The Queen v. Ho Pak Kui

HCMA000015/1989

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H E A D N O T E

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Hawking obstruction in Tsim Sha Tsui - proper sentence.

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 13 January 1989

Date of delivery of judgment: 13 January 1989

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J U D G M E N T

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1. These appellants all appeal against fines of $1,000 imposed on them for hawking obstruction offences by Mr Crawshaw at South Kowloon Magistrates Court.

2. The magistrate, understandably, seeks guidance in view of conflicting decisions by this court. On 19th September, 1988, in Siu Ng v. R., MA800/88, O'Connor, J., allowing the appeal, held that $1,000 was too heavy a fine for a first offender and reduced it to $600. This decision has been followed by Wong, J., in Lee Pam & others v. R., MA1008/88, and by myself, in CHENG FOON v. R., MA1158/88.

3. On 18th November, 1988, however, Garcia, J. dismissed appeals against $1,000 fines for identical offences. In the absence of a written judgment, it is a reasonable inference that Siu Ng was not brought to the attention of the judge.

4. Mr McWalters, who appears for the Crown today, advises me that there is no central processing pool in his chambers for these cases and that, in each batch of appeals, the respondent may be represented by different Crown Counsel, who may be unaware of conflicting decisions. That may be so, but the fact remains that the judgments in Siu Ng and Cheng Foon, but not Lee Kam, had been circulated before the decision of Garcia, J.

5. So far as these appeals are concerned, Mr McWalters agrees that there is a need for consistency and does not oppose $600 as a proper sentence for a first offender. He submits, however, that multiple offenders should be dealt with more severely. I agree.

6. In MA1714 and MA1715 the offences were committed six days after the convictions in MA1706 and MA1705 respectively. These appeals are dismissed.

7. The appeals in MA1706, MA1705, MA1716 and MA15 are allowed and the fines reduced to $600 in each case.

8. That leaves MA13. The appellant was charged with hawking chestnuts in Hau Fook Street near Carnarvon Road. The appellant says this is a cul-de-sac and the obstruction was therefore minimal. This street does not appear on my street map and I am prepared to accept what he says. I therefore also allow his appeal and reduce the fine to $400.

Representation:

Mr I.C. McWalters, Crown Counsel, for Respondent

Appellants in person.