HKSAR v. SZE KWAN

HCMA734/99
and HCMA735/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 734 OF 1999

(on appeal from Eastern Magistrary Case No. 5363 of 1999)

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J U D G M E N T

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1. The appellants who appeal against sentence have not been able to persuade me the magistrate has erred in any manner in imposing a fine of $5,000 on each of them for the offence to which they have pleaded guilty, namely, without lawful authority or excuse they deposited a waste, namely a scrap wooden plank, in a public place at a side lane near No. 20 Wong Chuk Hang Road. This is contrary to section 16A(1) and section 18(1) of the Waste Disposal Ordinance, Cap.354.

2. Under that ordinance, and the provisions pursuant to which the appellants were charged, for a first offence the maximum penalty is a fine of $200,000 and imprisonment for six months. The magistrate took into account that each of the appellants had a clear record but also the fact that the waste, that is the wooden plank, measured 3 by 1.5 metres. The magistrate was of the view that more and more commercial undertakings were deliberately depositing quite large objects in public areas, rather than disposing of them properly. The fine imposed on the appellants each in the sum of $5,000 is therefore, in my view, appropriate. The appeal by each appellant is dismissed.

3. When the magistrate asked Mr SZE as to the time when he could pay the fine, the answer was "No idea" and therefore the magistrate gave him one month to pay. When Mr PUN appeared and pleaded guilty to the same charge, the magistrate also fined him $5,000 and gave him one month to pay. The appellants have notified me on this appeal against sentence that they were working for the company, and it was during their work for the company that they disposed of that waste. The company was not willing to pay for them and told them to be responsible for the fines imposed by the court.

4. In the circumstances, I have taken into account the financial situation of the two appellants and specifically asked them how much time they would need to pay the fine. Mr SZE said he would need three months, whereas Mr PUN said he would need one month. I think to be fair to both appellants, knowing that they were employees, I think that they should have three months to pay the fine as from the date of today.

5. I would mention that I do not understand since there was no stay of the execution of the order of the fine made by the magistrate pending appeal, why the fine had not been paid up to today. To put the matter straight, I would make an order that if an appellant fails to pay the fine of $5,000 within three months, as I have allowed here, he will be imprisoned for two months.