FACC 10/2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 10 OF 2014
(ON APPEAL FROM HCMA 426/2013)

Between

GAMMON CONSTRUCTION Appellant

LIMITED

And

HKSAR Respondent

The Case for the Respondent

(Date of Hearing: 3 March 2015 at 10.00 a.m. before the Court of Final Appeal)

(“A:07[08]” = page 7 of the Record (Part A), para. 8)

 Table of Contents

I. Procedural History………………………………………………………… 1

II. The Proceedings Below…………………………………………………… 2

III. The Relevant Statutory Provisions ..………………………………….….

5

IV. What is the nature of the duty imposed on the proprietor of an

7
industrial undertaking? .………...………………………………….……

(a) The Statutory Framework ………..………………………………… 7

(b) The nature of the duty to ensure safety……………………………..

9

(c) Should the concept of reasonable foreseeability be imported to the

16
meaning of “safe”? …………………………………………………..

(d) The qualification of “reasonably practicable” …………………….. 26

(e) Ensuring “Safety” as qualified in Hong Kong ………...……...…… 27

V. What are the requirements of the statutory defence provided? …...…. 29

VI. Applying the law to the facts of this case ……………………………….. 37

(a) Whether or not the system of work adopted by the Appellant was
37
safe? ………………………………………………………………….
(b) Whether the defence under section 18 of the FIUO had been made
39
out? ……………………………………………………………………

VII. Disposal of the present appeal …………………………………………… 40

I. Procedural History Reference

1. On 6 June 2013, the Appellant was convicted after trial

by Madam Kathie Cheung, Permanent Magistrate (“the
Magistrate”) of two summonses and fined $25,000 for
each of the following offences, namely:

(1) Failing to provide and maintain a system of

work that is, so far as is reasonably
practicable, safe and without risks to health,
contrary to sections 6A(1), 6A(2)(a) and
6A(3) of the Factories and Industrial
Undertakings Ordinance, Cap. 59 (“FIUO”);
and

(2) Failing to provide 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 the proprietor,
contrary to sections 6A(1), 6A(2)(c) and
6A(3) of the FIUO.

2. On 28 February 2014, the Appellant’s intermediate

appeal against conviction to the Court of First Instance
was dismissed by Deputy High Court Judge Wright
(“the Judge”).

3. Pursuant to leave granted by the Appeal Committee on A:54-55

26 September 2014 (FAMC 21/2014), the Appellant
now appeals to this Court on the ground that the
judgment of the intermediate appeal in HCMA
426/2013 (“the Judgment”) involved a point of law of
great and general importance, namely:

“On a true construction of sections 6A and 18 of

the Factories and Industrial Undertakings
Ordinance, what is the nature of the duty imposed
on the proprietor of an industrial undertaking and
what are the requirements of the statutory defence
provided?”
 - 2 -

II. The Proceedings Below

4. The factual background was largely undisputed at trial.

The Appellant was the proprietor of the industrial
undertaking on a construction site. On 3 December A:02[03]
2011, a fatal accident occurred in which Lam Kam-wah
(“the deceased”), an employee of the Appellant, was
trapped between the metal guard railing of the
temporary working platform on which an operating
mobile crane stood and the counterweight of the mobile
crane itself.

5. At the material time, the deceased was part of the lifting A:03[09]
team, which apart from himself consisted also of a crane
operator (“PW1”), a signalman (“PW2”) and a fourth
worker who worked at the basement level. The
deceased was a fellow signalman working with PW2
and the two of them together were responsible for
fencing off the platform in order to create a restricted
area within which the mobile crane would be in motion.

6. At trial, it was common ground that there was a system

of work in place which attempted to address an
identified danger (namely, a trapping hazard) which did
materialise and visit upon the deceased. The main
issues were two-fold:

(a) whether that system of work (or, similarly, the

information, instruction, training and
supervision provided) was, so far as was
reasonably practicable, safe and without risks
to the health of those working at the
construction site (including the deceased) for
the purpose of section 6A; and

(b) for that matter, whether the statutory defence

under section 18 (i.e. that what could have
been done to discharge the Appellant’s duty
imposed by section 6A was not “reasonably
practicable”) was made out.
 - 3 -

7. The prosecution case was that in a multi-signalman (in

this case two) operation, in which both the deceased and
PW2 had equal authority to give a signal to the crane
operator to set the crane in motion, the absence of an
“all-clear” signal given by each of the deceased and
PW2 (as opposed to either one of them) rendered the
system unsafe. Given that walkie-talkies had been
provided to each member of the lifting team, it was
plainly reasonably practicable to require both signalmen
to do so. Furthermore, since the requirement of an
“all-clear” signal was not communicated to all members
of the lifting team, it followed that the Appellant had
not provided sufficient training, instruction, information
and supervision to them.

8. On the other hand, the Appellant contended that the A:02[06]

system of work adopted was safe by pointing out
various measures put in place specifically for the
purpose of preventing the trapping hazard in question.
In other words, the deceased was the author of his own
misfortune as he was responsible for the safety of the
lifting operation.

9. After trial, the Magistrate found against the Appellant in A:05[13] &
respect of both issues, there being no dispute between A:07[24]
the prosecution and the defence that the cases against and
the Appellant for the two offences should stand or fall A:08[27]-
together. [28]

10. The Magistrate found, in particular, that PW2 was never A:04-05[11]
instructed to confirm with the deceased before he -[15]
signalled to PW1 to start the lifting operation. It was
not the case where the deceased deliberately entered the
restricted area after such confirmation. She went on to
find that the Appellant did not provide and maintain a
safe system of work.

11. The Magistrate also found that the crucial step of an A:04[11];
“all-clear” signal (which was missing) could be A:06[17];
communicated through walkie-talkies. Even the A:07[24]-
 - 4 -

defence expert accepted that this would be part of a safe 09[29]

system for the operation of the mobile crane. It was
certainly practicable and could be implemented without
any additional resources. The Applicant thus failed to
make out the statutory defence under section 18 of the
FIUO.

12. On appeal to the Court of First Instance, which was by A:22-23[36]

way of a re-hearing and having carefully reviewed the
evidence in relation to the system of work in place and
the role of the deceased and PW2, the Judge concluded
that “[w-]hatever the situation truly may have been I am
satisfied that the possibility of presence of the deceased
inside the safety barriers was something which was
reasonably foreseeable by the [A-]ppellant.”

13. The Judge held that whether a system of work is safe in A:23[37]
so far as is reasonably practicable is a case-specific
conclusion based on the totality of the evidence. In A:24[40]-
this case, [42]

(a) the requirement of the “all-clear” signal from

each of the deceased and PW2 was
fundamental to the efficacy of the system of
work;

(b) given that both signalmen already had the

necessary authority and equipment, this
requirement would not be:

(i) disproportionate or imposing too

high a standard or burden on the
Appellant (and thus reasonably
practicable); or

(ii) be seeking to achieve perfection

nor is it obvious only with the
benefit of the clarity of vision
provided by hindsight; and

(c) it was the omission of this requirement

 - 5 -

(which would otherwise cure what was an

obvious defect) which rendered the system
of work inherently unsafe.

14. In relation to the statutory defence under section 18 of A:25[46]

the FIUO, the Judge agreed with the Magistrate that the
Respondent had established beyond reasonable doubt
that it was reasonably practicable to do more than what
had actually been done.

III. The Relevant Statutory Provisions

15. Section 6A of the FIUO provides that (emphasis added):

(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;

(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;

(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.
 - 6 -

(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.

16. Section 18 of the FIUO further provides, in particular,

that:

(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.

17. It can therefore be seen that the FIUO imposes a duty

on proprietors of any industrial undertaking on the
safety and health of workers thereat breach of which
attracts criminal sanction.

