Chan Yau-foon v. The Queen
|
CACC000892/1977
-----------------
----------------- Coram: Cons, J. Date of Judgment: 2nd September 1977. ----------------- JUDGMENT ----------------- 1. The appellant was convicted by the learned magistrate on two charges. One was for the possession for sale of pig carcasses unfit for human consumption, the other was for possession of pig carcasses which had not been slaughtered according to authority. 2. Evidence that the meat was unfit for human consumption was given by a Senior Health Inspector of the Urban Services Department. The magistrate accepted his evidence. In his statement of findings he said that he was "satisfied that (the inspector) was an expert witness". It is suggested that the magistrate was wrong to take this view because the inspector had not been formally put forward as an expert at the commencement of his evidence, merely as the officer in charge of the investigating party. I see no merit in this point. His qualifications were put forward at the appropriate moment. It is immaterial that this was not at the opening of his examination in chief. 3. Counsel for the appellant also drew my attention to the following sentence which appears at the end of paragraph 1226 of the 12th edition of Phipson on Evidence:
All I need say as to that is that the learned authors are making a general observation which has to be tailored to the individual circumstances of a particular case. In the present instance the inspector was a qualified man of fifteen years' practical experience. His opinion was not challenged by the appellant in any way, nor did he give or adduce any evidence to the contrary, although he was legally represented at the trial and had indeed been so on several of his many earlier appearances in court. In my view the magistrate was perfectly entitled to rely on that evidence. 4. The second ground of appeal is even more technical. By reason of by-law 30 of the Food Business By-laws made under the Public Health Ordinance, Cap. 132 and item 2 of the First Schedule to those by-laws the material offence is the possession for sale of the fresh meat of animals which have not been slaughtered in a Government slaughter house or in a slaughter house approved by the Urban Council. It is not disputed that there was sufficient evidence that the pigs had not been slaughtered in a Government slaughter house. However, it is pointed out that there is no evidence that they were not slaughtered in one approved by the Urban Council. This is true. It was obviously an oversight and not noticed by anyone at the trial. Attention was there concentrated upon the false marks that had been imposed on the pigs to pretend that they came from a Government slaughter house. Nevertheless I have reluctantly come to the conclusion that the point must be upheld. I do so reluctantly because the magistrate found, and I think with justification, that the defendant was well aware that the pigs were not slaughtered in any way that was lawful. However, even so the Crown has failed to prove one of the necessary ingredients of the charge and the conviction must be quashed and the sentence thereon set aside. 5. For the possession of meat unfit for human consumption the learned magistrate imposed a fine of $2,000 and a sentence of three months' imprisonment. Appeal is also lodged against these. Now the principle is well established that in cases of this kind an immediate custodial sentence is imposed upon a first offender only in very unusual circumstances. This is a bad case. There was a large number of carcasses. But I do not see any circumstance sufficiently unusual to warrant an immediate prison sentence upon a first offender. The magistrate was perhaps influenced by the comparatively small penalty that he was able to impose by way of a fine. If so I have sympathy with him. But if that maximum is generally felt to be too great a restriction it should be corrected by the Legislative Council. Until that is done it is not for the courts to circumvent it, particularly where this involves the breach of other basic principles. For this reason I propose to vary the sentence by suspending the term of imprisonment for two years. Representation: Jimmy Kwong (H.H. Lau & Co.) for the appellant. Miss C.M. Beeson, Crown Counsel for the respondent. |