HKSAR v. LEE KA YING

HCMA1004/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1004 OF 2002

(ON APPEAL FROM STK 51 OF 2002)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of causing and permitting a motor vehicle to stand on a road in such position or in such circumstances as to be likely to cause an unnecessary obstruction of the road, contrary to sections 4, 13 and 14(1) of the Fixed Penalty (Traffic Contraventions) Ordinance, Cap.237. He was fined the sum of $1,200 and given 28 days to pay. He now appeals that sentence.

2. In his address to me, the appellant claimed to have appealled both conviction and sentence but he accepts that he signed only one form in respect of appeal and that the form before me is that which he signed. It is clearly a Notice of Appeal to a judge against sentence and an examination of the transcript indicates that his complaint to the magistrate in the court below was directed at an appeal against sentence only.

3. The normal fine in respect of a contested fixed penalty, I am told by Miss Ho for the respondent, is the sum of the fixed penalty together with an equal sum effectively doubling the original fixed penalty taken. I am told that in addition, an order is usually made for costs which statutorily may be awarded between the sum of $80 and $1,500. Miss Ho argues before me that in the instant case, the sum of $1,200 would be made up of the fixed penalty of $320 and additional penalty of $320 with the balance of the sum of $1,200 being costs.

4. The Certificate of Conviction is on file and reads, in part :

"... and it is adjudged that the defendant for his/her said offence be fined $1,200- (28 days to pay)."

It is quite clear that the sum of $1,200 relates to the penalty and not to the penalty and costs. That being so, the appellant has a sense of grievance that the ordinary penalty would be $640 and he has been fined the sum of $1,200. In fact, the appellant agreed he shall pay no penalty at all but in my view, there is merit in the argument that the penalty itself is manifestly excessive.

5. The appeal against sentence is allowed and the fine is reduced to one of $640. The appellant will have 28 days in which to pay.