18. It is, however, important also to observe that section 19

of the FIUO provides that:

This Ordinance does not-

(a) confer a right of action in civil proceedings in

respect of a failure to comply with section 6A,
6B or 6BA; and

(b) affect the extent (if any) to which breach of any

other provision is actionable.
 - 7 -

IV. What is the nature of the duty imposed on the

proprietor of an industrial undertaking?

(a) The Statutory Framework

19. The general duties imposed by section 6A of the FIUO

on a proprietor of an industrial undertaking to ensure
the health and safety at work of his employees are
qualified by the words “so far as is reasonably
practicable”. In terms of

(a) the provision and maintenance of systems

of work which should be “safe and without
risks to health”, and

(b) the provision of information, etc. as is

necessary to ensure the “health and safety
at work” of employees,

the same qualification (of reasonably practicable)

applies.

20. The words “safe” and “safety” are not defined in the
FIUO and they, as plain English words, should be given
their natural and ordinary meaning.

21. Section 19 of the Interpretation of General Clauses

Ordinance, Cap. 1 stipulates that:

An Ordinance shall be deemed to be remedial and

shall receive such fair, large and liberal
construction and interpretation as will best ensure
the attainment of the object of the Ordinance
according to its true intent, meaning and spirit.

22. In HKSAR v. Cheung Kwun Yin (2009) 12 HKCFAR

568 at 574-575 [12]-[13], the Court of Final Appeal
held that statutory language is construed having regard
to its context and purpose. Words are to be given their
natural and ordinary meaning unless the context or
purpose points to a different meaning. The context of
 - 8 -

a statutory provision should be taken in its widest sense

and certainly includes the other provisions of the statute
and the existing state of the law.

23. As to the context or purpose with which the FIUO is

concerned, the Court of Final Appeal in Paul Y
General Contractors Limited v. HKSAR (2013) 16
HKCFAR 487 at 489 [2] held that the object of the
safety requirements provided in the Ordinance is to
ensure that places of work are safe and those working in
these places are, as far as reasonably practicable, free
from risks and dangers. See also HKSAR v. Chun
Wo Building Construction Ltd [2001] 3 HKC 5.

24. The Appellant submitted, at para. 2.5 of its printed case,

that the legislation bears a strong similarity to common
law negligence in at least two respects. Be that as it
may, it is important to note that section 19(1) of the
FIUO specifically provides that the Ordinance does not
confer a right of action in civil proceedings in respect of
a failure to comply with section 6A. In Baker v.
Quantum Clothing Group Limited [2011] 1 WLR
1003, a case heavily relied upon by the Appellant and
will be discussed in greater detail below, the U.K.
Supreme Court is concerned with whether section 29(1)
of the English Factories Act 1961 imposes a more
stringent standard and greater liability than at common
law.

25. Lord Dyson of the majority in Baker (when

entertaining a collateral civil claim for breach of
statutory duty) held that there is no principle of law that
a statutory obligation cannot be interpreted as being
co-terminous with a common law duty and observed in
general that “[t-]he statutory obligation may exceed the
duty at common law or it may fall short of it or it may
equal it.” 1 In the context of the FIUO, however, it is
submitted that the inclusion of section 19(1) of the
FIUO indicates a clear legislative intent and put it

1
Citing, with approval, what Stephenson, L.J. said in Bux v. Slough Metal Ltd [1973] 1 WLR 1358, 1369-1370,
reproduced in Baker at 1058B-C [125].
 - 9 -

beyond doubt that section 6A of this Ordinance is a

remedial measure to impose a higher standard of safety
coupled with criminal sanction, whilst at the same time
preserving the parties’ respective positions in common
law insofar as civil liability is concerned.

26. It has been suggested by the Appellant, at para. 2.15 of

its printed case, that since section 6A of the FIUO exists
only to create a criminal offence, the principle against
doubtful penalisation should be applied where there is
an ambiguity in the meaning of the words.
In Harrison v National Coal Board [1951] AC 639, at
650, Lord Parker said:

“It was suggested … that the Coal Mines Act 1911

is a measure imposing criminal liability, and,
therefore, should be interpreted as throwing no
greater burden on the employer than its words
compel. It has, however, to be remembered that this
Act is also a remedial measure passed for the
protection of the workmen and must, therefore, be
read so as to effect its object so far as the wording
fairly and reasonably permits.”

A careful examination of the nature of the proprietor’s

statutory duty and the concept of what is “safe” for the
purpose of determining criminal liability in Hong Kong
under the FIUO is therefore required.

(b) The nature of the duty to ensure safety

27. As a starting point, the words “shall” and “to ensure”

used by the legislature in section 6(1) of the FIUO
clearly import and impose a mandatory obligation to
comply. This contention is supported by Munkman on
Employer’s Liability (15th ed.) at para. 5.74: These
words mean must and when unqualified by other words,
the presence of the word “shall” imposes an absolute
and continuing obligation. Therefore, the learned
authors, citing Larner v. British Steel [1993] 4 All ER
102; [1993] ICR 551, opined that qualifications such as
 - 10 -

reasonable care or foreseeability will not be read into

statutory provisions. In the present case, the clause
“so far as is reasonably practicable” is the only express
qualification to the general duties under section 6A of
the FIUO.

28. The construction of the word “safe” and how it relates

to the words “as far as is reasonably practicable” are
recently examined by the U.K. Supreme Court in Baker
v. Quantum Clothing Group Limited (supra) in the
context of the Factories Act 1961. To the extent that
the majority judgments may be said to assist the
Appellant, the Respondent submits that that case can
readily be distinguished.

29. The factual background of Baker case can be

summarised as follows:

(a) The plaintiffs were employed by the defendants

therein in the knitting industry and they suffered
noise-induced hearing loss due to consistent
exposure to noise level between 85 and 90 dB over
the years.

(b) The main issue was whether the defendant

employers were liable at common law in
negligence and/or under section 29(1) of the 1961
Act.

(c) The trial judge concluded that the standard of

safety required under section 29(1) was governed
by the general standard which ought reasonably to
have been adopted by employers at the relevant
time and it did not differ from the common law
duty.

(d) At the material times, there was a code of

practice issued by the domestic government which
recommended that a noise level of 90 dB should
not be exceeded.
 - 11 -

(e) In other words, exposure to noise at the level of

85-90 dB was regarded by the industry as
acceptable at that time, until the terms of a draft
European Directive, which proposed a lower limit
not exceeding 85 dB, became generally known in
1988.

(f) However, employers who had a greater

understanding of the risk of noise at an earlier date
were potentially liable as from that date.

30. The trial judge held that the average employers were
entitled to rely on the relevant code of practice and
accordingly were not in breach of duty at common law
and/or under section 29(1). The English Court of
Appeal allowed the plaintiffs’ appeal, holding that
section 29(1) imposed a more stringent liability than at
common law and that safety was an absolute concept,
which had to be judged irrespective of what was
regarded as an acceptable risk at the time.

31. On the defendants’ appeal, the U.K. Supreme Court

allowed the appeal (by a majority of 3:2, Lord Kerr and
Lord Clarke, JJ.S.C. dissenting) and held that the code
of practice constituted an acceptable standard for
average employers to adhere to, but employers who had
greater than average knowledge of the risk were placed
in a different position. The Supreme Court held that
what is “safe” is a relative concept that must be judged
having regard to general knowledge and standard at the
time of the alleged breach of duty. It also held that the
qualification “so far as is reasonably practicable” allows
such general knowledge and standard to be taken into
account. Applying that construction, section 29(1) did
not impose a more stringent liability than at common
law. The defendants, having complied with the then
code of practice, were not in breach of duty both under
section 29(1) and at common law.

