HKSAR v OOPS LIMITED(合時建築有限公司)

HCMA 931/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 931 OF 2005

(ON APPEAL FROM KCS 12842 & 12843 OF 2005)

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BETWEEN

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing:  16 November 2005

Date of Judgment:  16 November 2005 

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J U D G M E N T

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1.  The Appellant, a limited company of clear record, pleaded guilty before D.I. Thomas, Esq. in the Magistrate’s Court at Kowloon City on two informations laid under an Electricity Supply Lines (Protection) Regulations.

2.  One information, which was laid under regulations 10(1)(a) and 17(3), stated that the Appellant “on or about 24 November 2004, at the location of a construction site in Fa Hui Park, 101 Boundary Street, Kowloon, Hong Kong, carried out or caused or permitted another to carry out in the vicinity of an underground electricity cable works which were below ground level and, before the works were begun failed to take all reasonable steps to ascertain the existence within the proposed works site and its vicinity of any such underground electricity cable and its alignment and depth”.

3.  The other information, which was laid under regulations 10(2)(a) and 17(4), stated that the Appellant on that day and at that place “carried out or caused or permitted another to carry out in the vicinity of an underground electricity cable works which were below ground level, and failed to ensure that all reasonable measures were taken to prevent the occurrence of an electrical accident or an interruption to the supply of electricity arising from those works”.

4.  On the first information, the Magistrate fined the Appellant HK$10,000.  On the second information, he fined it HK$40,000.  It now appeals against sentence.

5.  The Magistrate said that the offences were serious for this reason:

“Fortunately no one was injured in the incident.  There was, however, an electricity supply interruption although, in answer to my question, prosecuting counsel accepted that the power outage was relatively small.  However, the potentiality for greater damage and, worse, injury and death, was obvious.”

6.  Counsel for the Respondent fairly drew attention to the fact that the fines imposed on the Appellant appear to be out of line, in the sense of being too heavy, with the fines imposed for similar offences in previous cases, and to the fact the Appellant’s contractor Hung Wan Construction Company Limited had been fined HK$3,000 and HK$6,000 for the offences for which the Appellant was fined HK$10,000 and HK$40,000 respectively.

7.  The Magistrate rightly regarded the Appellant’s offences as serious, and stiff fines were called for.  But all things considered, I think that he plainly fined the Appellant too heavily.  Bearing in mind the aim of the courts to sentence uniformly subject to the variation between the circumstances of offences and offenders from case to case, I propose to allow the appeal to this extent.  The fine of HK$10,000 is reduced to HK$5,000 and the fine of HK$40,000 is reduced to HK$10,000.  The appeal is allowed to that extent.

Appellant in person

Mr Harish Melwaney, SGC, of Department of Justice, for the Respondent