HKSAR v. CHUEN KEE CONSTRUCTION CO LTD

HCMA 986/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 986 OF 2005

(ON APPEAL FROM KCS 9162 of 2005)

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J U D G M E N T

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1.  On 29 September 2005 the Appellant pleaded guilty to two summonses alleging offences contrary to regulations 38B(1A), 68(1)(a) and 68(2)(g) of the Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap. 59.  In short, it was a contractor which had direct control over construction work which was being carried out on a residential construction site at the corner of Cornwall Street and Tat Chee Avenue where it had failed to take adequate steps to prevent a person from falling from a height of two metres or more.

2.  After substantial mitigation the Appellant was fined $50,000.00 in respect of each summons.  It appeals those sentences.

3.  There had been no accident.  The offences came to light during an inspection of the site by an Occupational Safety Officer of the Labour Department.

4.  The first summons, KCS9161/2005, related to workers engaged in formwork fixing and formwork preparation work at the first floor of Block 2 of the proposed residential development.  The second summons, KCS9162/2005, related to workers engaged in checking the walings and the screws at the column VC77 of house 21 on the same site.  The photographs which were produced in the magistracy shows this to be a substantial site:  Mr Nicholas Lau of Counsel, who appeared in both in the Magistracy and before me, accepts that to be so and confirmed that the summonses relate to areas some distance apart from one another.

5.  The Appellant agreed a summary of facts prepared by the prosecution:  no evidence was led.  As one of the grounds of appeal is that the Magistrate went outside the agreed facts, I set them out in full as they appear in the original document:

KCS 9161/2005

Two workers were found working at 1/F, Block 2 facing Student Hostels of City University of Hong Kong.  A male worker was found placing batten on top of the falsework while a female worker was engaged in lowering planks by means of using Tower Crane to the 1/F podium for future formwork fixing work.

Both workers did not wear any type of safety belt.  No independent life lines and safety nets were installed.

The length of the unfenced floor edge measured 7.2 m long and the width of the unfenced floor edge measured 3.6 m.  Therefore, the female worker was liable to fall a distance of 3 m to G/F.  Meanwhile the male worker engaged in formwork fixing work was liable to fall a distance of 3 m.

KCS 9162/2005

Two male workers were checking the walings and the screws at the column of VC77 of house 21.  Two male workers were found working on top of the column four about 10 minutes.  As there were no working platforms, guard-rails and toe-boards, the two workers were liable to fall at a distance of 8 m to ground floor.

Both workers did not wear any type of safety belt.  No independent lifelines were installed in the vicinity of the workers.  No safety nets were installed directly below the workers.

A mobile working platform was found in the vicinity but could not be moved to the column VC77 as rubbish and strutted bars were erected on the ground floor which acted as hindrance for the movement of the mobile working platform.

The Magistrate summarised the mitigation in the following manner:

Counsel told me that the Appellant company had been working in the construction industry for 10 years.  It was a subcontractor for formwork and had an enviable reputation.  Counsel pointed out the lack of previous convictions.  Using photographs taken by the prosecution witnesses, counsel pointed out that there were some safety features installed on the site, although not at the places involved in the summonses.

Counsel said that the responsibility for imposing safety standards should fall more on the head or principal contractor on the site.  Counsel told me that the average level of fines for these offences was in the region of $10,000.00.  Finally, counsel suggested that the workers whose presence had generated the second summons were at the place in question on their own initiative rather than on instructions from the Appellant company.

6.  It is not strictly correct to refer to a “lack of previous convictions”.  In fact the Appellant has two previous convictions albeit in respect of a different site and under a different set of regulations framed under the same Ordinance.  Those convictions were in March 2004.

7.  Two grounds of appeal were advanced:  firstly, that the sentences were wrong in principle and, secondly, that it was manifestly excessive in all the circumstances of the case.  Six heads were submitted in support of the first ground:  I deal with each in turn.

a)    A deterrent sentence either in personam or in rem was not called for given the good previous record of the Appellant company and all the circumstances of the case.