32. Section 29(1) of the 1961 Act materially provides that

every place at which any person has at any time to work
 - 12 -

shall, so far as is reasonably practicable, be made and

kept safe for any person working there. Unlike section
6A of the FIUO, section 29(1) of the English Act
imposes criminal, as well as civil, liability. Baker is a
civil action and it can immediately be seen that there
were two different standards of safety (i.e. a change
over time which is conspicuous by its absence in the
present case), one issued by the Department of
Employment in the form of a code of practice and
another issued in the form of a European Directive,
coming into force subsequently. The Supreme Court
was concerned with whether employers with average
knowledge of the risk of noise were entitled to rely on
the less stringent standard as laid down domestically in
the code of practice. The common law standard of
care has always been based on reasonableness and
foreseeability of risks. It was against this background
that the majority held that section 29(1) of the English
Act does not operate differently from the employers’
common law duty.

33. Furthermore, the risk with which the Supreme Court

in Baker (see 1033 at [52]) was concerned is not noise
of a deafening nature, causing immediate injury. On
the contrary, only some workers who have a higher
susceptibility to noise and have been exposed to that
noise for a sufficiently long period of time may suffer
hearing loss. There is naturally, in that context, room
for adopting different standards based on research and
better understanding of noise-induced hearing loss. In
this regard, the risk involved in the present case is a
clearly identifiable trapping hazard caused by the
moving counterweight of the mobile crane, whereby
serious injury or even (as in this case) death will often
be caused. The Respondent submits that once this
particular risk is identified (as indeed it was), the
proprietor is under a clear and obvious duty to ensure
that this does not happen, subject only to the
qualification of “so far as is reasonably practicable”.
There is simply no question of admitting different
standards of safety at different times for the present
 - 13 -

case.

34. The leading judgment of Baker was given by Lord

Mance, with whom Lord Dyson and Lord Saville
agreed. In holding that the requirement regarding
“safety” is relative (in the sense that it has to be judged
according to the general knowledge and standards of the
time, by reference to what might reasonably have been
foreseen by a reasonable and prudent employer), as
opposed to absolute (in the sense that what is safe is
objective, unchanging and independent of any foresight
of injury), Lord Mance, at 1039E-F [68], acknowledged
that there were differing strands of authority on the role
of foresight. Having examined those authorities, his
lordship ultimately preferred the line of authority 2 that
confirmed reasonable foreseeability is relevant to the
issue of safety, noting that section 29(1) is wider than
the duty imposed at common law by imposing a
non-delegable duty on the employer, as well as shifting
the onus to the employer to prove that it was not
reasonably practicable to make and keep the place safe 3 .

35. Lord Dyson gave a concurring judgment. However,

his lordship accepted, at 1056-1057 [119], that “if [the
concept of reasonable foreseeability] is imported into
the reasonable practicality qualification, there is no
need to interpret ‘safe’ as importing reasonable
foreseeability in order to avoid an inexplicable
mismatch between sections 14(1) and 29(1).” 4 This is
despite the fact that his lordship expressed the view, at
1057 [121], that “foreseeability of a risk is distinct from
the question whether it was ‘reasonably practicable’ to
avoid it.”

36. Lord Saville simply allowed the appeal for the reasons
given by Lord Mance and Lord Dyson and added at

2
John Summers & Sons Ltd v. Frost [1955] AC 740, Close v. Steel Co of Wales Ltd [1962] AC 367, Taylor v.
Coalite Oils & Chemicals Ltd (1967) 3 KIR 315, Allen v. Avon Rubber Co Ltd [1986] ICR 695 and Robb v.
Salamis (M&I) Ltd [2007] ICR 175.
3
At 1041-1042 [76]-[78].
4
Section 14(1) reads, “Every dangerous part of any machinery, other than prime movers and transmission
machinery, shall be securely fenced unless it is in such a position or of such construction as to be as safe to every
person employed or working on the premises as it would be if securely fenced.”
 - 14 -

1060 [136],

“To my mind the contrary views depend to a

significant degree on hindsight and consequently
place an undue burden on employers.”

37. Lord Kerr and Lord Clarke each gave a dissenting

judgment. Lord Kerr agreed, at 1072 [179], that
“safety in the context of section 29, does not connote
absolute safety in the sense of the elimination of every
conceivable risk … but … simply because safe does not
mean ‘absolutely safe’, it does not follow that it means
‘reasonably safe’.” His lordship held that
foreseeability is only relevant to the consideration of
what is reasonably practicable.

38. Lord Clarke held, at 1075 [192], that “the word ‘safe’ in
section 29(1) is not limited by the concept of reasonable
foreseeability.” His lordship considered the two lines
of authority and preferred the one which concluded that
“it is inappropriate to equiparate section 14 with
section 29 of the 1961 Act.” He approached the issue
as a matter of statutory construction and was of the view
his conclusion is supported by the language of section
29(1) which is qualified whereas section 14(1) was
expressed in absolute terms.

39. The line of authority endorsed by the majority that

construed the word “safe” as incorporating the concept
of reasonable foreseeability did so by reference to the
meaning of “dangerous” in section 14(1) of the Act and
on the basis that it is the antonym of “safe”. However,
it should be noted that section 14(1) contains no
qualification of reasonable practicality whatsoever.

40. The tenor of the dissenting judgment of Lord Clarke in

particular is that:

(a) the question remains simply whether the

workplace was, at the relevant time, “safe”
because the section does not say “reasonably
 - 15 -

safe” 5 ;

(b) the purpose of the section is to protect the

employee not the employer and the
requirement is to achieve the result of safety,
as opposed to safety from a particular hazard 6 ;

(c) “foreseeability” is an alien importation from

the common law of negligence which has no
mention in the statutory provision 7 ;

(d) to introduce a test of reasonable foreseeability

to determine the question whether a place of
work is safe is to reduce the statutory
protection and this is not unfair on the
employer whose duty to make and keep the
working place safe is qualified by “so far as is
reasonably practicable” 8 ;

(e) still, the duty to ensure safety so far as is

reasonably practicable places a stricter
obligation on the employer than is placed
upon him in the discharge of the general duty
of reasonable care at common law 9 ;

(f) reasonable foreseeability is not relevant to the

question whether the workplace is safe but is
relevant to the question whether it is
reasonably practicable to prevent the breach 10 ;

(g) this is so because considerations of reasonable

practicability involve weighing the degree and
extent of risk on the one hand against the
time, trouble and expense of preventing it on
the other and it is impossible to assess the
degree of risk in any other way 11 .

5
At 1075 [191].
6
At 1082G-H [211] & 1083C [212]
7
At 1079E-G [203]
8
The reasoning of Peter Gibson, J. in Larner (supra) was endorsed and reproduced at 1076 [197].
9
See footnote 4 above.
10
At 1078D [201]
11
At 1083F-G [213]
 - 16 -

(c) Should the concept of reasonable foreseeability be

imported to the meaning of “safe”?

41. When embarking on an exercise of statutory

construction in considering the nature of the general
duties imposed on a proprietor of an industrial
undertaking, the Respondent submits that Baker can be
distinguished as it is concerned with a different
statutory framework and should be confined to its own
fact. In any event, it is not binding on this Court.

42. The thrust of the strength of the majority decisions

in Baker, the Respondent submits, may compendiously
be encapsulated in the enunciation of these two broad
propositions to which their lordships subscribed:

(a) “Safety is a question of opinion” and

“[t-]here is no such thing as absolute
safety …” 12 Hence, if safety is a relative
concept, then foreseeability must play a part
in determining whether a place is or was
safe – see judgment of Lord Mance at 1039
[67]-[68]; and

(b) “[T-]he foreseeability of risk is distinct from

the question whether it was ‘reasonably
practicable’ to avoid it. … It is only if a
risk is reasonably foreseeable and it was
reasonably foreseeable that an injury would
be caused that it becomes necessary to
consider whether it was reasonably
practicable to avert the risk. Thus for the
purpose of deciding the issue of reasonable
practicability, it is assumed that the risk was
reasonably foreseeable” – per Lord Dyson at
1057 at [121] (emphasis in original text).

