R. v. HIP HING CONSTRUCTION CO. LTD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 747 OF 1995

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J U D G M E N T

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1. This was an appeal against a fine of $50,000 imposed for an offence against Regulations 38L(a), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations made under Factories & Industrial Undertakings Ordinance, Cap.59. The offence described was the failure of the appellant company to closely board or plank a mobile scaffold tower.

2. In her Reasons for Sentence, the learned Magistrate said this:

" In sentencing the Appellant I had taken into account the fact the penalties in relation to the present regulation was amended to increase from a maximum of $50,000 to a maximum of $200,000. The intention of the legislation is clear, it is obvious that the present regulation was enacted as a preventive rather than a remedial measure. Whether it was a technical breach or not was irrelevant. The fine was increased to show that the legislature had taken a very serious view of the contravention of this regulation. The Appellant did not enjoy a clear record. I considered that a fine of $50,000 and costs of $2,000 was appropriate in relation to the present summons."

3. The increase in the maximum penalty was enacted in January 1994, some six months before the commission of this offence. On the last occasion on which the appellant company had been in breach of these Regulations, the fine had been one of $5,000 when the maximum fine was $50,000. In this case while there had been a failure on the part of the appellant company to see to it that the scaffolding tower was properly boarded and protected, nevertheless, the workmen found at the site, on the occasion when the Labour Department employees visited the site, were wearing safety harnesses. This is a mitigating factor and ought to have been so considered by the learned Magistrate.

4. I felt that the fine of $50,000 in the circumstances of this case was too high. Taking account of all of the circumstances, including the mitigating factors, and the fourfold increase in the maximum penalty, I thought that a fine of $25,000 was adequate in this case. I therefore allowed the appeal to the extent that the fine of $50,000 was reduced to $25,000.