THE QUEEN v. LEUNG KAN

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H E A D N O T E

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Hawking in the " Golden Mile " in Tsimshatsui.

Fines reduced from $1,000 to $600.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeals

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J U D G M E N T

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1. There are before me altogether 10 appeals involving 8 appellants who were charged with and pleaded guilty before Mr Crawshaw, Principal Magistrate to offences of hawking obstruction or obstruction either under the Hawkers (Urban Council) By-laws or the Summary Offences Ordinance. The maximum penalty for an offence under the Hawkers (Urban Council) By-laws is $2,500 fine and one month imprisonment whereas it is a fine of $5,000 and 3 months imprisonment under the Summary Offences Ordinance. The appellants were charged under different ordinances because some were actually hawking and some were not and apart from that there is no material difference in nature or substance in all the appeals. The magistrate imposed a fine of $1,000 in respect of each of all 10 cases and the appeals are against the severity of those fines.

2. It is not disputed that all the appellants were licensed hawkers and they have been hawking with licences for periods between 20 to 30 years. With the exception of one case of a 62 year-old lady who had two cartoons of pears placed on the pavement in Ashley Road, it is right to say that all the other appellants were selling articles such as electronic watches, T-shirts or roasted chestnuts on a metal handcart in some parts of Tsimshatsui which is commonly known as the Golden Mile.

3. In imposing these very heavy fines, the magistrate took the view that this type of offences was too prevalent in that area and it had been causing problem and concern to the police and U. S. D. hawker control teams and therefore on 15th August, this year, he acted in conjunction with them to design a new policy. The new policy is nothing more than the imposition of very heavy fines irrespective of the merit or seriousness of all cases coming before him.

4. Before me, all the appellants made one and the same point that since they were licensed to hawk it was inevitable that some obstruction would be caused if they were to carry out their lawful trade and to earn their living. They all pleaded for their fines to be reduced.

5. I adjourned the appeals on 13th December to to-day for certain enquiries to be made by counsel appearing for the Crown. I have now been supplied with the information I asked for.

6. I am informed that the Golden Mile is not an area where hawking is permitted. The only important matter to be looked at is therefore the extent or seriousness of the obstruction. On this issue, there is unfortunately no evidence. No summary of facts is to be found from the record or notes kept by the magistrate. Mr Gerber has not been able to be of much assistance either.

7. I understand that similar appeals from the same magistrate were heard before Garcia J recently who upheld the fines of $1,000 and dismissed the appeals. There are no written judgments. However, in a judgment given on 19th September, this year in The Queen v SIU Ng, Magistracy Criminal Appeal No. 800 of 1988, which is a case identical to the present appeals involving the same magistrate, O'Connor J reduced a fine of $1,000 to $600 on the ground that as no record is kept for hawking offences, the appellant must be treated as a first offender and a fine of $1,000 was too heavy for a first offender in this type of offences.

8. This decision was followed by Bewley J on 10th November, 1988 in The Queen v CHENG Foon, Magistracy Criminal Appeal No. 1158 of 1988, which was also an appeal from the same magistrate in an identical situation.

9. I believe that these decisions were not brought to the attention of Garcia J.

10. Having regard to the decisions of O'Connor and Bewley JJ and the absence of any evidence on the seriousness of the obstruction, I would allow the appeals and reduce the fines of $1,000 to $600 with the exception of Magistracy Criminal Appeal No. 1544 of 1988. In chat case, the appellant, Madam Mok Yee-nor was not hawking at the time and she only had two cartoons of pears on the pavement. She is 62 years old. I would reduce her fine from $1,000 to $200.

11. The appeals are allowed to this extent.