To the extent that reference should be made to Baker,

however, the Respondent submits that the reasoning of
12
Quoting Lord Hobhouse in R (Junttan Oy) v. Bristol Magistrates’ Court (infra) at para. 103.
 - 17 -

the minority, in particular that of Lord Clarke’s, is

cogent and highly persuasive. The manner in which
the minority reached the conclusion it did is elaborated
below.

43. In Larner v. British Steel plc [1993] ICR 551, the

English Court of Appeal considered whether the word
“safe” in section 29(1) of the 1961 Act meant “safe
from a reasonably foreseeable danger”. Peter Gibson,
J. said, at 562:

“I start by considering the words of section 29(1)

apart from authority. They contain no express
reference to foreseeability, reasonable or otherwise.
‘Safe’ is an ordinary English word and I cannot see
any reason why the question whether a place of
work is safe should not be decided purely as a
question of fact, without putting any gloss on the
word … Further, to imply words in the section so as
to introduce a test of reasonable foreseeability is to
reduce the protection afforded by the Act of 1961
for the workman, the plain object of the section
being to provide for a safe working place: see
Nimmo v Alexander Cowan & Sons Ltd [1968] AC
107, 122, per Lord Guest. On principle and on
authority that is impermissible … This is not unfair
on the employer whose duty to make and keep the
working place safe is qualified by ‘so far as is
reasonably practicable’, and I see no necessity to
imply any other qualification. It would seem wrong
to me to imply a requirement of foreseeability, as
the result will frequently be to limit success in a
claim for breach of statutory duty to circumstances
where the workman will also succeed in a parallel
claim for negligence; thus it reduces the utility of
the section.” 13

44. In Mains v. Uniroyal Englebert Tyres Ltd 1995 SC

518, the Scottish Inner House agreed with the decision
of Larner and held (at 530) that reasonable
13
Reproduced in the judgment of Lord Clarke in Baker at 1076-1077 [197].
 - 18 -

foreseeability is relevant in considering section 29(1) of

the Act, but “only at the later stage of considering
whether the employers have discharged the onus upon
them of showing that there were no reasonably
practicable precautions which could have been taken.”

45. Lord Clarke in Baker at 1080 [204] reproduced the way

Lord Johnston put it in Mains at 536:

“The obvious starting point in my opinion is that

the wording of the section, putting aside the
qualification, does not admit immediately any
reference to reasonable foreseeability. The verb
‘shall’ is relentless and the phrase ‘made and kept
safe’, if looked at on the basis of made and kept
‘accident free’, would immediately admit a
construction so far as these words go that if an
accident occurs within the workplace and related to
it … the pursuer need prove no more. The
defender then can raise the issue of reasonable
practicability on any basis that he thinks fit.”

46. In R v. Chargot Ltd (trading as Contract Services)

[2009] 1 WLR 1, the House of Lords is concerned with
the interpretation of sections 2 and 3 of the English
Health and Safety at Work etc. Act 1974. It is of
particular relevance that section 6A of the FIUO was
modelled on section 2 of this Act: See Paul Y
General Contractors Limited v. HKSAR (2013) 16
HKCFAR 487 at 496 [17]. The House of Lords
in Chargot held that section 2 of the 1974 Act is a
result provision. It provides for a duty to ensure
certain things. Lord Hope (at para. 17) had this to say:

“The answer is that he is to ensure the health and

safety at work of all his employees … These duties
are expressed in general terms, as the heading to
this group of section indicates. They are designed
to achieve the purposes described in section 1(1)(a)
and (b). The description in section 2(2) of the
matters to which the duty in section 2(1) extends
 - 19 -

does not detract from the generality of that duty.

They describe a result which the employer must
achieve or prevent. These duties are not, of course,
absolute. They are qualified by the words ‘so far as
is reasonably practicable’. If that result is not
achieved the employer will be in breach of his
statutory duty, unless he can show that it was not
reasonably practicable for him to do more than was
done to satisfy it … It is the result that these duties
prescribe, not any particular means of achieving
it.”,

although his lordship also recognised that the statutory

framework so created is not intended to be excessively
burdensome and concerned with risks that are material.

47. In answering the question as to whether or not the

concept of “reasonable foreseeability” should be
imported to the assessment as to whether or not a
workplace is to be regarded as “safe”, the Respondent
respectfully submits that it is not enough (although the
Appellant appears to be contending that it is) to point to
the overall effect of the provisions being construed that
the degree of safety to be achieved by the proprietor has
consistently been held not to be absolute but only
relative. To do so without considering how that same
conclusion could be arrived at through either of the two
strands of authorities rehearsed in Baker is, in the
Respondent’s respectful submissions, singularly
unhelpful.

48. It is indeed the case that none of the authorities (decided

in Hong Kong or otherwise) cited requires the
proprietor to achieve absolute safety in the sense that
the workplace should be entirely risk free and without
accident. That will be imposing too high a standard
that no proprietor can possibly achieve, no matter how
conscientious he is. As Lord Hobhouse remarked in R
(Junttan Oy) v. Bristol Magistrates’ Court [2003]
ICR 1475 (at para. 103):
 - 20 -

“There is no such thing as absolute safety. All

safety is relative. Two men can legitimately hold
different opinions whether a machine is safe or
unsafe. Different assessments can be and are made
of the safety of a particular machine by the
authorities in different countries.”

This is why some risk of injury is regarded as a fact of

industrial life.

49. The majority of the U.K. Supreme Court in Baker

reconciled the relentlessness of the general duty on the
proprietor to ensure that the workplace is “safe” by
comparing the meaning of it with the word “dangerous”
and imported the concept of reasonable foreseeability
(from the common law duty of care in negligence) to
mitigate the harshness of the statutory provisions.

50. On the other hand, the Respondent submits that the

preferred approach is to achieve the same result for the
purpose of the FIUO (as did the dissenting judges
in Baker) through the express qualification of
“reasonably practicable” introduced by the legislature
when imposing a duty to ensure that the workplace is
“safe” simpliciter (not “reasonably safe”).

51. The preferred approach in the Respondent’s

submissions is time-honoured. In Galashiels Gas Co
Ltd v. O’Donnell [1949] AC 275, Lord MacDermott
said, at 286:

“My Lords, if this means that every lift shall be kept

continuously – or at least while it is available for
use as a lift – in efficient working order, the nature
of the obligation is clear. It then falls into a
category long recognised and firmly established by
authority; it is a strict or absolute duty and neither
intention nor lack of care need be shown in order to
prove a breach of it … There was abundant proof
that the mechanism had failed and that failure
resulted in the death of the respondent’s husband.
 - 21 -

Once the absolute nature of the duty imposed by the

statute is established that is proof enough.”

Accordingly, once the precise nature and scope of the

duty imposed, as a matter of construction, is
ascertained, the statutory obligation must be met and it
is not necessary to show that the proprietor is negligent
or the particular risk is reasonably foreseeable.

52. Similarly, in R. v. HTM Ltd [2006] EWCA Crim 1156,

Latham, L.J. said, at para. 22:

“Foreseeability is merely a tool with which to

assess the likelihood of a risk eventuating. It is not
a means of permitting a defendant to bring
concepts of fault appropriate to civil proceedings
into the equation by the back door.”

