Fair Garment Factory Ltd. v. The Queen

CACC000383/1976

-----------------

-----------------

Coram: Pickering, J.A.

Date of Judgment: 27th April 1976.

-----------------

JUDGMENT

-----------------

1. The appellant company was charged with knowingly failing to comply with a Fire Hazard Prohibition Order and was fined $2,500 plus $7,500 this latter figure representing $100 per day for a period of 75 days during which the offence was said to have continued. The company was also ordered to pay $500 for costs.

2. This appeal is against sentence and must succeed.

3. The company, as its name implies, is a garment factory and the sequence of events was that the company was served with a Fire Hazard Prohibition Order on the 31st July last year; an inspection of the company's premises on the 23rd December, revealed that the common staircase and lift lobby of the building were still being used for the storage of the company's products and the summons related to failure on that day to comply with the Fire Hazard Prohibition Order; a further inspection on the 17th March of this year again revealed that the common staircase and lift lobby were obstructed by the company's products.

4. Mr. Howell, for the appellant company, urged upon me that the goods were newly manufactured garments packed in cartons and awaiting dispatch to customers. Counsel put forward the predictable story of lack of space and difficulties in loading whilst the Crown, on the other hand, asserted that there was ample space within the factory's premises for storage of the fifty cartons or so the subject of the summons. However that may be, shortage of space cannot of itself excuse or go far to mitigate a state of affairs which could result in serious danger to life.

5. What prompts me to interfere with the sentence is a matter to which neither counsel alluded in argument. As I have related, there was an inspection of the premises on the 23rd December last and another on the 17th March and the magistrate imposed a fine of some $2,500 in respect of the offence charged in the summons which related to the 23rd December, and a further $100 per day in respect of the period from the 23rd December to the 17th March so making the total fine $10,000. Parenthetically I would observe that the arithmetic was wrong since the period from the 23rd December 1975 to the 17th March 1976 is 85 days and not 75 days if the 23rd December itself be excluded - as it must be since the appellant company had already been fined in respect of that date.

6. It is not, however, an arithmetical error with which I am concerned but the very basis of the $7,500 fine. The evidence was that on the 23rd December finished and boxed products of the appellant company were obstructing the staircase and lift lobby in defiance of the Fire Hazard Prohibition Order and that the same state of affairs prevailed upon the 17th March. There was, however, no evidence whatever that the goods found there on the 17th March were the same goods which had been there on the 23rd December and indeed it is highly improbable that this was the case since a manufacturer is unlikely to leave finished products, cartoned and ready for dispatch, in the corridor of his building without actually dispatching them for nearly three months. Had the goods been shown to be the same goods upon both dates, it would have been a very fair inference that they had remained in their unlawful situation between the two dates. But there was no such evidence. Further, there is no evidence of any other inspection of the property between the 23rd December and the 17th March and therefore no evidence that any obstruction of any kind existed upon any of the intervening dates. That being so the daily fines of $100 were based upon nothing more than an assumption made by the learned magistrate and they cannot stand.

7. The appeal is allowed, the fines totalling $10,000 are set aside and substituted by a fine of $3,500 together with one of $100, which is the maximum I can impose, in respect of the continuing offence on the 17th March 1976. The order for payment of $500 costs of the prosecution is to stand and there will be an order for repayment to the appellant company of $6,400 being the excess fine already paid.

8. I would add that the appellant company has twice previously been fined in respect of similar offences, the second occasion being only some five days before the inspection of 23rd December 1975, when the company was fined $3,000.

Representation:

Howell of Gunston & Chow for appellant.

Alderdice, C.C., for respondent.