HKSAR v. CHOW CHI KEUNG

HCMA 1006/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1006 OF 2009

(ON APPEAL FROM KCCC 5589/2009)

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J U D G M E N T

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1.  The Appellant was charged with one charge of Obstruction of Public Places contrary to s. 4A of the Summary Offences Ordinance, Cap. 228, Laws of Hong Kong.

2.  The particulars of the charge was that on 27 April 2009 at the parking space of a parking meter in Woosung Street, Yaumati, Kowloon, he had without lawful authority or excuse, caused to be left a chair, covering an area of about 0.4 x 0.4 square metres, which inconvenience vehicles in the aforesaid public place.

3.  The Appellant was unrepresented in the Magistrates’ Court when he pleaded guilty to the charge.  He also agreed the facts that were put to him.  The facts that were agreed provided the information about the police operation in Yaumati area, particularly covering illegal parking activities with triad connections.

4.  And then it goes on to say that at 9.10 pm on that day, an undercover officer drove his vehicle along the street at Woosung Street between Bowring Street and Jordan Road, Yaumati, and an old man then asked him whether he was looking for a parking space.  When the undercovered officer said “yes”, the Appellant then approached the undercovered officer and helped him to park his vehicle into an unoccupied parking space at a parking meter.  The undercovered officer saw the old man moving a chair which was the cause of the obstruction from the said parking space in order to facilitate the Appellant in parking the car.  The Appellant was subsequently arrested.

5.  The Appellant told the police that he provided parking service to customers only and that his father left a stool to occupy the parking space in order to facilitate the parking business for the customers of a nearby restaurant.

6.  The Learned Magistrate then convicted the Appellant and after obtaining a probation background report, then sentenced the Appellant to 4 weeks’ imprisonment suspended for 3 years and a fine of $3,000.  It is also to be noted that the Appellant was kept in custody for 2 weeks pending the probation officer’s background report.  The Appellant appealed against the sentence and is represented by Mr Laskey in this Court.

7.  First of all, I will briefly mention the Learned Magistrate’s reasons for sentence.  The Learned Magistrate heard mitigation was aware of the fact that the Appellant had a clear record and is 48 years old.

8.  It appears that on the day of sentencing, the Appellant was represented by a lawyer who had mitigated on his behalf.

9.  It was submitted that the Appellant was merely assisting his father and that his father had stopped providing his service to park cars and, therefore, there is no possibility for the Appellant to re-offend.

10.  It was also clear to the Learned Magistrate from the background report that the Appellant’s father was aged 73 at the time and the Appellant comes from a family where everyone had a proper job and the Appellant himself had proper schooling and had worked most of his life.  The Appellant is a married man and has a young daughter.  He had economic ups and downs, he was a taxi driver.  On the day of the offence, he was helping his father in his job because of his father’s age.

11.  In paragraph 6 of the Learned Magistrate’s Statement of Findings, the Learned Magistrate accepted the mitigation that the Appellant was helping his father and that he received no direct benefit from this offence.  But the Magistrate considered that a deterrent sentence was necessary because Yaumati was a very busy area replete with restaurants and entertainment places and parking spaces were limited.  And this kind of obstruction was of great inconvenience to the public.  That is why at the end of the day the Learned Magistrate considered imposing both a suspended sentence and a fine.

12.  Mr Laskey, on behalf of the Appellant, submitted several grounds of appeal.  The first ground of the appeal is that there was material irregularity in that the brief facts contained many inadmissible and highly prejudicial details which were given to the Learned Magistrate at the time when the brief facts were read to the Court.  And, it is submitted by Mr Laskey, the Learned Magistrate should have brought this to the attention of the Appellant’s solicitor on the day of the sentencing so that the Appellant’s solicitor could make submissions on this matter should he feel it necessary.

13.  The second ground of appeal is that the sentence was wrong in principle because the sentence of imprisonment should not have been passed because there does not exist any grave aggravating features.

14.  The third ground of appeal is that the sentence was manifestly excessive as the Learned Magistrate had failed to take into sufficient account the various mitigating factors.

15.  As far as the first ground of appeal is concerned, I do agree that the Learned Magistrate should have brought the paragraph in the brief facts which was submitted to him about the operation of the police regarding triad involvement in parking in that area to the attention of the defence solicitor before sentencing.  In not doing so in this case it was not necessarily fatal, because the Learned Magistrate did say that he found that there was no other aggravating features in relation to this offence and he ignored the allegation of the operation of the police on that day in relating to investigation in the triad involvement in parking spaces.

16.  In relation to the second ground of appeal that the sentence was wrong in principle because there is no grave aggravating features which would justify a deterrent sentence of imprisonment.  I am more persuaded by the argument of Mr Laskey.

17.  According mitigating factors accepted by the Learned Magistrate the Appellant was merely assisting his father at the time and had no direct interest or benefit from this offence.  This is the Appellant’s first defence.

18.  In relation, therefore, to the third ground of appeal, that the sentence was manifestly excessive, I agree with Mr Laskey that it was manifestly excessive in the circumstances.

19.  On the fact accepted by the Learned Magistrate and the mitigating factors accepted by the Learned Magistrate, this is not a case where a sentence of imprisonment is called for.  Of course, the Learned Principal Magistrate is entitled to take into account the fact that Yaumati area is a very crowded area and this type of activity causes greater inconvenience to members of the public seeking a parking space.  Nevertheless, it is not of such a nature that a deterrent sentence is called for for a man with the Appellant’s background.  Particularly as I have stressed that the Learned Magistrate accepted the Appellant was merely helping his father.

20.  The appeal is therefore allowed.  The original sentence is replaced by a fine of $2,000.  The cost to the Appellant for the appeal to be taxed if not agree.