HKSAR v. Gammon Construction Ltd

Press Summary (English)

Press Summary (Chinese)

FACC No. 10 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2014 (CRIMINAL)

(ON APPEAL FROM HCMA No. 426 of 2013)

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Between :

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JUDGMENT
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Mr Justice Ribeiro PJ:

1.I agree with the judgment of Mr Justice Gleeson NPJ.

Mr Justice Tang PJ:

2.I agree with the judgment of Mr Justice Gleeson NPJ.

Mr Justice Fok PJ:

3.I agree with the judgment of Mr Justice Gleeson NPJ.

Mr Justice StockNPJ:

4.I agree with the judgment of Mr Justice Gleeson NPJ.

Mr Justice GleesonNPJ:

5.The issues in this appeal concern the meaning and effect of sections 6A and 18 of the Factories and Industrial Undertakings Ordinance (Cap 59) (“the Ordinance”) and, in particular, the nature of the duty imposed, by s 6A on the proprietor of an undertaking in respect of the safety of employees, and the requirements of s 18.

6.On 6 June 2013, the appellant, Gammon Construction Limited, following a trial before Madam Kathie Cheung, Magistrate (“the Magistrate”) was convicted of two offences and fined $25,000 for each offence.  The offences, which were the subject of two summonses, were:

(1)  Failing to provide and maintain a system of work that is, so far as is reasonably practicable, safe and without risks to health, contrary to sections 6A(1), 6A(2)(a) and 6A(3) of the Ordinance.

(2)  Failure to provide such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by the proprietor, contrary to sections 6A(1), 6A(2)(c) and 6A(3) of the Ordinance;

7.Following the convictions, the appellant appealed to the Court of First Instance.  Such an appeal is by way of rehearing, in the wider sense of that term as explained by Bokhary PJ in HKSAR v Chou Shih Binh[1]. The appeal was heard before Deputy High Court Judge Wright on 18 February 2014, and dismissed for reasons given by the learned judge on 28 February 2014.

8.On 26 September 2014, the appellant obtained leave to appeal to this Court.

The workplace accident

9.An allegation of an offence against s 6A of the Ordinance does not depend upon the occurrence of an accident, and, if an accident occurs and an employee is injured, the prosecution, in order to make out its case, does not need to establish a causal relationship between the alleged breach and the injury.  Even so, a charge alleging a failure to comply with a proprietor’s obligations as to workplace safety may be brought in circumstances where an accident has occurred, and the death or injury of an employee has resulted.  In that event, as a matter of forensic reality, the accident is likely to become the focus of attention in evidence and argument about issues of safety.  Those issues will be resolved according to the terms of the Ordinance, but what happened, why it happened, and what could and should have been done to prevent it are likely to be the principal matters that occupy the court.

10.It will be necessary to go into some further detail in due course, but for introductory purposes it is sufficient to state the essential facts as follows.  They are taken largely from the findings of the Magistrate and of Deputy Judge Wright.

11.On 3 December 2011, the appellant, a company which has operated for many years in the construction industry in Hong Kong, was engaged in operations at a site at 2 Eastern Hospital Road.  In the course of those operations an employee of the appellant (“the deceased”) was struck by a crane and killed.  As is common on construction sites, there were sub-contractors participating in the operations.  A mobile crane was being 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.  The mobile crane stood between the two sets of guard rails.  In order to lift materials from the basement level through one point of access or to deposit materials through the either point of access the counterweight of the crane had to turn, or slew, about a pivotal point.  The rear of the body of the crane would pass close to one of the sets of guard rails.  That would create what was described in the evidence as a trapping zone in which a person might be caught between the counterweight and the guard rails.  That is what happened to the deceased.

12.Four persons were involved in the lifting operation. The crane was owned by a sub-contractor.  The crane operator (PW1), and another witness (PW2), were employed by a sub-contractor. The deceased was employed by the appellant.  The fourth person was an employee in the basement whose function was to make it known when materials were ready to be lifted.  Each of those four persons was equipped with a walkie-talkie radio device by means of which he could communicate with the others or overhear the communications of others.

13.Each of the deceased and PW2 was described as a “signalman” or a “banksman”.  Both the Magistrate and Deputy Judge Wright accepted a body of evidence which established that they had equivalent responsibilities.  The responsibilities of a signalman, or banksman, included giving a signal to the crane operator that it was safe to lift (and therefore turn).  They were also both responsible for putting the guard rails in place so as to exclude people from the danger areas.

14.Despite an attempt by counsel for the appellant to establish that there was some hierarchical relationship between the deceased and PW2, with the deceased being, as between the two of them, the superior, this was contradicted by witnesses and was rejected by both the Magistrate and the Judge.  In the words of one of the witnesses, both of them were signallers; there was no superior[2]. In practice, most of the signals were given to the crane operator by PW2, but both signallers had the capacity to signal.

