Lam Chau-kwai and Others v. The Queen
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CACC001237/1977
----------------- Coram: Leonard, J. in Court. Date of Judgment: 9th December, 1977. ----------------- JUDGMENT ----------------- 1. In this appeal three appellants appealed against the sentences imposed on them in the magistracy on changes of firstly hawking without a licence alternatively failing to produce a hawker licence on demand by the police and secondly obstruction. The record shows that all three appellants pleaded guilty to either hawking without a licence or failing to produce a licence is not clear which. I take it that the plea was to the offence of hawking without a licence, for their counsel so indicated before me. The record as to this charge reads:
and there follows the signature of the learned magistrate. Apart from this signature and the word "each" and the figure "$500" a rubber stamp has been used to record plea and penalty. They were also charged with obstruction. Although there were three defendants the recced as to this change (again in the form of a rubber stamp) affixed to the charge sheet reads:
There follows the signature of the magistrate. 2. Besides the actual charge sheets and the list of so-called exhibits there is nothing on the record whatsoever other than the statement of findings. There is no agreed statement of facts. There is no statement as to whether or not any of the appellants had previous convictions. Generally speaking the record is of no assistance to me whatsoever. In the statement of findings it is said in paragraph 4 :
What the facts relating to their apprehension may have been or what they have to do with the case is not clear to me but I should like to have had a statement of the facts relating to the offences to which they pleaded guilty. I sympathize with magistrates, faced daily with a large numbers of cases all of a similar nature requiring summary justice and the imposition of a small fine if they decide that a note or even a rubber stamp on the charge sheet itself will satisfy the requirements of section 19 of the Magistrates Ordinance. The picture changes vastly as soon as a magistrate considers that a case falls into the category in which a substantial penalty or forfeiture is necessitated. In such cases I would expect an accurate and complete record. As I have stated the papers in this case are no real assistance to me. They were of no assistance to Crown counsel who found himself embarrassed in addressing me because of their insufficiency. However it is now clear that each of these three appellants pleaded guilty to a charge of hawking without a licence. I think a proper sentence for this charge in the circumstances of the case as disclosed by the list of exhibits is in the case of the first appellant a fine of $250. In the case of the second and third appellants who are school girls a fine of $25 each is appropriate. Accordingly on the first charge the fine imposed on the first appellant is reduced to a fine of $250 and on second and third appellants to a fine of $25 each. The second charge that of causing an obstruction is scarcely appropriate in the case of these girls. What they were doing was helping in the running of an existing stall, and it was the stall which caused the obstruction. Insofar as the first appellant is concerned he had clearly taken over the running of the stall when the owner was away. On charge B the fine of $2,000 imposed on the first appellant is reduced to a fine of $400 and to $5 each in the cases of the second and third appellants. The balance of the fines already paid to be returned. 3. I am left then with the question of the exhibits. The order made by the learned magistrate was that the exhibits should be forfeited although there is no statement on the record as the how these exhibits came to be exhibits in the court. One of the exhibits is certainly not "equipment" or commodity in respect which any public officer had reason to believe that a hawker offence had been committed." It is a sum of money. The other articles seized are, with the exception of two refrigerators, all property which would normally be used in connection with a cooked food stall. Even the two refrigerators may well have constituted equipment of the kind defined in section 83 of the Public Health and Urban Services Ordinance which a public officer is authorised to seize under section 86. If a statement of facts had been agreed in the court below or if the appellants had been recorded as admitting that all the articles seized were such equipment I should not be in any difficulty and I should regard it as a clearly obligatory on the learned magistrate to have made the order in respect of them that he did make. Unfortunately however such a statement is missing. In all the circumstances I do not consider that I am justified in letting the order of forfeiture stand insofar as the cash is concerned and neither do I consider that I may let it stand insofar as the refrigerators are concerned. These are valuable articles and had their forfeiture been desired the precise purpose to which they were put could have been outlined in facts on which the Crown proposed to rely. In all the circumstance of the case I order the return of these two refrigerators that is to say Item No. 22 in the list of the exhibits.
Representation: Mr. Sanguinetti (D.L.A.) for appellant. Mr. Dick, C.C. for Crown/respondent. |