HKSAR v. Leighton Contractors (Asia) Ltd

HCMA 604/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 604 OF 2014

(ON APPEAL FROM TWS 2985 OF 2014)

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REASONS FOR JUDGMENT
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1.The appellant was convicted after trial by Deputy Special Magistrate Mr Andrew Mok sitting at Tsuen Wan Magistracy. The offence was one of being the proprietor of an industrial undertaking when a specified process, namely breaking of concrete by means of a portable electric concrete breaker was carried out, failed to take all reasonable steps to ensure that every person for whose use the appellant provided eye protectors, or a shield or a fixed shield, made full and proper use of the same, contrary to Regulations 7(b) and 9(1) of the Factories and Industrial Undertakings (Protection of Eyes) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap 59. The appellant was fined $5,000 and now appeals against the conviction only.

The facts

2.On 29 August 2013, the site in question was inspected by a Labour Occupational Safety Officer who gave evidence as PW2.  A worker was found using a portable electric concrete breaker to break concrete on the ground in a tunnel.  The worker did not wear any eye protector but produced a pair of goggles which for reasons unknown were not seized and produced to court.  They were merely photographed.  No effort was made to test or show that these goggles were “approved” eye protectors as defined in Regulation No 4.

3.The appellant was the principal contractor of the site.

The narrow issue

4.Leaving aside the other grounds of appeal, Ground 1(C) related to the fact that no evidence was given by the prosecution to prove the goggles found on the worker to be “approved” eyewear under the Regulations.  Nor could prosecution account for their not being seized and exhibited.  Very fairly Ms Lam on behalf of the respondent agreed that there was absolutely no evidence of the goggles complying with the regulations and the onus lay on the prosecution to prove them to be “approved” eye protectors beyond all reasonable doubt, this being an essential element of the offence.  The learned magistrate attempted to deal with this point at paragraph M of page 46 of the Appeal Bundle, in his Oral Reasons.  To paraphrase what he said, it states that he agreed there was no evidence that the goggles were approved for the purpose of the Regulations but because the appellant was under a duty to provide approved eye protectors and that goggles were found on the worker the irresistible inference is that they were so “approved”.

5.This is clearly not correct nor logical.  There are many contrary inferences to be drawn.  Ms Lam for the respondent does not seek to argue the point and therefore I have no choice but to allow this appeal and set aside the conviction.  I should add that there were other aspects of the finding which caused concern but I do not refer to them in these circumstances.

Ms Lam Tak Wing, Winnie SPP, of the Department of Justice, for the respondent

Mr Nicholas Lau, instructed by Pinsent Masons, for the appellant