THE QUEEN v. LEUNG YEE KEUNG

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Headnote

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Sentence - fine - to be with accused's means - inquiry into means may be necessary.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 116 OF 1988

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J U D G M E N T

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1. The appellant, described as the person in charge, was convicted of failing to comply with the terms of a fire hazard abatement notice, contrary to Section 9(3)(b) of the Fire Services Ordinance Chapter 95. He was fined $10,000.00 plus $1,000.00 a day for 24 days making a total of $34,000.00. The fire hazard was the interior facing of the lift, in a steam bathhouse. He appeals against the fine.

2. The owner of the premises was apparently out of Hong Kong when the notice was served on appellant, and remained outside Hong Kong until trial. We do not know whether or not the appellant made any effort to contact him.

3. I consider the fine appropriate, looking at the objective circumstances of the offence. However, regard has to be had also to the means of the offender. A fine should be within the reasonable means of an offender to pay. Where the accused is represented, this should be dealt with by his counsel putting appropriate matters before the magistrate. Where an accused is unrepresented as this appellant was, I consider it the duty of the magistrate to ensure that a fine he is about to impose is within the accused's means. That does not require a magistrate to make an inquiry in every case. He would not normally need to make an inquiry unless the fines were substantial. Even where the fine contemplated was substantial, he would not always have to make an inquiry, as there would be cases where the facts of the case, or other matters, made it clear that the proposed fine was within the accused's means.

4. In the present case, no inquiry was made as to means, and it is not a case where it appeared that the fine imposed was within the accused's reasonable ability to pay.

5. It appears he was dismissed immediately after the case and since then is casually employed earning about $1,500.00 a month. In the circumstances I allow the appeal against sentence on the charge, set aside the fine and imposes in place thereof a fine of $3,000.00 with 4 months to pay.

6. It has been said a number of times, in relation to traffic offences in respect of defective vehicles, and other traffic offences where the owner of the vehicle is the real culprit, that the owner ought to be prosecuted instead of, or perhaps together with the driver.   The same remarks apply to offences of the nature of the present case.  The law ought to go after the person really responsible.