HKSAR v. FARTHING DONALD

HCMA 471/2018

[2019] HKCFI 2253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 471 OF 2018

(ON APPEAL FROM EASTERN MAGISTRACY
CASE NO ESR 28 OF 2015)

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J U D G M E N T

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1.  The Appellant (73), who had never been in trouble with the law before, was convicted after trial of a summons of displaying a poster on Government land without written permission[1].

2.  The case was heard before a Deputy Magistrate, Miss Vivian Yeung, sitting in the Eastern Magistracy. The Appellant, defending himself, chose to testify at trial but called no witnesses on his behalf. The learned magistrate fined him $3,500 following a conviction. He now appeals against conviction and sentence.

3.  In the afternoon of 9 August 2015 (Sunday), an Assistant Hawker Control Officer, Mr. Wong, of the Food and Environmental Hygiene Department (FEHD) saw the Appellant set up an Easy-Mount frame with poster advertising some skin care cream on the footbridge around Connaught Road Central where many Filipino maids gathered, and had him under observation for about 5 minutes during which the Appellant was standing next to the frame promoting his products.

4.  There was no issue at trial that the location where the Appellant was found was Government land and that he had no written permission from the Authority for what he was doing.

5.  But what he alleged was that he had made enquires with FEHD beforehand and was told by some officials that it was okay for him just to hold the poster to promote his business activities so long as the poster was not fixed to any permanent structures, and in so doing no written permission was necessary.

6.  The Appellant also disputed the facts as described by officer Wong; his side of the story was that he was at that time rolling up the poster and was about to leave, which was rejected by the learned magistrate.

7.  He put forward many grounds of appeal but to my mind none of them had any merits at all. For instances, he said the conviction would have adversely affected his future application for visa and employment; he was acting on the wrong advice given to him by the FEHD officials; the Duty Lawyer Services refused to represent him; it was unreasonable for officer Wong at trial to be able to remember an event happened some 36 months ago etc.

8.  The learned magistrate was aware of the appellant’s clear record and had properly given herself the “Good Character” directions. In accepting officer’s Wong evidence, she said[2]:

“I found Mr. Wong’s evidence was reliable and credible. His evidence remained unshaken under cross-examination. His evidence was reasonable in all respects. There was no unreasonableness or inherent improbability in the evidence put forward by the prosecution. Mr. Wong had told the truth in court.”

9.  In his testimony, the appellant said that he designed the poster in question, and would use it for 3 to 4 hours every Sunday. If that was the case, his intention was clearly to promote his products, coupling with the “no-written-permission-needed” advice he claimed he got from the department, he would in all likelihood be in the thick of his business when officer Wong met him in that particular afternoon. The learned magistrate therefore has very good reasons not to accept his version of the event.

10.  The sole issue at trial is one of facts. The parties’ different versions of event have fairly been put before the learned magistrate and these are matters properly within the province of the tribunal of fact, i.e., the magistrate; unless there is something plainly wrong in her reasoning the appellate court is not going to intervene. And I find none.

11.  Mr. Nicholas Wong, Senior Public Prosecutor for the respondent has alluded the court to the possibility that there might be a Common Law defence of “Honest and Reasonable belief” available to an offence under section 104A(1)(b) of the Ordinance.

12.  Section 104A(1)(b) reads:

104A - Prohibition on display of bills or posters without permission

(1) No bill or poster shall be displayed or affixed –

(a) ……………………

(b) on any Government land, except with the written permission of the Authority

The offence only carries a maximum fine of up to Level 3 ($10,000) without any imprisonment term.

13.  Mr. Wong, however, submitted that this was not going to affect the conviction in any way since the learned magistrate had rejected the Appellant’s version of events entirely, the corollary of which was that she would also have rejected such a belief on the part of the appellant.

14.  First of all, the issue of “Common Law defence” was never canvassed in the court below, and without proper argument from both sides, particularly from the defence, I don’t think it right to determine such a question of importance on this appeal.

15.  Suffice it to say even if his version was accepted, it would not assist him. The belief, if he does have, must relate to the fact that he honestly and reasonably, albeit erroneously, thought that he had had the written permission from the Authority. But what he was told was that he did not need one- this does not qualify for a Common Law defence.

16.  For the reasons given above, the appeal against conviction is dismissed.

Appeal Against Sentence

17.  This offence carries a fixed penalty of $1,500, when imposing the fine of $3,500, the learned magistrate said[3]:

“By virtue of section 12 of Fixed Penalty (Public Cleanliness and Obstruction) Ordinance, Cap 570, where a person who disputed the liability for the scheduled offence concerned and having been served with a summons and appeared before a magistrate, offered no defence or a defence which is frivolous or vexatious, the magistrate shall, in addition to any other penalty and costs, impose an additional penalty equal to the amount of the fixed penalty for that offence. Furthermore, by virtue of section 13 of the Ordinance, the proceeding shall terminate if, not later than 2 clear days before the hearing, the Defendant pays the fixed penalty and an additional penalty equal to the amount of the fixed penalty and the costs in sum of $500, he may discharge liability for the offence.”

18.  As is clear from the above provisions, even if someone who decided before the hearing to give up the fight in good time, he would still have to pay a sum up to $3,500 to discharge his liability. Here the appellant had fought it (of course that was his right), but now lost it, he was only fined the same amount. In a way he was better off, the appellant should not have any complaint about it.

19.  The sentence is neither wrong in principle nor manifestly excessive. The appeal against sentence is also dismissed.