8.  Both parties realistically accepted that there is no absolute bar to the imposition of a parent sentence upon even a true first offender when the circumstances are appropriate.  The Magistrate plainly regarded this as being an appropriate matter.  Good authority for that proposition is to be found in the judgment of Beeson, J., in HKSAR v TEEMWAY ENGINEERING LIMITED HCMA 1081/2003 aware she said, at 16, “Counsel for the Appellant missed the point that these offences should be dealt with by deterrent sentences”.  I respectfully agree with that view.  Offences under these regulations, generally, are common and come before the courts with monotonous regularity.

b)    The learned Magistrate had wrongly rejected the submission that cases involving no accident should be viewed differently from cases involving accident in terms of sentencing.

9.  It seems to me inevitable that the fact of an accident causing either injury or death will be a matter which a court is entitled to take into account in determining the level of sentence.  Whether that results in a more substantial sentence being imposed than in a matter where no accident occurs will depend upon the individual facts of the case.  There was no accident in this matter. There are no guidelines for offences of this nature simply because of the wide diversity of circumstances in which these offences may be committed:  each matter has to be sentenced on its own facts, as the Magistrate fully appreciated when sentencing on the facts of this case.

c)    The learned Magistrate had wrongly rejected the submission that the workers involved in the offences were acting on their own initiatives and hence his erroneous finding that the Appellant company had not made some efforts to install some safety measures.

10.  In this connection what the Magistrate actually said was:

“I was also not attracted to the argument that the workers involved in the offence in the second summons were acting on their own initiative.  It is well-known that subcontractors and workers on construction sites will, from time to time, disobey direct instructions and cut corners if it will mean that the work will be completed more quickly.” 

11.  He went on to repeat that the legislation is not there

“merely to protect the careful, the vigilant and conscientious workmen but, human nature being what it is, the careless, the indolent, the inadvertent, and the weary and even, perhaps, in some cases, the disobedient”

Carr v Mercantile Produce Company Limited  [1949] 2 KB 601    @ 608.

12.  He was, as is abundantly clear from the statement of findings, fully aware of the presence of the mobile working platform which was in the vicinity of the place where the second offence occurred.  He was equally aware of the fact that it was not at the scene where the two workers were working and exposed to danger because of rubbish between it and the scene.  He was fully entitled to take the view he did.

d)    The learned Magistrate had erroneously formed his own view that “no steps” were taken by the Appellant company to ensure the safety of workers contrary to the admitted facts and mitigation which was not challenged by the prosecution.

13.  This ground is founded upon the extraction of a portion of a sentence in paragraph 22 of the statement of findings.  The Magistrate said

“I therefore considered that the level of fines should be such as to indicate to the Appellant company that I considered that it had taken no steps to ensure the safety of workers in this particular instance.” [emphasis provided]. 

14.  However, this has to be read in the context of the statement of findings as a whole.  In regard to the first summons, there was an exchange between the Magistrate and the Appellant’s Counsel during the course of mitigation in regard to the presence of a “rope which can be used as a... horizontal lifeline”.  In regard to the second summons the Magistrate was fully aware of the fact that the mobile working platform was in the vicinity of where the workers were working, but not actually where they were working, and that that platform was rendered unusable by being hemmed in by rubbish.

15.  The Magistrate was well aware of the factual situation.  He certainly did not ignore that or go beyond the agreed facts when expressing himself in the trenchant terms he used.  His view, plainly, was that the safety facilities were so inadequate as to amount to none at all.

e)    The learned Magistrate had erroneously failed to give proper and sufficient weight, or at all, to the average level of fines in lieu of evidence from the prosecution that the average level of fines was too low and that the legislature had not seen fit to increase the maximum level of fine through the 2003 amendments.

16.  There has been considerable speculation as to what the Legislature “must” have intended by leaving unchanged the maximum fine in respect of offences under this section when it amended the section in the year 2003.  It is suggested on behalf of the Appellant that this must be taken as an indication that the Legislature was satisfied that the level of fines being imposed in the courts was adequate.  With respect, there is not even evidence to suggest that the Legislature was aware of the level of fines.

