Chu Hon and Others v. The Queen

CACC000119/1978

IN THE HIGH COURT OF JUSTICE

(Appellate Jurisdiction)

CRIMINAL APPEAL NO.119 OF 1978

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Coram: Li, J.

Date of Judgment: 29th March, 1978

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JUDGMENT

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1. This is an appeal against sentence by three appellants who were convicted on their own pleas of hawking without a licence, or alternatively of failure to produce a hawking licence on demand by the proper authority. In addition, they were convicted of another offence of obstruction. They were eached fined a sum of $500 in respect of the former offence and a sum of $1,200 in respect of the latter offence. By leave of my brother McMullin who granted them leave to lodge their appeal out of time they now appeal against sentences on the ground that the sentences are manifestly excessive.

2. At the first glance of the papers I am astounded by the brevity of the records kept by the learned magistrate in view of the specially heavy fines imposed and his elaborate statement of findings. There is no record of the charge having been read and explained to the appellants when they were before him. There is no record of the appellants in the lower court pleading guilty to the original charge of hawking without a licence or the alternative charge of failure to produce a hawking licence. Instead, what was recorded in the court below was by way of a rubber stamp on the sheet of information laid before the magistrate. It reads:

"Defendant: - I plead guilty. Nothing to say. Each fined $500."

The second charge was recorded in a similar manner. It reads:

"Defendant: - I plead guilty. Nothing to say. Each fined $1,200."

There is no record of any further statement of facts presented to the court. Nor was there any record that the appellants, or any of them, admitted to the facts which were given in detail in the statement of findings. Indeed, the transcript itself, or the notes, is not a faithful reproduction of the records. On the charge sheet it reads:

"Defendant: - I plead guilty ....."

In the transcript it reads (in respect of charge A and charge B) 'Defendants'. In other words, there is no indication that the pleas had been taken individually one appellant after another, and making sure that they understood the charge. The record is also missing as to any effort being made to find out whether all the appellants were owners of the cooked food stall or their ability to pay the heavy fines. It appears from the record that the fines were dished out in an offhanded manner without regard to any of the appellants being a principal or an accessory. As such, the record so kept can hardly be said to have complied with the spirit of the statutory requirement of Section 19 of the Magistrates Ordinance. All these points have been subject matter of observation by my brother Leonard in a series of appeals when before him on the 9th of December, last year. (See Criminal Appeals Nos.1172 of 1977, 1173 of 1977 and 1237 of 1977). It should be sufficient to say that there is no necessity to reiterate what has fallen from my brother Leonard, except that I entirely agree with him on the principle of sentencing which was so lucidly put by him. However, one or two passages of his judgment bear repeating and I respectfully adopt them. At page two of his judgment in the Criminal Appeal No.1172 when he referred to the power of sentencing and converting a sentence of a fine into one of imprisonment when the convicted person failed to pay the fine, he had this observation:

"This power of course does not absolve the learned magistrate from his duty in each and every case of ascertaining the means of the defendant before imposing any substantial fine."

To this I may add that the proper spirit of the sentence of a fine is to be heavy enough to hurt and act as a deterrent so that the offender will not repeat the offence in future, but not to cripple him. My brother Leonard then went on to say in his judgment that:

"The learned magistrate in his statement of findings went on to say that a large number of offenders had appeared before him on that date 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 incalculable (insoluable) problem in the area. The duty of a magistrate when an offender comes before him for sentence is to consider the appropriate sentence to be imposed on that offender. He does so taking into account a number of factors,

and he cited the case of Rex v. Ball in 35 Criminal Appeal Report, page 164; and then he continues with his quotation by saying that - this passage continues:

3. He further said that:

"The 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 the 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 in 1970 at page 221 observes:

That is sufficient to dispose of the appeal for those reasons. But I have a few comments to make in this appeal. When I said that the statement of finding was elaborate it is not without justification. It appears to me that at paragraph seven of the statement of findings when the learned magistrate said:

"Since imposing those sentences I have learned from a reliable source that in fact the Water Department has had to defer the laying of water mains in the Kwun Tong area because the Department could not get access to the streets where the mains were to be laid because of the obstruction caused by hawkers and others. This information was not available to me when I passed the sentences that I did on these appellants but it strengthens me in my opinion that the sentences were very necessary."

There is no record as to the source of information. Obviously this information was not available at the time of the sentence and there was no admission of the facts that this information was correct. I say, that the sentence was dished out in an offhanded manner, because in paragraph 3 of the statement of findings it records:

"Briefly the facts are that these appellants were apprehended on the 7th of October while operating a cooked food business near Yan Oi Wai Bus Terminus, Kwun Tong. They were causing an obstruction covering an area of 240 square feet with tables, stools, refrigerators, stoves, and other utensils usually associated with the selling of cooked food."

