Yu Jor-kwan v. The Queen
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CACC000839/1976
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----------------- Coram: Morley-John, J. Date of Judgment: 26th August, 1976. ----------------- JUDGMENT ----------------- 1. The appellant pleaded guilty to the offence of obstruction of a public place contrary to sec.4A of the Summary Offences Ordinance. The learned magistrate sentenced him to one month's imprisonment suspended for twelve months and ordered him to pay $50 costs. The appellant appeals against this sentence and order on the grounds that they are too severe. 2. The appellant is a licensed cooked food hawker and the obstruction he caused was by leaving a table and four stools belonging to his stall on the pavement. 3. In his statement of findings the learned magistrate stated that the police do not keep a record of previous convictions in respect of this type of offence, but that having regard to the incidence thereof in the relevant police division he kept a personal record of previous convictions. He attached to his statement of findings a record of the previous convictions of the appellant since 6th August, 1975, which shows that during the past year he had twenty-three similar previous convictions. The learned magistrate further stated that it is quite obvious from this previous record that fines are in no way a deterrent to the appellant. Counsel for the appellant has complained that the record of previous convictions kept by the learned magistrate, although not an official record, such record should have been put to the appellant in the normal way for him to admit to its accuracy or otherwise, or the record should have been proved correct in some other way, and that this was not done. Counsel also submitted that even if this had been done the sentence was still too severe for this type of offence. 4. Taking counsel's second point first if the record kept by the learned magistrate is correct, then it is clear that punishment by way of a fine is no deterrent to the appellant and I would not seek to interfere with the sentence imposed by the learned magistrate. However, as to counsel's first point, unfortunately it does not appear anywhere in the record of the proceedings or in the learned magistrate's statement of findings that the record kept by the learned magistrate was ever put to the appellant for confirmation or proved to be correct in any way. It is clear that the learned magistrate relied on this record of previous convictions when deciding to impose a suspended sentence and therefore, albeit reluctantly, I must allow the appeal to the extent that the suspended sentence imposed by the learned magistrate must be quashed.
Representation: Mr. M.C. Jenkins (Gunston & Chow) for the appellant. Mr. Peter Sum for the Crown/respondent. |