THE QUEEN v. AU WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

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BETWEEN

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J U D G M E N T

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1. These appeals all relate to hawking obstruction offences of one kind or another and are against fines of $1,000 (and in one case $1,500) imposed by Mr Crawshaw at South Kowloon Magistrates Court.

2. There have been a number of similar appeals from the same Magistrate in the recent past and in his Statements of Findings the Magistrate refers to these and to the judgments which followed, some reducing the fines he imposed, and others upholding his fines and dismissing the appeals. He asks that the apparent inconsistency between these appeal judgments be resolved. That request he also made in writing Statements of Findings for appeals dealt with by Bewley, J. on 13th January 1989. In a judgment which related to Chu Yu Sun and others v R MA No. 1705/88, Bewley, J. referred to conflicting decisions of this court. He referred to Siu Ng v R where O'Connor, J. reduced a fine of $1,000 to $600 for a first offender, to Lee Kam and others v R MA No. 1008/88 where Wong, J. followed the decision in Siu Ng, and to Cheng Foon v R MA No. 1158/88 where he himself also followed that decision. The inconsistency in decisions arose when Garcia, J. Dismissed appeals against fines of $1,000 for identical offences. In Chu Yu Sun and others v R Bewley, J. once again dealt with a number of appeals against fines of $1,000 "for hawking obstruction offences". With one exception, for special reasons, he allowed the appeals of those who were first offenders and reduced their fines from $1,000 to $600, while he dismissed the appeals of those who had offended before.

3. In relation to the instant cases, as in earlier cases, the Magistrate has explained that the higher fines imposed in these cases (and certainly they are much higher than those imposed for similar offences elsewhere) are a result of a policy he initiated in August 1988, after consultation with the police and USD Hawker control forces, to incorporate a deterrent element into the fines for offences committed in the "Golden Mile" area of Tsimshatsui, with the object of reducing the particular problem careated by hawker obstructions in this area of high density pedestrian and vehicular traffic. The hawkers who frequent that area are now well aware of the policy change, which has been approved by this court. Some complain loudly that their problems are not given sufficient recognition by the authorities, who on the one hand grant them mobile hawker licences which they can use in the Tsimshatsui area, but on the other hand enforce a too rigid anti-obstruction policy which effectively prevents them from operating successfully. They complain that no areas are properly designated within Tsimshatsui where they can pedal their wares without fear of constant harassment by police and Urban Services employees.

4. I do not know whether their complaints are in any way justified, but I am sure, as I pointed out to them, that reasonable approaches to the authorities might assist towards a resolution of any conflicts of interest which presently exist between the authorities and the hawkers, who provide, from the tourist's point of view, such a colourful addition to the Tsimshatsui scene.

5. However, this is not the place for resolving such conflicts, and while I do feel these fines are on the high side, I accept that a particular problem exists in this area of Tsimshatsui which calls for an element of deterrence. I agree with the sensible approach adopted by Bewley, J. In Chu Yu Sun and others v R so that for a first offender the fine should be no higher than $600, but that subsequent offences could attract fines up to $1,000, and even higher if the offender appears determinedly recalcitrant.

6. I have followed this policy in the instant appeals, though I made exceptions where I felt the appellants' honesty in revealing previous offences (the authorities keep no records) merited some reduction in their fines.

7. While most of the offences were charged under By-laws 53 and 56(2) of the Hawkers (Urban Council) By-laws made under Section 83A of Cap. 132, some of them were charged under Section 4A of the Summary Offences Ordinance. The former offences carry a maximum fine of $2,500 and imprisonment for one month, while the latter offence carries a maximum fine of $5,000 and imprisonment for three months.

8. In his Statements of Findings where that offence occurs, the learned Magistrate makes reference to the higher level of penalty for the offence under Section 4A of Cap. 228,and acknowledges that the legislature must have had good reason for the distinction. However, this seems to have had no influence upon the level of fines he imposed for the different offences. I agree with this approach, which achieves consistency where no distinction really exists, and I urge those responsible for bringing these cases to adopt a consistent approach by charging under the appropriate Hawker By-laws, and I suggest they do not use the Summary Offences Ordinance simply so that higher penalties might be imposed.

9. I dealt with the appeals as follows.

MA Nos. 31 & 32/89 Chan Kin v R

10. The two offences were committed on 26th & 27th November. I had no record of previous offences but the appellant volunteered the information that he had offended once before. I therefore found the Magistrate's fines of $1,000 for each offence to be correct and while as a matter of policy I would not have reduced these fines, I did so, reducing each to $800 giving credit for the appellant's honesty in revealing his previous offence.

MA No. 34/89 Lueng Kam v R

11. This appellant had been fined $1,000 but was not a first offender. This I discovered from appeal judgments already referred to. The appeal was therefore dismissed.

MA No. 35/89 Au Wai v R

12. This appellant had been fined $1,000 but was a first offender. I therefore allowed the appeal and reduced the fine to $600.

MA No. 38/89 Hui Chun Cheung v R

13. This appellant was fined $1,000 but as this was his first offence, I allowed the appeal and reduced the fine to $600.

MA No. 52/89 Lee Kam v R

14. This appellant was fined $1,000 but this was not his first offence so his appeal was dismissed.

MA Nos. 53 & 55/89 Chu Yu Sun v R

15. This appellant was fined $1,000 for each of these offences. He was a previous offender so his appeals were dismissed.

MA Nos. 30, 39 & 54/89 Siu Kam Lam

16. This appellant had pleaded guilty to two offences under the Hawker By-laws committed on 25th November for which on 16th December he was fined $1,000, and on 4th December for which on 13th December he was fined $1,500, because the Magistrate discovered he had offended once before (but not in relation to the 25th November offence). He appeared again on 28th December for an offence under Section 4A of the Summary Offence Ordinance committed on 6th December 1988 and was fined only $1,000. This reveals an obvious inconsistency in approach, and is also at odds with the sentencing policy which I am following. The fine imposed on 13th December of $1,500, because he had offended once before, should he reduced to $1,000 and the appeal in relation to that offence 39/89 is allowed to that extent. The other appeals are dismissed, and this appellant might well justify the imposition of a fine higher than $1,000 if he offends again.

MA No. 36/89 Chu Po Jun v R

17. This appellant was fined $1,000 and as a second offender could expect no reduction in the fine. However, it was she who revealed the previous offence and I give her credit for that. The appeal was allowed and the fine reduced to $800.

MA No. 37/89 Shum Kwan Ho v R

18. This appellant failed to appear and therefore the appeal was dismissed.

MA Nos. 33, 56 & 57/89 Ho Pak Kui v R

19. This appellant also failed to appeal and his appeals were therefore also dismissed.