Shortcomings in Hong Kong’s building regulations could complicate efforts to prove manslaughter in the Tai Po housing estate blaze that killed 159 people, according to legal and construction experts.
Police have arrested 21 people so far, including 15 for alleged manslaughter, after authorities found flammable foam panels and nets that were not flame-retardant on the scaffolding that covered the eight blocks of Wang Fuk Court, which had been under renovation since July last year.
The blaze at the estate, which lasted for 43 hours after breaking out last Wednesday, rapidly tore through seven of its eight blocks, trapping many residents inside.
Authorities earlier said the investigation had begun “along the lines of manslaughter” after they arrested 15 people, including individuals from the main contractor, construction consultancy and subcontractors in charge of scaffolding and the exterior walls, on suspicion of the offence.
Experts said that because of the complexity of construction law and relevant building regulations, it would not be easy to pursue manslaughter charges which required proof that those involved “turned a blind eye” to the use of allegedly substandard material and committed “gross negligence”.
They added that existing rules did not explicitly regulate the use of foam boards and were less stringent for renovation sites compared with new construction projects.
Veteran criminal lawyer Stephen Hung Wan-shun said the threshold for manslaughter prosecution was very high.
Prosecutors would have to prove the accused were aware of the malpractice at the site or had approved the use of unqualified materials that led to the cause of death, he said.
“There must be some unlawful act – but what is that?” the law firm partner said.
Hung pointed out that prosecutors had previously failed to convict company directors in a manslaughter case in Hong Kong, and said it would not be easy to prove the liability of senior management within a multilayered construction project.
The lawyer was referring to the city’s first manslaughter conviction of a corporate in 1993, when Ajax Engineers and Surveyors was found guilty over the deaths of 12 workers killed in a lift collapse at a construction site.
Ajax was fined HK$3 million but its directors were acquitted.
But Hung added that contractors nonetheless had a “duty of care” to residents of the site, and the breach of that duty – such as the proper practice of safety management – could constitute “gross negligence”.
Arthur McInnis, an adjunct professor at the Hong Kong University of Science and Technology’s department of civil and environmental engineering and the author of construction law textbooks, also said it would be hard to hold directors accountable while pointing out shortcomings in the codes of practice.
He explained that contractors and building professionals were required to follow various codes of practice issued by the authorities, in addition to the primary regulations set out in the Buildings Ordinance.
Although these codes were non-statutory, failure to comply with them could be treated as a “relevant factor” to prove a criminal case, he said.
However, as Hong Kong has yet to codify corporate manslaughter – an offence which targets malpractice in a company that results in a person’s death – McInnis said it would be “harder to hold the directors liable on behalf of the company”.
“That doesn’t mean that they cannot prosecute here. They can, they will. But it’s different,” he said.
McInnis noted that codes of practice put “very little attention” to the materials used in maintenance or non-permanent works, compared with new building construction.
For instance, the rules regulated the external covering of scaffolding but did not specify or include the materials used within the scaffolding structure.
“Not so much really on something like this, which is just the external frame that you would use on the building and regarded as a temporary measure,” McInnis said.
“So there obviously hasn’t been the same level of interest or detail or provision in works that are temporary.”
Authorities said the foam panels used to seal windows of the eight blocks at Wang Fuk Court contributed to the rapid spread of the fire.
Solicitor Kenneth Ng Hung-sui said “minor works” such as external cladding did not need approval and consent from the Buildings Department, even when such work fell under the highest category of complexity and risk of minor works.
“Building maintenance is different from new construction. It [the contractor] only needs to report to the Buildings Department what time the work starts and finishes, full stop,” the specialist in construction regulatory matters said.
Ng said there were no existing rules that governed the use of any type of foam board, noting it was commonly used in construction.
He added that the relevant clauses concerning the netting around the scaffolding in the code of practice were intended to prevent objects from falling and did not regulate what materials could or could not be placed behind the scaffolding.
Tony Tse Wai-chuen, a lawmaker representing the architectural, surveying, planning and landscape sector, said he understood why the building regulations did not cover each and every category of material used, as it was impossible to keep track of the new items and materials emerging in the industry.
He emphasised that the industry must rely on practitioners to submit materials for testing or verification to ensure their safety performance.
“You cannot include every material in the law. Some materials are selected based on the judgment of contractors or professional consultants,” he said. -- SOUTH CHINA MORNING POST
