HKSAR v. Tai Hing Worldwide Development Ltd

[English Translation – 英譯本]

HCMA 129/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 129 OF 2014

(ON APPEAL FROM KTS NO 19789 OF 2013)

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BETWEEN

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Before: Hon Deputy Judge A Wong in Court

Date of Hearing: 13 May 2014

Date of Judgment: 3 June 2014

JUDGMENT

1.The appellant company pleaded guilty at the Kwun Tong Magistrates’ Courts to one count of obstructing means of escape, contrary to sections 14(1) (b) and 14(2) of the Fire Services (Fire Hazard Abatement) Regulation[1]. The Deputy Special Magistrate (“the magistrate”) imposed on the appellant a fine of $40,000. The appellant appeals the sentence.

Facts

2.The appellant operated a restaurant in a shopping centre. It set out one table and three chairs in front of the rear exit, occupying a space of approximately 1.4 metres (length) x 1.2 metres (width) x 0.9 metre (height).

3.According to the admitted facts, “the above passageway provided a means of escape for members of the public on the premises in case of emergency so to safeguard their personal safety. Those articles had reduced the actual width of the means of escape by 100%.”[2]

The magistrate’s reasons for sentence

4.The magistrate listed the following sentencing considerations:

“6. My sentencing considerations include:

i) the appellant has 3 similar convictions, for the most recent of which it was fined $7,500;

ii) the present offence attracts a fine of $200,000 and imprisonment for 1 year on each conviction subsequent to the first conviction, and also a further daily fine of $20,000;

iii) the table and chairs in question completely obstructed the relevant means of escape;

iv) the table and chairs in question were set out solely for business purposes;

v) the appellant’s group has a total of 43 shops. The shop in question started business merely 10 days before the date of the offence;

vi) since the incident the obstruction problem has completely been resolved;

vii) the appellant provides training and guidelines to its staff in respect of fire safety issues;

viii) the appellant has received catering industry safety awards;

ix) the shop in question has two entrances/exits, one of which was completely obstructed;

x) the shop in question can accommodate up to 90 customers and staff members;

xi) despite its three similar previous convictions, the appellant has not learnt its lesson and tried to make improvement. A deterrent sentence is warranted to warn the appellant against re-offending;

xii) obstruction of means of escape poses a serious potential danger to safety. In no way can chances be taken;

xiii) the table and chairs in question were set up solely for the purpose of making profits. The appellant’s act, which was selfish and paid no regard to public safety, cannot be condoned;

xiv) the court must, by imposing a deterrence sentence, convey a message to the public that it never tolerates the presence of any potential danger to public safety;

xv) I adopt $60,000 as the starting point. Giving the appellant a one-third discount for its guilty plea, I impose a fine of $40,000.”[3]

Grounds of appeal

5.The grounds of appeal put forward by Mr Chui, Counsel for the appellant on appeal[4], can be summarized as follows:

(1) The magistrate accorded unduly great weight to the appellant’s previous convictions;

(2) The magistrate did not clearly state the starting point he adopted, and therefore one cannot possibly know the starting point and the extent of enhancement;

(3) The magistrate failed to properly consider all the circumstances including:

(1) The shop had another escape exit, namely the main entrance;

(2) The table and chairs in question could be removed easily;

(3) The appellant has all along been making effort to ensure safety at the shop;

(4) The remedial measures taken on this occasion.

(4) The sentence is manifestly excessive, particularly so when the level of fine is more than 5 times higher than that imposed for the last offence.

Discussion and consideration

6.I do not consider it necessary to deal with each of the grounds of appeal in turn as they are inter-related.

7.Mr Chui refers to the following cases:

(1) HKSAR v Chan Pui Chi[5]

(2) HKSAR v Lam Kwai Wa[6]

(3) HKSAR v Chiang Wan Lung[7]

8.Mr Chui submits that the following principles can be distilled from the above cases:

(1) Generally speaking, a defendant should be sentenced for the offence with which he was charged and not merely for previous offences for which he had already been duly sentenced.

