IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO. 347 OF 1997
_________________
BETWEEN
HKSAR Respondent
and
CHINA STATE CONSTRUCTION
ENGINEERING CORPORATION Appellant
________________
Coram : The Hon. Madam Justice Beeson in Court
Date of Hearing : 25th February 1998
Date of Delivery of Judgment : 25th February 1998
________________
JUDGMENT
________________
The Appellant company was convicted in the Magistracy on a
summons contrary to Regulations 38 P(1), 68 (1)(a) and 68(2)(g) of the
Construction Site (Safety) Regulations made under the Factories and
Industrial Undertakings Ordinance, Cap.59. This related to a failure to
instal guardrails or a suitable covering at a dangerous place of work.
After trial the Magistrate found the summons proved; the
- 2-
Appellant company now appeals that conviction. The Magistrate
imposed a fine of $100,000.00 and costs of $5,000.00. An appeal against
sentence was lodged.
The facts show that a Labour Officer made an inspection visit
to the Appellant’s construction site and found a worker breaking concrete
while squatting down on the top of a water meter cupboard on the 27th
Floor. He was using a small version of a pneumatic drill and if he had
fallen would have fallen a distance of 27 floors to the ground. It was
canvassed in the course of the case as to what the appropriate working
protection would have been and it appeared that although a guardrail
could have been erected, that ideally a cover should have been placed
across the dangerous area.
It was submitted that the conviction was unsafe and
unsatisfactory as the Magistrate erred in not accepting the worker’s
evidence that he was expressly instructed not to work on the top of the
cupboard; that the Factory Inspector of the Labour Department was not
an independent witness, and that the Magistrate erred further in holding
that the top of the water cupboard was a working place. Having
considered the transcript of the evidence I rejected all those grounds of
appeal and upheld the appeal against conviction. There was ample
evidence in this case on which the Magistrate could and did convict.
The appeal against sentence suggested that the Magistrate
failed to consider the usual starting point of fines for the offence in
question, that she only took into account the maximum fine and that
mitigation was not taken account of. This “mitigation” was the evidence
- 3-
of the Labour Officer that after the inspection the Appellant had
mentioned that his advice about erecting guardrails or covering would be
implemented and secondly that no accident actually occurred as a result
of that particular system of work. A further ground was that the
Magistrate had placed undue emphasis on the nature of the defence run
by the Appellant. That defence was that it was the worker’s fault for
getting on top of the cupboard in the light of instructions allegedly given
to him not to do so. The magistrate had properly rejected that as any
defence.
This company has a very poor safety record. It had 27
convictions recorded between 11th September 1991 and 11th July 1996.
They all related to similar matters; floor edge no guardrail (2x), lift shaft
opening unfenced (7x); unfenced floor edges (14x); unfenced floor
opening (3x); unfenced roof edge (1). The last four offences in 1995
and 1996 all related to unfenced floor edges. Sentences running from
$10,000.00 to $50,000.00 were imposed overall and for the last three
offences fines of $50,000.00 had been imposed each time.
I was referred to the case of R. v. Paul Y-ITC Construction
Ltd. Mag. App. 63/97 where Gall J. looked at the starting point for this
type of sentence. The judge referred to the case of the R.v. Hip Hing
Construction Co. Ltd., Magistracy Appeal No. 440 of 1993 and in
particular to Leonard J’s comment at p.12.
“There is no tariff and the result of this appeal
cannot be taken to establish a tariff. I would,
however, observe that the level of sentence
prevailing in 1992 appears to have been very low
- 4-
having regard to the statutory maxima. If the
prosecution in future leads evidence to show that
current sentencing is failing to induce contractors to
give more than lip-service to the safety regulations,
magistrates should consider a gradual increase in the
starting point for sentence until a point is reached
where it is cheaper for contractors to enforce
obedience to the regulations than to ignore them.”
It should be noted that the maximum fine for this offence was
increased in January 1994, from a maximum of $50,000.00 to
$200,000.00. It is suggested that the magistrate did not take into
account any mitigating factors on behalf of the Appellant. In fact I
cannot see that there were any mitigating factors. There was no plea of
guilty but a full day’s trial and since 1991 the company has been
convicted for 27 similar offences. The magistrate in her Reasons for
Sentence said that she considered the sentence and costs moderate and
although it is inappropriate for her to comment thus on her own sentence
in her Reasons for Sentence, I must say that I do as well.
This is clearly a case where fines have not proved any
deterrent at all to this contractor - it is difficult given the number of
convictions it has amassed to regard it as even paying lip-service to the
regulations. Clearly it has not reached the point referred to by Leonard J.
when it is cheaper for it to “enforce obedience to the regulations than to
ignore them” I dismiss this unmeritorious appeal against sentence and
increase the fine to $150,000.00 with a further one month to pay the
balance. The costs order remains at $5,000.00.
(C.M. Beeson)
- 5-
Judge of the Court of First Instance
Lily Tse, S.G.C. for DPP.
Anthony Cheung, instructed by Yaddy Cheung & Co. for Appellant.
