Ng Mau-kan v. The Queen
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CACC000245/1972 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 245 OF 1972 -----------------
----------------- Coram: Rigby C.J. Date of Judgment: 14th April, 1972. ----------------- JUDGMENT ----------------- 1. The appellant, in this case pleaded guilty to two summonses preferred against him, one of obstruction, contrary to section 4A(1) of the Summary Offences Ordinance, Cap. 228 and the other of hawking without a licence, contrary to the provisions of the Hawker By-laws made under the Public Health and Urban Services Ordinance, Cap. 132. In respect of the summons for obstruction he was fined the sum of $1,000.-. Not surprisingly, he exercised his right of applying for a review of that sentence. The application for review was heard later on the same day as the fine had been imposed and the learned magistrate increased the fine from $1,000.- to $2,000.-. The only reason recorded at the time by the magistrate for increasing that fine was: 'On reflection I have been too lenient on charge one.' 2. In respect of the second summons, hawking without a licence, he imposed a fine of $250.-, and when the application for review came before him later that same day he adjourned that matter to a later date. It is to be said that in respect of that fine he reduced it from $250.- to $100.-. 3. The particulars of the charge in relation to the summons for obstruction were that the appellant on the 18th January, "at Yu Chau Street near Pei Ho Street, Kowloon, did without lawful authority or excuse cause to be left on the roadway one wooden cart measuring 9 feet by 9 feet which might have obstructed persons in the use of the said roadway, a public place." Those are the particulars of the charge as appear in the printed file before this Court for the purposes of the appeal. In the original summons, which is also before the Court, the measurements of the wooden cart are given as measuring 9 feet by 9 feet, and then it goes on to say, measuring 3 feet by 3 feet. It is not apparent what were the actual particulars which were put before the defendant - whether the cart measured 9 feet by 9 feet or 3 feet by 3 feet. However, at some stage in the proceedings - and it would appear that it was subsequent to the Notice of Appeal being given - the words "measuring 3 feet by 3 feet" have been deleted so that on the copy of the summons as appears before this Court the measurement of the cart is given as 9 feet by 9 feet. On the face of it, that would seem to be a very remarkabe measurement for a wooden handcart. It is further to be observed that on the summons, which refers to the exhibits in the case, reference is made to: 'one wooden cart with candies returned on bail.' 4. The appeal comes before this Court on the grounds that the fine of $2,000.- imposed was excessive. It is to be said at once that the Crown does not seek to support the fine, whether it be on the revised amount of $2,000.- or whether it be on the original amount of $1,000.-. Crown Counsel has pointed out that in regard to the increase of the fine on the hearing of the review, no grounds whatsoever were given by the learned magistrate at the time, nor indeed was any additional evidence produced, which would have justified or supported that increase. Crown Counsel, to whom I am indebted, has referred me in this respect to the case of MA Hing v. R.(1) 5. The learned magistrate, subsequent to the Notice of Appeal being filed, has given - as indeed he is required to do - his Statement of Findings in relation to the case and in relation to the fine imposed by him. The magistrate has dealt in some detail with the congestion caused by hawkers in the immediate vicinity of the streets where this offence occurred. I accept that no doubt there is very considerable congestion caused by hawkers in these streets and that action requires to be taken by the Courts when offence of this kind are brought before them to do what can be done to deter this type of offence being committed. The learned magistrate has gone on to say, however, that at some earlier date prior to the hearing of this case before him he had imposed substantial fines ranging from $500.- to $3,000.-, and that in one particular instance on a date prior to the hearing of this case he had fined a defendant $1,000.- and at the same time had issued a warning that further cases of this nature would be severely dealt with. Mr. Jackson-Lipkin, who appears on the instructions of the Director of Legal Aid in this matter, has summoned the Senior Judicial Clerk of the North Kowloon Magistrates Court to produce the files - all the files dealt with by this magistrate between the time that he took over in that Court, which was the 23rd of October, up to one week subsequent to the hearing of this case. It would seem clear beyond any doubt that at no time prior to this case had the learned magistrate imposed a fine anything approaching the proportions of the $1,000.- fine which he imposed in this case, nor is there any record of any fine of $2,000.- still less of $3,000.-. It is therefore difficult to understand the statement made by the learned magistrate in his Statement of Findings, and I quote:
6. The record of the learned magistrate is, indeed, remarkable for its extreme brevity. This Court can well appreciate that when hawker cases come before the Magistrates Courts they are dealt with in considerable numbers, and, of necessity, have to be proceeded with at some speed. But when a fine approaching the proportions of the fine imposed in this case is to be imposed it is clearly desirable that the record of the magistrate should state fully the circumstances in which such a fine was imposed including, of course, the evidence given or the statement made by the prosecuting officer, to support it. Still more so, if the sentence is increased on review. From time to time fines imposed by the Courts in different types of cases are the subject of criticism, and the fines imposed in hawker cases are no exception to such criticism. But there is ample authority for the proposition that it is no part of the judicial function of any magistrate to embark upon a sentencing policy of his own. If it is considered that the fines in any particular area or district are regarded by the magistrates officiating in that district as being inadequate in the sense that they provide no sufficient deterrent, then it is a matter for the magistrates themselves operating in that area, either on their own volition or upon observation or intimation from the Appellate Court, to take the necessary measures to increase those fines; that principle is abundantly clear from the reported case of John Martin Lavin(2). 7. I am in no doubt whatsoever that the sentence imposed in this case was out of all proportion to the nature and seriousness of the offence committed; still more difficult is it to appreciate the justification for the increase of the fine from $1,000.- to $2,000.-, and one is impelled to the conclusion that in the increase of that fine by the learned magistrate he was exercising a purely arbitrary discretion and, indeed, and abuse of the exercise of his discretion. It is difficult to resist the inference that the increase was done solely out of pique or, alternatively, because the learned magistrate resented the fact that the appellant had sought to exercise his undoubted right to ask the magistrate for a review of his decision and he intended to teach him, and presumably others in like circumstances who might be minded to take a similar course, a lesson. 8. I invited the views of Crown Counsel as to what it was considered appropriate should be a fine for the type of offence committed in this case. Crown Counsel indicated to me - and I am grateful for his assistance - that in accordance with the range of sentence which is normally imposed for hawking with a wooden handcart of these dimensions, a fine from $100.- to $200.- might be appropriate. Each case must, however, depend upon its own circumstances. 9. The appeal is allowed and the fine will be reduced to one of $200.-. 10. The fine of $100.- on the second summons will stand. Representation: Jackson-Lipkin assigned for Appellant. Eric LI, C.C. for Crown/Respondent. (1) 1960 H.K.L.R. p.213. (2) (1967) 51 C.A.R. p.378. |