HKSAR v. NKWO NNAEMEKA DARLINGTON

HCMA 138/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 138 OF 2014

(ON APPEAL FROM KWUN TONG MAGISTRACE CASE NO 9323 OF 2013)

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J U D G M E N T

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1.  I am satisfied that the appellant is a person without means and not in a position to pay this fine. A conviction has been recorded against his name for smoking in a non-smoking area. On his own admission, he was smoking in the designated area and there is no basis whatsoever to disturb the conviction that has been imposed upon him. Whilst the defendant has filed an appeal against conviction, he has not sought to appeal his sentence. It is open to me to deal with the sentence, and I will do so, pursuant to s 119(1)(e) of the Magistrates Ordinance, Cap 227.

2.  As I stated, on the information the appellant has presented to me, he does not have the funds to be able to pay this fine.  I accept this to be the case.  He is currently in custody, having been convicted of drug offences, and has been given a substantial term of imprisonment as a result.  In the circumstances and on the submission of the prosecution, I will set aside the sentence of a fine of $2,000 given that he is in custody for a long time, and even if a small fine was imposed and he defaulted on it, a short term of imprisonment would most likely be ordered to be served concurrently.