15.The Magistrate described what happened as follows[3]:

“[I]t is clear that there was no communication / coordination between PW2 and the deceased. In other words, before the crane started to slew, there was no arrangement for PW2 to confirm with the deceased that the restricted area was clear before he gave signal to [the crane operator] for operation of the lifting. Before PW2 received instruction from [the man in the basement], he saw the deceased putting up barriers. Then, he got instruction from [the man in the basement]. Immediately after that, he gave instruction to [the crane operator] to slew the crane. He did not look or check with the deceased as to whether he had finished putting up the barriers. In fact, it was his evidence that (i) he did not need to receive instruction from the deceased as to whether it was safe to move the crane, (ii) no one had given him any signal or command not to start the crane until the deceased was safe, and (iii) he very seldom communicated with the deceased on walkie-talkie. He just had casual chat with deceased. From his evidence, the only irresistible inference is that prior to their starting the operation as a lifting team, they were not instructed that PW2 had to confirm with the deceased as to whether the restricted area was clear before the lifting operation started. Therefore, it was never PW2’s practice to confirm with the deceased on whether it was safe to start moving the crane. Both [the crane operator] and PW2 only relied on the deceased stopping them when the deceased found the situation unsafe.”

16.Exactly why it was thought necessary, or convenient, to have a lifting team that included two signalmen was not clearly explained, but there must have been a reason for it.  Deputy Judge Wright referred to evidence that neither the deceased nor PW2 had a complete view of the other’s position and that may be why there were two of them.  Whatever the reason, it is evident that, in the absence of proper co-ordination between the two, and between them and the crane operator, safety would be compromised.  What in fact happened was that, without any communication from the deceased, upon the signal from PW2 the crane slewed and the deceased was caught in the trapping zone.

The Ordinance

17.The following provisions of the Ordinance are presently material:

s 6A 

“(1) It shall be the duty of every proprietor of an industrial undertaking to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking.

(2) Without prejudice to the generality of a proprietor's duty under subsection (1), the matters to which that duty extends include in particular-

(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;

(b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;

(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of all persons employed by him at the industrial undertaking;

(d) so far as is reasonably practicable as regards any part of the industrial undertaking under the proprietor's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; and

(e) the provision and maintenance of a working environment for all persons employed by him at the industrial undertaking that is, so far as is reasonably practicable, safe, and without risks to health.

(3) Subject to subsection (4), a proprietor of an industrial undertaking who contravenes this section commits an offence and is liable to a fine of $500,000.

(4) A proprietor of an industrial undertaking who contravenes this section wilfully and without reasonable excuse commits an offence and is liable to a fine of $500,000 and to imprisonment for 6 months.”

s 7A

“(1) For the purpose of providing practical guidance in respect of any one or more of the requirements of this Ordinance or of regulations under this Ordinance, the Commissioner may issue such codes of practice (whether prepared by the Commissioner or not) as the Commissioner considers appropriate.

(2) The Commissioner may amend or revoke a code of practice issued by him under subsection (1).

(3) Where the Commissioner exercises a power under subsection (1) or (2), he shall as soon as may be reasonably practicable publish notice thereof in the Gazette and the notice shall be in such form as the Commissioner considers appropriate.

(4) A failure by any person to observe a provision of an approved code shall not of itself cause him to incur any criminal liability, but where-

(a) in any criminal proceedings the defendant is alleged to have committed an offence either-

(i) by reason of a contravention of or a failure to comply with, whether by act or omission, this Ordinance or regulations under this Ordinance; or

(ii) by reason of a failure to discharge or perform a duty imposed by this Ordinance or such regulations; and

(b) the matter to which the alleged contravention or failure relates is one to which, in the opinion of the court, an approved code relates,

then subsection (5) shall apply as regards the proceedings.

(5) In any criminal proceedings to which this subsection applies, the following, namely-

(a) compliance with a provision of an approved code found by the court to be relevant to a matter to which a contravention or failure alleged in the proceedings relates;

(b) a contravention or failure to comply with, whether by act or omission, any such provision so found,

may be relied on by any party to the proceedings as tending to establish or to negative any liability which is in question in the proceedings.

(6) In any criminal proceedings, any document which purports to be a copy of a particular approved code shall, in the absence of evidence to the contrary, be regarded by the court as being a true copy of that code.”

s 18

“(1) In a proceeding for an offence under a provision in this Ordinance consisting of a failure to comply with a duty or requirement to do something so far as is necessary, where practicable, so far as is reasonably practicable, or so far as practicable or to take all reasonable steps, all practicable steps, adequate steps or all reasonably practicable steps to do something, the onus is on the accused to prove that it was not necessary, not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that he has taken all reasonable steps, or practicable steps or done the appropriate thing to satisfy the duty or requirement.”

s19

“This Ordinance does not-

(a) confer a right of action in civil proceedings in respect of a failure to comply with section 6A, 6B or 6BA; and

(b) affect the extent (if any) to which breach of any other provision is actionable.”

