Au Shing v. The Queen

Case No.CACC 1044/1982

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC001044/1982

[Hawker offences - forfeiture of goods - magistrate must be informed of seizure as a precondition to forfeiture - no discretion not to order forfeiture if offence falls within section 86A(1)(a) of Public Health and Urban Services Ordinance ]

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1044 of 1982

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BETWEEN

	AU SHING	APPELLANT
	AND
	THE QUEEN	RESPONDENT

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Coram: O'Connor, J.

Date: 12th January, 1983.

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JUDGMENT

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[Hawker offences - forfeiture of goods - magistrate must be informed of seizure as a precondition to forfeiture - no discretion not to order forfeiture if offence falls within section 86A(1)(a) of Public Health and Urban Services Ordinance]

1. The appellant appeared before a magistrate, charged with hawking without a licence contrary to section 83B of the Public Health and Urban Services Ordinance, and with obstruction contrary to section 4A of the Summary Offences Ordinance. He pleaded guilty to both charges and asked for the return of his goods. The learned magistrate fined him and made an order forfeiting the goods. The appellant appeals against the order of forfeiture. He says, and it is not disputed, that the goods are pieces of jade valued at $30,000. The learned magistrate, in his findings, states that he made the order for forfeiture under the provisions of section 86A(1) of the Public Health and Urban Services Ordinance. That section reads as follows :-

	"86A(1)	Where any person is convicted of a hawker offence in respect of any equipment or commodity seized under section 86(1), the informant shall inform the court of the seizure and thereupon the court shall, in addition to any other penalty -
	(a)	order the forfeiture of the equipment or commodity, or, in the case of a perishable commodity disposed of under section 86(2) by way of sale, the proceeds of sale, if the offence is one designated for the purpose of this subsection by regulations made under section 83A or
	(b)	unless it finds and specifies special reasons, which reasons shall be special to the facts of the case and not special to the offender as distinct from the offence, shall, in the case of any other hawker offence, make such an order."

2. Regulation 58 of the Hawker By-laws provides that an offence under section 83B is a specifically designated offence for the purposes of section 86A(l)(a).

3. The learned magistrate considered that he was obliged to order forfeiture unless he found special reasons. He found no special reasons. He was incorrect. in thinking that forfeiture depended upon whether or not there were special reasons. Special reasons only apply to exempt from forfeiture if the offence falls within section 86A(l)(b), not if it falls within section 86A(l)(a). The offence for which the appellant was convicted fell within section 86A(l)(a) and therefore there was no discretion not to order forfeiture see Attorney General v. Lui Fuk-yuen ⁽¹⁾ providing there had been compliance with the other terms of the section. Before making an order of forfeiture the section requires that "the informant shall inform the court of the seizure". It does not appear that the learned magistrate was so informed. In those circumstances the order forfeiting the goods must be quashed and I order that they be returned to the appellant. The Crown does not oppose the appeal.

(R. O'Connor)

Judge of the High Court

(1) (1975) H.K.L.R. 475

Representation:

Appellant in person.

S.H. Franklin, Crown Counsel, for the Crown/respondent.