafe and/or unsatisfactory and, further, conflates different legislative provisions. It is clear from a commonsense reading of Chou Shih Bin that it was in this sense that the Court of Final Appeal referred to an “unsafe” decision by a magistrate and did not intend to create a specific category of appeal where the appeal would be allowed without regard to a rehearing before the appellate court.

Mr Andrew Li, SPP (Ag.), of the Department of Justice, for the respondent

Mr Guy Reynolds and Mr Raymond Pierce, instructed by Munros Solicitors, for the appellant