18.As to s 18, it was common ground in argument in this Court that the onus there referred to is a legal onus (to be discharged on the balance of probabilities) and not merely an evidentiary onus.  This, as a matter of construction of the Ordinance, is correct.  At trial and before Deputy Judge Wright the case was dealt with upon the assumption that the appellant carried only an evidentiary onus.  Nothing in the reasoning of those courts turned on that point.  The appellant’s stance in this Court brings it no practical disadvantage, and in one respect (concerning the obligation to give particulars) strengthens its position.

Construction of the Ordinance

19.The Ordinance pursues the important purpose of promoting workplace safety.  It does so by laying down standards with which a proprietor must comply, and imposing penal sanctions, enforced by way of prosecution for an offence, in the event of non-compliance.  The consideration that what is being construed is a penal statute is to be kept in mind, and has been relied upon in argument by the appellant.  The provisions of the Ordinance are to be applied according to their terms, and there is no occasion to approach them with an expectation that they will conform to standards of tortious liability imposed upon employers by the common law of negligence, or to interpret them in an attempt to secure such conformity.

20.The duty imposed upon a proprietor is non-delegable. This follows from the creation of an obligation to “ensure” (so far as is reasonably practicable) safety[4]. It is no answer to a charge to show that a particular shortcoming is the fault of a sub-contractor.

21.In a case where a worker has been injured, and the circumstances of the accident are relied upon as evidence of a breach of s 6A, negligence on the part of the worker is not of itself an answer to the charge.  The duty to ensure safety, qualified as it is by reference to reasonable practicability, extends to protect workers who fail to take reasonable care for their own safety.  In the present case a line of argument pursued at trial and on appeal was that the case went far beyond mere negligence, and that the worker, regrettably, was entirely the author of his own misfortune.  That argument failed on the facts.

22.Section 6A(1) requires, subject to the qualification concerning reasonable practicability, the achievement of a result, that is, safety, as elaborated in sub-section (2).  The Ordinance was modelled on the United Kingdom legislation considered by the House of Lords in R v ChargotLtd (trading as Contract Services)[5].  In that case Lord Hope of Craighead said[6]:

“These duties [to ensure the health and safety at work of employees] are expressed in general terms … They are designed to achieve the purposes described in section 1(1)(a) and (b) . The description in section 2(2) of the matters to which the duty in section 2(1) extends does not detract from the generality of that duty. They describe a result which the employer must achieve or prevent. These duties are not, of course, absolute. They are qualified by the words ‘so far as is reasonably practicable’. If that result is not achieved the employer will be in breach of his statutory duty, unless he can show that it was not reasonably practicable for him to do more than was done to satisfy it. … It is the result that these duties prescribe, not any particular means of achieving it.”

23.To describe a place or system of work as “safe” does not necessary mean that no accident could possibly occur.  It does not connote the elimination of every conceivable risk.[7]

24.In Baiada Poultry Pty Ltd v The Queen[8] the plurality said:

“The words ‘so far as is reasonably practicable’ direct attention to the extent of the duty. The words ‘reasonably practicable’ indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.”

25.There are many authorities, all substantially to the same effect, which recognise that, in considering reasonable practicability, a court may have regard to the need to balance the likelihood of risk against the cost, time and trouble necessary to avert the risk[9].  In so doing, regard will be had to what was known at the relevant time.  In Marshall v Gotham Co Ltd Lord Keith[10] said that what is called for is an assessment of the situation at the material time.

26.I would stress also what Lord Reid said in the case of Marshall[11] :

“I do not find it helpful to consider whether this statutory duty is in every case the same as an employer's common law duty. I think it enough to say that if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men's lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable.”

27.The task of a court is to apply the language of the statute rather than to seek to accommodate it to principles of the common law of negligence.  In a given case reasonable practicability, judged in the light of what was known at the relevant time, may turn upon considerations similar to, or, identical with considerations of reasonable foreseeability relevant to the tort of negligence.  This was explained recently by the English Court of Appeal in the case of Tangerine Confectionary Ltd.[12] Where an assessment of the likelihood and gravity of risk is material to the practicability of taking precautions then reasonably foreseeability enters the equation.

