Kwok Chung-lap v. The Queen

Case No.CACC 743/1978

Court

Court of Appeal

Date04 Sep 1978

Judge—

Case Document

100%

CACC000743/1978

IN THE SUPREME COURT

	Criminal Appeal
	1978 No. 743

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BETWEEN
	KWOK Chung-lap	Appellant
	and
	The Queen	Respondent

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Coram: LI, J. in Court

Date of Judgment: 4th September, 1978

Appellant in person

Mr. I.H. Polson, Crown Counsel, (Legal Department) for respondent

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JUDGMENT

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1. The Appellant is convicted of the offence of hawking without a licence contrary to Sect. 83B of the Public Health and Urban Service Ordinance Cap. 132 on the 3rd July, 1978. He appeals against conviction only.

2. The facts relating to the Appellant's conviction are briefly disclosed in the Statement of Findings signed by the learned magistrate as follows:-

	"Defendant was convicted under Section 83B of the Public Health and Urban Service Ordinance, Cap. 132 and fined $50.-. His cart and goods were forfeited. He now appeals against conviction.
	Defendant appeared before me on the 3.7.1978. The charge of hawking without a licence was read to him and he clearly pleaded guilty. Some 80 hawkers were being dealt with at the time. Having pleaded guilty he had nothing further to say. He was fined and an order made for confiscation of his goods said to be valued at $700.-. He then protested against confiscation saying it was too great a loss. I advised him of the need to prove special circumstances if confiscation was to be avoided. He made no attempt to do so. On the 6th July he came before me on his application for a review. He then alleged that he was simply walking along the road when the Police arrested him and was not hawking at all. When asked why he had earlier pleaded guilty if that were the truth he had nothing to day. I confirmed the penalty.
	My findings are that on the 1.7.1978 Defendant hawked T-shirts in an Urban area without a valid licence outside 79A, Chatham Road, Kowloon."

In short the Appellant was charged and convited of having hawked "T shirts" outside 79A Chatham Road, Kowloon without a valid licence. The record of trial discloses that the charge had been read and explained to him and he admitted. There is no record that the facts relating to the charge had been put to him at all. He was convicted on that basis and a fine of $50 was imposed on him. His goods were ordered to be confiscated. The Appellant applied for a review which was heard on the 6th July, 1978 when he maintained his innocence. However, he did not, it appears, tell the learned magistrate the reason why he reversed his plea on review. Accordingly the conviction and the penalties were confirmed. Hence this appeal.

3. Before this court learned counsel for the Crown quite fairly and very properly draws my attention to the fact that although the fine is $50 yet the value of the confiscated goods, at the Court's own valuation is $700. That appears to be out of proportion to the sum of the fine. He further informs this Court that if the Appellant applies for leave to appeal against sentence out of time he will not oppose it.

4. In the circumstances I ask the Appellant if he wishes also to apply for leave to appeal against sentence out of time. The Appellant, who is obvious ignorant of the legal procedure, indicates that he wishes to do so and I grant him leave to appeal against sentence out of time.

5. The Appellant's case is that at the material time he was pushing his cart of 15 "by 27" along Chatham Road. When he reached the junction of Observatory Road he saw 2 police officers chasing from behind him. There was a police van in front. He was caught, arrested and charged. He admits that he is a hawker; but at the relevant time before or during his arrest he was not hawking. It was his practice to push his cart into shops or inside the compound of the Technical College to sell his goods. The goods seized from him were to the value of more than $1,200. The goods were consigned to him on sale or return basis. When he appeared before the magistrates there was a long line of other hawkers waiting to be heard. The charge was indeed read to him. He was ignorant of legal procedure and was confused. He hesitated. But before he could say anything he was pushed out of Court and told of the penalty. When he applied for a review the learned magistrate asked him why he pleaded guilty in the first instance. He did not give a satisfactory explanation. Hence his conviction and sentences were confirmed.

6. Having heard the Appellant I am inclined to believe that there could be a misunderstanding and consequently a mistrial. That the Appellant is ignorant of the Court procedure I have no doubt. There is no evidence that he has any previous record. Probably that was the first instance he appeared in Court. The learned magistrate's Statement of Findings confirms that "some 80 hawkers were being dealt with at the time". There is no record of the facts relating to the offence being put to the Appellant in Court. I can well imagine that having regard to the simplicity of the charge and the rush of the proceedings no one put the facts on the case to the Appellant whose hesitation or a gesture by him might be taken as a plea of guilty. Had the facts been put to the Appellant as to any act of hawking he would be in a position to deny it or give his version of the facts. Had he done that I am sure the learned magistrate would treat his plea as one of not guilty.

7. As it was it is recorded that Appellant was convicted on his own plea. While I attribute no blame on the part of the learned magistrate and I find that the mistrial was contributed by the Appellant's hesitation I am of the opinion that the conviction was void. Despite the rush in a magistrate's court no step in the procedure can be omitted. In this instance, no facts of the case had been put to the Appellant. For this reason I grant special leave to the Appellant to appeal against conviction, allow his appeal to the extent that there should be a trial de novo.

8. I now come to the sentence. The confiscation of the goods, even valued at $700 is disproportionate to the fine. In the provisions of Sect. 150 and the Nineth Schedule of the Public Health and Urban Service Ordinance the maximum fine for a first offence is $1,000. In this in-stance the fine imposed is only $50. If the value of the goods were taken into consideration the total is $750. But the Appellant says that the goods were consigned to him for sale and the true value was $1,200.-. While I am aware of the mandatory provisions in Sect. 86A(1) of the said Ordinance I am also mindful of the provisions in Sections 86(1) and 86A(3) of the same. In any event I have quashed the conviction and ordered a new trial. The sentence resulting from the previous conviction will similarly be set aside. The goods so forfeited should be returned to the Appellant. Even if the Appellant is convicted after the new trial the maximum penalty of $1,000 fine provided for by the said Ordinance give the trial magistrate sufficient room to exercise his discretion to award an appropriate penalty.

9. Sect.86(1) of the Ordinance gives a discretion to the public officer to seize goods of the offenders. It is not mandatory. Personally I feel that such power should be exercised sparingly and exercised only in serious cases of obstructions and persistent offenders. In the present case under consideration I am of the opinion that justice will be done by imposing an appropriate fine without forfeiture even if the Appellant is properly convicted. For these reasons I also order that the forfeited goods be returned to the Appellant forthwith.

	Simon F.S. Li
	Judge, High Court

Representation:

Appellant in person

Mr. I.H. Polson, Crown Counsel, (Legal Department) for respondent