The Queen v. Ho Ping Yan

HCMA000303/1989

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H E A D N O T E

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Haberdashery licence - imprecise classification of goods permitted to be hawked - special reasons for not making forfeiture order.

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 1 June 1989

Date of delivery of judgment: 1 June 1989

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J U D G M E N T

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1. The appellant pleaded guilty to hawking commodities not specified in his licence, contrary to By-law 5(2) of the Hawker (Urban Council) By-laws, Cap. 132. He was fined $50 and the goods were forfeited. It is against the forfeiture order that he appeals.

2. The order is mandatory under S. 86A(1) of the Ordinance, unless there are special reasons for not making one.

3. The goods involved are second-hand leather coats. The appellant says he has been hawking such clothing for 12 years and this is the first time he has encountered trouble. He certainly did not anticipate a forfeiture order.

4. The appellant is licensed to hawk "haberdashery". The Shorter Oxford English Dictionary states that this is a word of unknown origin and unclear meaning. Formerly a haberdasher was a dealer in a variety of articles. In the 16th century he was a dealer in hats and caps. Later the word came to mean a dealer in thread, tape, ribbons and the like. In England today it is not so often heard and certainly cannot be said to be in everyday use in Yau Ma Tei!

5. There is a Chinese translation in the licence itself, which my interpreter reads as "Miscellaneous Goods". That covers a wide range of articles. This is substantiated by a glossary used as a guide by officers of the Urban Services Department, which lists over 100 articles - including items of clothing, but not leather, coats - alleged by the department to fall within this category. It states, morever, that the list is not to be regarded as exhaustive_. No such list is to be found in the by-laws.

6. No one has ever told the appellant that leather coats fell outside the category of "haberdashery" or "miscellaneous goods". In these circumstances I am satisfied that there are special reasons for not making a forfeiture order.

7. Until the Urban Council introduces a more precise classification of goods permitted to be sold under this category of licence, magistrates should be alert to the injustice that may be caused by making forfeiture orders.

8. The appeal is allowed.

Representation:

Mr Kelly, Crown Counsel, for Crown/Respondent Appellant in person