1. Wong Yiu-kwan and Another v. The Queen
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CACC000638/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 602 OF 1971 -----------------
----------------- CRIMINAL APPEAL NO. 638 OF 1971 -----------------
----------------- Coram: Full Court (Rigby, C.J., Huggins and Pickering, JJ.) Date of Judgment: 8 December 1971 ----------------- JUDGMENT ----------------- Pickering, J.: 1. These appeals, which were heard together, were referred by a single judge for the consideration of the Full Court under Section 118(1)(d) of the Magistrates Ordinance, Cap.227. The appellant in the first case, who faced three charges, is a foreman of the Tai Foo Construction Company and the two appellants in the second case are foremen of the same company, the first appellant in that latter case having been charged with two offences, and the second appellant therein, with 17 offences. All the offences in both cases relate to failure to light, fence or signpost excavations in roadways or pavements. 2. The relevant legislation is contained in Regulations 3, 4 and 12 of the Road Traffic (Lighting and Guarding of Road Works) Regulations, which are as follows :-
3. The outstanding feature of all the cases with which we are now concerned, appears to be the paucity of information presented to the court below as to the facts. In each case the plea was that of guilty, but the information then supplied to the learned magistrate to enable him to assess sentence was meagre in the extreme. It will suffice to illustrate this point if we reproduce the statement of facts given in regard to the three charges laid in the first case, which were respectively of failing to fence, failing to light and failing to display an approved warning sign. The three su ...(illegible) monses were numbered respectively 45348, 45349 and 45350 and the complete statement of facts given to the court below reads as follows:-
4. On his pleas of guilty, the appellant was fined $350, $550 and $100 respectively, making a total of $1,000 and was given 7 days in which to pay. In his statement of findings the learned magistrate has recognized that the fine of $550 in respect of failure to light the excavation was in excess of his jurisdiction, which is limited to a fine of $500 for a first offence. 5. The details given to the court below in respect of the charges the subject matter of the second appeal herein, were equally laconic; thus, where fencing was alleged to exist and to be inadequate, its dimensions in relation to the excavation were not given, and similarly, where lights were said to have been provided in insufficient numbers, their location in regard to the area excavated was not specified; nor was any information put before the learned magistrate as to who had observed any of the defects charged or in what circumstances, which would have been relevant to the degree of danger arising from the offences. 6. It is further noteworthy that although the learned magistrate apparently took a serious view of these offences, that view was not reflected in the behaviour of the police or whatever authority it was which observed the defects and caused the summonses to issue, for in no case was the lapse of time between the date of the alleged offence and the bringing of the information, less than two months and in most cases the period was approximately three months; in the case of summons no.44760, the lapse of time was four and a half months. It is the justified complaint of the appellants that the offences were not brought to their attention at the time of their commission, so that remedial action could be taken, and that by the time the informations were brought the circumstances were impossible to bring readily to mind. We are informed that in this particular area steps have been taken to ensure that prompt complaint is made to alleged offenders so that the deficiencies alleged can be promptly investigated and, if found to exist, remedied. 7. In his finding of facts the learned magistrate says that whereas the foremen were the actual defendants, the Tai Foo Construction Company was the real defendant. We take this to mean that the learned magistrate presumed that it would be the Tai Foo Construction Company which would pay any fines imposed, but we have been unable to discover the basis for this assumption. It may well represent the fact, but in our view it was not open to the learned magistrate to make the assumption without some assurance, for obvious reasons unlikely ever to be forthcoming, that such was the case. It would be superfluous to quote authority for the proposition that the amount of any fine must bear are sonable relationship to the ability of the offender to pay, and there was no evidence whatsoever before the learned magistrate as to the earnings of any of the three foremen involved in these charges. The fines which were eventually imposed, and which are the subject matter of these appeals, totalled in the first case, as we have said, $1,000 and in the second case $5,100 and varied upon individual charges from fines of $100 to the illicit $550 which we have already mentioned. The impact upon the three foremen was in the respective sums of $1,000, $400 and $4,700 and it is apparent that in the case of the first appellant, the total may well amount to more than a month's pay and, in the case of the third appellant, to the equivalent of several months' pay. 8. It was suggested to us by Mr. Eddis, for the appellants, that these were routine offences of a type which deserve a routine punishment such as the $30, now the standard penalty, recoverable as a civil debt, for parking transgressions and indeed, Mr. Eddis went so far as to tell us that at Wong Tai Sin Magistracy, this was the standard fine for offences of the type now under consideration. 9. We cannot control a collective shudder at the suggestion that what virtually amounts to fixed penalties should be considered appropriate in these cases - for surely the penalty in every case should be tailored to the facts of that case. And we devoutly hope that it is not the fact that in a particular magistracy an automatic penalty of a $30 fine is adopted for this type of offence. We should prefer to believe that such a figure is not the standard, but happens to be the most frequently adopted, penalty. If this is not the case, and a fixed penalty is in fact imposed at Wong Tai Sin Magistracy we trust the practice will cease forthwith. 10. For the Crown, it was admitted that no steps had been taken to bring the offences promptly to the notice of the offenders despite the fact that from the dates on the summonses, visits appear to have been made to the site on some occasions on successive days or nights. This lack of any apparent apprehensiveness on the part of the executive authorities does not appear to support the serious view which the magistrate took of these offences and that fact, coupled with the paucity of information as to the precise circumstances of the offences made available to the learned magistrate, and his failure to make any enquiry as to the ability of the appellants to pay the fines which he imposed, prompts us to substantial reductions in the amounts of those fines. 11. We express no opinion as to whether these offences be absolute offences or not but, without wishing to trespass on the discretion of those whose duty it is to prosecute these matters, it may well be that fines which necessarily have to be adapted to the ability of a foreman to pay, can be absorbed painlessly by a large contractor without importing any urgency to ensure that foremen do in fact comply strictly with the regulations. Summonses issued against the contracting firm itself, might well permit of penalties which would be effective to prevent recurrence of this type of offence. Should the offences be held, in such cases, not to be absolute so that the contracting firm could not be held liable, consideration could be given to amendment of the regulations to render the liability of such firms, crystal-clear. The first step would appear to be the issue of summonses against offending contractors themselves, in order to test the issue of the liability of the contracting firm as opposed to that of its foremen. 12. In the meantime, we must adjust the fines imposed in these cases to the presumed ability of the actual defendants, to pay. On the scant facts before him, the learned magistrate made an inspired effort to assess the degree of culpability in relation to each charge, and then related the amount of the fine to that degree of culpability. We cannot do better than to adopt the ratios which the magistrate employed, though we must, at the same time, reduce his figures substantially for the reasons which we have indicated. 13. The appeals are allowed and the fine in each case except one, reduced to twenty per cent of the figure imposed. The exception is summons number 45349 where the magistrate imposed a fine of $550, being in excess of his $500 jurisdiction. In that case the fine will be reduced to one of $100. 14. The resultant substituted fines are as follows:-
...(illegible) Representation: ...(illegible) C.C. for ...(illegible) Eddis for Appellants |