R. v. THE BCJ JOINT VENTURE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.47 of 1997

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J U D G M E N T

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1. The appellant pleaded guilty to one offence of being the contractor responsible for a construction site where workmen were required to work failed to ensure the approach to the place of work was adequately and suitably lit to ensure the safety of those workmen, contrary to Regulations 50 and 68(1)(a) and 68(2)(b) of the Construction Sites (Safety) Regulations, Cap.59.

2. The appellant was the contractor responsible for the construction site at the New Terminal Building, Chek Lap Kok. A worker was injured when he made use of a stair to access from one work place to another. He fell into a hole on the stair landing and injured his neck and cheek. The injuries were minor. The landing was lit by a fluorescent light but it was flickering for a few seconds and off for about 1 - 3 minutes. The accident spot could not be seen clearly.

3. The appellant had a clear record. The mitigating circumstances put forward by the appellant were their track record and that the place became inadequately lit due to unauthorized electricity tapping into the power supply by unknown person causing the lighting to fail for short periods. The accident occurred during one of these temporary power loss. The appellant had reported such illegal tapping to the Airport Authority and had started to install emergency back up lighting system before the accident occurred but it was only operational after the accident.

4. The Magistrate took a serious view of this offence and she imposed the maximum penalty under the regulation which was a fine of $50,000.

5. The Magistrate in her reasons for sentence considered the maximum fine under the law for such offence is "outrageously low" and "it cannot adequately reflect the seriousness of the offence and the importance to maintain safety measures in the construction site at all times". She considered a fine of $50,000 was a small sum and a light fine to most of the construction companies.

6. The appellant now appeals against the sentence on the ground that the offence was not the worst of its kind and in the light of the mitigating circumstances, the maximum fine was excessive.

7. The Crown from the outset concedes to the appeal because the magistrate had imposed the maximum fine and had not taken into consideration the plea of guilty of the appellant.

8. Mr Morley for the appellant refers me to two cases : R. v. Byrne and Others [1975] 62 Cr. App. R 159 and R. v. Pang Chun Wai Cr. App.7/92. Suffice to say these held that the maximum penalty provided by the law should be reserved to the worst case of its kind. He submits that there is no precedent of the level of fine for an offence under Regulation 50 but he refers to R. v. Hip Hing Construction Co. Ltd. MA 440/93 as a guide to show the court's attitude when imposing fines on offences of this nature where the maximum penalty is $50,000. Mr Morley asks me to impose a fine relative to the fines imposed in that case.

9. It must be correct that the maximum penalty should not be imposed where the case is not the worst of its kind. The circumstances of the present case do not show it is so serious as to be the worst kind. In addition, the appellant had pleaded guilty to the summons. If the maximum penalty set down by the legislature is considered to be too low, it is for the legislature to revise it and this cannot justify the imposition of the maximum penalty.

10. In R. v. Hip Hing Construction Co. Ltd., the appellant there was convicted of six summonses relating various breaches of regulations under the Construction Sites (Safety) Regulations. The maximum penalty for some of these offences is $50,000 and for some $30,000. However, none of them was a contravention of Regulation 50. Leonard J. accepted it would be proper to adopt a starting point after trial of a fine of $15,000 for those with maximum of $50,000 and $12,000 for those with maximum of $30,000. From statistics referred to in the Hip Hing Construction Co. case, for convictions of offences under the Construction Sites (Safety) Regulations, where the maximum is $50,000, the level of fines imposed by magistrates varies between $20,000 and $10,000. While these fines do not indicate anything since the circumstances of those cases are not known, nevertheless, they do show the approach of magistrates in such cases. The present case involves an offence similar in nature and punishable with the same maximum fine of $50,000 as in those cases. For a first offence, it would be fair if the starting point of $15,000 inR. v. Hip Hing Construction Co. is followed. The mitigating factors of plea of guilty, the fact that the place became badly lit because of unlawful tapping of electricity by persons unknown and that the appellant had taken immediate steps to remedy the situation and the likelihood of the offence being repeated is little because emergency back up lighting system is now in place, give the appellant a discount from the starting point. The fine should be one of $10,000 in all the circumstances of the case. The appeal is allowed. The fine of $50,000 is set aside and a fine of $10,000 substituted.