28.Counsel for the appellant invited the Court to go further, and to hold (although its materiality to the outcome of the present appeal is far from clear) that reasonable foreseeability of a risk is an element in the factor of safety.  It was submitted that “a critical integer in determining whether a system is ‘safe’ is the foreseeability of the particular risk”.  In its application to the Ordinance that proposition is not an accurate statement of law, although it may be accepted that in deciding the reasonable practicability of safety measures foreseeability is material.

29.The reference in that submission to “the particular risk” must be a reference to the risk that has been particularised by the prosecution in respect of the offence charged.  (The subject of particulars will be considered below).  As noted earlier, there can be an offence against s 6A without any accident; and if there has been an accident, causation is not an element of the offence.

30.Risk assessment normally involves foresight, but standards of safety are often propounded with hindsight.  It is one thing to say that safety does not require the elimination of every conceivable risk; it is another thing to say that it means an absence of reasonably foreseeable risk.

31.The decision relied upon by counsel for the appellant is Baker v Quantum Clothing Group Ltd[13]. By a majority of three to two the Supreme Court of the United Kingdom, in a civil action for damages for common law negligence and for breach of a statutory duty relating to workplace safety, held that reasonable foreseeability was relevant to the issue of safety as well as reasonable practicability.  It is necessary to examine the context in which the question arose.

32.Mrs Baker was employed in a knitting factory from 1971 to 1989.  Over that period she was exposed to continuous noise levels of up to 85dB(A) for eight hours a day.  This led to her suffering a degree of noise-induced hearing loss.  In 1972, a Code of Practice on industrial noise was published by the Department of Employment.  It remained on issue until after 1989.  It specified that continuous noise levels should not exceed 90dB(A) and required the use of hearing protectors above that level.  Mrs Baker’s employer was operating in accordance with the Code of Practice, which in turn reflected current technical knowledge.  In 1990, a lower limit, based on developing knowledge, was imposed by regulation.  By then the damage to Mrs Baker’s hearing had been done.

33.Accepting that the kind of workplace safety addressed by the relevant United Kingdom statute included exposure to noise, the trial judge found that, by the standards reflected in the Code of Practice, Mrs Baker’s employer had satisfied the requirement to provide a safe place of work, so far as was reasonably practicable.  The Court of Appeal disagreed.  The Supreme Court restored the decision of the primary judge.  The context in which the issue of compliance with the statute arose was that of developing scientific knowledge affecting standards promulgated in industry codes and, later, regulations.  All the judges in Baker agreed that the Code of Practice, with which the defendant’s employer complied, was regarded by responsible opinion as acceptable at the time of Mrs Baker’s exposure to noise.  The question was the relevance of later knowledge to a judgment as to whether the workplace had, so far as was reasonably practicable, been made and kept safe.

34.In Hong Kong, since 1993, when s 7A was added to the Ordinance, the Baker problem is addressed by the Ordinance, insofar as there is a Code of Practice. 

35.All the judgments in Baker accepted that reasonable practicability imported consideration of what was known at the time the injury was sustained.  Lord Kerr pointed out[14] it cannot be reasonable to put in place measures that are not known to be necessary.  It may be practicable to do so, but it cannot be said to be reasonably practicable.  This observation applies also to the Hong Kong Ordinance, and is reinforced by s 7A.  There is, however, no occasion in Hong Kong to limit the concept of “safe” itself by reference to risks that were reasonably foreseeable according to knowledge available at the time the subject of the charge.

36.Furthermore, in the present case, no problem of developing technical knowledge or changes of standards arose, and the risk of injury was held to be reasonably foreseeable, and foreseen.  There was a Code of Practice, which was tendered and discussed in evidence.  The Code adverts to the risk associated with the absence of a clear line of authority and communication in giving signals to the operator of a mobile crane.  There was also in evidence a Gammon Risk Assessment and a Lifting Plan, the latter covering the responsibility of a banksman.  One of those responsibilities was ensuring sufficient space for lifting and ensuring that no person was working under the lifting area.

37.The reasoning of Deputy Judge Wright was entirely consistent with the principles expressed above.

Charging an offence

38.In the course of his argument for the appellant, Mr Reynolds raised the matter of the obligations of the prosecution in proceedings for an offence against the Ordinance.  The topic was the subject of consideration by the High Court of Australia in 2010 in Kirk v Industrial Court of New South Wales[15], although differences between the legislation applied in that case and the Ordinance should be kept in mind.

