THE QUEEN v. CHENG FOON

IN THE SUPREME COURT OF HONG KONG

(Apellate Jurisdiction)

MAGISTRACY CRIMINAL  APPEAL NO. 1158 of 1988

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J U D G M E N T

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1. This appellant, and those in related appeals heard by me on 10th and 11th November, pleaded guilty before Mr. Crawshaw, Principal Magistrate, South Kowloon Magistracy, in September and October, to causing hawking obstruction on the pavements of Tsim Sha Tsui, contrary to By-law 53 of the Hawker (Urban Council) By-laws, Can. 132. They were each fined a minimum of $1000.

2. In August this year Mr. Crawshaw was spurred by complaints from the public to call a meeting with representatives of the police and USD, at which he received confirmation that obstruction caused by hawkers' handcarts in the area was a never-ending source of public complaint

Hawkers were subsequently informed that there was to be a change in sentencing policy and, on 15th August, the first batch of hawkers appeared in court and were fined on the new level, that is to say $1000. I understand from counsel for the crown that it was formerly $150 - 200.

3. On 19th September the first appeal against the increased fines was heard in R. v Siu Ng M. A. 800/88 by O'Connor J., who lives in the district and is well aware of the hawker problem. He noted that the maximum fine was $2500 - raised from $500 in 1987 - and that the usual fine for this offence on Hong Kong Island was $100- $150. Records of previous convictions are not kept and defendants must therefore be treated - in most cases no doubt erroneously - as first offenders. O'Connor J. considered $1000 was too heavy a fine for a first offender and reduced it to $600. That decision has, understandably, provoked these appeals.

4. It seems that the new fines have not deterred the hawkers. One cannot conjecture what level of fine might do so, but it would clearly be wrong to impose the maximum on a first offender. I am unable to disagree with the view of O'Connor J. that $1000 is too severe.

5. For these reasons I allowed the appeals and reduced the fines in each case to $600.