Hui Shuk-kam v. The Queen

CACC000844/1976

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Coram: Morley-John, J.

Date of Judgment: 24th August, 1976.

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JUDGMENT

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1. The appellant pleaded guilty to the offence of hawking without a licence and was sentenced to a fine of $40 and the learned magistrate also ordered that the goods that she was hawking at the time of the offence were to be forfeited. It is against this sentence and order that the appellant appeals on the ground that such sentence was too severe.

2. At the hearing of this appeal the appellant informed me that she was in fact not complaining about the severity of the fine but of the fact that the learned magistrate ordered the goods that she was hawking to be confiscated. The goods the subject of the forfeiture order according to the record consisted of 151 shirts and 130 towels. The learned magistrate has merely recorded

"Fine $40. Goods forfeited".

Such order for forfeiture was apparently made in accordance with the provisions of Reg. 34 of the Hawkers (New Territories) Regulations which provide that where a person is convicted of hawking without a licence the goods being hawked may be forfeited. However, in his statement of findings the learned magistrate has recorded

"Application having been made by the prosecutor, her (the appellant's) exhibits were forfeited."

According to the record the exhibits consisted of the 151 shirts and 130 towels and also one wooden cart and 4 plastic bags, and the appellant informed me that her cart has in fact also been confiscated. I do not consider that the hand-cart comes under the category of goods being hawked as mentioned in the Hawkers (New Territories) Regulations. The appellant also informed me that what are described as "130 towels" are in fact 130 ladies handkerchiefs.

3. The appellant informed me that the value of the 151 shirts amounted to $1,510 and the value of the handkerchiefs $39 making a total of $1,549, so in effect the appellant's hawking offence cost her $1,589, not counting any loss of profits on the sale of the goods. The learned magistrate was never made aware of this fact. The appellant further told me that this was her first offence and that she had taken up hawking for the sate of her children. She also stated that she and her family were now in financial difficulties as the goods had not been paid for.

4. Under the circumstances I would allow this appeal to the extent that the forfeiture order be quashed and the exhibits, that is, the wooden cart, 151 shirts and 130 towels, or ladies handkerchiefs as the case may be, be returned to the appellant.

Representation:

The appellant in person.

Mr. B. D. Amey, for the Crown/respondent.