Read the full judgment text of HCMA 000053/1989 on BabelCite. This High Court CFI judgment was delivered on 31 January 1989 before Duffy J.
Criminal law – hawking obstruction – sentencing – appeal – Tsimshatsui Golden Mile area – deterrent policy – first offenders – repeat offenders – consistency in charging – Hawkers (Urban Council) By-laws – Summary Offences Ordinance – This judgment deals with multiple Magistrate Appeals against fines of $1,000 (and in one case $1,500) imposed by Mr Crawshaw at South Kowloon Magistrates Court for hawking obstruction offences committed in the 'Golden Mile' area of Tsimshatsui – The Magistrate had initiated a deterrent policy in August 1988, after consultation with police and USD Hawker control forces, to address the particular problem of hawker obstructions in this high density pedestrian and vehicular traffic area – The court was asked to resolve apparent inconsistency between appeal court decisions, where some judges had reduced $1,000 fines to $600 for first offenders (Siu Ng v R, Lee Kam and others v R MA No. 1008/88, Cheng Foon v R MA No. 1158/88, and Chu Yu Sun and others v R MA No. 1705/88 by Bewley, J.) and others had dismissed such appeals (Garcia, J.) – The court agreed with Bewley, J.'s approach in Chu Yu Sun and others v R – Holding that while a particular problem exists requiring deterrence, fines of $1,000 for first offenders are on the high side – For a first offender, the fine should be no higher than $600 – Subsequent offences could attract fines up to $1,000, and even higher if the offender appears determinedly recalcitrant – Most offences were charged under By-laws 53 and 56(2) of the Hawkers (Urban Council) By-laws (maximum fine $2,500 and one month's imprisonment), while some were charged under Section 4A of the Summary Offences Ordinance Cap. 228 (maximum fine $5,000 and three months' imprisonment) – The court urged those responsible for bringing these cases to adopt a consistent approach by charging under the appropriate Hawker By-laws and not using the Summary Offences Ordinance simply to obtain higher penalties – Outcomes: MA Nos. 31 & 32/89 Chan Kin – fines reduced from $1,000 to $800 for each offence (credit for honesty in revealing previous offence) – MA No. 34/89 Leung Kam – appeal dismissed (repeat offender) – MA No. 35/89 Au Wai – appeal allowed, fine reduced to $600 (first offender) – MA No. 38/89 Hui Chun Cheung – appeal allowed, fine reduced to $600 (first offender) – MA No. 52/89 Lee Kam – appeal dismissed (repeat offender) – MA Nos. 53 & 55/89 Chu Yu Sun – appeals dismissed (repeat offender) – MA Nos. 30, 39 & 54/89 Siu Kam Lam – fine of $1,500 on 13 December reduced to $1,000 for inconsistency; other appeals dismissed – MA No. 36/89 Chu Po Jun – appeal allowed, fine reduced to $800 (credit for honesty) – MA No. 37/89 Shum Kwan Ho – appeal dismissed for non-appearance – MA Nos. 33, 56 & 57/89 Ho Pak Kui – appeals dismissed for non-appearance.
Legal issues: Appropriate fine level for hawking obstruction offences in the Golden Mile area of Tsimshatsui
Outcome: Mixed outcomes: appeals of first offenders allowed with fines reduced to $600; appeals of repeat offenders dismissed; certain fines reduced to $800 for honesty in revealing previous offences; one $1,500 fine reduced to $1,000 for inconsistency