39.In Kirk, the manager of a farm, owned by a company whose principal director lived in the city and who left the running of the farm to the manager, was killed when an All Terrain Vehicle (ATV) he was driving overturned.  The manager was using the ATV to deliver material to some fencing contractors who were working on the property.  Although there was a formed road leading to the place where the contractors were working, the manager decided (for an unknown reason) to drive off the road and down a steep hill.  (As its name implies, the ATV could travel off-road).  The ATV overturned and the manager was killed[16]. The authorities charged the company and its principal director with a breach of the Occupational Health and Safety Act 1983 (NSW).  The matter was conducted by the prosecution in the Industrial Court, and decided by that court, upon the basis that it was unnecessary for the prosecution to identify any particular act or omission on the part of the employer that constituted the contravention of the statute; it was enough that it appeared that all workplace risks had not been obviated.  It was never explained by the Industrial Court how, in those circumstances, the defendant might be expected to set about establishing one of a number of defences provided by the statute.  From the facts raised above, the forensic significance of proper particulars in the circumstances of the case was obvious.  The High Court held that the approach to the matter taken by the Industrial Court was erroneous.  The plurality said:[17]

“The approach taken by the Industrial Court fails to distinguish between the content of the employer's duty, which is generally stated, and the fact of a contravention in a particular case. It is that fact, the act or omission of the employer, which constitutes the offence. Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by [the legislation]. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is -- what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge.”

40.Two years previously in R v Chargot Ltd (trading as Contract Services)[18] the House of Lords considered the question of what was required of the prosecution in presenting a case alleging a breach of the Health and Safety at Work Act 1974 (U.K.), upon which the Ordinance was modelled.  Lord Hope said, under the heading: “Prosecution practice”[19]:

“As I have said, the statute prescribes the result that must be achieved. That is one thing. How the prosecution proposes to prove that this was so is another. The situation will vary from case to case. In cases such as the present, where a person sustains injury at work, the facts will speak for themselves. Prima facie, his employer … has failed to ensure his health and safety. Otherwise there would have been no accident. But a case where the alleged risk has not had this result cannot be dealt with so easily. It will be necessary to identify and prove the respects in which there was a breach of duty. This is likely to require more by way of evidence than simply an assertion that that state of affairs existed. The particular risk to which the employees … were exposed must be identified. This will require an analysis of the facts in each case. Even where an injury has occurred it may not be enough for the prosecutor simply to assert that the injury demonstrates that there was a risk. Where a prosecution is brought … it may be necessary to identify and prove the respects in which the injured person was liable to be affected by the way the defendant conducted his undertaking.

Your Lordships were referred to a number of cases which show how practice varies as to the amount of detail that the prosecutor may give when the charges or counts are being formulated. The overriding test is one of fair notice.”

41.The facts of Kirk are a good example of a case where, although an injury has occurred, it is not enough simply to assert that there was a risk.  Apart from the bare fact that the vehicle that the farm manager was driving overturned, nobody knew how or why the accident occurred, and, in the absence of some specified shortcoming in the system of work, it was impossible to know what case the defendant had to meet.

42.In Hong Kong, as in the United Kingdom, the overriding test is one of fair notice.  This is consistent with the discussion, in Kirk, of cases such as Johnson v Miller[20]and John L Pty Ltd v Attorney-General (NSW)[21], concerning the entitlement of a defendant to proper particulars of a charge, either in the summons or information, or pursuant to an application for further and better particulars.  Applications of that kind may be made before, or during, a trial.

43.Allegations of shortcomings in a system of work may be stated with varying degrees of specificity.  What is sufficient to meet the requirements of fairness may depend upon the circumstances of the case.  A bare statement, in a summons, of a contravention expressed in the terms of the statute is not enough and, as occurred in the present case, will ordinarily be supplemented by a statement of facts.  It is open to a defendant to seek further and better particulars when that is necessary in order to give fair notice of the case the defendant has to meet.  Ultimately, the trial court will need to make findings based on evidence of sufficient cogency to establish the elements of the offence charged.

44.The onus provision in s 18 reflects the practical reality that in the ordinary case it is the proprietor who has either created or is in charge of the risk, and it is not unfair to require him to show that he could not have done more to prevent or avoid it[22].  In the present case the parties exchanged written reports of safety experts before trial.  As Mr Reynolds correctly submitted, the fact that a defendant bears the onus on an issue does not diminish, but rather increases, the importance of accurate identification of the issue.  In a case such as Kirk it may have been very difficult for the employer to work out what steps could have been taken to avoid the risk, but in many cases the proprietor will have little difficulty in understanding and disputing the alleged deficiencies in a system of work.  If there is any difficulty resulting in unfairness it may be remedied by an order for further and better particulars.  If a trial is conducted in such a manner that there is a denial of procedural fairness then that will be a ground for appeal.

The trial

45.There were two summonses, one of which charged an offence in terms of s 6A(2)(a) of the Ordinance and the other of which charged an offence in terms of s 6A(2)(c).  Deputy Judge Wright recorded that the parties accepted that the two charges would stand or fall together.  That is not disputed in this Court.

