Wong Nai Chor v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 222 OF 1973

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JUDGMENT

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1.  The Appellant was charged before the magistrate with being the driver of a public light bus and picking up passengers in a restricted area. There was a straight issue of fact before the magistrate whether the Appellant did stop in a restricted area. He appeals against his conviction, alleging that the evidence given by the police officers was untrue. He concedes that if it was true then there was evidence upon which he could be convicted. The learned magistrate was the judge of the facts and he saw both witnesses and I am unable to say that he came to a wrong conclusion. The appeal against conviction must be dismissed.

2.  For this offence the learned magistrate imposed a fine of $150 and ordered payment of $50 costs.  The Appellant had a clear record.  He complains that the penalty imposed upon him was out of line with those which are normally imposed for this offence and states, indeed, that it is out of line with sentences imposed for similar offences by the same magistrate on the same day where the defendants pleaded Guilty.   He says that those persons were fined $30.  Counsel for the Crown tells me that this magistrate had not previously been sitting in this particular magistracy and that the penalty is in fact above the normal for that magistracy.  According to his information the average is a fine of $50, with no order for costs.

3.  The question I have to decide is whether or not a fine of $150 is clearly excessive for the offence.  There was no evidence before the magistrate as to the financial circumstances of the Appellant but the Appellant tells me that he earns slightly over $800 a month.  The learned magistrate said that this was a particularly prevalent offence and I am not prepared to say that the sentence which he imposed was an improper one.  I say only that it is desirable that there should be a measure of unanimity among magistrates as to the correct level of sentences but I cannot say that this one is so out of proportion that I ought to interfere.  Nevertheless, I do think that it would be right for me to set aside the order for payment of costs and the $50 costs must be repaid to the Appellant.

26th April 1973.