HKSAR v. Dickson Construction Co Ltd

HCMA 92/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 92 OF 2004

(ON APPEAL FROM ESS 9742 & 9743/2002)

____________

____________

Coram: Hon Beeson J in Court

Date of Hearing: 28 April 2004

Date of Judgment: 28 April 2004

Date of Reasons for Judgment: 24 May 2004

____________________________________

REASONS FOR JUDGMENT

____________________________________

1.The Appellant was convicted after trial on two summonses of "Failing to take adequate steps to prevent person from falling" contrary to Regulations 38B(1), 68(1)(a) and 68(2)(g), Construction Sites (Safety) Regulations made under the Factories and Industrial Undertakings Ordinance, Cap 59. The Appellant was fined $60,000 on one summons and $30,000 on the other. It is against those sentences that the Appellant appealed. Appeals against conviction were dismissed after abandonment.

2.The Appellant was the main contractor of the construction site described in the summonses. Each summons alleged that the Appellant failed to take adequate steps to prevent a person on site from falling from a height of 2 metres or more, from scaffolding which was in the process of being erected. At the time of inspection by an Occupational Safety Officer of the Labour Department, 3 workers were working on bamboo scaffolding erected outside the assembly hall of the school at the site. The 3 workers were wearing only parachute-style safety harnesses at that time. There were no lanyards or fall arrestors attached to those harnesses. At the section of scaffolding where the workers were working, there were no lifelines or other anchorage points.

3.It was common ground that the Appellant had provided safety belts and other necessary safety equipment at the site and that it was practicable to provide lifelines or secure anchorage points. The Magistrate accepted that appropriate safety training had been given to the workers, but found the safety belts were not suitable for their intended purpose as they were not attached continuously, or at all, to any anchorage or any suitable and secure anchorage and, further, there was inadequate supervision of the site to ensure that safety equipment was used properly.

4.The main mitigation relied on by counsel after trial, was that although the Appellant had 21 similar convictions, none of those convictions involved fatal accidents. Further, the Hong Kong Construction Association had granted annual awards to the Appellant for its safety record since 1999 and the Appellant relied on its having trained 2,068 people in industrial safety since 1999.

5.The perfected grounds of appeal were:

(1) that the Magistrate erred in regarding the incident in question as a more serious one in the absence of any information about the circumstances of the 21 previous convictions referred to.

(2) The offences arose out of the same facts and that observation of the principle of totality, meant the cumulative fine of HK$90,000 was manifestly excessive in all the circumstances.

6.The Magistrate regarded these as serious offences. The workers were working at height above a school playground and any fall was likely to be fatal. The Magistrate took the view, with some justification, that the number of previous similar convictions indicated the Appellant's rather casual attitude to the safety regulations and that the fines imposed had not proved any real deterrent. Counsel for the Respondent pointed out that for its most recent similar conviction the Appellant had been fined $35,000 and that the highest fine imposed on it for a similar offence was $40,000, which resulted from a guilty plea.

7.Counsel for the Appellant submitted that the Magistrate was wrong to treat this as a serious incident, because the facts of the previous incidents were not before the Court for comparison. Further, although the Appellant accepted that no lifelines existed on the day of the inspection, there was evidence which tended to show that lifelines were in existence in the past. The most substantial ground of appeal, according to counsel, was that the fines imposed by the Magistrate were excessive in the light of previous fines imposed for the 21 similar offences.

8.These fines were not out of the ordinary. The maximum penalty for this offence is $200,000. There were 3 workers involved in 2 summonses. The Magistrate rightly treated this as a serious offence. She took the totality principle into account. Given the circumstances and the maximum fine, the fines are not excessive. They may be higher than previous fines, but that may mean only that derisory fines, with little deterrent effect, have been imposed in the past. The Magistrate was entitled to think that the number of similar convictions indicated that previous fines had not deterred the Appellant from similar breaches.

9.This was an unmeritorious appeal which is now dismissed. Costs of the appeal are ordered to be to the Respondent, to be taxed if not agreed.

Representation:

Miss Leung Rosaline, SGC, of Department of Justice for Respondent

Ms Cheng Flora instructed by Messrs Knight & Ho, for the Appellant: Dickson Construction Company Limited