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HCMA 97/2019
[2020] HKCA 752
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MAGISTRACY APPEAL NO 97 OF 2019
(ON APPEAL FROM WKS NOS 802-804 OF 2016)
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BETWEEN
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HKSAR |
Respondent |
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and |
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Gammon Construction Limited
(金門建築有限公司) |
Appellant |
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Before: Hon Macrae VP, Zervos JA and Wong J in Court
Date of Hearing: 11 August 2020
Date of Judgment: 7 September 2020
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J U D G M E N T
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The Court:
A. Introduction
1. On 23 January 2019, after a trial in the West Kowloon magistrates’ court which had lasted 21 days, the appellant was found guilty by then deputy magistrate Lau Suk Han (“the magistrate”) of three summonses, which may be summarised as follows:
(i) Failing to provide and maintain a safe system of work, contrary to sections 6A(1), (2)(a), (3) and 13(1) of the Factories and Industrial Undertakings Ordinance, Cap 59 (“the Ordinance”)[1];
(ii) Failing to provide necessary instruction and supervision for the health and safety at work of persons employed at an industrial undertaking, contrary to sections 6A(1), (2)(c), (3) and 13(1) of the Ordinance[2]; and
(iii) Failing to develop, implement and maintain a safety management system, contrary to sections 8(1) and 34(2) of the Factories and Industrial Undertakings (Safety Management) Regulation, Cap 59AF (“the Regulation”)[3].
On the same day, the magistrate fined the appellant $55,000 in respect of (i); $50,000 in respect of (ii); and $30,000 in respect of (iii) above.
2. By a notice of appeal (Form 101) filed on 31 January 2019, the appellant appealed against conviction only. Although the hearing of the appeal had initially been fixed for 21 and 22 February 2020 before D’Almada Remedios J in the Court of First Instance, a Notice of Motion was filed on behalf of the appellant on 17 June 2019, by which the appellant sought to have the appeal heard by the Court of Appeal. That application was opposed by the respondent. D’Almada Remedios J subsequently ordered an expedited hearing of the matter on 11 December 2019, at which she acceded to the appellant’s application and, instead of reserving a particular point for the Court of Appeal, reserved the whole appeal to this Court under section 118(1)(d) of the Magistrates Ordinance, Cap 227[4] (“the MO”).
3. At the same time, D’Almada Remedios J also granted leave to enable the appellant to adduce fresh evidence on appeal[5], namely, the Legislative Council Brief EMB 16/2961/46XI, dated 12 January 1989, on the Factories and Industrial Undertakings (Amendment) Bill (“the Bill”), since it might shed light on the legislative intent of the first and second offences and was relevant to the arguments in Grounds 1 and 2 (below). In the Bill, it was stated that:
“The purpose of the Factories and Industrial Undertakings Ordinance is to promote industrial safety and health and prevent industrial accidents. Subsidiary regulations provide for specific industries or operations. Because of rapid technological change the regulations quickly become out of date and inappropriate to the actual current situation in industry. It is therefore necessary to impose on proprietors a general duty to provide a safe and healthy working environment; and to require employees to cooperate in providing such an environment and to take reasonable care at work. On the other hand, the deterrent effect of existing penalties has been found to be inadequate[6].
It is therefore necessary to introduce custodial penalties for serious offences.[7]”
B. The relevant provisions in the Ordinance and the Regulation
4. We shall first set out the relevant provisions which fall for consideration in this appeal. Section 6A of the Ordinance, which is headed “General duties of a proprietor”, provides that:
“(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) …
(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)–(e) …
(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.”
5. Section 13 of the Ordinance, which is headed “Liability for proprietor”, provides that:
“(1) Except as may be otherwise provided by regulations made under this Ordinance, the proprietor of every industrial undertaking in or in respect of which any offence against this Ordinance has been committed shall be guilty of a like offence, and shall be liable to the penalty prescribed for such offence.
(2)-(3) …”
6. Section 18 of the Ordinance, which is headed “Onus of proving limits of what is practicable, etc”, provides:
“(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.
(2) In a proceeding for an offence under a provision in this Ordinance consisting of an exemption from compliance with a duty or requirement to do something where it is impracticable, not reasonably practicable or rendered impracticable to comply with that duty or requirement, the onus is on the accused to prove that it was impracticable or not reasonably practicable to do more than was in fact done to comply with the duty or requirement.
(3) Subsections (1) and (2) do not apply where the offence is committed on or before the commencement of this section.”
7. Sections 8(1) and 34(2) of the Regulation, headed “Duty of proprietor and contractor to develop, etc. safety management system” and “Offences”, respectively provides that:
“A proprietor or contractor specified in Part 1 of Schedule 3 shall develop, implement and maintain in respect of the relevant industrial undertaking a safety management system which contains the elements specified in Schedule 4.” [Section 8(1) of the Regulation]
“Any person who contravenes any of the provisions of section 8, … or … commits an offence and is liable on conviction to a fine of $200,000 and to imprisonment for 6 months.” [Section 34(2) of the Regulation]
C. The facts of the case
8. The summonses concerned a fatal industrial accident, which occurred on the morning of 23 April 2016. The appellant was the principal contractor responsible for the construction of the dual two-lane viaduct section of the Tuen Mun – Chek Lap Kok Link. The viaduct was constructed over the sea, and was approximately 1.6 kilometres long between the Hong Kong – Zhuhai – Macao Bridge and the North Lantau Highway[8].
9. The construction of the bridge consisted of the assembly of pre-cast segments which were connected piece by piece in sequence. Each segment was identified by a number, and was hollow inside, which was called a “segment void”. The edge of the segment void closer to the sea was called the “segment edge”. The segments were connected by temporary post-tensioning (TPT) bars, permanent post-tensioning tendons and glued together with epoxy resin[9]. The appellant had subcontracted to Freyssinet Hong Kong Limited[10] the erection of the pre-cast segments and the pre-stressing work at Pier E1B.
10. It was the prosecution case that at around 10:30 am on 23 April 2016, a male worker from Thailand, (“the deceased”), who was engaged by the subcontractor, was working at the edge of one of the hollow segments at Pier E1B, namely Segment 5, which was also known as an “N Segment”[11]. Segment 5 abutted Segment 4, which was also known as an “N-1 Segment”. The new segment, which had not yet been erected, was known as an “N+1 Segment”. In preparation for connecting the two segments, it was necessary to remove the washer plates and nuts from the top TPT bars of Segment 5.
11. A metal fence had been erected at the edge of the segment void by the night-shift foreman of the subcontractor, PW2, at around 10 to 11 pm on 22 April 2016, when Segment 5 was still on the barge. He checked the stability of the erected metal fence only by physically shaking it[12]. The metal fence consisted of two vertical bars, the bottom end being inserted into a hole or recess of the floor of the segment void, and the top end being secured by a metal plate,...
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