46.The Amended Brief Facts provided by the prosecution in advance of the trial said that the death of the deceased resulted from his being trapped between the bottom surface of the counterweight of the crane and the guard rails when the crane slewed in response to a signal from PW2.  It referred to an assertion by the appellant’s foreman that only the deceased was supposed to give such a signal.  It referred to the trapping zone that was created when the crane slewed, and to a blind spot affecting the operator’s vision.  It referred to the opinion of the prosecution’s safety expert that the appellant’s own risk assessment was not properly and effectively implemented in that PW2 and not the deceased was giving signals to the crane operator, and no specific instructions were provided to the signalmen as to how to coordinate their responsibilities.

47.The prosecution’s safety expert’s report included the following:

“(c) In the present case, checking the existence and locations of the blind spots was unlikely conducted before the accident. Although a risk assessment for ELS works had been made by Gammon, the assessment was too general which failed to identify and manage the hazards in relation to the blind spots, insufficient visibility from the work positions and the work of [the deceased]. In the absence of such assessment, no specific precautions, information and instructions were provided to the lifting crew

…

(h) The responsibilities for the banksman should be properly designed in the Plan so as to ensure that the banksman could effectively discharge his duties at work. Section 5.2 of the Plan assigned the responsibility for giving correct signal to the crane operator while stationing outside the fenced off area to stop people from entering. Such responsibilities would be very hard, if not impossible, to be discharged and implemented properly by a person/banksman on site. Reference could be made to section s 5.4.2 of the [Code of Practice] which made clear that a signaller should not be engaged in other activities while giving signal to the crane operator.

(i) Pursuant to section 5.2 of the Plan and information from some persons on the site, [the deceased] was responsible for giving signal to the crane operator. However, both the crane operator and [PW2] indicated that such instruction had not been expressed to the lifting crew concerned.

(j) In fact, [PW2] was the one giving signal to the crane operator in the past 1.5 months before the day of the accident.  It was a strong indication that the Plan had not been properly implemented on site and the line of responsibility among the [crew] was far from clear.”

48.The appellant was plainly on notice that the prosecution was going to contend that the relevant risk was that a worker would be caught and crushed in the trapping zone between the crane and the guard rail when the crane slewed; that there was no clear and adequate line of responsibility between the signallers (the deceased and PW2); that no instruction had been given to the lifting crew as to who was responsible for signalling and as to how the trapping hazard was to be avoided; and that no provision had been made for the deceased to signal that it was safe to proceed. 

49.The hearing extended over several days.  The appellant set out to make a positive case.  The Magistrate recorded in her reasons that it was argued that it was the deceased who was responsible for ensuring that the area was clear, and that the system required PW2 to confirm with the deceased before signalling.  The appellant’s safety expert said that under a safe system PW2 would have confirmed with the deceased.  However, the Magistrate found that PW2 was never instructed to confirm with the deceased.  The defence case was recorded by Deputy Judge Wright, on appeal, as being that the deceased was “the safety boss” and the person in charge of the operation.  Deputy Judge Wright pointed out that this was contrary to the evidence, but, if it had been true, it would have made PW2’s failure to obtain clearance from the deceased all the worse.  In the appellant’s written case in this Court, the deceased was again described as “the safety boss”, in charge of overall safety.  It was said that he was equipped with a radio and could (and by implication should) have given a signal to the operator to stop if any danger arose (“silence amounting to an okay”).  In brief, the defence case at all stages was that the deceased was in charge of the safety of the operation and if there had been any danger he “could give a signal to the operator over the walkie-talkie to stop” (Appellant’s Case in this Court para 6.6 (xi)), or (in argument as recorded by the Magistrate) he could have required PW2 to confirm with him before proceeding.  That case accepts (and in fact asserts) that the deceased had the capacity to communicate with both PW2 and the operator.

50.The theory that the deceased was “the safety boss”, that it was his responsibility to intervene, either by communicating with the operator or PW2, and that it was entirely his fault if they went ahead without him giving the all clear, could not stand with the evidence.  The evidence showed that, under the system as it had operated for some weeks before the accident, there was no requirement for either PW2 or the operator to wait on a signal from the deceased before the crane slewed, and none of them had been given any instruction as to how they were meant to ensure that both PW2 and the deceased were ready for the crane to proceed.

51.It will be apparent from the above why it was common ground that the two charges would stand or fall together.  That followed from the nature of the prosecution case and also the defence case.

52.As noted above, in one respect the trial was conducted on a basis unduly favourable to the appellant, in that the prosecution accepted that the onus under s 18 was evidential only.  Both the Magistrate and Deputy Judge Wright found the onus to have been discharged by the prosecution.