53. The true effect of Baker (which construed the Factories

Act 1961) over the prosecution of offences under the
Health and Safety at Work etc. Act 1974 (on which
FIUO was modelled) was considered by the English
Court of Appeal (which considered itself bound by the
U.K. Supreme Court) in Tangerine Confectionery Ltd
(2012) 176 JP 349 14 . Hughes, L.J., giving the
judgment of the court, had this to say:

“29. … to ask whether the accident was

foreseeable is, as a general proposition, clearly
wrong … If it is not an element of the offence that
it caused the accident, it cannot be an element of it
that the accident must be foreseeable. It may of
course be true on some facts that the only danger
suggested is the danger which eventuated, in which
case the question arises of the relevance of
foreseeability of that danger, but even then there
can be no question of law requiring that the
circumstances of the accident be foreseeable. …

“36. … Foreseeability of risk (strictly

14
See also Blackstone’s Criminal Practice 2015 at A6.20 on p.123
 - 22 -

foreseeability of danger) is indeed relevant to the

question whether a risk to safety exists. That
accords with the ordinary meaning of risk, as is
demonstrated by the concept of a risk assessment,
which is itself an exercise in foresight. Whether a
material risk exists or does not is, in these cases, a
jury question and the foreseeability (or lack of it) of
some danger or injury is a part of the enquiry.
None of this, however, means that in a prosecution
under either section it is incumbent on the Crown
to prove that the accident which occurred was
foreseeable. That would convert the sections into
ones creating offences of failing to take reasonable
care to avoid a specific incident. It means no more
than that the sections are concerned with exposure
to risk of injury, and that the extent to which injury
is foreseeable is part of the enquiry into the level of
risk. The sections do not command an enquiry into
the likelihood (or foreseeability) of the events
which have in fact occurred. They command an
enquiry into the possibility of injury. They are not
limited, in the risks to which they apply, to risks
which are obvious. They impose, in effect, a duty on
employers to think deliberately about things which
are not obvious. In most cases, absent the sort of
time factor which obtained in Baker v Quantum, it
is likely that consideration of foreseeability will
add little to the question whether there was a risk.
In most cases, we think, the principal relevance of
foreseeability will be to go to the defence of all
reasonable practicable precautions having been
taken. We note that this defence does not impose on
an employer the duty to take every feasible
precaution, or even every practicable one; it
imposes a duty to take every reasonably practicable
one. What is reasonably practicable no doubt
depends on all the circumstances of the case,
including principally the degree of foreseeable risk
of injury, the gravity of injury if it occurs, and the
implications of suggested methods of avoiding it.”
(emphasis in original text)
 - 23 -

54. Since it is impossible to cover every aspect of industrial

safety no matter how frequently regulations are to be
updated 15 , if it is necessary to make suitable references
(as in Baker) to the level of human knowledge and
scientific development attained from time to time in
making an objective assessment as to whether or not the
general duty to ensure “safety” imposed under section
6A in the FIUO has been discharged, so be it.

55. On the strength of long-established legal principles

which can be deduced from the authorities, the
Respondent submits that the general duties imposed on
the proprietor of an industrial undertaking to ensure
“safety” under section 6A of the FIUO:

(a) may strictly be regarded as absolute but only

in the sense that the prosecution is not
required to prove that a particular risk which
did materialise was reasonably foreseeable;

(b) but is clearly not absolute in the sense that the

question of reasonable foreseeability can be
entertained when considering the qualification
of “reasonably practicable”.

56. In reaching this conclusion, the Respondent submits:

(a) The words “safe” and “safety” are not

qualified under section 6A(1), (2)(a) and 2(c).
Had the legislature intended that the concept
of safety should be qualified by what is
reasonably foreseeable, it could have done so
expressly.

(b) The concept of “reasonable foreseeability”

will come into the equation in any event when
the question of what is or is not “reasonably
practicable” is to be answered. It will be
absurd for the legislature to expect the
15
See Paul Y General Contractors Ltd (supra) at 496 [17] – per Tang, P.J.
 - 24 -

prosecution to show “reasonable

foreseeability” in proving beyond reasonable
doubt that the workplace was unsafe at the
end of the day but at the same time afford the
accused an opportunity, if the proprietor
wishes to avail himself this way, that the risk
was not reasonably foreseeable in an attempt
to make out the statutory defence of not
“reasonably practicable”. Hence, it cannot
be right that “reasonable foreseeability” has to
be inferred on the concept of safety in the first
place.

(c) The purpose of enacting the FIUO is to

protect the safety of the employees by the
introduction of criminal sanction whilst, at the
same time, preserving the parties’ respective
positions at common law: See section 19 of
the FIUO. By requiring the prosecution to
prove “reasonable foreseeability” beyond
reasonable doubt will dilute the utility of the
legislative provisions.

(d) The use of the word “ensure” by the

legislature in connection with the safety and
health of employees must be deliberate. In
the context of construing section 4 of the
Factories and Industrial Undertakings
(Suspended Working Platforms) Regulations
(created under the same Ordinance now being
construed) which does not have the
“reasonably practicable” qualification, Stock,
J.A. (as he then was) had this to say
in HKSAR v. Shun Tak Properties Ltd
(C.A.) [2009] HKLRD 299 at 324:

“134. To ensure is to make sure, to

make certain, to satisfy oneself that a state
of affairs in fact exists. The duty imposed
is one that, in my opinion, goes beyond a
duty to take reasonable steps to ensure
 - 25 -

safety of those who might be placed at risk

by their engagement in platform work. It
is, rather, a duty to ensure that they are
in fact safe.” (emphasis added)

(e) This interpretation will not place an

unjustified burden on proprietors of industrial
undertakings. A proper balance here is
struck by the qualification of reasonable
practicability which can already sufficiently
address any issue of reasonable foreseeability.

(f) From a policy perspective, the proprietors of

industrial undertakings are better placed to
investigate and identify risks to health and
safety. The imposition of a standard of
safety, which does not require proof of
foresight, with criminal sanction provides
every incentive for the proprietors to do
precisely what is required of them 16 .

57. Incidentally, the Appellant (at para. 2.12 of its printed

case) referred to the Australian case of Chugg v. Pacific
Dunlop (1990) 170 CLR 249 for some general
observations said to be relevant to the construction of
section 6A of the FIUO. The Respondent observes
that the word “reasonably” is noticeably missing before
“practicable” in the relevant section with which that
case was concerned. To do what is “practicable”
imposes a stricter standard than what is “reasonably
practicable”: See Redgrave’s Health and Safety in
Factories (2nd ed.), at p. 16. Since statutory
interpretation is a highly specific exercise, it is
respectfully submitted that the assistance to be derived
from Chugg is limited.

58. In the Respondent’s respectful submissions, the

question as to whether or not the concept of reasonable
foreseeability generated from the common law of
negligence should be imported to the meaning of “safe”
16
See the sentiments expressed by Lord Clarke in Baker at 1082 [211].
 - 26 -

insofar as the nature of the proprietor’s duty toward

workers is concerned under section 6A in Hong Kong
must be answered in the negative.

59. To the extent necessary, the Respondent repeats the

synopsis of the dissenting judgment of Lord Clarke
in Baker attempted at paragraph 40 above.

(d) The qualification of “reasonably practicable”

60. In Edwards v. National Coal Board (C.A.) [1949] 1

KB 704, Asquith, L.J., at 712, set out the balancing test
as follows:

“‘Reasonably practicable’ is a narrower term than

‘physically possible’, and seems to me to imply that
a computation must be made by the owner in which
the quantum of risk is placed on one scale and the
sacrifice involved in the measures necessary for
averting the risk (whether in money, time or
trouble) is placed on the other; and that, if it be
shown that there is a gross disproportion between
them – the risk being insignificant in relation to the
sacrifice – the defendants discharge the onus on
them.”

61. Similarly, in Marshall v. Gotham Co Ltd (H.L.)

[1954] AC 360, the House of Lords held that:

“… the test of what is reasonably practicable is not

simply what is practicable as a matter of
engineering, but depends on a consideration, in the
light of the whole circumstances, at the time of the
accident, whether the time, trouble and expense of
the precautions suggested are or are not
disproportionate to the risks involved, and also an
assessment of the degree of security which the
measures suggested may be expected to afford.”

