HKSAR v. MEGGON INTERNATIONAL LTD

[English Translation – 英譯本]

HCMA 256/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 256 OF 2017

(ON APPEAL FROM KCS NO 4088 AND 4089 OF 2017)

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J U D G M E N T

1.  The authority issued two summonses to the appellant company, alleging that it had operated a food business, that is a food premises, for the period from 30 September 2016 to 21 October 2016(KCS 4088/2017) and from 27 October 2016 to 10 November 2016(KCS 4089/2017), in a shop of an industrial building in Kowloon, which is not under and in accordance with the licence issued by the Director of Food & Environmental Hygiene (FEHD).

2.  The appellant company’s food premises have an area of about 150 square metres.

3.  The appellant company pleaded guilty to the two summonses and the deputy magistrate (hereinafter referred to as the magistrate) imposed the following sentence:

(1)  KCS 4088/2017: A fine of $20,000, and a daily fine of $10 for the period of 21 days of the continuing period of offence, making a total fine of $20,210.

(2)  KCS 4089/2017: A fine of $20,000, and a daily fine of $10 for the period of 14 days of the continuing period of offence, making a total fine of $20,140.

The appellant company appealed against the sentence.

Factors to consider in sentencing

4.  After the magistrate convicted the appellant company, its representative indicated to the magistrate that there was no submission in mitigation.

5.  The magistrate pointed out that she had taken into account the following in sentencing:

(1)  the penalties stated in the ordinance;

(2)  the appellant company was a first offender;

(3)  the area of the food premises is about 1,500 feet and is not a small food premises;

(4)  there was no sentencing guideline for this type of offence.

Review of sentence

6.  The appellant company applied to the magistrate on 6 April 2017 for review of the sentence imposed for the two summonses on the following grounds:

(1)  The appellant company did not have any previous convictions.  It was a first offender.  It pleaded guilty in court without raising any dispute, showing a good attitude and saving the court’s valuable time.

(2)  For similar cases and food premises of roughly the same size, the fines were generally several thousands of Hong Kong dollars.  This case involved ordinary food premises which had not caused any hazard to public safety in the past.  There was no aggravating factor.

(3)  The food premises in the present case were in the course of applying for a licence.  All the government departments involved were not opposed to the application.  They were actively following up with the Lands Department on exempting the property from the user restrictions, pending a positive reply.

7.  The magistrate rejected the application forreview.

Grounds of appeal

8.  On appeal, the appellant company was not legally represented[1] and the main grounds of appeal put forward were as follows:

(1)  the magistrate did not give due consideration to the fact that the appellant company was a first offender and had pleaded guilty;

(2)  the present fine was higher than that in other cases in general;

(3)  there was no aggravating factor in this case;

(4)  the magistrate did not take full account of the fact that the appellant company had been applying for a licence.

Discussions and considerations

9.  There are no sentencing guidelines for this type of cases.  According to section 35(3)(a) of the Food Business Regulation[2], a person who contravenes the relevant regulation is liable to a fine at level 5[3] (hereinafter referred to as the principal fine) and to imprisonment for 6 months.  If the relevant offence is a continuing one, an additional fine of $900 per day can be imposed for the period during which the offence has continued.

10.  This offence, though of a regulatory nature, is by no means minor.  This can be seen from the maximum penalties of imprisonment for 6 months and a fine.  The operation of unlicensed food premises poses a significant risk in the areas of hygiene, fire protection and even the structure of the premises.  Therefore, the court must take a serious view in sentencing.  Even if no substantive hazard had occurred, the potential risk could not be neglected.  If there was a substantive hazard, the culpability involved would be greater.

11.  LUI Ming Chun, Pierre, the Public Prosecutor who represented the respondent, assisted the court by providing information on all the sentences imposed for the period between 1 January and 20 June 2017[4] for similar offences.  According to such information, sentences were passed in courts on a total of 824 summonses, and on 821 summonses, the defendants had pleaded guilty.  In these cases, the average fine was $8,098, which included a daily additional fine for the period during which the offence continued.  Of the 824 summonses, 88 attracted a fine of $20,000 or above, and 52 involved defendants with previous similar convictions.  In addition, 36 summonses involved first offenders who had been fined $20,000 or above (4.37% of 824 summonses).

12.  The information provided by the respondent did not set out separately the principal fine and the daily fine for the period of the continuing offence, nor did it indicate the factors taken into account by the courts when deciding on the fines.[5]

13.  As Mr LUI stated, with which I also agree, in general in considering the sentence, the circumstances the court should take into account include the following:

(1)  the size of the food premises;

(2)  the duration of the offence;

(3)  the reasons for there being no licence;

(4)  whether the defendant is a first offender; if not, the number of previous offences.

In general, the court must take into account the overall circumstances in considering the most appropriate sentence. The circumstances set out above must be taken into account.  In addition, the court should also take note of the nature of the premises where the food premises were located, the stage any application for a licence had reached, the reasons underlying any rejection of the application, the nature and extent of health, fire or other safety risks that the business may bring, and whether any material hazard had in fact occurred.  In the absence of any relevant discussion in the present case, it is not possible for this court to set out all the factors that should be considered.  The above factors are merely what I consider to be matters that should be taken into account in appropriate circumstances.  If there is any matter related to sentencing, both the prosecution and the defence have the duty to inform the court by proper means, otherwise the court can only pass a sentence based on the available information.  In general, the court should also take into account the financial capabilities of the defendant. However, with respect to this offence, this factor carries a lesser weight.  This is because the defendant is the operator of a business. Moreover, even in the event of difficulty, the matter in most of the times can be resolved by making the payment in a flexible way.