The decision of the Magistrate

53.Since the appeal to Deputy Judge Wright was by way of rehearing in the sense referred to earlier, and since it is the reasons of Deputy Judge Wright that are the subject of this appeal, it is sufficient to refer only briefly to the Magistrate’s decision.  She found that there was no instruction to PW2 to seek a clearance from the deceased; she rejected the proposition that the deceased was PW2’s superior and was in charge of safety; she found that no safe system preventing or minimising the trapping hazard was provided and maintained; and she pointed out that the defence’s safety expert accepted that for the system to be safe “involves the confirmation by PW2 with the deceased as to whether it was safe to start lifting operation”.  That, she said, was the critical step missing from the system adopted by the lifting team.  It was practicable and could have been implemented without any additional resources.  Accordingly she found absence of safety (the risk being of crushing in the trapping zone), absence of necessary instructions (to PW2 to seek a clearance from the deceased), and a reasonably practicable safety measure (to require PW2 to obtain confirmation from the deceased before giving a signal to the operator to proceed).

The decision of Deputy Judge Wright

54.Deputy Judge Wright was not reviewing the magistrate’s decision for possible error.  He was, as he said, considering the matter afresh, but on the basis of the evidence that had been adduced at trial (there being no application to adduce further evidence).

55.The judge declined an invitation to apply the decision in Baker, and cited a number of Hong Kong authorities on health and safety legislation.  He said the question was whether there was a risk in the operations carried out; if there was, whether it was reasonably practicable to adopt any safety measures in respect to it; what precautions had been taken; and whether they were sufficient.  He quoted a judgment of Patrick Chan J (as he then was) to the effect that what safety measures are required depends on reasonable foreseeability of dangers, the consequences of such dangers, and the trouble and expense involved in minimising the risk.  He also referred to Marshall in respect of the test of reasonable practicability.

56.The judge then examined in detail the system of work in place.  He referred to the trapping zone and the functions of the participants in the lifting operation.  He referred to “the risk of being squashed between the counterweight and the guard rails”.  He considered in particular the roles of the deceased and PW2, and rejected the appellant’s suggestion that the deceased was the more senior of the two and was in overall charge of safety.  The evidence, he said, showed that they were of equivalent status, and that either of them could direct the crane operator.  He found as a fact that the possibility of the presence of the deceased inside the safety barriers was reasonably foreseeable by the appellant, and rejected an argument that it was such extreme conduct on the part of the deceased that it was beyond the scope of what was reasonably foreseeable and that the death was the consequence, not of any shortcoming in the appellant’s system, but of conduct that was contrary to the system.

57.The judge then asked whether, on the evidence, the system was safe so far as was reasonably practicable.  He referred to evidence that the view of each of the two signalmen (the deceased and PW2) as to what was going on on the opposite side of the crane was restricted, and that the view of the crane operator also was restricted.  For that reason, he said, safety required each signalman to confirm to the crane operator that it was safe for him to proceed.  He said that such a requirement would have been reasonably practicable.  There had been no instruction that it was necessary for both signalmen to give the go ahead to the crane operator.

58.Deputy Judge Wright also (in para 44 of his reasons) said he agreed with the following passage in the reasons of the Magistrate:

“14.... If the defendant had adopted the safe system by requiring PW2 to confirm with the deceased and PW2 did confirm with the deceased that the area was clear before the start of the operation, then, if for whatever reason the deceased deliberately entered the restricted area after the confirmation, I would agree with the defence submission that the defendant could do nothing to prevent it and that the incident was a departure by an employee from the safe system.

15. However, that was not the case here. From the very beginning, PW2 was not required to confirm with the deceased before start of operation. Therefore, the system is unsafe.”

The appellant’s criticisms of the judge’s reasons

59.The appellant argued that the judge erred in law by failing to apply Baker in considering whether the appellant’s system was not safe.  For the reasons given, on the true construction of the Ordinance, the obligations of a proprietor are to be considered in terms of the language of the Ordinance, and not as a reflex of the common law principles of negligence.  The relevance of reasonable foreseeability, if it becomes an issue, will be to the question of the reasonable practicability of some measure to enhance safety.  Furthermore, the problem under consideration in Baker was far removed from the issues that arose in the present case.  For both of those reasons, the judge was correct in following existing Hong Kong authority, and declining to treat Baker as demonstrating the approach to be taken.

60.As to the importance of the precise identification of the relevant risk as part of the prosecution case, this may be accepted, but it was hardly a difficulty in the present case.  From the outset, the risk was identified as a risk that a worker would be caught and crushed in what was referred to as the trapping zone.  That risk was plainly recognised in the appellant’s own risk assessment.  It was referred to in the material given to the appellant before trial, and it was referred to in evidence and argument and in the reasons of the magistrate and the judge.

