HKSAR v. KWOK TAI MEI

HCMA1077/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1077 OF 2003

(ON APPEAL FROM NKCC 7469 OF 2000)

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J U D G M E N T

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1. The appellant pleaded guilty before a magistrate to two charges of conspiracy to defraud, contrary to Common Law. She was sentenced to four months' imprisonment suspended for 12 months on each charge to run concurrently. She now appeals against her conviction and she has been granted leave to appeal out of time.

2. The appellant, an Itinerant Hawker Licence holder, was offered an option for the selection of a vacant hawker fixed pitch stall. She was approached by a Chan Shu Hung. As a result of Chan's offer to rent the fixed pitch stall from her at a monthly rental $2,000, she exercised her option and signed an agreement with Chan accordingly.

3. Afterwards she was issued with a Fixed Pitch Hawker licence, one condition of which was that she should not transfer or assign her licence to anybody without prior approval of the Urban Council. She failed to disclose her agreement with Chan, but instead falsely registered Chan Man Wah as her authorized agent. Chan Man Wah paid rent directly to Chan Shu Hung for the stall.

4. The grounds of appeal is that the conviction of the two charges are unsafe and unsatisfactory as the plea tendered was a nullity since the facts admitted by the appellant do not amount to the offences charged. Alternatively, that there was no evidence or sufficient evidence to found the conviction.

5. This is one of a series of cases that went on appeal as a result of the Court of Appeal judgment in HKSAR v. Chan Shu Hung and Another, CACC512/2001. The Court of Appeal held that there was no special relationship between the hawker and the USD at the time when the hawker signed the agreement to opt for the fixed pitch stall, thus the hawker was under no obligation to disclose any existing assignment of the right to carry on the business at the stall. Thus, whilst the acts might constitute breach of the relevant agreement, they do not amount to dishonest acts under the dishonesty test compounded in the case of Ghosh.

6. Following that judgment, it is clear that the facts admitted to by the appellant in the Magistracy did not support the two charges. Both the magistrate and the respondent do not seek to uphold the conviction.

7. I allow the appeal, with conviction quashed and sentences set aside.

Ruling on Costs

8. The applicant applied for costs personally incurred in the Magistracy to the extent of her payment of the so-called "handling charge" to the Duty Lawyer Scheme and costs on appeal to the extent of her contribution to legal aid.

9. Section 15(a) of the Costs in Criminal Cases Ordinance, Cap. 492 provides that :

"In any criminal proceedings-

(a) the costs that may be awarded by virtue of an order shall not be punitive but shall be such sums as appear to a court or a judge reasonably sufficient to compensate any party to the proceedings for any expenses properly incurred by him in the course of those proceedings, including any proceedings preliminary or incidental thereto;..."

10. Section 8 of the same Ordinance provides for the award of defence costs on appeal from the magistrate. It says :

"Where a judge-

(a) allows an appeal to which section 105 or 113 of the Magistrates Ordinance (Cap.227) applies, in the exercise of his powers under section 120 of that Ordinance; or ...

the judge may order that costs be awarded to the defendant."

11. I am satisfied that the costs as applied for are personally and properly incurred by the applicant. There being no objection from the part of the respondent, I shall grant the application in terms as follows :

That the applicant be awarded :

(a) $300 incurred as handling charge paid by her to the Duty Lawyer Scheme; and

(b) $3,389 as contribution paid by her as contribution of her costs of appeal to the Legal Aid Department.