Fung Hoi Yip v. The Queen

CACC000051/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 51 OF 1975

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Coram: Pickering, J.

Date of Judgment: 28th February, 1975.

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JUDGMENT

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1. The appellant was charged with the offences of obstruction and hawking without a licence and was fined $15 on the first charge and $10 on the second. His equipment, including a metal cart, was ordered to be confiscated as were some 92 overcoats. This order for confiscation was mandatory upon the learned magistrate. The appellant appeals against sentence.

2. The appellant is a 17-year-old student. He claims that whereas the learned magistrate's file indicates that he pleaded guilty and had nothing to say, in fact he pleaded not guilty and had a good deal to say. It is clear from the record that he did not give evidence and I am satisfied that the learned magistrate's record mirrors the true state of affairs as to the plea.

3. What is abundantly clear however, is that if what the appellant has told me is true, and his story was confirmed by his foster father a licensed hawker whom I allowed to address me, the appellant should have pleaded not guilty.

4. In view of the course I propose to take, the less I say about the facts relating to the alleged offence which were put before me, the better. If the version I was given be true, it is apparent that the appellant misunderstood his position in law and thus entered the wrong plea.

5. I allow the appeal to the extent that I direct that the papers be returned to the magistracy for the purpose of a trial de novo either before the same magistrate or another magistrate.

Representation:

Appellant in person.

R.V. Hanson, C.C., for respondent.