(2) In the case of a re-offender, the purpose of enhancement is to protect the public interest by deterring the defendant from repeating his criminal conduct and not to punish him for re-offending.

(3) In considering the number of previous similar convictions needed to justify an enhancement of sentence for the present offence, the gravity of the offence is the crucial factor. The graver the offence is, the more pressing the need for protecting the public interest will be.

(4) Before addressing the question of enhancement, the court should adopt an appropriate starting point in light of the facts of the case.

(5) In considering enhancement, the extent of enhancement must be reasonable and proportionate to the gravity of the offence.

9.Mr Chui further submits that the magistrate attached too much weight to the appellant’s previous convictions and failed to duly consider the following factors, as a result of which the magistrate failed to correctly and thoroughly assess the seriousness of the present case:

(1) There is no evidence that the appellant’s previous convictions involve the same shop. In fact, the shop involved in the present case had been in business for a mere 10-odd days when the offence was committed. Of the 40-odd shops under the appellant’s banner, only a few have committed the offence in question, and this shows that the appellant is not a persistent offender.

(2) The shop in question had another escape exit, namely its main entrance. As can be seen from the photographs adduced in court, it was the rear door, not the main entrance/exit of the shop in question, that was obstructed. No obstruction was found at the main entrance/exit of the shop. There was adequate safe passageway for customers and staff members to escape in case of fire.

(3) The table and chairs causing obstruction were removable and were not welded to the ground. Therefore, the rear door of the shop in question was not completely “blocked up”.

(4) The shop in question had been in business for only 10-odd days. The obstruction was negligently, not deliberately, caused.

(5) The appellant had all along been trying its best to ensure the safety of its shops in operation.

(6) the appellant took relevant improvement measures immediately after the incident.

10.The Court of Appeal has repeatedly made it clear that the sentencing court should expressly state the starting point and, if there is an enhancement, the extent thereof. Although Mr Ip, Public Prosecutor for the respondent, contends that sentencing is not a mechanical exercise, it is fair to spell out how the sentence is arrived at so that one will know whether the sentencer has properly considered and taken into account relevant items such as the circumstances of the case, the aggravating factors and the mitigating factors. However, in an appeal against sentence, the crucial issue for determination is whether the sentence is wrong in principle or manifestly excessive. A sentence which is otherwise appropriate should not be disturbed merely because the magistrate failed to explain clearly how it was arrived at.

11.The maximum penalty for the present offence is as follows: a fine at level 6 (the current amount being $100,000) on a first conviction; a fine of $200,000 and imprisonment for 1 year on a second or subsequent conviction, with a further daily fine of $20,000.

12.Mr Ip contends that in the small but densely populated city of Hong Kong, even a small area such as a restaurant may be crowded. If the means of escape is obstructed, the consequence will be disastrous in case of fire. In the present incident there were 90-odd people in the restaurant, which cannot be regarded as a very small place of operation.

13.He submits that that the legislature takes this offence seriously is reflected in the statutory provision, which expressly stipulates that the maximum fine on a second conviction doubles that on a first conviction and which expressly provides for the imposition of a further daily fine or even a term of imprisonment.

14.Mr Ip also asserts that there must have been a financial incentive for the appellant to commit the present offence and, this being the case, imposition of a small fine will be tantamount to connivance.

15.He submits that there is no solid evidence in support of the contention that the appellant had all along been trying its best to ensure shop safety.

16.At the request of the court, Mr Ip has provided information on sentences imposed in similar cases. The information gathered at such a short notice can hardly be comprehensive: it plainly does not cover all cases of this type, and it is not clear what percentage of this type of cases such information represents. Nor does such information indicate the circumstances and relevant details of each case and whether there were aggravating or mitigating factors.

17.I agree with Mr Chui’s observation that the referential value of such information is limited.

18.It can be seen from such information that there have indeed been cases in which a fine as small as several tens of dollars was imposed, although these cases are extremely rare. Between January and April 2014 there were 14 cases in which fines exceeding $30,000 were imposed. The wide range of sentences reflects the varying overall circumstances of those cases.

