HKSAR v. Ka Shun Catering Ltd

HCMA 631/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 631 OF 2015

(ON APPEAL FROM KTS 9770/2015,

KTS 10830/2015 to KTS 10832/2015)

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J U D G M E N T

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1.The appellant was issued with four summonses for operating a restaurant without a licence basically from the period of 16 January to 22 May 2015 and the company pleaded guilty and essentially was fined by Special Magistrate Mr Yu Chun Pong for each summons, a basic fine of HK$50,000.00 plus a daily fine of HK$400.00. The basic fine of HK$50,000.00 is the maximum basic fine that the learned magistrate can impose. The learned magistrate had in mitigation heard that there was a delay in the application process because of some faulty renovation work and that the appellant had been issued with a provisional licence on 10 August 2015 and therefore the company pleaded with the court to consider this background. The learned magistrate also considered that the appellant had been summonsed before this, starting in July 2014 and the last was in August 2015 and on that last occasion the appellant had been given a basic fine of HK$50,000.00 plus a daily fine of HK$400.00.

2.The learned magistrate considered that the appellant knew it was an offence to operate without a licence as early as July 2014 and that the appellant knowing that, had an utter disregard of the law and the appellant should realise that the penalty would become heavier and heavier for repeated offending.  However, despite the earlier fines he continued to operate without a licence, so the learned magistrate followed the penalty that was given to the appellant on the last occasion which was the HK$50,000.00 basic fine and a daily fine of HK$400.00.

3.On appeal Mr Davies submitted on behalf of the appellant several grounds of appeal.  The first being that the imposition of the maximum allowable fine at level 5 of HK$50,000.00 was manifestly excessive and Mr Davies submitted that it was only a small restaurant and there were no other aggravating factors apart from the fact that it was a repeated offence. The second ground of appeal submitted by Mr Davies was that the learned magistrate failed to take into account that the appellant had pleaded guilty and therefore should be entitled to a one‑third discount.  The third ground of appeal is that the learned magistrate erred in not recognizing that all the summonses related to a single continuous offence and therefore disregarded the question of totality when imposing the fine in the present case.

4.In relation to the second ground of appeal, Mr Davies submitted that if the appellant is not given a one‑third discount, it would dissuade people from pleading guilty because they would not gain any advantage from pleading guilty.

5.That may be the case for sentences of imprisonment, but what we are talking about is a restaurant continuously flouting the law.  In this case, I consider that the fact that he was not given a one‑third discount is neither here nor there.  If, for example, he did plead not guilty and this case went to a full trial and he is convicted surely the daily fine could be readjusted to make it even more serious.  But in this case, the learned magistrate did no more than impose the same level of sentences at had been done on the last occasion that the company appeared in the magistrate’s court on similar charges.

6.Now on the third ground of appeal that the learned magistrate had failed to take into account the principle of totality, we are actually considering different periods.  It wasn’t a continuing offence in the sense that it was consecutive period covered by the summons but we can see from the list that was set out in Mr Tsui’s written submission and also the learned magistrate’s reasons for sentence that periods covered were not so continuous in that the first summons was 16 January 2015 to 16 February 2015, the second summons was 26 February 2015 to 25 March 2015, the third period was for 31 March 2015 to 22 April 2015 and the last one was 28 April 2015 to 22 May 2015.  So in that sense I cannot see that the learned magistrate was in any way failing to take into account totality.

7.We are talking about a restaurant, we are talking about not as small a restaurant as Mr Davies described.  It is a restaurant with 12 tables and so I would not say it was a very tiny restaurant.  Obviously the previous fine did not deter the appellant from reoffending, so I cannot see in what way the present fine was manifestly excessive.  They are severe but I do not consider that they are manifestly excessive, so the appeal is dismissed.

Mr Jones Tsui SPP, of the Department of Justice, for the respondent

Mr Oliver Davies, instructed by Cheng, Chan & Co, for the appellant