The Queen v. Wu Kwok-wah

CACC000004/1983

BETWEEN

Coram: Roberts, C.J.

Date: 19th January, 1983.

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JUDGMENT

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1. The appellant was convicted on a charge of criminal intimidation and was conditionally bound over under section 36 of the Magistrates Ordinance in the sum of $250 for one year, a conviction being recorded.

Facts

2. The appellant was employed by a group of hawkers, who had formed themselves into the Wong Tai Sin Hawkers Disciplinary Association, to supervise the discipline and cleanliness of the hawker markets in the Wong Tai Sin area.

3. On the 23rd October, D.P.C. Woo went to the area of a market near Wang Tau Hom Estate. He was not in uniform but posing as a hawker and pushing a cart containing goods for sale.

4. The defendant approached him, told him that he could not stay and warned him that if he came back again he would be kicked off.

5. D.P.C. Woo returned to the area on the 30th October. He was met by the defendant who said "I told you not to hawk here. You are still hawking here. Move quick, otherwise I’ll beat you."

6. It was this conversation which formed the subject of the charge. This alleged that the defendant had threatened D.P.C. Woo with intent to cause him "to omit to do an act which he was legally entitled to do, namely to sell fruits in the Wang Tau Hom Central Road, outside Block 23 Wang Tau Hom Estate."

7. It is axiomatic that a police officer, merely because he is on duty, whether or not in uniform, is not entitled to commit a crime.

8. Hawking is not permitted in any street in the territory unless the hawker is in possession of a licence.

9. Thus, D.P.C. Woo was not legally entitled to sell fruit in the road because he had no hawker's licence enabling him to do so.

10. Consequently, and this was very properly conceded by the Crown during the hearing of the appeal, the defendant was wrongly convicted of the offence with which he was charged under section 24(a)(iii) of the Crimes Ordinance.

11. It would, no doubt, have been open to the magistrate, in the course of the trial to have amended the charge to one of criminal intimidation contrary to section 24(a)(i), that is to say threatening a person with injury "to alarm the person so threatened".

12. However, this course was not adopted, since the magistrate, although the argument was put to him, was not persuaded that the police officer was not legally entitled to act as a hawker, taking the view that because he was a police officer disguised as a hawker, he was legally entitled to do what he did.

Costs

13. Counsel for the appellant ask me to consider the award of costs under section 120 of the Magistrates Ordinance.

14. I do not take the view that this was a prosecution which should not have been brought. Indeed, as I have stated above, had the charge been amended in the manner suggested, the magistrate would have been entitled to convict the appellant on the amended charge.

15. I do not therefore consider that the appellant should be awarded any costs in relation to the proceedings before the magistrate.

16. However, in view of the Crown's proper recognition that it could not sustain the conviction, by virtue of the matters of law specified above, I came to the conclusion that it was proper, since the necessity for an appeal was due to the magistrate's interpretation of the law, that a sum should be awarded to the appellant in relation to the appeal.

17. I was informed that the cost of the appeal to the appellant was $7,000. I therefore awarded this sum to him by way of costs, in accordance with section 120 of the Magistrates Ordinance.

Representation:

D. MacKenzie-Ross (H.H. Lau & Co.) for Appellant

J. Cagney, Crown Counsel, for Respondent.