There is no record of any statement of facts to be agreed or presented to the court. Apropos the second charge of obstruction no information was laid that there was any refrigerator in the possession of the appellants or being placed in the public place which was the area which the appellants were alleged to have obstructed. The fines were dished out equally amongst the appellants without distinction. Yet in paragraph 14 of the statement of finding the learned magistrate, having related all these extraneous matters, said that:

"It was bearing all these points in mind that I imposed the sentences against which these appellants are now appealing."

That must be wrong as a statement of finding because he could't possibly take into consideration the information that was not before him. He could not take into consideration the information that was not preferred in the information. He could not have taken into consideration extraneous matters which had nothing whatever to do with the appellants before him.

4. That is not all. I observed that the sentences on the appellants were passed on the 8th of last October. On the 14th of last December the appellants applied to the learned magistrate for leave to appeal against sentence out of time. By that time the decisions in the series of appeal before my brother Leonard, which I referred to, had already been heard and a decision given on the 9th of December 1977. I bear in mind that communication between the High Court and the Magistracy may not be as efficient as desired and the papers might not have reached him by the 14th of December. However, this decision on appeal had been widely reported by the press and due publicity was given. Obviously the learned magistrate must have known by that time that his, or other decisions in similar cases and fines of such magnitude, had been set aside and a lesser sentence was imposed. Speaking for myself, anyone who discharges a judicial function would have given the appellants a chance to appeal in order to right what they feel is a grievance. However, leave was refused on the 14th of December and the appellants were obliged to go to a judge in the High Court to obtain leave to appeal against sentence out of time. Then on the 28th of December when the statement of findings were prepared the learned magistrate had set out all other reasons to justify his heavy sentence on the appellants bringing in, as I said, extraneous matters. I hope I'm not being unfair that this sort of attitude seemed to indicate that on this particular occasion the learned magistrate was vindicative, and I use my words carefully 'vindicative' and I do not mean 'vindictive'.

5. It has been said quite fairly by learned counsel for the Crown that a magistrate in exercising his power within the law must not be fettered. If it is within the law the normal principle is that his power should not be fettered. However, it is always the function of the Appeal Court to correct, when they see fit, what wrong has been done in the lower court. Both learned counsel for the appellants and learned counsel for the Crown referred to the case of Au Yeung Ming v. The Queen. I should make an observation on that because I only know that case too well. It was a case of a sentence of caning. I was the judge when I was in the District Court. The sentence of caning was set aside by the Full Court. Much as I felt that I might disagree with the decision of the Full Court personally at that time I did not justify my sentences in subsequent cases. I was bound by the Full Court's decision. The example of the case of Regina v. Lavin in 51 Criminal Appeal Report, 378, was not a typical example. In the Lavin case it was a case of a person who was given a custodial sentence because he was convicted of drunken driving. Up till then there was never, in the legal history, a person having been awarded a custodial sentence because of drunken driving. For that matter it was said held the sentence was beyond a sentencing policy and it was imposed without prior consultation. In the case of Au Yeung Ming it was a case of an offender who was convicted of robbery with violence. Four or five years prior to this conviction sentences of caning had been awarded to this type of offences. However, from the appellant's point of view, he committed this type of crime at the right time. Nevertheless the sentence of the appellant to caning was merely a revival of what had already been imposed before in other cases. For that reason I felt at the time that the case of Regina v. Lavin might not be a good example. Nonetheless I felt that a judge of first instance must be bound by the Appeal Court. However much he disagrees with the court of appeal he must allow an appellant in similar cases an opportunity to put right what is wrong. In this present case an obstacle, albeit a small one, was put in the way of the appellants. Having said all this and having commented on the brevity of the record I have been obliged to hear learned counsel for the appellants as to their personal particulars and their income and means because these have not been forthcoming from the record. Learned counsel for the Crown very properly and fairly conceded that he would not insist on the correct procedure that the appellants apply to this court for leave to adduce fresh evidence as to their personal particulars. So I am able to learn from Mr. Sanguinetti, learned counsel for the appellants, that the first appellant was in fact an employee earning about $1,100 per month, the third appellant was in similar circumstances as the first appellant, the second appellant alone was the owner.

6. Having regard to all the circumstances in the case and the case that had been dealt with in the court below I feel constrained to allow the appeal and that the sentences should be set aside and varied. The sentences are varied to the extent that the first appellant would be fined $50 in respect of the first offence, and $50 in respect of the second offence. Similarly the third appellant would be fined $50 in the first offence and $50 in respect of the second offence; and the second appellant would be fined $200 in respect of the first offence and $400 in respect of the second offence. The order for confiscation is discharged and set aside.

Representation: