HKSAR v. HONG DAU CONSTRUCTION CO LTD AND OTHERS

HKSAR v. HONG DAU CONSTRUCTION CO LTD AND OTHERS

The court allowed appeals and set aside convictions relating to plant safety and maintenance (convictions dependent on contested expert evidence about pre-existing fatigue and detectability) because the prosecution failed to prove beyond reasonable doubt that there were visible warning signs and that maintenance regimes would have detected them; however convictions for failure to provide and maintain a safe system of work and safety management (limited to prohibition of passing materials between TWP and scaffold) were upheld because appellants failed to adopt the safest practicable measures. Sentences on surviving convictions were reduced to proportionate fines and costs orders were made.

Citation
[2018] HKCFI 1462
Parties
Respondent: HKSAR; 1st Appellant: Hong Dau Construction Company Limited; 2nd Appellant: Proficiency Industrial Products Limited; 3rd Appellant: VT Engineering Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 June 2018
Case Number
HCMA186/2017
Procedural Posture
Criminal Appeal (magistracy Appeal) / Appeal to High Court (court of First Instance) Judgment on Appeal
Outcome
Appeal partly allowed: convictions quashed in relation to safe plant/maintenance and related occupier secondary duties (Summonses 1-7 and 11-18 and Summons 9 and 20) but convictions on safe system of work and safety management (Summons 8 and 10 against A1; Summons 19 against A3) upheld; sentences varied and fines...
Legal Topics
Safe System of Work, Safety Management, Maintenance of Plant and Machinery, Access and Egress, Statutory Defence of Reasonably Practicable, Expert Evidence on Causation and Fatigue
Source Language
EN
Occupational Safety and Health Construction Law Criminal Law Safe System of Work Safety Management Maintenance of Plant and Machinery Access and Egress Statutory Defence of Reasonably Practicable +1 more

Case Brief

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Parties

HKSAR

Respondent

Hong Dau Construction Company Limited

1st Appellant

Proficiency Industrial Products Limited

2nd Appellant

VT Engineering Company Limited

3rd Appellant

Procedural Posture

Criminal Appeal (magistracy Appeal) / Appeal to High Court (court of First Instance) Judgment on Appeal

Legal Issues

  1. 1 Whether appellants breached duties to provide safe access/egress and safe system of work
  2. 2 Whether appellants failed to ensure tower working platform (M14) was properly maintained and safe
  3. 3 Whether the defence of 'so far as reasonably practicable' was made out

Ratio Decidendi

The court allowed appeals and set aside convictions relating to plant safety and maintenance (convictions dependent on contested expert evidence about pre-existing fatigue and detectability) because the prosecution failed to prove beyond reasonable doubt that there were visible warning signs and that maintenance regimes would have detected them; however convictions for failure to provide and maintain a safe system of work and safety management (limited to prohibition of passing materials between TWP and scaffold) were upheld because appellants failed to adopt the safest practicable measures. Sentences on surviving convictions were reduced to proportionate fines and costs orders were made.

Court Disposition

Appeal partly allowed: convictions quashed in relation to safe plant/maintenance and related occupier secondary duties (Summonses 1-7 and 11-18 and Summons 9 and 20) but convictions on safe system of work and safety management (Summons 8 and 10 against A1; Summons 19 against A3) upheld; sentences varied and fines...

Orders

  • Convictions set aside: A1 convictions on Summonses 1-7 and 9 (ESS 37644/2014-37649/2014; ESS 38075/2014; ESS 38217/2014; ESS 38218/2014; ESS 38219/2014) quashed
  • Convictions set aside: A2 convictions on Summonses 11-18 (ESS 37650/2014-37655/2014; ESS 38073/2014; ESS 38074/2014) quashed