HKSAR v. Yiu Tsui

HCMA 260/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 260 OF 2004

(ON APPEAL FROM STS 7964/2003)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 14 September 2004

Date of Judgment: 14 September 2004

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J U D G M E N T

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1.This Appellant was summoned for obstruction in that “on 30 July 2003 she did without lawful authority or excuse set out a metal handcart with fruits and parasol covering an area of 1.2 metres by 2 metres at the pavement near the zebra crossing at Saddle Ridge Garden, Kam Ying Road, Ma On Shan, Shatin which obstructed a person or vehicle in a public place”.  The information was laid under section 4A of the Summary Offences Ordinance, Cap. 228.  The Appellant pleaded not guilty and after trial was convicted.  She now appeals against the conviction.

2.The Appellant, who appeared in person, filed grounds of appeal which traversed the facts before the Magistrate.  She set out general complaints about hawker control, claiming that she was persecuted by them and that other people committing the same offence were not disturbed.  The Appellant is the holder of an itinerant hawker’s licence.  She said that she was aware of her responsibilities under the licence and had abided by it.

3.She listed the number of times on which, allegedly, she has been persecuted by the hawker patrol.  She has made complaints to the Ombudsman, the ICAC and the presenter of a radio programme.  The Appellant complained that her husband, from whom she is separated, formerly worked for the Urban Council and had “played tricks” on her, thus making her life as a hawker difficult.  She prayed in aid what the Chief Executive, allegedly, said about hawkers being treated leniently, even if they do not have a licence.

4.The Appellant claimed that she was disturbed regularly by the hawker patrol and in consequence she made almost daily “999” reports to police, about the disturbance.  She demanded justice saying she was “a little woman” who is very confused and that this matter had taken a long time.  She implied that she was dealt with differently from other people committing the same kind of obstruction.  She said her life was unhappy and miserable because of her impending divorce. 

5.The Magistrate was satisfied, having heard the evidence, that the Appellant and her handcart laden with fruit were stationary and occupying an area 2 metres by 1.2 metres on the day in question.  At 11:20 a.m. an Assistant Hawker Control Officer warned the Appellant that she was causing an obstruction and told her to move away within 20 minutes.  He returned 20 minutes later to find that the Appellant was still there with her handcart.  When he told her to leave she did not, so she was summonsed.

6.The Magistrate was satisfied that the Appellant had been causing an obstruction so that pedestrians at the location were impeded in their use of the pavement.  Although she was the holder of an itinerant hawker’s licence, it did not allow her to remain in one position for any longer than was reasonably necessary to effect a sale.  The Magistrate was satisfied the prosecution had proved their case.

7.This was a matter for the Magistrate to decide having heard the evidence.  It appears that the Appellant wishes to revisit the trial in this court.  Clearly she feels persecuted because of the conviction.  However there is nothing in the Magistrate’s Statement of Findings, or in the file, which indicates there is anything wrong with this conviction.

8.Accordingly, this appeal is dismissed.

Mr Simon Tso, SGC of the Department of Justice, for the Respondent

The Appellant, in person