The Queen v. Kwan Lee Construction Co., Ltd.

CACC001302/1983

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 1302 OF 1983

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BETWEEN

Coram: Hon. Garcia J. in Court

Date: 30th November, 1983

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J U D G M E N T

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1. On the 27th day of January this year, a workman by the name of Chung Chun-wah died as a result of a fall from a height whilst working at a construction site in Hip Wo Street, Kwun Tong. The deceased was employed by a sub-contractor, Tam Kiu, to carry out plastering work at the said site. The principal contractor carrying out the works at the site was the Kwan Lee Construction Co. Ltd., the Appellant.

2. Consequent upon the accident, the Appellant was summonsed under Regulations 45(a) and 68(1) (a) of the Construction Sites (Safety) Regulations, Cap. 59, for failing to ensure that a working platform erected on the bamboo scaffolding at the external wall of Block 2 on the second floor level from which a workman or other person lawfully on the platform was liable to fall a distance of more than 6 feet 6 inches was securely fenced to a height of not less than 3 feet or otherwise protected to the satisfaction of the Commissioner for Labour.

3. The Appellant was found guilty of the offence on 1st September this year and fined a sum of $25,000. Against that conviction and sentence the Appellant appealed but at the hearing of this appeal, the Company abandoned the appeal against sentence.

4. The evidence indicates that although the deceased was employed by the sub-contractor to do plastering work at the site, he was not so engaged just prior to his falling off the platform. One of his colleagues at the site,   Mr. Hung Yung Kei, states that the deceased was doing cement work on window bays, making cement window slabs and that the deceased went to work about 10 minutes late that day, that is about 9.10 a.m. He also states that the deceased himself arranged the wooden planks on which he was standing to perform that work and that it was the witness's job to make cement and carry it to the deceased to use.

5. Mr. Faulkner seeks to argue on behalf of the Appellant that the planks upon which the deceased was standing upon that day were not a "working platform" within the meaning of those words in the Regulation, as firstly, the deceased was there without the authority or instructions of his employers, and secondly, that the planks were placed there without similar authority. There is no doubt that if the planks constituted a working platform there were not the safety precautions provided by Regulation 45(a) present to the satisfaction of the Commissioner. Whilst there is no evidence to show that the deceased was authorised or instructed to perform the task he had intended to, nevertheless the evidence of Mr. Hung indicates that the deceased was not lawfully at the site, he was not a trespasser, and in fact, Mr. hung was assisting him in the task of making cement window slabs. I think it would be contrary to common-sense that a workman without any instructions or authority whatsoever would be carrying out work which he was not engaged to do or that a workman such as the deceased would and could go about the construction site and do whatever was his fancy or on a frolic of his own. It would also do violence to common-sense for a workman in this territory to work without any expectation of wages since if he were to carry out work without the requisite instruction or authority, he could not expect to be paid for work he was not instructed to do. Mr. Chan Ping-wan who gave evidence for the Appellant says that he did not give any instructions for plastering work to be done on the day in question but several days before he did give such instructions for such work to be done on external walls between the second and the third floors. The deceased was in my view lawfully on the plank platform on that day and that the work he intended to do was well within the scope of his employment at the site.

6. Mr. Faulkner, reinforcing his arguments, cites the cases of Curran v. William Neill & Sons (St. Helens) Ltd.,⁽¹⁾ Gill v. Donald Humberstone & Co. Ltd.,⁽²⁾ Driscoll v. J. Scott Pty. Ltd. ⁽³⁾ and Kelly v. Pierhead Ltd. ⁽⁴⁾ I think these cases were decided on facts and law peculiar to each of them. There is no definition of "working platform" in the relevant Ordinance or in the Regulations but in George Ball & Sons Ltd. v. Sill,⁽⁵⁾ and this case had been referred to both in the bases of Kelly v. Pierhead Ltd.⁽⁴⁾ and Driscoll v. J. Scott Pty. Ltd., ⁽³⁾ Lord Goddard said:

"I cannot see why I am not to give the words 'working place' the ordinary meaning of the English language, that is, a place where work is being done."

7. I think also there is no reason why the words "working platform" should also not be given their ordinary meaning in the English language but it could and should mean the platform from which work is being done. It is further contended that in Regulation 45(a) there should be imported into the definition the requirement that such a platform be erected with authority and that the employer have reasonable or be given reasonable foresight of the likelihood of a workman being on it. I could not agree that before an employer is liable under the Regulation, there should be this added requirement, since it is for the employer to provide adequate supervision of his workmen, in this case, at the building site, but in any event, the evidence shows that there were two other workmen working on the external walls of the second floor of the building, though not on the same side as the deceased, and satisfactory safety precautions should have been provided in accordance with the Regulations. It is also contended that the definition of "working platform" should also include "where a workman is said to work for an appreciably continuous period", and that in the present case, the deceased had only been on the platform for only a minute or so. Unfortunately circumstances dictated that the deceased be on the platform for only that short period of time and the conclusion cannot be drawn that if he had not met with the accident,  the work which he set out to do would not have occupied him for 'an appreciably continuous period of time'.

8. A further ground relied upon by the Appellant was that the learned Magistrate had wrongly placed the burden of disproving the ingredient of the offence on the Appellant when the Magistrate stated in his Statement of Findings:

"The defence put forward was that Mr. Chung should not have been working there at all and that the defendant company should not be held responsible for his choosing to work on this unsafe platform. I found it difficult on the defence evidence to see that they had taken any positive precautions to ensure that their subcontractors and their workmen observed the regulations."

9. This passage read in isolation may have had the effect complained of, but in view of the other findings of the Magistrate set out in his Statement of Findings I am unable to see that he had misapprehended or misapplied the burden of proof.

10. In my judgment the Appellant was rightly convicted of the offence and this appeal against conviction and against sentence is dismissed.

Representation:

Mr. Winston Leung for Crown

Mr. Raymond Faulkner (Sit, Fung, Kwong & Co.) for Appellant.