1. Wong Yiu-kwan And Another v The Queen

CourtCourt of Appeal (Hong Kong)
Judgement NumberCACC638/1971
Subject MatterCriminal Appeal






TAM Kam Appellant
THE QUEEN Respondent




1. WONG Yiu-kwan
2. LEE Hoi Appellants
THE QUEEN Respondent


Coram: Full Court (Rigby, C.J., Huggins and Pickering, JJ.)

Date of Judgment: 8 December 1971




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.(1) When any obstruction is placed upon any road or any excavation is made in any road the person responsible shall -

(a) keep such obstruction and such excavation marked by day by one or more appropriate approved signs; and
(b) keep such obstruction or excavation continuously lighted during the hours of darkness by one or more approved lamps showing a red light,
placed in such a manner and in such positions as to indicate sufficiently to pedestrians, and to drivers of vehicles, approaching from any direction the position and full extent of the obstruction or excavation.
(2) If any obstruction or excavation exceeds four feet in width measured at right angles to any line of traffic or twelve feet in length measured parallel thereto, the person responsible shall keep such obstruction or excavation continually lighted during the hours of darkness by approved lamps showing the full width thereof placed at intervals of not more than four feet measured at right angles to the line of traffic and approved lamps showing the full length thereof placed at intervals of not more than twelve feet measured parallel thereto.
4. If any excavation is of such a nature or in such a position that pedestrians or vehicles are in danger of falling into it or are otherwise endangered, the person responsible shall provide such fencing around the excavation as will be adequate and effective to prevent any person from falling into the excavation, unless such fencing would obstruct the passage of trams along a tramway in which event it shall not be necessary so to fence the excavation but instead of so doing he shall display conspicuously not less than four feet above the ground, close to the excavation, such approved signs as are sufficient to give to any person adequate warning of the danger.
12. Any person who contravenes any provisions of regulation 3, 4, 6, 8, 9, 10 or 11 or is a person by whose order or under whose direction an obstruction or excavation is made or is maintained otherwise than in accordance with the provisions of these regulations shall be guilty of an offence and on summary conviction shall be liable in respect of a first conviction to a fine of five hundred dollars and in respect of a second or subsequent conviction within three years of the last previous conviction, to a fine of five hundred dollars and to imprisonment for six months."

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:-

45348 - excavation 160' x 4' x 2" on roadway, only three fences quite

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