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

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J U D G M E N T

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1. 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.

2. After trial the Magistrate found the summons proved; the 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.

3. 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.

4. 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.

5. 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 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.

6. 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.

7. 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 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."

8. 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.

9. 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.