HKSAR v. CHINA STATE CONSTRUCTION ENGINEERING CORPORATION
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO. 347 OF 1997
_________________
BETWEEN
HKSAR Respondent
and
CHINA STATE CONSTRUCTION
ENGINEERING CORPORATION Appellant
________________
Coram : The Hon. Madam Justice Beeson in Court
Date of Hearing : 25th February 1998
Date of Delivery of Judgment : 25th February 1998
________________
JUDGMENT
________________
The Appellant company was convicted in the Magistracy on a
summons contrary to Regulations 38 P(1), 68 (1)(a) and 68(2)(g) of the
Construction Site (Safety) Regulations made under the Factories and
Industrial Undertakings Ordinance, Cap.59. This related to a failure to
instal guardrails or a suitable covering at a dangerous place of work.
After trial the Magistrate found the summons proved; the
- 2-
Appellant company now appeals that conviction. The Magistrate
imposed a fine of $100,000.00 and costs of $5,000.00. An appeal against
sentence was lodged.
The facts show that a Labour Officer made an inspection visit
to the Appellant’s construction site and found a worker breaking concrete
while squatting down on the top of a water meter cupboard on the 27th
Floor. He was using a small version of a pneumatic drill and if he had
fallen would have fallen a distance of 27 floors to the ground. It was
canvassed in the course of the case as to what the appropriate working
protection would have been and it appeared that although a guardrail
could have been erected, that ideally a cover should have been placed
across the dangerous area.
It was submitted that the conviction was unsafe and
unsatisfactory as the Magistrate erred in not accepting the worker’s
evidence that he was expressly instructed not to work on the top of the
cupboard; that the Factory Inspector of the Labour Department was not
an independent witness, and that the Magistrate erred further in holding
that the top of the water cupboard was a working place. Having
considered the transcript of the evidence I rejected all those grounds of
appeal and upheld the appeal against conviction. There was ample
evidence in this case on which the Magistrate could and did convict.
The appeal against sentence suggested that the Magistrate
failed to consider the usual starting point of fines for the offence in
question, that she only took into account the maximum fine and that
mitigation was not taken account of. This “mitigation” was the evidence
- 3-
of the Labour Officer that after the inspection the Appellant had
mentioned that his advice about erecting guardrails or covering would be
implemented and secondly that no accident actually occurred as a result
of that particular system of work. A further ground was that the
Magistrate had placed undue emphasis on the nature of the defence run
by the Appellant. That defence was that it was the worker’s fault for
getting on top of the cupboard in the light of instructions allegedly given
to him not to do so. The magistrate had properly rejected that as any
defence.
This company has a very poor safety record. It had 27
convictions recorded between 11th September 1991 and 11th July 1996.
They all related to similar matters; floor edge no guardrail (2x), lift shaft
opening unfenced (7x); unfenced floor edges (14x); unfenced floor
opening (3x); unfenced roof edge (1). The last four offences in 1995
and 1996 all related to unfenced floor edges. Sentences running from
$10,000.00 to $50,000.00 were imposed overall and for the last three
offences fines of $50,000.00 had been imposed each time.
I was referred to the case of R. v. Paul Y-ITC Construction
Ltd. Mag. App. 63/97 where Gall J. looked at the starting point for this
type of sentence. The judge referred to the case of the R.v. Hip Hing
Construction Co. Ltd., Magistracy Appeal No. 440 of 1993 and in
particular to Leonard J’s comment at p.12.
“There is no tariff and the result of this appeal
cannot be taken to establish a tariff. I would,
however, observe that the level of sentence
prevailing in 1992 appears to have been very low
- 4-
having regard to the statutory maxima. If the
prosecution in future leads evidence to show that
current sentencing is failing to induce contractors to
give more than lip-service to the safety regulations,
magistrates should consider a gradual increase in the
starting point for sentence until a point is reached
where it is cheaper for contractors to enforce
obedience to the regulations than to ignore them.”
It should be noted that the maximum fine for this offence was
increased in January 1994, from a maximum of $50,000.00 to
$200,000.00. It is suggested that the magistrate did not take into
account any mitigating factors on behalf of the Appellant. In fact I
cannot see that there were any mitigating factors. There was no plea of
guilty but a full day’s trial and since 1991 the company has been
convicted for 27 similar offences. The magistrate in her Reasons for
Sentence said that she considered the sentence and costs moderate and
although it is inappropriate for her to comment thus on her own sentence
in her Reasons for Sentence, I must say that I do as well.
This is clearly a case where fines have not proved any
deterrent at all to this contractor - it is difficult given the number of
convictions it has amassed to regard it as even paying lip-service to the
regulations. Clearly it has not reached the point referred to by Leonard J.
when it is cheaper for it to “enforce obedience to the regulations than to
ignore them” I dismiss this unmeritorious appeal against sentence and
increase the fine to $150,000.00 with a further one month to pay the
balance. The costs order remains at $5,000.00.
(C.M. Beeson)
- 5-
Judge of the Court of First Instance
Lily Tse, S.G.C. for DPP.
Anthony Cheung, instructed by Yaddy Cheung & Co. for Appellant.