19.Neither party has been able to refer to any appellate decisions on this type of cases. Nor have sentencing guidelines been laid down for this type of offence.

20.As is the case with all other offences, in considering the sentence for this type of cases, the court should first assess the nature of the case and the seriousness of the circumstances.

21.The seriousness of the circumstances is to be assessed in light of the overall circumstances of the case. The circumstances to be taken into account will necessarily vary from case to case, but generally they should include:

(1) The nature, layout and location of the premises;

(2) The general use of the premises and the specific use of the premises at the material time;

(3) The degree of risk of a fire breaking out at the premises;

(4) The position regarding fire prevention design and fire-extinguishing appliances at the premises;

(5) The capacity of the premises and the layout of the furnishings;

(6) The number, designs and locations of the means of escape, and the number of people reasonably expected to use the obstructed means of escape;

(7) The item(s) obstructing the means of escape, the extent of obstruction, whether the obstruction was fixed or permanent, and whether the obstruction was easily removable;

(8) Whether the accused directly caused the obstruction, or in any event, the extent of his responsibility for the obstruction caused;

(9) Whether the obstruction of the means of escape was for commercial gains. If so, it can be an aggravating factor;

(10) Whether the accused has similar previous convictions.

22.Without the benefit of expert opinion, I do not intend to set out an exhaustive list of sentencing factors. Instead, I am merely setting out factors which, as a matter of common sense, should generally be taken into account. To assist the magistrate in determining the appropriate sentence, the prosecuting authority should include as evidence materials which has to be taken into account and also set them out in the Summary of Facts.

23.In the present case, the magistrate had set out his sentencing considerations in the Reasons for Sentence (see paragraph 4 above). Mr Chui complains that at trial the magistrate, having heard submissions in mitigation, immediately passed the sentence without giving reasons. If it is Mr Chui’s contention that the magistrate had not considered the reasons he listed before passing the sentence, then I respectfully disagree.

24.In any event, the focus in the present case is whether the sentence as it stands is appropriate and correct.

25.The premises in question were a restaurant in a shopping centre. At the material time there were about 90 people in the restaurant including customers and staff members, and the scale cannot be regarded as small. Judging from the photographs, the furnishings were not laid out in a jam-packed manner, but they were not allowing for much space either.

26.The seriousness of the present case lies in the fact that such conduct had resulted in total obstruction of a means of escape.

27.Mr Chui asserts that the table and chairs obstructing the means of escape were not permanently fixed but were removable. Had they been permanently fixed, the circumstances would have been extremely serious and would have constituted an aggravating factor. In the present case, the items obstructing the means of escape were not permanently fixed. However, the photographs clearly show that the table and chairs were not portable and could not readily be folded and moved away. There is no telling whether they were bulky or not, but I believe it would not be easy to move them away speedily in times of danger. Moreover, in an emergency, if these items were pushed down in a rush, the risk of disaster would be further increased.

28.It cannot be overlooked that restaurants are more vulnerable to fire hazards.

29.Although the shop in question had another means of escape, namely the main entrance, one could not predict which part of the shop might first catch fire. Should a fire break out at the front door area, the consequences would be disastrous.

30.Mr Ip contends that the present breach of the regulation was induced by financial reason. Mr Chui retorts that there is no evidence that the appellant made a profit from what it did. In particular, after the incident, the table and chairs had been moved to another location without reducing the number of customers that the restaurant could serve. In other words, the appellant’s conduct was not for the purpose of increasing profits. This notwithstanding, I agree with Mr Ip that such conduct did involve an element of financial or actual benefit.

31.There is no concrete direct evidence that such conduct was done on the instructions of or with the connivance of the appellant. However, given that the colour and design of the table and chairs matched the surrounding environment, I agree with Mr Ip such conduct was not done for sheer convenience or out of momentary negligence, but must have been done after consideration. It was a deliberate act on the part of the shop. Even if it was not done on the instructions of or with the connivance of the appellant, the appellant as the operator of the catering group could only have discharged its legal duty by devising a proper system and providing adequate supervision to ensure implementation of the system. If the breach of regulation was deliberately caused or permitted by the operator, this would be an aggravating factor. Even if it was not, the mitigating effect would still be limited.

