Sam Dor House Co. Ltd. v. The Queen

CACC000219/1978

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Coram: Pickering, Ag. C.J., McMullin and Leonard, JJ.

Date of Judgment: 25th August, 1978.

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JUDGMENT

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Pickering, Ag. C.J. :

1. The appellant company was convicted of selling to the prejudice of the purchaser food which was not of the substance demanded by the purchaser, contrary to section 52(1) of the Public Health and Urban Services Ordinance and was fined the maximum sum of $2,000. The company appealed against both conviction and sentence and we dismissed that against conviction.

2. As to sentence, the facts were that a customer in the appellant company's restaurant was served a shrimp roll which he discovered, upon biting it, to contain a half inch length of wire. At the time of the incident the restaurant had been in business in the same premises for 14 years and no convictions of any kind have, during those years, been registered in respect of its activities. The offence was not one involving gross negligence such as operating a filthy kitchen but was one probably attributable to accident - which is not to say that the courts must not impose penalties in respect of such incidents for otherwise much carelessness in regard to the operation and supply of food might soon prevail.

3. However, in the case of a restaurant of 14 years standing with an unblemished record the penalty of $2,000 for this offence, that penalty being the highest that it was open to the magistrate to impose, was out of proportion and accordingly we allowed the appeal against sentence, set aside the fine of $2,000 and substituted for it a fine of $300 whilst ordering that the excess of $1,700 be repaid to the appellant company.

Representation:

A.A. Hoosen (Walter Woo & Co.) for appellant.

N. Aiken for Crown/respondent.