62. In determining what is “so far as is reasonably

practicable”, the court will be tasked to carry out a
 - 27 -

balancing exercise and consider the time, trouble and

expense involved to avert the risks and whether they are
disproportionate to the risks involved. The
Respondent submits that this is when and how the
concept of “reasonable foreseeability” comes into play.
In this respect, a defendant cannot be held liable for
failing to take measures against a danger which was not
known to exist. For example, in Richards v. Highway
Ironfounders (West Bromwich) Ltd [1957] 2 All ER
162, the Queen’s Bench held that because invisible dust
was not known to be the cause of silicosis, it was not
practicable to insist on wearing a mask. See
also Baker itself – per Lord Kerr at 1073 [182] and per
Lord Clarke at 1083-1084 [214].

63. The Appellant submits (at para. 4.5 of its printed case)
that the test is identical to “so far as the proprietor
acting reasonably is able to achieve that result” or a
“reasonable employer” test. With respect, the
introduction of those tests is unwarranted and will only
confuse the real issue in applying the balancing test.
The Appellant further submits that “it is simply contrary
to the words of the section to suggest that if a
precaution is reasonably practicable, it must be taken”,
citing the dicta of Lord Keith in Marshall (supra) that
“it is not the precautions in themselves which have to be
reasonably practicable.” Properly understood, the
Respondent submits that his lordship was merely saying
that in considering whether a particular precaution
should be taken, it was necessary to take into account
the whole circumstances at the time of the accident.

(e) Ensuring “safety” as qualified in Hong Kong

64. In interpreting the duty imposed to ensure “safety” as

qualified under various statutory provisions other than
the present being construed, the appellate courts in
Hong Kong appear to have considered the words “so far
as is reasonably practicable” and “safe” in tandem.
Although the nuances as to where the concept of
foreseeability should be introduced had not been
 - 28 -

presented at argument, the courts were able to arrive at

the conclusion that the overall duty imposed was not
absolute.

65. In HKSAR v. Gold Ram Engineering &

Development Ltd [2002] 2 HKC 600, a case which
concerned section 6 of the Occupational Safety and
Health Ordinance, Cap. 509 and is in almost identical
terms and format to section 6A of the FIUO,
Lugar-Mawson, J. said, at 606 [18]:

“The Magistrate’s job, however, was not to

determine the cause of the accident and apportion
liability. He had to consider whether there was any
risk involved in the operation carried out; if there
was a risk, what precautions the Appellant, or its
servants, had taken to ensure that it was a safe
operation and whether, so far as reasonably
practicable those precautions, if any had been
taken, were sufficient.”

66. In R v. Tsui Wai Ping [1993] 2 HKC 675, Chan, J. (as

he then was), at 684, enunciated the factors to be taken
into account in determining what was reasonably
practicable in the circumstances for compliance with
regulations made under the FIUO:

“… What sort of safety measures are required

depends on a number of factors. These include the
nature and type of work to be undertaken, what sort
of dangers are reasonably foreseeable, the risk of
such dangers, the consequences of such dangers,
the number of workers exposed to such dangers
and the expense and trouble needed to alleviate
such dangers and to minimise the risk involved.”

67. Thus the law in Hong Kong, as it stands, already fully

recognises that the duty of the proprietor to provide a
safe system of work is not absolute (in the sense of
entirely risk free), but only to do what is reasonably
practicable in the circumstances. This is so because
 - 29 -

the concept is already adequately embodied in the

words “so far as is reasonably practicable”.

68. At the intermediate appeal, the Judge also referred to R A:15[15]

v. Nishimatsu Construction Co. Ltd (unreported)
HCMA 1441/1996 (8 May 1997) for the proposition
that the issue was not whether one system was safer
than the other. Nor was the fact that an accident
occurred necessarily proof that the system was unsafe.

69. The Respondent therefore submits that, in Hong Kong,

the importation of the concept of “reasonable
foreseeability” twice propounded by the line of
reasoning of the majority in Baker 17 in order to achieve
an interpretation that the general duty to ensure safety at
the workplace under section 6A is not absolute is more a
hindrance than help to the attainment of the object of
the FIUO.

V. What are the requirements of the statutory defence

provided?

70. Section 18 of the FIUO provides a statutory defence and

material parts of it are extracted hereunder:

“(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 reasonably practicable …
the onus is on the accused to prove that it was …
not reasonably practicable to do more than was in
fact done to satisfy the duty or requirement …”

71. The Appellant submits (at para. 2.6 of its printed case)

17
In Baker itself, Lord Mance (of the majority) accepted that had the issue arisen for consideration, it would be
clear that the qualification of “reasonably practicable” was wide enough to take into account what was or was not
reasonably foreseeable based on current standards “as the whole aim of the balancing exercise must, in reality, be to
identify what is or is not acceptable at a particular time.” – at 1046 [82]. Lord Dyson (who agreed with Lord
Mance) also acknowledged that it would not imposed an absolute liability on safety if (as found by the English
Court of Appeal) reasonable foreseeability is already relevant to the consideration of reasonable practicability – at
1055D [111], that “if [reasonable foreseeability] is imported into the reasonable practicability qualification, there
is no need to interpret “safe” as importing reasonable foreseeability” – at 1057 [119] (emphasis in original text)
and that “if the concept of reasonable foreseeability Is not imported into ‘safe’ …, then it is imported into
reasonable practicability” – at 1057 [123].
 - 30 -

that the terms of section 18 of the Ordinance largely

resolve the issue of who bears the onus of proof on the
question over “so far as is reasonably practicable”. In
fact, section 18 itself is silent as to whether there will be
a shift of the persuasive (legal) burden or a mere
evidential burden to the defence at trial. The Appellant
advances no submissions (at least, not in express terms)
either way on this issue.

72. In this respect, the Respondent notes that the learned

editors of Archbold Hong Kong 2015 (at ¶44-12, p.
2331) are of the view that section 18 of the FIUO
“imposes an evidential burden on a defendant in respect
of proving the limits of what is practicable”, without
citing any direct authority on this point.

73. On the other hand, the following commentary can be

found in Redgrave’s Health and Safety in Factories (2nd
ed.), at p.16:

“In criminal proceedings the onus lies upon the

defendant (Health and Safety at Work etc. Act 1974,
s. 40) although proof upon the balance of
probabilities is sufficient (R v Carr-Briant [1943]
KB 607, [1943] 2 All ER 156, CCA; R v Dunbar
[1958] 1 QB 1, [1957] 2 All ER 737, CCA)”

74. In Paul Y General Contractors Ltd (supra), Tang, P.J.,

at 500-501 [37], was inclined to the view (without
deciding on the point) that the onus of proving what is
reasonably practicable is on the accused on a balance of
probabilities.

75. As with all reversed onus provisions, section 18 of the

FIUO engages constitutionally entrenched human
rights, in particular the presumption of innocence 18 .
Where a legislative provision abrogates the presumption
by placing a persuasive (legal) burden on the defendant
to prove certain matters on the balance of probabilities
in order to avoid criminal liability, it is for the
18
See article 87(2) of the Basic Law and article 11(1) of the Hong Kong Bill of Rights.
 - 31 -

government to justify the derogation that the measure is

rational and proportional. 19

76. The Court of Appeal, in deciding HKSAR v. Gurung

Krishna [2010] 4 HKLRD 456, summarised succinctly
the fundamental principles of law hitherto articulated in
various Court of Final Appeal decisions at 466 to 469
[29]-[30]:

“(f) The constitutional protection accorded to the

presumption of innocence is not absolute.
Derogation from it may be justified if the
derogation:

(i) Has a legitimate aim;

(ii) Is rationally connected with the pursuit
of that aim; and
(iii) Is no more than necessary for the
achievement of that aim.

(g) The burden of justifying the derogation is on

the state.

(h) The burden of justification is a substantial one

and for a reverse onus to be acceptable ‘there must
be a compelling reason why it is fair and
reasonable to deny the accused person the
protection normally guaranteed to everyone by the
presumption of innocence.’ The more serious the
punishment upon conviction the more compelling
must be the reason.