32.The basis of imposing punishment on a proprietor or an employer for his servant’s acts was elucidated in the case of Reynolds v Austin & Sons Ltd[8], in which Devlin J said that the imposition of criminal liability on a person for the acts of his servants or defects in business arrangements would serve to encourage everyone to keep himself or his organizations up to the standard expected by the public. Although in one sense he is being punished for offences committed by others, it can be said that if he had been alert enough to see that the statute was observed, the offence might not have been committed.[9] What happened in the present case reflects the less than satisfactory handling and inadequate supervision on the part of the appellant.

33.This is the fourth occasion on which the appellant breached this particular regulation. It is true that the appellant is sentenced for the present breach and not for previous ones. However, it has been clearly pointed out in cases such as HKSAR v Chan Pui Chi[10] that repeated commission of the same offence increases culpability and may constitute an aggravating factor. Otherwise, it would be equally unjust if, in respect of the same offence, a first offender and a persistent re-offender were to receive the same sentence.

34.Mr Chui complains that the amount of fine imposed by the magistrate is more than 5 times greater than the last one. My concern is whether the amount of the fine imposed in the present case is appropriate. That an appropriate level of fine is much higher than previous levels may just be an indication that previous levels are too low. Moreover, the nature and circumstances of previous cases may not necessarily be the same as those of the present case.

35.The regulation is enacted for preventive purposes: The consequences of fires can be devastating. A single contravention of the regulation may leave people with no means of escape and even bring about disastrous consequences endangering many lives. Therefore, the regulation must be strictly complied with and anyone who breaches the regulation must be severely punished. Otherwise, the public will not receive the correct message and will pay scant regard to compliance, and this will significantly increase the risk of occurrence of extreme misfortune. In this type of cases, which involve great public interest, it is particularly important that deterrent sentences be imposed on repeat offenders. The penal provisions enacted by the legislature also show that the legislative intent is to severely punish re-offenders.

36.Among the materials adduced by the respondent are cases in which relatively small amounts of fine were imposed. This might have been because the circumstances in those cases were not serious, or because the presiding magistrates exercised their discretion after learning about the financial positions of the defendants. In the present case, the appellant is a well-established group which operates no less than several tens of chain restaurants. I do not consider it necessary to adjust the amount of fine which is appropriate in all the circumstances and which the appellant will have no difficulty in paying.

37.Judging from the facts of the present case alone, for a first offender who pleads not guilty, only a fine in the region of $40,000 can fully reflect the seriousness of the circumstances.

38.Given that this is the fourth breach of the regulation by the appellant, an increment of the fine by approximately $20,000 is neither improper nor excessive. Although it is argued that the four breaches were made by different shops, the appellant, being the operator of the group, simply could not shirk its responsibilities. Had there been evidence not only of inadequate supervision but also connivance or even instructions, the appellant’s culpability would have been higher.

39.All in all, although the overall starting point of $60,000 adopted by the magistrate is severe, it is, in my judgment, neither wrong in principle nor manifestly excessive.

40.The appellant is entitled to a one-third discount of the sentence by reason of its guilty plea. Apart from this, I see no other factors in the present case that warrant any further reduction of the sentence.

41.That the shop was newly opened for business and that the appellant has received safety awards do not, in the circumstances of the present case, constitute mitigating factors. That the appellant took immediate remedial action is desirable, but it is not a mitigating factor. Had the appellant not done so and instead allowed the situation to continue, this would have constituted an aggravating factor, and the court would also have been entitled to impose a further daily fine.

42.For the above reasons, I take the view that a fine of $40,000 does not go beyond the range of sentences that can properly be imposed. Accordingly, the appeal against sentence is dismissed and the original sentence upheld.

Mr Cliff Ip PP, of the Department of Justice, for the respondent.

Mr Alvin Chui, instructed by Jimmie K.S. Wong & Partners, for the appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Edmund Cham, Solicitor.