17.  The Magistrate did not ignore the information that he was given as to what the average fine imposed in these matters may be.  Indeed, he dealt with this issue at some length in paragraph 18 of his statement of findings.  What he did was simply to say that he did not regard the average as being an appropriate fine to be imposed in the present matter. 

18.  It is has been said repeatedly that, in the absence of guideline or tariff cases, the reference to sentences imposed in previously decided matters is of limited assistance.  The reference to an average of fines is even less meaningful.

19.  The Magistrate also referred to the observations of the Court of Appeal in HKSAR v Paul Y-ITC Construction Ltd [1998] 2 HKLRD 35: in that matter of fine of $10,000.00 had been imposed upon a repeat offender in respect of offences committed under the Noise Control Ordinance but the observations of equal general applicability to those under the Construction Sites (Safety) Regulations.  The Court of Appeal said:

“... we would have considered the fines imposed as being manifestly too low.  In a society which is crying out for sensible control over pollution of whatever kind, the penalties should properly reflect society is concerned.  Bearing in mind that Mr Watson Brown has informed us that this was a multimillion-dollar contract, no main contractor will ever be deterred by fines being consistently imposed at such low levels.  Fines at these levels amount almost to an incentive to commit future breaches of this kind.”

20.  Beeson, J., in TEEMWAY ENGINEERING LIMITED also said:

“That the average fine was $21,000 reflects no more than the fact that fines, in the context of often heartless safety conditions on Hong Kong construction sites, are (not infrequently) far too low.”

21.  Line, DJ., in HKSAR v HYUNDAI-CCECC JOINT VENTURE and ANOTHER HCMA 530/2005 recently observed:

“If my decision had been otherwise on ground one I would have raised a question of the adequacy of the fine of $15,000, not because the Magistrate did otherwise than apply the usual tariff but because that tariff, eaten away by inflation and the application of “average” fines (which includes those levied upon small contractors), has become outdated.  I would be surprised if anyone thought that fining Hyundai Engineering and Construction Company Limited or the China Engineering Construction Corporation such a sum, whether together or singly, was adequate.”

22.  These observations demonstrate the growing concern about the levels of fines which have been imposed over the years and which appear to have become some form of “informal tariff”.  It is a concern which I share.

f)    Given the aggravating factor of dangerousness as the learned Magistrate had found in respect of KCS 9162, the learned Magistrate had erroneously failed to consider KCS 9161 separately in terms of sentencing.

23.  The presence of an aggravating feature in respect of the second summons would have justified the Magistrate in imposing a higher sentence than that on the first summons.  Obviously he decided not to do so.

24.  There was no error of principle on the part of the Magistrate in his approach to sentencing on any of the bases set out, or on any other basis.

25.  Insofar as the second ground of appeal is concerned, that the fines are manifestly excessive, it seems to me that the Magistrate comprehensively dealt with the necessary aspects of the offences, took into account the mitigation which was laid before him, carefully considered his approach and determined that, on the facts, the fines he imposed were appropriate particularly bearing in mind the fact that the maximum fine which could be imposed in respect of each summons is $200,000.00.

26.  The Magistrate correctly categorised these offences as serious.  They are offences which are commonly before the courts.  The fine which was imposed in respect of summons KCS9161/2005 was entirely appropriate in the circumstances.  The Magistrate would have been justified in imposing a higher fine on summons KCS9162/2005 in view of his finding of an additional aggravating feature but he decided not to do so.

27.  In my judgment, the sentences imposed by the Magistrate are in every respect correct.  In no sense are they in any way excessive.  Courts have repeatedly expressed concern over the state of safety on construction sites in Hong Kong and emphasised the duty that is imposed in law upon contractors and, now, persons who have direct control over facets of construction.  If the figures claimed in this and other cases are in fact correct for the average fine being imposed in matters of this nature it may well be that the level of fines being imposed now is no longer commensurate, in many instances, with the breaches of that duty.

28.  Of course, I am at large on the question of sentence (CHOU Shih Bin v HKSAR [2005] 1 HKLRD 838):  however, my view accords with that of the Magistrate.

29.  There is no suggestion that the Appellant is unable to pay the fines imposed upon it.

30.  The appeals are dismissed and the sentence imposed on each summons is confirmed.