THE QUEEN v. WONG WAI-HON

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEALS

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BETWEEN

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J U D G M E N T

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1. Each of the three appellants pleaded guilty in the Magistrates Court to a hawking obstruction offence under the Hawkers (Urban Council) By-laws made pursuant to Section 83A of the Public Health and Municipal Services ordinance. The offence is one for which a magistrate is required in certain circumstances to order forfeiture of equipment etc. seized at the time other public officer obtained evidence of the commission of the offence.

2. The learned magistrate convicted each appellant and imposed a substantial fine. In addition one condition precedent for, the making of the confiscation order, namely, putting of information before the court of the public officer of the seizure of the equipment, was fulfilled. But the provision requiring the making of the order has a further condition precedent that the Magistrate must not have found special reasons for not making the order. In this case, none of the appellants said anything to the magistrate in mitigation. The provision requiring the making of the order is in these terms:

"....... unless the court finds and specifies special reasons, which reasons shall be special to the facts of the case and not special to the offender as distinct from the offence, it shall make such an order."

3. The learned magistrate in his statement of findings in respect of each appellant points out that none was given the opportunity to address the court on the application by the Crown for forfeiture of the equipment etc. and he goes on to say that in his view that opportunity should be given to each of them.

4. That is, also the attitude Miss Lee who appears for the respondent today. She has taken the view that, since the Court on Appeal is empowered to do what a magistrate was empowered to do at the initial hearing, this court could consider any special reasons which the appellants might wish to put forward.

5. Mr. Macrae has, on behalf of the appellants, put forward three matters which, he submits, are special  reasons, special that is to the facts of the case and not special to the offender as distinct from the offence I must say that were I not of another view I probably would have accepted that they do amount to special reasons.

6. In this case, however, the provision for forfeiture is a very drastic penalty. Each appellant will suffer a tremendous economic loss as a result of the forfeiture, a loss far in excess of the maximum penalty which could be imposed for the commission of the offence. It seems to me that, when a person is liable to suffer so greatly by an order of the court, it is important that the person be seen to have had every opportunity to make representations regarding the making of such an order.

7. It is easy to understand that a magistrate called upon to hear so many of these cases in a very short time could easily overlook the need to give the appellants the opportunity to make representations when an application is made for such an order.

8. The failure to provide each appellant with an opportunity to make representations relevant to the question of special reasons renders the proceedings leading to the making of the order so defective that the orders ought to be set aside.

9. I allow the appeal and set aside the order in each case.