HKSAR v. Cheung Choi Chun

HCMA001327/2000

HCMA1327/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.1327 OF 2000

(ON APPEAL FROM SPCC 7499 OF 2000)

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Coram: Hon Gall J in Court

Date of Hearing: 29 March 2001

Date of Judgment: 29 March 2001

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J U D G M E N T

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1. The appellant was convicted after trial on 17 November 2000 for hawking without a licence, obstruction of public place and breach of condition of stay.

2. The facts were that an Assistant Hawker Control Officer was on duty in uniform at about 5:23 p.m. on 3 November 2000. He approached the rear lane at 103-105 Ma Tau Wai Road, Kowloon City, Kowloon and hid behind a rubbish bin. He observed the appellant standing behind a cart, hawking food, about three meters away from his observation point. The cart was a small one and the location was a public place. He observed the appellant hawking at that cart for about one minute. In that time, he watched a girl of about 10 years approached the appellant and gave the appellant a $20 banknote, and the appellant gave the girl a small transparent plastic bag of preserved garlic. He immediately walked up to the appellant, revealed his identity, arrested and cautioned her for hawking without a license and obstruction.

3. Under caution, the appellant stated "this is not mine, it belongs to my cousin, she was away, I am only helping her out". There was some difficulty over the identity of the appellant who refused to produce her identification card, and later she produced her China two-way entry permit. It was found that she arrived in Hong Kong on 23 August 2000 and was permitted to remain until 20 November 2000. She was restricted from taking up employment.

4. It was also in the evidence from the owner of the cart, who was the cousin of the appellant, that she had left her cart unguarded in the lane while she took a break for up to 10 minutes. This, the magistrate found to be incredible. What it does mean however is to a limited extent the claim by the appellant to not be the owner of the cart and to be only helping out someone else was borne out by the evidence of DW2.

5. It is also to be noted whilst the magistrate did not believe and found inherently improbable that the cousin had left her cart unguarded in the lane while she took a break for up to 10 minutes, the evidence that the appellant was in charge of the cart related only to a period of one minute when one sale was made. I must say that the Hawker Control Officer acted properly. He was fully entitled to arrest her and to bring the prosecution.

6. The magistrate in his Reasons for Sentence said this :

" The Appellant showed no signs of remorse. Indeed, when invited to mitigate she asked if she could change her evidence. This 28 year old woman is married to a Hong Kong belonger and has one 3 year old child. She had a clear record. In the plea court charges such as these are dealt on pleas of guilty by fines for the hawking and obstruction charges and 2 months imprisonment for the breach of conditions of stay. I found that 3 months in prison after trial on the breach of conditions of stay was the right starting point."

7. I, in fact, take no issue with the magistrate on the length of the imprisonment which he imposed. However, it seems to me that the evidence of the degree of employment of the appellant is that she was employed for a very short period of time. It is appropriate to take into account the length and the nature of the employment and, in doing that, I am of the view that an appropriate sentence would have been two months' imprisonment, suspended for a period of 12 months. The appeal is allowed to the extent that the period of imprisonment is suspended for a period of 12 months.

Representation:

Mr Gary Lam, GC of Department of Justice, for HKSAR

Mr Petrus Chan, instructed by Department of Legal Aid, for the Appellant