The Queen v. Luk Hon-sum, Peter
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IN THE SUPREME COURT 1987 No. 858 BETWEEN: THE QUEEN and LUK HON-SUM, PETER Before: Roberts, C.J (Sitting as an additional High Court Judge) Date: 5th November, 1987. _________________ J U D G M E N T _________________ 1. This is an appeal against a sentence imposed for carrying on a food business, otherwise than in accordance with a licence granted by the Council. 2. The charge alleged that the appellant carried on a food business without a licence on 9th February, 1987. When pleading guilty to this charge he said -
3. The Special Magistrate imposed a fine of $4,200 for the offence with which the appellant was charged, plus an extra $360 being a daily fine of $10 for a period of 36 days from 10th, February to 17th March, 1987. 4. In my view it was not proper for the Magistrate to impose a fine for the continuing offence unless the charge was amended so as to make it clear that what the appellant was facing was a charge of a continuing offence and not merely a charge of the offence on a specified day. Since charging a defendant with a continuing offence necessarily involves the defendant in the risk of a more substantial fine than would be likely to be imposed for the offence committed on a single day, the continuing period should be included in the charge and put to the defendant. This was not done in this case. 5. It would, of course, have been open to the magistrate, in accordance with section 27 of the Magistrates Ordinance, to amend the charge in accordance with the evidence which had emerged of a continuing offence. 6. Section 27 of the Magistrates Ordinances provides that where it appears to the magistrate that there is a defect in substance or form in a complaint, information or summons or a variance between the complaint, information or summons and the evidence adduced in support of it, he shall, subject to subsection (2) (which is not relevant here) amend the complaint, information or summons, if he is satisfied that no injustice would be caused by that amendment. 7. By section 119(1)(d) of the Magistrates Ordinance, the powers of a magistrate are available to me on appeal, including the power of amendment under section 27. 8. I would have had no hesitation, since I would have been entirely satisfied that no injustice would have been caused to the appellant thereby, in making the necessary amendment to the charge so as to allege a continuing offence, between 9th February and 17th March, had it not been for one factor. 9. I was informed by the appellant, and have subsequently confirmed, that in two other cases, Nos. 678 and 679 of 1987, appeals on almost identical facts were allowed by Mr. Justice O'Dea. In Appeal No. 678, the appellant had been charged with the same offence of carrying on an unlicensed restaurant on 18th March, 19b7 and had been fined $4,000 plus a fine of $50 a day for the following 36 days, up to 23rd April. In case No. 679, the offence was committed on 24th April and the appellant was fined $4,000 plus a daily fine of $50 for an additional 41 days up to the 4th June. 10. This case, therefore, since it occurred on 9th February, pre-dated the other two offences and the 36 days covered by the daily fine ended on 17th March, i.e. the day before the offence charged in No. 678. 11. I have obtained the files of the two other appeals, which show that in each case the appeal was allowed and the daily fine was quashed, though the substantive fine on the main charge was upheld. 12. Unfortunately, the Judge gives no reasons for his variation of the sentences imposed by the Magistrate. It is desirable that, as far as possible, High Court Judges dealing with similar appeals should show some degree of consistency and it is for that reason, and for that reason alone, that I have decided to allow the appeal to the extent of quashing the $360 which was imposed by way of daily fine, though I uphold the fine of $4,200. LUK Hon-sum, Peter, - in person. A.A. Bruce, Senior Crown Counsel, with V. Yim, Crown Counsel, for the Respondent. |