Cheng Ping-kuen v. The Queen

CACC001149/1982

Criminal Appeal No. 1149 of 1982

IN THE HIGH COURT OF HONG KONG

APPELLATE JURISDICTION

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BETWEEN

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Coram: Hon. Liu, J.

Date: 28 December 1982

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JUDGMENT

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1. The appellant was charged that he on the 27th August at about 8.35 a.m. did hawk fresh pork without a licence in the New Territories contrary to Regulation 4(I) of the Hawker (New Territories) Regulations made under section 83A of the Public Health and Urban Services Ordinance, Cap. 132.

2. The appellant was duly brought before the learned Magistrate, and to that charge he pleaded guilty. He admitted a record of no less than 12 previous convictions of which eight were said to be similar. The admission of the appellant was, of course, inaccurate in the sense that 4 convictions were recorded against a person by the name of Cheung Yuk Heung who, I am told, is the wife of the appellant. In the absence of any further information, it would not be permissible to link the convictions of the wife with those of the appellant's on the record. Be that as it may, proceeding on that basis, the learned Magistrate fined the appellant $750 and gave him a suspended sentence of one month.

3. In his Statement of Findings, the learned Magistrate stated: "It became clear that fines alone were not achieving the desired result and did not deter that defendant from continuing the offence of hawking fresh pork".

4. The penalties on the extreme right hand column of a copy document of what purports to be the previous convictions of the appellant are not quite legible, but - I am told by counsel that penalties ranged from $50 to $500.

5. Counsel opened this appeal by referring me to section 83A of the Ordinance and I was led through section 83B and the Ninth Schedule which prescribes penalties for offences under the various sections of the Ordinance.  See also s.150. It would seem that the maximum penalty for illegal hawking without a licence under s.83B(3) is $1,000, and nowhere under the Ordinance is there any provision for the imposition of a term of imprisonment. Counsel referred me to the Hawker (New Territories) Regulations, Regulation 4(1) appearing at page T4 and Regulation 32(4)(b) appearing at page T11 whereby the penalties prescribed include a term of imprisonment. Counsel submitted that it was ultra vires for a regulation seeking to introduce a penalty out of line with the enabling section in the Ordinance.

6. Counsel's attention was thereupon drawn to the fact that such was not covered by any of the Grounds of Appeal as formulated. Counsel was quite content to be confined to the original ground as stated, that is to say, that the sentence was unduly severe. These proceedings, therefore, do not call for a decision on the point of law ventilated on behalf of the appellant.

7. It does appear that 4 more convictions were added to the list of previous convictions of the appellant. Without any nexus between those 4 convictions of his wife and the activities of the appellant, there was no justification for linking them to the appellant's past record.

8. The maximum penalty laid down for illegal hawking without a licence is $1,000 or, if Regulation 32(4)(b) be applicable, $2,000. The previous highest fine imposed on the appellant was $500. There was certainly room for escalation.

9. In the circumstances, there would seem to be enough justification for this Court to differ from the view taken by the learned Magistrate based in part on erroneous information. I am also unable to lend support to the observation that a higher fine could not, in this case, serve as a deterrent. The appellant has taken his case beyond the Magistrates' Court and incurred legal expenses. For this reason, I do not propose to further increase his fine from his last maximum of $500. However, the term of imprisonment, though suspended, is manifestly excessive in all these circumstances. It remains for me to allow the appeal in part by setting aside the suspended one month's sentence.

Representation:

Mr. Nicholas, Counsel for the Respondent.

Mr. Ian Paine instructed by Messrs. Arthur Au & Co. for the Appellant.