14.  The offence involved in the present case is often committed in a continuous manner.  While many other offences may also be committed in a continuous manner, unlike the offence in the present case, not all such other continuing offences have a provision prescribing a fine for the continuing of the offence.  Since a fine is prescribed for the continuing of the offence, I am of the view that in determining the amount of the principal fine, it is open to the court to take into account the duration of the continuing of the offence if it deems appropriate.  Having said that, at the same time, it must also bear in mind that the continuity of the offence has definitely been reflected to a considerable extent, if not its full extent, by the fine for the continuing of the offence. For these reasons, one must exercise care in determining the principal fine to avoid double or excessive penalties for the same factors.

15.  In the present case, the authority issued two summonses to the appellant company.  Mr LUI informed the court that this was not due to any legal requirement.  Rather it was the policy adopted by the FEHD all along that if the contravention continues, normally a summons will be issued every month, depending on the circumstances.

16.  This practice is reasonable and has a practical effect. When the law enforcement authority discovers a contravention that has persisted for a period of time, a summons should be issued without any delay.  After issuing a summons, if the contravention continues, another summons should be issued after a period of time.  If a policy is not put in place to issue summonses in an orderly manner, it will easily lead to inconsistencies in the prosecution of cases.  This will be a source of criticism.

17.  In the present case, the magistrate gave an account of the factors she had taken into consideration, as described in paragraph 5 of this judgment.

18.  It can be seen from the transcript of the original proceedings that the information available to the magistrate was limited.  She took into account all matters that she should have.

19.  By the time of the application for review of sentence, the appellant company provided additional information.  The magistrate should take into account the information and decide whether the sentence was appropriate and whether it should be reviewed.

20.  Having referred to the information on sentencing provided by the respondent, it is clear that Mr LUI has fairly accepted that the fines imposed in the present case were higher than those in many other cases.

21.  However, that does not necessarily reflect that the magistrate erred in the sentencing of this case.  It could have been because the sentences imposed in other cases were too lenient.  Having said that, it is also important to maintain consistency in sentencing.

22.  In my consideration, I have taken into account the circumstances that are now known, including:

(1)  the food premises had an area of about 150 square metres, being a medium-sized establishment;

(2)  the food premises were located in a ground floor shop of an industrial building;

(3)  according to the two summonses, the duration of the contravention was 35 days in total;

(4)  the appellant company had been applying for a food premises licence, and the government departments concerned had no objection to the application[6];

(5)  the Lands Department had approved exemption of the property from the user restriction and the appellant company had also paid the relevant fees, pending formal approval document from the department;

(6)  the licence pending approval by the FEHD had not yet been issued.

23.  Under section 119(1)(e) of the Magistrates Ordinance[7], in dealing with an appeal against sentence, this court has the power to impose any punishment, whether more or less severe than that awarded by the magistrate, which the magistrate could have awarded.

24.  In my consideration, I have taken into account the matters referred to in paragraph 13 of this judgment relating to the present case, particularly the fact that the appellant company is a first offender pleading guilty to the summonses, that it had been applying for a licence and appears to have a very good chance of getting it, but that it did not have a licence back then, nor does it have one now.

25.  The magistrate imposed a continuous fine of $10 per day. I have considered whether that was appropriate.  The maximum penalty in this respect is a fine of $900 per day.  Applying the general criteria for consideration, I am of the view that the daily fine of $10 is too low.  This is so in spite of the fact that the defendant was applying for a licence, I am of the view that the daily fine should be $100, taking into account the appellant company admitted the charges.

26.  In the present case, since the continuation of the offence was fully reflected in the daily fine, taking into account the fact that the appellant company had pleaded guilty and there was limited information available to the court, I am of the view that the appropriate principal fine for the first summons should be $18,000.

27.  As the authority issued two summonses to the appellant company, the court has to decide the amounts of the principal fine and the daily fine for each summons.

28.  In considering this, the principles laid down by the Court of Appeal in HKSAR v Ngai Yiu Ching [8] should be taken into account.  The key consideration is whether the second summons represents conduct that aggravates the culpability.  It also serves to reflect the totality principle, so as to avoid excessive punishment or even double punishment.

29.  The second summons was issued clearly because the contravention continued.  This can be reflected in the principal fine or the daily fine.  As this involves continuation of the contravention, the daily fine for a summons after the first summons can be higher than the fine for the first summons.  Whether an increase is warranted and for how much it should be increased depend on the circumstances of each case.

30.  Where a further summons has to be issued because of continuation of the contravention after a previous summons was issued, there would, to a greater or lesser extent, be an aggravation of culpability.  The extent of the aggravation depends on the circumstances.  An obvious scenario that aggravates culpability is that the accused continues with the contravention even after receipt of the summons.  The circumstances of the present case do not involve this situation as the two summonses were issued on the same day.

31.  Taking into account the overall circumstances, I am of the opinion that the fines imposed have been excessive.  Therefore, I allow the appeal and order that the fines be revised as follows:

	Summons	KCS 4088/2017
		Principal fine:	$18,000
		Daily fine:	$100
		(21 days of the continuing $2,100 ) period of offence, a total of

	Summons	KCS 4089/2017
		Principal fine:	$2,800
		Daily fine:	$100
		(14 days of the continuing $1,400 ) period of offence, a total of

32.  For summons KCS 4089/2017, the facts are no different from the first summons and it only involves continuation of the contravention. I am of the view that in the circumstances of this case, the continuation of the contravention can be reflected in the principal fine and there is no need to increase the daily fine.

33.  For the two summonses, the total fine imposed on the appellant company is $24,300.

LAU Tin Yick (transliteration), director of Meggon International Limited, for the appellant company

LUI Ming Chun, Pierre, Public Prosecutor of the Department of Justice, for the HKSAR

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.