HKSAR v. HIP HING CONSTRUCTION CO. LTD.

HKSAR v. HIP HING CONSTRUCTION CO. LTD.

The conviction was unsafe because the magistrate misdirected the focus of the prosecution case by relying on Regulation 38B and on speculative expert hypotheticals concerning single-row scaffolding; the prosecution did not establish that the scaffold was unsafe for the work actually proven to be undertaken and the statutory defence issues were not properly adjudicated; accordingly the appeal must be allowed and the conviction and fine set aside.

Citation
HKSAR v. HIP HING CONSTRUCTION CO. LTD.
Parties
Respondent: HKSAR; Appellant: HIP HING CONSTRUCTION CO. LTD
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 July 2001
Case Number
HCMA1253/2000
Procedural Posture
Magistracy Appeal to Court of First Instance / Judgment on Appeal (conviction Quashed)
Outcome
Appeal allowed; conviction quashed; fine quashed.
Legal Topics
Regulation 38 C (safe Means of Support), Regulation 38 H (statutory Defences), Work at Height, Scaffolding Safety, Practicability Defence, Regulation 38 B (prevention of Falls)
Source Language
EN
Construction Law Occupational Health and Safety Criminal Law (regulatory Offences) Regulation 38 C (safe Means of Support) Regulation 38 H (statutory Defences) Work at Height Scaffolding Safety Practicability Defence +1 more

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Parties

HKSAR

Respondent

HIP HING CONSTRUCTION CO. LTD

Appellant

Procedural Posture

Magistracy Appeal to Court of First Instance / Judgment on Appeal (conviction Quashed)

Legal Issues

  1. 1 Whether the scaffold was unsafe for the work to be done under Reg 38C
  2. 2 Whether retrieval of fallen formwork boards formed part of the work to be done
  3. 3 Whether the statutory defence under Reg 38H (impracticability; provision/use of belts and nets) was made out

Ratio Decidendi

The conviction was unsafe because the magistrate misdirected the focus of the prosecution case by relying on Regulation 38B and on speculative expert hypotheticals concerning single-row scaffolding; the prosecution did not establish that the scaffold was unsafe for the work actually proven to be undertaken and the statutory defence issues were not properly adjudicated; accordingly the appeal must be allowed and the conviction and fine set aside.

Court Disposition

Appeal allowed; conviction quashed; fine quashed.

Orders

  • Conviction set aside
  • Fine of HKD 20000 quashed