(i) It is incumbent upon the court to give weight to

the Legislature’s view that the imposition of a
reverse onus is an appropriate response to the
problem addressed in the statute. … There may,
however, be cases where … the court may be in as
good a position as legislature to form a
judgment … ‘The court will reach a different

19
See Lee To Nei v. HKSAR (2012) 15 HKCFAR 162; HKSAR v. Lam Kwong Wai (2006) 9 HKCFAR
574; HKSAR v. Hung Chan Wa (2006) 9 HKCFAR 614 and HKSAR v. Ng Po On (2008) 11 HKCFAR 91
 - 32 -

conclusion from the legislature only when it is

apparent the legislature has attached insufficient
importance to the fundamental right of an
individual to be presumed innocent until proved
guilty.’”

77. Section 18 of the FIUO is rationally connected with a

legitimate aim, namely the promotion of health and
safety at work of all persons employed at any industrial
undertaking. A reversed burden of proof will clearly
be conducive in encouraging vigilance in compliance
with the Ordinance. The Respondent submits that that
this section satisfies the rationality test is beyond
argument.

78. As regards the proportionality test, a similar issue in the

industrial safety context had previously been considered
by the English Court of Appeal and resolved in favour
of the prosecution. In Davies v. Health and Safety
Executive [2003] IRLR 170 at 173-174, the court held
that:

“25. The reversal of the burden of proof takes

into account the fact that the duty-holders are
persons who have chosen to engage in work or
commercial activity (probably for gain) and are in
charge of it. They are therefore not unengaged or
disinterested members of the public and in
choosing to operate in a regulated sphere of
activity they must be taken to have accepted the
regulatory controls that go with it. This regulatory
regime imposes a continuing duty to ensure a state
of affairs, a safety standard. Where the enforcing
authority can show that this has not been achieved
it is not unjustified or unfair to ask that duty holder
who has either created or is in control of the risk to
show that it was not reasonably practicable for him
to have done more than he did to prevent or avoid
it.
“…
 - 33 -

“28. The facts relied on in support of the

defence should not be difficult to prove because
they will be within the knowledge of the defendant.
Whether the defendant should have done more will
be judged objectively.

“29. If all the defendant had to do was raise

the defence to require the prosecution to disprove
it, the focus of the statutory scheme would be
changed. The trial would become focused on what
it was the enforcing authority was saying should
have been done rather than on what the defendant
had done or ought to have done which is what
Parliament intended.

“30. In complicated, and therefore potentially

the most serious cases, the prosecution might face
considerable difficulties in assuming this burden of
proof where the only relevant expertise was with
the defendant or even its state of the art supplier or
licensor abroad. In such cases therefore
enforcement might become impossible if the
defendant only had an evidential burden.”

See also Munkman on Employer’s Liability (15th ed.), at

para. 5.85.

79. The Respondent submits that what the English Court of

Appeal said in Davies about the 1974 Act has equal
application to section 18 of the FIUO. The same line
of reasoning was adopted when it is said that a
fundamental human right is being encroached but only
in respect of the exercise of a privilege or the discharge
of a duty imposed upon a particular class of persons
engaging in some commercial or regulated activities
especially for profit (as opposed to the general
population) in the protection of the public interest or the
rights of others – See, for example:

(a) the special defence to the use of a false

instrument only available to an asylum
 - 34 -

seeker – R v. Makuwa [2006] 1 WLR 2755

(presumption of innocence);

(b) the defence for a driver to show that he would

not be driving over the limit – Sheldrake v.
DPP [2005] 1 AC 264 (presumption of
innocence);

(c) the duty of the registered car owner to supply

driver’s identity – Secretary for Justice v.
Latker [2009] 2 HKC 100; Brown v. Stott
[2003] 1 AC 681 (right to silence);

(d) the choice of employing a corporate vehicle to

participate in political activities – Democratic
Party v. Secretary for Justice [2007] 2
HKLRD 804 (freedom of association and
right to privacy); and

(e) the defence of no intent to defraud relating to

the disposal of property after (but not before)
the declaration of bankruptcy – AG’s
Reference 1/2004 [2004] 1 WLR 2111
(presumption of innocence).

The impugned provisions were held to be a

proportionate response striking a proper balance with
the protection of the public interest or the rights of
others, namely: for (a), effective immigration
control, for (b) and (c), the safety of the driver himself,
passengers and other road users, and for (d) and (e), the
interests of creditors, etc.

80. For a critical examination of the mature jurisprudence

developed by the English courts in the context of the
presumption of innocence, see:

(a) David Hamer, “The Presumption of

Innocence and Reverse Burdens: A
Balancing Duty” [2007] C.L.J. 142 (March
2007) at 170-171 on the “pragmatics of
 - 35 -

proof” and “prosecutorial efficiency” in the

context of regulatory offences where a
principled explanation can reconcile the
seemingly inconsistent judicial decisions
even though the nature of the issue of
compatibility of reverse burdens with the
presumption of innocence is complex,
multi-faceted and value-laden; and

(b) Richard Glover, “Sheldrake, Regulatory

Offences and Reverse Legal Burdens of
Proof” (2006) 4 Web JCLI 1 at 10-16 and
23-24 on the incidence of proof in the
context of homicide, immigration, drink
driving and public health and safety offences
and, in particular, on what the author termed
the “licensing” approach.

81. The usual justification for a reversed onus provision in

respect of regulatory offences applies equally to the
present offences under the FIUO 20 . Furthermore, the
assessment of risks and the quantum of such risks to be
balanced with the money, time and trouble involved in
averting them are something peculiar to the knowledge
of the proprietor in question and the industry to which
he belongs 21 .

82. A reading-down of section 18 so as to impose a mere

evidential burden on the accused will mean that the
prosecution needs to prove the reasonable practicability
of what needs to be done to avert an identifiable risk
20
“… regulatory offences are exceptional … Extraordinary proof imbalances are more likely to exist, and it
appears less objectionable to give precedence to this pragmatic consideration. … Regulatory regimes are
established to respond to practical rather than moral concerns. In many spheres of the modern economy – …
workplace safety – regulations play a crucial role in safeguarding the public interest. While the breach of
regulations often carries potential for extensive and severe harm, the penalties are often fairly minor. The
primary concern is to prevent harm … rather than securing retribution or apportioning just deserts. Reverse
persuasive burdens provide a practical way for the regulator to manage the cost of prosecution.” – see David
Hamer (supra) at 166.
21
“Pragmatic proof arguments gain the most leverage in relation to regulatory offences. Regulated parties have
relatively less stake than other criminal defendants, and may have a genuine proof advantage over a
resource-strapped regulator. Further, the regulated defendant may be considered to have voluntarily traded in
some of his procedural rights for the opportunity to profitably engage in a hazardous activity. … the defendant
may be considered to have agreed to demonstrate certain aspects of his compliance as required. … by engaging
in the regulated activity the defendant assumes responsibility for proof of his compliance.” – see David Hamer
(supra) at 159 and 167.
 - 36 -

beyond reasonable doubt. In that case, the

effectiveness of the FIUO will be seriously hampered if
all that a proprietor needs to demonstrate in order to get
acquitted is only that what could have been done to
ensure safety at the workplace may not be “reasonably
practicable”.

83. Further, the maximum penalty of the offence created by

section 6A of the FIUO is a fine of $500,000. Personal
liberty is not at risk unless the prosecution additionally
proves that the proprietor committed the offence
wilfully and without reasonable excuse, in which case
he can additionally be penalised by way of
imprisonment for up to 6 months. This also runs
contrary to any argument that the effect of section 18 in
shifting the persuasive (legal) burden is draconian 22 .

84. In the event this Court is to hold that the prosecution

has a duty to demonstrate that any identified risk has to
be foreseeable or reasonably foreseeable in proving an
offence contrary to the relevant provisions under the
FIUO (as if it were in the case of a common law claim
of negligence), the Respondent submits that this is all
the more reason to construe section 18 as reversing the
persuasive / legal (as opposed to the evidential) burden
to the accused in proving that what could have been
done to eliminate that risk was not “reasonably
practicable”. To do otherwise, would be to further
dilute the intended effect of the FIUO in encouraging
vigilance in compliance with the regulatory obligations
specifically introduced by the legislature for the
protection of employees in the workplace.

