The Queen v. Chan Ning
Read the full judgment text of CACC 230/1983 on BabelCite. This Court of Appeal judgment.
1. The appellant, a hawker, pleaded guilty before a Magistrate both to a charge of obstruction contrary to section 4(5)(a) of the Summary Offences Ordinance and to a charge of hawking without a licence contrary to section 83B of the Public Health and Urban Services Ordinance.
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CACC000230/1983 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Criminal Appeal No. 230 of 1983 ____________ BETWEEN
___________ Coram: Macdougall, J. in Court Date: 8th April 1983 ___________ JUDGMENT ___________ 1. The appellant, a hawker, pleaded guilty before a Magistrate both to a charge of obstruction contrary to section 4(5)(a) of the Summary Offences Ordinance and to a charge of hawking without a licence contrary to section 83B of the Public Health and Urban Services Ordinance. 2. After the latter charge had been read and explained to the appellant and he had pleaded guilty to it, he immediately applied to the Magistrate for the return of a quantity of watches and watch pens which had been seized at the time of the commission of that offence. He claimed that the seized good's had cost him $30,000 and that he had borrowed that sum in order to purchase them. This was not, in. dispute. 3. The Magistrate rejected the application and ordered that the goods be forfeited under the provisions of section 86A(1) of the Public Health and Urban Services Ordinance. It is against that Order that the appellant now appeals. Section 86A(1) reads as follows:-
4. The Magistrate stated in his statement of findings that as the reason advanced of the appellant was not special to the facts of the case but was special to the appellant as distinct from the offence, he was obliged to order forfeiture. 5. Since, however, regulation 58 of the Hawker By-lairs provides that an offence against section 83B is one designed for the purposes of sub-section (1) of section 86A, the Magistrate was wrong in concluding that forfeiture depended on the finding of special reasons. Such would only have been the case if the offence had been a hawker offence other than one which is designated for the purposes of that sub-section. In other words, for forfeiture to depend on the finding and specifying of special reasons, the offence must fall within paragraph (b) of the subsection and not within paragraph (a). 6. Had the other requirements of section 86A(1) been complied with, the Magistrate would have had no discretion not to order forfeiture. 7. However, before a court may make an order for forfeiture under paragraph (a) of section 84(1), two. requirements must be fulfilled. First, the equipment or commodity in question must have been seized under section 86(1) and, secondly, the informant shall have informed the court that there had been such a seizure. 8. Section 86(1) reads as follows :-
9. There was nothing in the Magistrate's record to indicate that the goods had been seized under section 86(1). Nor did the record indicate that the informant had informed the court of such a seizure. 10. In a case where the value of the goods seized is substantial a forfeiture order can have a punitive effect far out of proportion to the gravity of the hawking offence that had been committed. Such an order may be crippling to a hawker. The courts will not give any legislation which has such serious repercussions on the rights of an individual any wider interpretation than its words oblige them to do. 11. Unless therefore a court is completely satisfied that there has been full compliance with the requirements of section 86A(1) it should not make an order for forfeiture. It may not assume that the seizure had been effected by a public officer properly authorised in writing, or by a police officer. Nor in the absence of clear information having been given to it by the informant that a seizure of goods had been effected under section 86(1), may it assume from the fact that a prosecution has been brought and a claim made by the defendant for the return of seized goods, that the informant has performed his mandatory duty to inform the court of the seizure or that he is thereby relieved from doing so. 12. It is only right that I should add that Crown Counsel has very fairly conceded that this appeal must succeed. 13. I allow the appeal and quash the forfeiture order. I also order that the goods be returned to the appellant.
Representation: Appellant in person Mr. S.H. Franklin, Crown Counsel, for Crown/Respondent |