R. v. WONG YIN FONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 780 OF 1996

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J U D G M E N T

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1. This is an appeal against conviction for illegal hawking. It was alleged that on 18th December 1995, the appellant was hawking women's wear on the pavement in Kwai Chung, and that she was doing so without a licence.

2. The prosecution evidence was that she was seen by a number of hawker control officers, and when seen she was holding sweaters open in her hand in a manner which made it clear that those sweaters were for sale, and that on the ground there was an open bag which displayed other sweaters clearly available for sale. The evidence was that there was a potential customer squatting on the ground, examining some sweaters or clothes, and that the appellant was approached and asked if she had a licence and she said she did not. She was then cautioned and told that she would be arrested, and asked to enter a van, at which point she is said to have made off to a neighbouring amusement arcade. In due course she was taken out of the amusement arcade to go to the van, and she was taken to the police station.

3. There was also a charge of obstructing a public officer in the execution of his duty. This related to her conduct when she was taken to the police station but save that the evidence was that she was being very difficult and obstructed, it has no bearing on this appeal, because she was acquitted of that charge, although the acquittal did not involve any disbelief by the magistrate of the evidence of the prosecution witnesses.

4. The appellant gave evidence. She admitted, although she now tells me that she did not, that she had indeed been hawking that morning shortly before the officers arrived. Since there was not much business that day, she and another hawker decided to close business for the day. She said in evidence that when she saw the officers rush in her direction, she walked quickly to the game centre because she did not want them to know that she was working in the area. She had started hawking at 10 in the morning and stopped shortly before she was arrested.

5. Her husband gave evidence, and he said that he was helping his wife that day, but that she had sold nothing.

6. It may be wondered what the complaint there can possibly be by the appellant, given her admission before the magistrate that she had indeed been hawking in that spot that very morning. Her complaint appears to be that she had stopped hawking before the officers ever saw her.

7. Madam Wong should understand that my function is not to hear the evidence afresh. That is the magistrate's function. My function is to determine whether there has been any error in law or whether on the face of the record the magistrate has come to a decision which is somehow unsafe or unsatisfactory.

8. The magistrate in her Statement of Findings has recorded the fact that the appellant admitted hawking without a licence, but in any event she accepted the evidence of the officers that they had seen her hawking goods. That was a conclusion to which she the magistrate was perfectly entitled to come. In the circumstances, it is impossible to find any fault with the magistrate's reasoning, or with her decision, and accordingly this appeal against conviction is dismissed.