R. v. PAUL Y. - ITC CONSTRUCTION LTD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.63 OF 1997

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J U D G M E N T

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1. The appellant was convicted on 2^nd December 1996 for failing to provide a suitable guardrail at a construction site, contrary to Regulations 38P(1), 68(1)(a) and 68(2)(g) Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance.

2. A fine in the sum of $100,000 was imposed. The learned Magistrate having taken as his starting point a sum of $150,000 and reducing it to $100,000 in consequence of the plea entered by the company.

3. Mr Houghton for the appellant argues that the learned Magistrate erred in passing sentence in taking into account irrelevant considerations or taking into account matters which were not established by the evidence. This refers to a passage in the reasons given by the Magistrate as to his level of sentence when he said :-

"In my capacity as Coroner I am aware of the increasing frequency of fatal accidents on building sites. Sitting as I do in this Magistracy I am also aware of the monotonous regularity with which contractors appear before this Court charged with offences relating to neglecting the safety of their employees."

4. I accept, as do both counsel before me, that it is within the powers of a magistrate to consider such matters in arriving at a sentence. What the appellant does argue, however, that the Magistrate's impression as to the frequency of these offences is misconceived. By consent between the parties as placed before me, a record of the number of convictions under this particular regulation in the year 1995 and in 1996, from January to 30th September. It is apparent from these statistics that there has been a reduction in the number of these offences from 27 per month in 1995 to 23 per month in 1996.

5. Mr Tam argues that the passage quoted from the Magistrate's findings does not indicate that he considered there was an increase in the number of infringements of this regulation but is merely a comment indicating that there is a persisting level of this type of offence.

6. I accept that and accept his view that this was not a factor which led to a higher than usual penalty in respect of this offence.

7. The second matter which is argued, that the Magistrate ought not to have arrived at a deterrent sentence, in the transcript of the review that was held in this matter, the Magistrate stated that this was not a deterrent sentence and in his Reasons for Sentence stated that there was no more than the normal level of deterrence present in every sentence.

8. There is no tariff in this type of offence but I have had helpfully placed before me by Mr Tam levels of sentencing for 1995 and 1996. They show fines exceeding $50,000 and fines less than $5,000. I must take each fine as being after trial as no records are kept as to whether the fine is a result of a plea or a result of a trial. I must give the appellant the benefit of assuming that any particular sentence is after trial. Therefore, the highest starting point in 1995 and 1996 was a sum of $100,000. There are many fines which started at $50,000 and a sprinkling of fines between $60,000 and $75,000. It is safe to say therefore that no Magistrate has considered the starting point in respect of this offence in 1995 and 1996 of greater than $100,000. It is regretted that the learned Magistrate did not have the benefit of these statistics when he considered this sentence.

9. I have been referred to the case of R. v. Hip Hing Construction Co. Ltd., Magistracy Appeal No.440 of 1993 when Leonard J. said :-

"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."

And further :-

"It is up to the prosecution, if at any time it is felt that the level of fines is too low, to put the relevant evidence before the magistrate in court, so as to enable a convicted person to deal with it in his submissions and so that the magistrate may make an informed decision. Sentencing magistrates should remember that it is always open to them to invite the prosecution to provide such evidence in order to assist them in their task."

10. I respectfully agree with what was said in that case. In this case, taking into consideration the statistics which are now before me of which the learned Magistrate did not have the benefit, it is clear that this case did not warrant, in all the circumstances, the starting point considered by the Magistrate. An appropriate starting point would have been the sum of $100,000 from which should have been deducted the normal concession given for a plea of guilty.

11. The appeal is allowed to the extent that the fine of $100,000 is set aside and a fine of $65,000 is imposed in lieu thereof.