THE QUEEN v. LI LOK KIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 85 OF 1995

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JUDGMENT

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1. The Appellant, a taxi driver, pleaded guilty before a magistrate to a charge of soliciting passengers contrary to Regulations 40 and 57(3) of the Road Traffic (Public Service Vehicles) Regulations, Cap. 374. He was sentenced to a fine of $4,000.00 and 3 months' imprisonment, suspended for 3 years. It is against the suspended sentence that he now appeals.

2. The maximum penalty for this offence is a fine of $5,000.00 and imprisonment for 6 months. The appellant has five similar previous convictions within one year between April 1993 and March 1994. On each of the last two occasions, he was fined $2,000.00. I agree with the magistrate that a deterrent sentence is necessary to deter the Appellant from committing further similar offences. Bearing in mind the maximum sentence for this offence, I take the view that a fine of $4,000.00, which represents 80% of the maximum fine, coupled with a suspended sentence is manifestly excessive. The Appellant now knows that he will face the prospect of going to prison if he re-offends. In future, he cannot be heard that he has not been warned nor can he complain any sense of grievance.

3. In the circumstances, I would allow the appeal and set aside the suspended sentence. The fine of $4,000.00 will not be disturbed.