Lau Hing v. The Queen

CACC000930/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 930 OF 1974

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Coram: Trainor, J.

Date of Judgment: 20th November 1974.

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JUDGMENT

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1. On the 4th July last the appellant was fined $140 for throwing a cigarette butt on the pavement and was given a month to pay; not having done so a warrant for his arrest was issued on the 28th August. He was duly arrested and, it would appear, was released on bail. On the 8th October he appeared before the learned Magistrate who had convicted him and imposed the fine. What transpired on that occasion is not clear as the only note on the record is: "Court: Costs $140 and fine to be taken from bail". It is against that order that the appellant appeals.

2. One can easily understand the brevity of that note by a busy Magistrate but one would expect to find a little more detail as to what took place in the Statement of Findings. In the Statement the learned Magistrate having stated that a warrant for arrest was issued says "On the 8th October he still had paid nothing and I ordered that he should pay costs for $140".

3. The Magistrate in his findings justified the order to pay costs by reason of the time wasted in chasing defaulters, including that of a police constable, and the consequent considerable expense.

4. He went on to say: "In these circumstances the defendant should have to pay sufficient costs to bring home to him and to re-imburse to some extent the community of Hong Kong who have been put to expense by his actions".

5. With the greatest respect to the learned Magistrate that was not the correct approach.

6. The Magistrate was acting under the provisions of Section 101A of the Magistrates Ordinance. That section authorises a Magistrate to issue a warrant for the arrest of a person who defaults on payment of a fine and sub-section 2 of the section authorises the Magistrate to impose an authorised term of imprisonment. There is a proviso to the section, however, to the effect that where a person has been allowed time to pay a fine he shall not be sent to prison unless the Magistrate first makes enquiry as to his means. On such enquiry the Magistrate may, if he thinks fit, instead of is sung a warrant of commitment to prison extend the time for payment or order payment by instalments. In other words the Magistrate's function is to decide if the defaulter should go to prison or get some further accommodation.

7. It is difficult to visualise a situation where a person who has been given time to pay a fine should be ordered to pay a further sum without the Magistrate being clearly satisfied as a result of enquiring that the defaulter is in a position to do so. It may, I assume, be taken for granted that the stay of execution for one month in the first instance was due to the appellants impecuniousness.

8. There is nothing on the record to suggest that the learned Magistrate did make any enquiry into the financial position of the appellant. The nearest that one can find of any consideration of this is the Magistrates observation in his Statement of Findings: "It is significant that he was able to find complete moneys as soon as he was arrested on warrant". This, I take it, means that the appellant was able to find the amount fixed for bail; but there is nothing to suggest where the money was found. It is significant that on the appellant's application to have the decision reviewed he explained to the learned Magistrate who reviewed that he had to borrow the money. The amount fixed for bail must have been at least $280 as the Magistrate stipulated that the fine and $140 to be "taken from bail".

9. While the learned Magistrate had, in all probability, the power to order costs pursuant to section 69 of the Magistrates Ordinance this is a case where I feel it should not have been done without full enquiry as to the appellant's means.

10. I allow the appeal and order that the $140 be refunded to the appellant.

11. Before leaving this case there is a matter to which I would like to refer.

12. The appellant when he had the fine and costs deducted from his bail applied for and was granted a review. The review was heard by a Magistrate other than the one who had made the order. That was incorrect. Section 104 of the Magistrates Ordinance provides that within 14 days after the determination of any matter by "a Magistrate" a party to it may apply to "the Magistrate" to review his decision. There is no power granted in the section to another Magistrate to review. There is power for the Magistrate on review to decide that the case should be re-opened and wholly re-heard. In such circumstance and if justice demands it, another Magistrate may rehear the case but the review must be heard by the trial Magistrate.

Representation: