Chan Kwong-ming v. The Queen
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CACC001172/1977
----------------- Coram: Leonard, J. in Court. Date of Judgment: 9th December, 1977. ----------------- JUDGMENT ----------------- 1. This was an appeal against sentence. On conviction for hawking without a licence the appellant a 19 year old boy was fined $500 or three months' imprisonment and certain goods (not his property) were confiscated; on conviction for obstruction he was fined $3,800 or three months' imprisonment concurrent with the sentence imposed for hawking without a licence. 2. From the record as district from the statements of findings it appears that the appellant a young man of 19 pleaded guilty to two offences. He was charged with three offences: (1) hawking without a licence (cooked food) contrary to section 83B(1) and (3) of Cap. 132, Laws of Hong Kong. (2) (on the same charge sheet) with failing to produce a hawker licence on demand. The only note on the record as to these two offences is
(everything in quotations except the figure "$500" and the words "Exhibits confiscated" appears on the charge sheet as having been affixed with a rubber stamp). It is not clear to which offence he pleaded guilty but I assume it was to that of hawking without a licence. There is accompanying the charge a list of some 22 exhibits including 6 tables, 3 kettles, 50 plates, 3 refrigerators (one broken), 2 gas stoves, a gas drum, one dozen Son Miguel beer, 50 pairs of Chopsticks and 90 cans of canned food. It would appear from the list of exhibits that what was being carried on in respect of this charge or these charges was a cooked food stall. (3) The third charge which the appellant faced was one of obstruction and the area obstructed is stated in the charge to be 40 ft. by 19 ft. To this offence the appellant pleaded guilty. He was fined $3,800. There is nothing on the record to indicate that any facts were presented to the learned magistrate in open court and nothing to indicate that the appellant agreed to any stated facts. After he was fined the appellant apparently returned to the court and informed the court that he was unable to pay the fines because "I can't find my boss." The learned magistrate then ordered that the fines were payable forthwith and in default of immediate payment imposed sentences of imprisonment of three months on each charge to be served concurrently with one another. Mr. Sanguinetti objects to this for want of jurisdiction and says that the first charge that is to say hawking without a licence was what he termed a "finable" offence. However section 68 of the Magistrates Ordinance empowers the magistrate when exercising summary jurisdiction to impose a sentence of imprisonment in default of payment according to a scale there set down. This scale fixes a maximum period of two months' imprisonment where the amount payable does not exceed $500 so that two months' imprisonment was the most that could have been imposed in lieu of the fine of $500; however a term of six months could be imposed in lieu of the fine of $3,800 so that there was jurisdiction to impose the sentence of imprisonment in default of payment of that fine. 3. This power of course does not absolve the learned magistrate from his duty in each and every case of ascertaining the means of defendant before imposing any substantial fine. There is nothing on the record to suggest that the learned magistrate took any steps to ascertain the means of this appellant before imposing the fines which he did impose. In the course of his statement of findings the learned magistrate informs this court that the facts are that the appellant was apprehended when operating a cooked food business that he had caused an obstruction covering an area of 760 sq. ft. with tables, stools, refrigerators, stoves and other utensils usually associated with the selling of cooked food. The learned magistrate further states that he had been informed by the S.D.I. of Kwun Tong Division that this appellant had with others set up the business of selling cooked food in an area designated for factory development that it had been decided to move them before they become established that it required the services of 15 police officers, 4 police and 8 Urban Services labourers and also labourers from the Honsing Department to clear the various structures, that the operation started it 9.30 a.m. and was finally concluded at 7.30 p.m. and even then not all the debris had been cleared. It does not appear from the papers before me whether this information was imparted in open court or if the appellant agreed to it but if it be accepted it would seem that various people were unlawfully carrying on business on Crown land in this locality. They might well have been charged with the offence of trespassing on Crown land but were not. The learned magistrate in his statement of findings went on to say that a large number of offenders had appeared before him on that late and that it was obvious that unless something was done "to stop the nuisance created by these people once and for all" there would be an insoluable problem in the area. The duty of a magistrate when an offender come before hime for sentence is to consider the appropriate sentence to be imposed on that offender. He does so taking into account a number of factors
This passage continues:
This latter sentence appears to me apposite in considering the appropriate sentence to be imposed for hawking offences for hawkers are, however great a nuisance they may create, as a body concerned with earning an honest living and the public interest cannot be said to be served if sentences (and confiscations) imposed on them induce them to turn from that honest living to criminal ways. This is not to detract from a concern to deter hawkers from creating nuisances or joining with others so as to create nuisances. In determining the penalty to be imposed on any offender regard must be had to the offence itself and to the offender before the court. In my opinion the learned magistrate has failed in this particular case to pay due regard to either. There was no evidence or agreed statement of facts before him from which he could determine that this youth of 19 was doing more than looking after the stall in the absence of his parents; no evidence of defiance of any warning; no evidence of any previous offences; no evidence as to means. A magistrate must also have regard to the general run of sentences imposed for like offences Crown counsel has been kind enough to supply me with a small table of penalties imposed (not apparently for the operation of cooked food stalls but) for hawking offences generally in Kwun Tong. It appears that hawking offences are generally punished there by fines in the region of $30 - $40. The penalties imposed by the learned magistrate are of course altogether out of line with those penalties. Thomas in Principles of Sentencing 1970 at page 221 observes:
With respect to the learned author these observations appear to me to be commonsense and particularly larly appropriate when hawking offences are in question. 4. I note that I have been misquoted in the "popular" press as having premised to provide "guidelines" to magistrates as to the fines appropriate in such cases as this. I would not dream of doing so; firstly because it is no part of my function to legislate and secondly because the magistrates are in a much better position, (within the bounds of existing legislation) then I could ever hope to be to gauge the "tariff" and after consultation with one another to vary it as the public interest. As I see it my sole function when sitting on an appeal against sentence is to decide if the sentence is wrong in principle or manifestly excessive. In this particular case I consider that for the reasons I have given it is wrong in principle as imposed without due enquiry and manifestly excessive. In this particular case the appellant has been in custody I am informed for a period of 15 days. This was caused firstly by his inability to find the money to pay the fines which were imposed on him and secondly by his inability to find the amount of bail fixed by the learned magistrate for him when he sought leave to appeal against them. I should say straight away that I consider period of detention for 15 days to be in itself too great a punishment to have been suffered by this young man and in the event I think that justice can be served by my now giving him an absolute discharge which I accordingly do. 5. There were according to the record seized in connection with this matter a number of items. These do not belong to this appellant. These exhibits have been ordered to be forfeited and there is no appeal before me in respect of them. What course the owner of them may think fit to follow is a matter for the owner and not for this court on the hearing of this appeal. The appeal is allowed and the appellant is absolutely discharged. 6. There is one final matter to which perhaps I should refer that is the question as to what fine might have been appropriate on the day on which this appellant was in fact sentenced. I have some doubts as to whether the fines that are imposed in respect of "run of the mill" hawking offences would be appropriate for running a large and apparently permanent and prosperous cooked food stall. Had the proprietor as distinct from a caretaker or employee been before the court a fine of several hundred dollars might well have been necessary. However it is not necessary for me to designate a figure and I accordingly refrain from doing so.
Representation: Mr. Sanguinetti (D.L.A.) for appellant. Mr. Dick, C.C. for Crown/respondent. |