Texwood (Jeans) Garment Factory Ltd. v. The Queen

CACC000403/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 403 OF 1970

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Coram: Rigby, C.J.

Date of Judgment: 3rd February, 1971.

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JUDGMENT

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1. On the 19th June, 1970, the defendant company, to which I will hereafter refer as the "appellants", pleaded guilty to five summonses preferred against them of offences committed contrary to the provisions of the Factories and Industrial Undertakings Ordinance (Cap. 59).

2. The first three summonses (NKS 24237, NKS 24238 and NKS 24239) are related to offences committed by the appellants at their factory at Chung Hing Ind. Mansions, 25-27, Tai Yau Street, 4th Floor, San Po Kong, Kowloon on the 17th December, 1970, and the last two summonses (NKS 24354 and NKS 24355) are related to offences committed by them at another factory at 25 Chong Yip Street, 5th-7th Floors, Vanda House, Kwun Tong on the 11th December, 1969.

3. It will be convenient to deal first with the last two summonses, to wit, NKS 24354 and NKS 24355. It would appear that at about 9.15 p.m. on the 11th December, 1969, one or more factory inspectors from the Labour Department entered the appellants' Kwun Tong factory. I understand that both factories are engaged in the manufacture of garments known as 'jeans'. There they found two children working, the ages of whom were apparently established to be 12 years old. It is not apparent from the record what were the sexes of these two children. Regulation 4 of the Factories and Industrial Undertakings; Regulation imposes a complete prohibition on the employment of any child (i.e. a person under the age of 14 years) in any industrial undertaking. They also found twelve women working there. Regulation 9(1)(b)(ii) provides, inter alia, that no woman shall begin work in an industrial undertaking before 6 a.m. nor end later than 8 p.m. The maximum penalty for an offence against either of these regulations is a fine of $5,000. On the first summons (NKS 24354), the magistrate imposed the maximum fine of $5,000 and upon the second summons (NKS 24355), he imposed a fine of $1,000.

4. On the 17th December, one or more factory inspectors visited the appellants' Kwun Tong factory at about 9 p.m. There they found 62 women working (NKS 24237). They also found two young persons working, the ages of whom were apparently established to be 14 and 16 years respectively (NKS 24238 and NKS 24239). Regulation 9(1)(b)(i) provides that no young person under the age of 16 years shall begin work in an industrial undertaking earlier than 6 a.m. nor end later than 7 p.m. Young persons between the ages of 16 and 18 years are placed in the same category as women under Regulation 9(1)(b)(ii) in that they shall not work in an industrial undertaking later than 8 p.m. In respect of these three summonses (NKS 24237, NKS 24238 and NKS 24239) the learned magistrate imposed fines of $2,000, $5,000 and $2,000 respectively. In the result, upon the five summonses the appellants were fined a total of $15,000. They now appeal against the severity of those fines.

5. In mitigation on behalf of the appellants, it is said that the offences were committed because the factories concerned were rushed in preparing goods for shipment. The workers were each given half a day's extra pay as overtime; the women's pay was $13 per day. In so far as the two 12 year old children were concerned, there was no question of exploitation of their labours; they were each paid $8.50 per day and they also were paid half a day's extra pay for their overtime.

6. It is convenient to deal separately with each factory. The Kwun Tong factory employed 290 workers. There was one previous conviction of a similar nature recorded against this factory for employment of a child (or children) in May 1969 when they were fined $80. It is pertinent against to observe that the fine imposed in the instant case was the maximum fine of $5,000.

7. Similarly, there was one previous conviction recorded in May 1969 for the employment of a female (or females) beyond the prescribed working hours. For that offence, the fine imposed was $100. Here, again, for the present offence the fine imposed was $2,000.

8. The San Po Kong factory employed 400 workers. There was one previous conviction recorded against that factory, in December 1967, for a similar contravention, to wit, the employment of young persons beyond the prescribed working hours, in respect of which a fine of $150 had been imposed. In the present instance, the fines imposed for the employment of the 14 and 16 year old young persons were $5,000 and $2,000 respectively.

9. Similarly, there was a previous conviction recorded against this factory in December 1967 for the employment of women after the prescribed working hours in respect of which a fine of $150 had been imposed. In this instance, the fine imposed was $2,000.

10. In giving his reasons for imposing such severe sentences the learned magistrate said:-

"The Factories and Industrial undertakings Regulations (Cap. 59) (in particular Regulation 9) specify with great clarity the conditions under which women and young children may be employed. They provide a method in Regulation 9 whereby a woman's or young person's (except a young person under 16) hours of work may be altered but subject such alteration to the Commissioner's consent. It appears to be the intention of the Regulations to prevent the employment of women and young people in a socially harmful way, and to protect them against exploitation and abuse."

The learned magistrate did not accept as a plea in mitigation that the appellants were rushed in preparing their goods for shipment and he went on to say:-

"..... the Regulations exist to protect workers from themselves as well as to protect them from excessive conditions of work."

11. Whilst I am fully appreciative of the reason given by the learned magistrate for the view he took in this case, the sentences imposed, in my view, were inordinately and unjustifiably severe and far in excess of the standard fines normally imposed in cases of this nature. It has repeatedly been stated that the maximum sentence warranted by law should be reserved for the worst cases of that particular offence. Much as one may deprecate, in this instance, the employment of two 12 year old children and the 14 year old female working after 7 p.m., it is surely not difficult to envisage far worse instances than the particular offences committed in this case; nor does the past record of the appellants in their employment of labour show a repeated and consistent disregard of the law such as to justify the imposition of such severe fines.

12. The appeal in regard to all the summonses must be allowed and the fines varied as follows:-

The result is that the fine will be reduced to a total of $2,000. Any payment by way of fines in respect of these summonses made in excess of $2,000 must be refunded forthwith to the appellants.

13. Before parting with this case, I feel that I must express my most sincere and profound apologies to all parties concerned, the learned magistrate himself, the prosecution and, in particular, to the appellants and those representing them, for the unconscionable and quite unwarranted delay on my part in the length of time taken by me in the delivery of this judgment.

Representation:

Martin Lee (Deacons) for Appellants.

Eric Li, C.C. for Crown/Respondents.