85. For the above reasons, the Respondent submits that in

shifting the persuasive (legal) burden of proof, section
18 of the FIUO clearly satisfies the proportionality test.

22
A reverse onus provision is “less objectionable for regulatory offences. The consequence of regulatory breach
for society can be calamitous … to the potential human and environmental devastation. The community has a
considerable interest in enforcing such laws, but the defendant has relatively little at stake in terms of censure,
punishment and stigma.” – See David Hamer (supra) at 158.
 - 37 -

VI. Applying the law to the facts of this case

(a) Whether or not the system of work adopted by the

Appellant was safe?

86. In the present case, the overall situation, according to

the evidence, was this:

(a) Because of the nature of the site and the A:17[21]

intended operation of the crane, a “trapping
zone” (within which any person present ran
the risk of being squashed between the
counterweight of the crane and the guard rails
on the platform) within the intended restricted
area was identified and readily so.

(b) The crane operator’s view within the A:23[39]

restricted area was in some way impeded and
his disadvantage in this respect had to be
addressed by a system whereby the two
signalmen were relied upon to give him
instructions as to when it would be safe for
the crane to be operated.

(c) Both signalmen were also responsible A:18[23]

individually for erecting plastic Mills-type
barriers to prevent anyone (including
themselves) from entering the restricted area
at all whenever work was in progress.

(d) It would have been, in any event, foreseeable A:19-20[28]

that any given signalman who was also
responsible for erecting the barriers
demarcating the restricted area may do so
from within it rather than from outside.

(e) The view of a signalman standing on one side A:20[30]

of the crane (which was a large piece of
equipment) would necessarily be restricted as
to what was happening on the other side of it.
 - 38 -

In these circumstances, the shortcoming of not imposing A:23[38-39]

a requirement that an “all-clear” signal to be given by
each of the signalman (in this case two) to the crane
operator is immediately identifiable. It is on the basis
of the very absence of this requirement that the system
of work was impugned at trial because it did not
sufficiently address the safety of, inter alios, the two
signalmen themselves who might find themselves inside
the restricted area within which the mobile crane
operated.

87. Both the Magistrate and the Judge concluded that the
system of work adopted by the Applicant was not safe
on the totality of the evidence. Given the “reasonably
practicable” qualification, neither the Magistrate nor the
Judge considered that the system of work implemented
had to be absolutely risk-free.

88. The Judge further said that to require each of the A:24[42]
deceased and PW2 to give an “all-clear” signal “would
not be seeking to achieve perfection nor is it obvious
only with the benefit of the clarity of vision provided by
hindsight. The provision in the system of such a
requirement would cure what is an obvious defect: it
is that omission which results in the system not being
safe so far as is reasonably practicable.”

89. Regardless of the standard of safety to be adopted in the

present case, the Appellant had all along been aware of
the risk of a trapping hazard. The case of the
Appellant is such that its system of work was safe
because it had numerous measures to eliminate this risk
and it was not known why the deceased was in the A:02-03[06]
restricted area at the wrong time.

90. The Respondent submits that whether the system of

work adopted by the Appellant was safe is not a
quantitative assessment. Both the Magistrate and, for
that matter, the Judge in the intermediate appeal had
considered the totality of the evidence. The same
conclusion was reached in that the omission of the
 - 39 -

“all-clear” signal from each of the deceased and PW2

rendered the system inherently unsafe and it was
reasonably practicable to cure this defect in the system.
These are findings of fact which the Magistrate was
entitled to make and the Judge to confirm on the
evidence adduced in this case.

91. The conclusion, in the Respondent’s respectful

submissions, would have been the same even if the test
adopted by the majority in Baker were to be applied to
introduce the requirement of foreseeability in evaluating
if the system of work was “safe” in the first place.
This is so in the light of the evidence at trial and also
bearing in mind that even though “safe cannot mean
‘absolutely safe’, [because] it must take account of
circumstances likely to occur, including the fact that
employees do not always behave with reasonable care
for their own safety.” 23

92. It is plainly right for the Judge to have concluded that A:15:14
whatever importance the decision of Baker might be
attached to the proper interpretation of section 6A of
FIUO, it adds nothing which would influence the
outcome of this appeal.

(b) Whether the defence under section 18 of the FIUO

had been made out?

93. In the present case, evidence had been adduced by the

prosecution to show why the system of work in place
was unsafe and the defence expert accepted that a safe A:04[11] &
system of work had not accordingly been adopted. It A:07[24]
is also self-evident that it cannot sensibly be suggested
that the proposed course in requiring both signalmen to
give an “all-clear” signal to the crane operator would be A:24[41] &
disproportionate or imposing too high a standard or A:25[46]
burden on the Appellant and hence not “reasonably
practicable” because:

(a) walkie-talkies had already been provided to A:21[33] &

23
per Lord Mance in Baker at 1038D-E [65].
 - 40 -

members of the lifting team; and A:24[42]

(b) daily on-site meetings during which the A:24[43]

question of safety was discussed and
instructions given were supposed to be held.

Accordingly, to ask both signalmen deployed (i.e. the

deceased and PW2) to give an “all-clear” signal to the
crane operate in order to cure the obvious defect
identified would not involve any additional resource.

94. It was on this basis that the Respondent was prepared to A:25[47]
allow the intermediate appeal to proceed on the
assumption that section 18 of the FIUO only imposed
an evidential burden on the Appellant. Be that as it
may, even adopting a legal position most favourable to
the Appellant, the Judge was satisfied that the A:25[46]
Respondent had established beyond reasonable doubt
that it was reasonably practicable to do more than
actually had been done.

95. Given the way the intermediate appeal was argued, it is

clear that the statutory defence under section 18 of the
FIUO had not been made out even upon a concession
that only an evidential burden is shifted to the accused
and that the persuasive (legal) burden remains with the
prosecution.

VII. Disposal of the present appeal

96. The Respondent submits that the Appellant clearly

failed to provide and maintain a system of work that
was, so far as is reasonably practicable, safe and
without risks to health.

97. References are made to the “reasonable proprietor” at

section 8 of the Appellant’s printed case. They amount
to the introduction of concepts of the common law duty
of care in negligence which is alien to the statutory
framework under the FIUO and are clearly
misconceived. In any event, the particular contentions
 - 41 -

put together in support are, with respect, no more than a

disguise to re-argue the case afresh. This attempt must
be resisted in order not to reduce the function of the
Court of Final Appeal into that of a second court of
appeal.

98. It is plainly correct for the convictions to be entered by

the Magistrate against the Appellant in respect of the
two summonses issued against it in the light of the
overwhelming evidence adduced and largely undisputed
at trial. There is no demonstrable error on the part of
the Judge in upholding the convictions at the
intermediate appeal by way of re-hearing.

99. For all the reasons given above, the Respondent

respectfully asks that the appeal be dismissed.

Dated this 15th day of December, 2014.

(Wesley W. C. WONG, SC)

Deputy Director of Public Prosecutions

(Andrew H. C. LI)
Senior Public Prosecutor

To: The Registrar, Court of Final Appeal (x 6)

And to: Messrs Munros

Solicitors for the Appellant
 FACC 10/2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 10 OF 2014
(ON APPEAL FROM HCMA NO. 426 OF 2013)

Between

GAMMON CONSTRUCTION LIMITED Appellant

And

HKSAR Respondent

The Case for the Respondent

(Date of Hearing: 3 March 2015)

Filed this 15th day of December, 2014.

Department of Justice
5/F, High Block
Queensway Government Offices
66, Queensway
Hong Kong
Tel : 2867 2215
Fax : 2877 0171