61.In examining whether the system was “safe … so far as is reasonably practicable” the reasoning of Deputy Judge Wright was orthodox.  He considered, and rejected, the defence case.  That case is set out (no doubt in terms substantially the same as those put to Deputy Judge Wright) in the Appellant’s Written Case in this Court.  In brief, it was a development of the theory that the deceased was the “safety boss”; that the deceased, PW2 and the operator were all equipped to communicate with one another; that the safety boss was responsible for ensuring that barriers sealed off the danger area; that the signaller (PW2) also checked that the barriers were sealed; that “key protective measures” included that both the deceased and PW2 oversaw the danger area and were trained in relation to the danger of crushing; and that both the deceased and PW2 could signal the operator over the walkie-talkie, or by whistle, if a danger arose.

62.The appellant’s own summary of the defence case does not sit well with the argument that there was a failure to identify the relevant risk.  The appellant’s case was considered and rejected on the facts.  If what was described in the appellant’s submission were intended to be the system, it was not the way it worked in practice, and nobody told the crane operator or PW2 or (so far as is known) the deceased about key aspects of it.

63.The appellant contends that Deputy Judge Wright did not state with appropriate specificity what the risk was.  This is incorrect.  The fact that the judge’s focus was on what happened on the day of the accident is unsurprising.  What occurred on the day of the accident was that the risk of a worker being caught in the trapping zone materialised.  It is also said that Deputy Judge Wright did not make complete findings on the agreed system of work or determine that the system was unsafe by reference to the appropriate tests.  These criticisms are not justified.

64.Exactly how the deceased came to be in the trapping zone at the time the crane was slewing is not known, and whether it involved a failure on his part to take reasonable care for his own safety does not appear.  However, the flaw in the system of operation of the crane, and the instructions (or lack of instructions) to the participants in the operation, identified by both the Magistrate and Deputy Judge Wright, was that there were two people with the capacity to give signals to the crane operator, both of whom might be in a trapping zone, but the system did not require them both to signal that all was clear.  The Magistrate held that a reasonably practicable, and necessary, requirement would have been for the deceased to communicate with PW2 before PW2 gave a signal to the crane operator.  Deputy Judge Wright agreed with that, but he also found that a reasonably practicable requirement would have been for both the deceased and PW2 to signal the crane operator before the crane was moved.

65.The appellant says that Deputy Judge Wright’s determination as to the requirement that both the signalmen should signal to the operator “is open to the objection that this precaution had at no stage been raised in the proceedings and was not the subject of any submission before [the judge]”.

66.The first answer to this objection is that Deputy Judge Wright also agreed with the magistrate’s finding that a reasonably practicable requirement would have been that PW2 should not signal before the deceased gave the all clear.

67.The second answer is that the appellant submitted to Deputy Judge Wright, and to this Court, that one of the “key protective measures” in the system was that the deceased could give a signal to the crane operator to stop if any danger arose (silence amounting to an okay).  There was, therefore, no question about whether the deceased could have communicated with the operator.  The appellant was arguing that, if there was any danger, he could and should have done so.  Deputy Judge Wright took up this point and said the system should have required both PW2 and the deceased (that is to say, both signalmen) to signal.

68.The third answer is that the essence of the prosecution case was that, as the system operated in practice, there were two signallers who were responsible for seeing that the crane had clear space in which to operate, but one of them could give a signal that would put the crane in motion without the other being heard from.  Both of them had limitations on what they could see.  To take up the language of the appellant’s submissions, silence should not have amounted “to an okay”.  Whether it is said that the answer is that the system should have required that PW2 heard from the deceased before he gave the signal, or that the operator should have heard from both of them before he moved the crane, the difference is not material.

69.The appellant argued that a requirement that both the deceased and PW2 signal the operator was not reasonably necessary or appropriate because the precautions in place in the system provided multiple protections against the risk.  To an extent, this is a repetition of the appellant’s case that was rejected on the facts.  The risk, it was said, although “extremely obvious” was also “extremely unlikely to materialise”, partly because it was so obvious, and because the deceased was knowledgeable and experienced.  It was suggested there may have been a possible “issue of … difficulty in accepting the precaution” [referred to by Deputy Judge Wright] but, as has been observed, having regard to fact that the appellant itself was arguing that the deceased could and should have communicated with the crane operator this is unconvincing.

70.The reasoning of Deputy Judge Wright involved no error.

Conclusion

71.The appeal should be dismissed.

Mr Justice Ribeiro PJ:

72.The Court unanimously dismisses the appeal.

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

Mr Wesley WC Wong SC, DDPP, Mr Andrew HC Li, SPP and Ms Carmen Siu, PP, of the Department of Justice, for the Respondent