Ko Wah-sang v. The Queen

CACC001238/1976

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Coram: McMullin J. in Court.

Date of Judgment: 24th December, 1976.

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JUDGMENT

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1. The appellant is in possession of a licence issued to him under the Hawker By-laws. It was a condition of that licence that he should hawk his wares only in certain appointed areas in the New Territories. Because of ill health he found it difficult to trundle his hand-cart, with the woollen goods which he was licensed to sell, from the place where he lived to his authorised place of business which was some distance away. He therefore took to hawking his wares in the immediate vicinity of his own premises within the urban area. He was charged with two offences. One was laid under By-law 5(1) of the Hawker By-laws made under section 83A of the Public Health & Urban Services Ordinance. A second charge of failing to produce his hawking licence for inspection contrary to By-law 16 of the same By-laws does not appear to have been proceeded with.

2. When the charges were read and explained he said "I admit. I have a licence." The licence was shown to the court and it was clear that it did not entitle him to hawk in Kowloon. He produced a medical certificate showing that he was suffering from tuberculosis. The learned magistrate had obviously considerable smypathy with his plight and upon this plea which did indeed amount to a plea of guilty she recorded a conviction and called for a social welfare report. After receiving this upon a later date she granted the appellant an absolute discharge. She felt however constrained to make an order of confiscation under section 86A (1) (a) of the Ordinance.

3. The appellant was unrepresented upon the appeal which was out of time. He was however fortunate in that Mr. Macdougall who appeared for the Crown at once disclosed that he had some misgiving as to the propriety of the conviction. I have been greatly indebted to counsel for bringing this matter to my attention for I confess I had overlooked it myself. The point which he makes is to my mind one of substance. The charge is hawking without a licence contrary to By-law 5 (1). That is not correct. The appellant does possess a licence to hawk the particular commodity which constitutes the substance of his trade. On the facts available he should have been charged with failing to comply with the conditions of his licence under By-law 55 (1) of the By-laws. Where the Legislature chooses to make a distinction between hawking without a licence simpliciter and hawking in contravention of the conditions of the licence I think the Crown is bound to particularize the offence correctly and it will not be open to the prosecutor to argue that the improper use of a licence is in effect the carrying on of the trade without any licence at all. No doubt the charge could have been amended at any stage during the trial to disclose the true offence. Had that been done the learned magistrate would not necessarily have found herself confronted with the distasteful task of mandatory confiscation. She took the view that since the hand-cart and the woollen garments had been seized by the police within their powers under section 86 (1) of the Ordinance thereupon, conformably with the decision of this court in Criminal Appeal No. 301 of 1975, no discretion was left in the court to refuse to confiscate, the offence being a By-law 5 (1) offence. Offences under that By-law are designated offences for the purposes of section 86A (1). Where goods and equipment are seized in connection with a By-law 5 (1) offence, and conviction follows, there is indeed no discretion in the court to refuse to confiscate either the goods or the equipment. However, an offence under By-law 56 is not a designated offence and conviction under that By-law does not automatically draw down the order for confiscation. It would of course, had the appellant been charged under that By-law, have then fallen to the learned magistrate to consider whether there were special reasons for not making an order for confiscation. Although the appellant's ill health would, no doubt, not constitute special reasons in the meaning of paragraph (b) of subsection 1 of section 86A I was not prepared to say that had he been correctly charged it would not have been possible to show special reasons to the satisfaction of the learned magistrate. It may be added that I did not think that the eve of Christmas Day was an appropriate hour for ordering a re-trial or for launching into any inquiry upon my own account within the powers conferred upon me under the Magistrates Ordinance for the sole purpose of supporting an order which the learned magistrate was clearly reluctant to make. For the reasons given I set aside the conviction and ordered the return to the appellant of his hand-cart and the goods seized at the time of his arrest.

Representation:

Appellant in person.

Macdougall, Crown Counsel for Respondent.