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Secretary for Justice v Hong Dau Construction Co Ltd (2019) 22 HKCFAR 119

Robert Pang SC (leading Alan Lo) appeared for the Defendants in the Court of Final Appeal in Secretary for Justice v Hong Dau Construction Co Ltd (2019) 22 HKCFAR 119.

Ds, a contractor responsible for a scaffold and a contractor who had direct control over the erection of the scaffold, were prosecuted under reg.38E of the Construction Sites (Safety) Regulations (Cap.59I, Sub.Leg.) for failure to ensure that the scaffold was not erected except by workmen who: (a) were adequately trained and possessed adequate experience of such work; and (b) were under the immediate supervision of a competent person. A scaffolder who had been working on the scaffold with another scaffolder had fallen off from the third floor level and died when he was attempting to climb off it. After trial, Ds were acquitted by the Magistrate who confirmed his decision on the prosecution's application to review it. On appeal by way of case stated, the Judge reversed the acquittals and convicted Ds (see [2018] 4 HKLRD 599). Ds applied out of time for leave to appeal to the Court of Final Appeal on both the point of law limb and the substantial and grave injustice limb. They argued that because the "immediate supervision" requirement under reg.38E was concerned principally with ensuring that the scaffold was structurally safe, workers engaged in its erection could be under the immediate supervision of each other (the First Ground). Further, the Judge had departed from accepted norms causing substantial and grave injustice to them (the Second Ground). Ds also sought to clarify that the "immediate supervision" requirement did not mean that the supervision had to be "one on one" in the sense that each workman had to be supervised by a supervisor of her or his own to the exclusion of any other worker.

Held, refusing leave to appeal, that:

(1) The Judge, rightly, did not hold that the "immediate supervision" requirement in reg.38E necessitated "one on one" supervision (Maloney v A Cameron Ltd [1961] 1 WLR 1087, Owen v Evans & Owen (Builders) Ltd [1962] 1 WLR 933 applied). (See paras.11, 17.)

(2) Legislation, whether primary or subordinate, is to be interpreted and applied purposively, holistically and contextually. It is not to be interpreted or applied to impose criminal liability unless it is clear that it is so to be interpreted and applied. At the same time, the courts can hardly be expected to attribute to those who enact statutes or make rules or regulations any intention that involves a lack or shortage of concern for safety. (See para.13.)

(3) Regulation 38E required that what scaffolders did at work and how they did it be under the immediate supervision of a competent person who was not at the time herself or himself actively engaged in such work and who was free to look to the safe condition of the scaffold and the safety of the scaffolders without being distracted by having to mind her or his own safety. Such supervision was not confined to the time when scaffolders were actually moving or perched on a scaffold, but extended to the stages at which they were climbing on or off a scaffold. These propositions were beyond reasonable argument. In the circumstances, the First Ground failed and the complaint in the Second Ground did not arise. (See paras.14-16.)

(The above is taken from the headnote in HKCFAR.)