The Queen v. Fung Chi Wood

HCMA001123A/1990

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HEADNOTE

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SENTENCE - COLLECTING MONEY WITHOUT A PERMIT - FIRST PROSECUTION - FAILING TO PRODUCE PROOF OF IDENTITY - NOT IN COURSE OF IMMIGRATION INQUIRY - ABSOLUTE DISCHARGE APPROPRIATE IN BOTH CASES.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1123 OF 1990

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 25 January 1991

Date of handing down of judgment: 8 February 1991

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JUDGMENT

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1. This was an appeal against conviction and sentence. The convictions were affirmed on 7th January, but the appeal against sentence was allowed in part on 25th January. I now give my reasons.

2. The appellant was fined a total of $750 after conviction upon the following three informations :

NKS7301

3. In the course of his address to the magistrate in mitigation of sentence counsel for the appellant said that this was the first time that this section (s.4(17)) had been used for the prosecution of persons collecting funds from the public. Mr Coghlan, who also represented the Crown on appeal, replied that he was not challenging what was said in mitigation.

4. At the hearing of the appeal Mr Coghlan said that he had not intented to make that admission below and, in fact, did not accept that it was true. He did not ask for leave to adduce evidence to that effect.

5. This is significant in the light of what followed the convictions in R v. Li Wong-tat and others, Mag App. 1286/90 In that case a similar admission was made by a police officer to the magistrate in respect of prosecutions for using loudhailers and collecting money without permits. Subsequently, it was revealed by the Secretary for Security that there had been no less than 80 prosecutions for using loudhailers without a permit in the last five years. He made no reference in his statement to prosecutions for collecting money.

6. Prosecutions for offences such as these are not recorded on computer and I accept that it is a time-consuming business to produce past records. Neverthless,  having regard to the admissions made on behalf of the Crown, I considered that the appellant was entitled to be dealth with on the basis that this was the first such prosecution for many years. He had been warned - as was the general practice - but not told that he might be summonsed.

7. In those circumstances I felt that it was not right that any punishment should be imposed and substituted for the fine an absolute discharge.

NKS7302

8. In the course of the appeal against conviction it was strenuously argued on behalf of the appellant that, since the Immigration Ordinance is stated specifically to "consolidate and amend the law relating to immigration and deportation", a police officer has no power to demand production of an identity card when he is not pursuing an immigration enquiry. I rejected that argument on the grounds that the wording of the section was plain.

9. The same argument does, however, have force in respect of sentence. I would emphasise the words of Lord Goddard in Willcock v. Muckle [1951]2 K.B. 844 at 851, which I cited in my judgment dismissing the appeal against conviction :

"Secondly, the court wishes to express its emphatic approval of the way in which they acted in granting the defendant an absolute discharge. Because the police may have powers, it does not follow that they ought to exercise them on all occasions or as a matter of routine. From what Mr Gattie has told the court it is obvious that the police now, as a matter of routine, demand the production of national registration cards whenever they stop or interrogate a motorist for whatever cause. Of course if they are looking for a stolen car or have reason to believe that a particular motorist is engaged in committing crime, that is one thing : but to demand production of the card from all and sundry, instance, from a woman who has left her car outside a shop longer than she should, or on some trivial occasion of that sort, is wholly unreasonable. This Act was passed for security purposes; it was never passed for the purposes for which it is now apparently being used. To use Acts of Parliament passed for particular purposes in wartime when the war is a thing of the past - except for the technicality that a state of war exists - tends to turn law-abiding subjects into lawbreakers, which is a most undersirable state of affairs."

10. Counsel for the appellant has cited Handsard for 9th January, 1991, in which the Secretary for security stated that he accepted that this section was only intended to enable the police to detect immigration offences.

11. As in the case of NKS7301, I did not consider that punishment should follow non-compliance with a demand in these circumstances, where the officer admits that he was not investigating immigration offence or a related matter.

NKS7303

12. Mr Lee, for the appellant, submitted that the obstruction was technical and minimal, because the police were only entitled under the Public Order Ordinance to ask for proof of identity, not identity cards.

13. It is true that had a driving licence, for example, not an identity card, been produced, the section would have been satisfied. But having regard to the fact that everyone must carry an identity card and the fact that the police were monitoring a political procession in a busy Mongkok street, it was entirely reasonable that the request for proof of identity should  have been phrased in this way.

14. The pushing and pulling and the use of the loudhailer to avoid compliance with these requirments was more than minimal obstruction. The fine was therefore entirely appropriate.

Representation:

Mr Christopher Coghlan and Gerard Forlin for Crown/Respondent.

Mr Martin C.M. Lee, Q.C. & Mr Poon Shiu-chor, Norman Yung & Company, for Appellant.