To Chuen v. The Queen

CACC000487/1977

Coram: Trainor, J.

Date of Judgment: 26th May, 1977.

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JUDGMENT

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1. The appellant was convicted of negligently allowing to fall welding splits from a height of about 20 feet at the side of a house on to a public street when he was welding a bracket for holding port plants. He was convicted on his plea of guilty. The evidence of the police officer who was in charge of the case was to the effect that on the 29th April as he was walking along the street he saw sparks falling from where the appellant was working. He said these sparks were causing people to leave the footpath but that there was a danger that persons might unsuspectingly walk underneath and be injured by them. The police officer went to the floor of the building where the appellant was working, and the work ceased after the appellant's attention was drawn by the police officer.

2. The learned magistrate in the court below stressed, and in my opinion very correctly stressed, the danger that there are from objects falling from heights. He stressed the fact that many injuries are caused by this and that the Authorities consider this a matter of such grave importance that they are spending a lot of money advertising on television, and warning people of the danger of allowing objects to fall from heights onto the public thoroughfare. The magistrate was aware of the fact that sparks from welding cool fairly quickly but he did point out that when sparks fall from a low height, and apparently he considered the 20 feet to be such, there is a great danger of a person receiving burns or a serious eye injury and in addition there is a danger of a fire being started. For these reasons he took a very serious view of what happened and I must say that in no way do I differ from his view in that respect. I can say that on one occasion in the not too distance past when judges met to discuss penalties, this particular type of offence was a topic of considerable comment and consideration and it was enlightening to those of us who do not have the vast experience the magistrates have to realise how prevalent these offences are, and the amount of damage that is done by them and the dangers that exist from things being thrown down. However, the only other case that I have had before me on this point was an appeal against a similar sentence of one month's imprisonment. The facts were not dissimilar except that there it was building materials thrown onto the ground. On that occasion I allowed the appeal and substituted a fine but I made it perfectly clear that it was with the greatest reluctance that I was doing so. I have asked both counsels here before me today if they know of any case in which a person has actually served a sentence of imprisonment for a breach of the section of the Ordinance and I have been told no. I am not so aware myself, and I have reason to believe that sentences of imprisonment have not as yet been imposed and actually served. That being so I think perhaps a month is too severe a penalty, but I do not think that a term of imprisonment is an appropriate sentence and in the circumstances I am going to allow the appeal to the extent that the appellant will serve such term of imprisonment as would be covered by the time he spent in prison after his conviction and prior to him being granted bail which is I understand the days. The result is the appellant may be released forthwith.

Representation:

Mr. Poon (Lau, Chan & Ko) for Appellant.

Mr. Alderdice, C.C. for Respondent.