THE QUEEN v. HO PAK-KUI

Mag. App. Nos.

1008, 1601 - 1606/88

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H E A D N O T E

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Hawking obstruction in the "Golden Mile". Appropriate fine. Need for magistrates to observe sentencing principles.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeals

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J U D G M E N T

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1. On 13th and 16th December, 1988 I had the occasion to deal with 10 other identical appeals from the same magistrate, Mr Crawshaw, Principal Magistrate in Magistracy Appeal Nos 1536 to 1545 of 1988 when I reduced the fines of $1,000 to $600 in each of 9 cases and from $1,000 to $200 in one case involving a 62 year-old lady.

2. This judgment refers to 7 appeals against sentence by 5 appellants charged with hawking obstruction contrary to By-laws 53 and 56(2) of the Hawkers (Urban Council) By-laws. The maximum penalty for this offence is a fine of $2,500 and imprisonment for one month. It is relevant to observe that the appellants were all licensed hawkers and they were arrested in some parts of Tsimshatsui commonly known as the "Golden Mile".

3. I propose to deal with these appeals in the following order:

Magistracy Appeal No. 1008 of 1988

4. The appellant is a 65 year-old lady and she appeared before Mr Crawshaw on 15th August, 1988 on the following charge:

"Lee Kam, you are charged that on 12th day of August, 1988 in a public place namely Peking Road junction Hankow Road, Kowloon, in Hong Kong, you being a licensed hawker, did fail to ensure that 1 handcart and others used by you in the course of your trade were placed in such a manner as not to obstruct the free movement of pedestrians."

5. She was fined $500. It is interesting to note that when I told her that her fine was $500, she was somewhat surprised and said that if the fine was $500 she would not appeal. Enquiries revealed that she was confused with other cases in which she was fined $1,000. She had no complaint about the $500 fine in this case and her appeal was accordingly dismissed.

6. In his statement of findings the magistrate outlined the complaints he had received about the congestion caused by hawkers in this area and his subsequent with officers from the Police and U.S.D. hawker teams resulting in his decision to impose very heavy fines. He was delighted with the success and when he was writing his statement of findings in this case on 21st September he had this to say:

"The number of hawkers fell away dramatically, as did the number of arrests. Indeed the police burden was so lightened and Inspector Wong was able to take a whole team off hawker control duties and assign it to other, more important work. On Monday 5th September, after a week-end, not a single hawker case was called. The public are now free to pass and repass over the pavement as is their right, without being forced either to squeeze through a narrow space, or step into the road, with all the dangers inherent therein. Favourable remarks have been received."

7. His optimism was soon proved premature as can be seen from his statements of findings in later cases. Magistracy Appeal No. 1601 of 1988

8. The appellant was before the magistrate on 4th November, 1988 charged with hawking obstruction outside 54, Nathan Road. He was fined $1,500. This was an increase of $500 from $1,000 in cases that came before me on appeal on 13th and 16th December which were heard by the magistrate on 29th October, 2nd, 6th, 7th and 9th November, 1988. It is apparent that the magistrate had found that even a fine of $1,000 was not a sufficient deterrent. This is what he said in his statement of findings:

"Hawkers well-known that in August, after consultation with the Police and U.S.D. hawker control teams I began imposing fines with a decided deterrent element built in. It has become abundantly clear that the fine has not proved to be sufficiently deterrent. Hence the enhanced fine in the instant case."

He went on to say:

"The most recent appeals have determined that $1,000 is not wrong in principle for a first offender but the hawker's persistence seems to show that even that does not provide a sufficient element of deterrence."

9. The last paragraph is not quite correct and rather misleading. The magistrate was upheld by Garcia J on one occasion but on 19th September, 1988 in a decision in The Queen v SIU Ng, Magistracy Appeal No. 800 of 1988, O'Connor J had made it be known in a written judgment that a fine of $1,000 for this offence was too heavy for a first offender and he reduced it to $600. This decision was followed by Bewley J on l0th November, 1988 in The Queen v CHENG Foon, Magistracy Appeal No. 1158 of 1988. It is also of some interest to quote from part of the judgment of O'Connor J:

"in his findings the learned magistrate sets out various facts about the area, that he knows from his personal knowledge. They are the sort of mattes that a magistrate may rely on. He sets out the escalation of sentences imposed by him for this offence over the past year, and says he has observed that the increasing sentences have had an effect on the number of cases coming before his Magistracy. I live in the immediate area of the offence. It does not seem to me that there has been a noticeable drop in the number of such offences, though there may be as the magistrate says a drop in the number of cases being prosecuted. It appears that on Hong Kong Island the usual fines for this offence are $100 to $150."

10. It transpired that this appellant had appeared before me in one of the cases which I heard on 13th and 16th December and the present offence was his second within a short period of time. This disqualified from being a first offender. I allowed his appeal but reduced his fine to $750 instead of $600 for a first offender.

Magistracy Appeal Nos 1602 and 1603 of 1988

11. This appellant appeared before the magistrate on 7th and 8th November, 1988 when he was fined $1,500 on each occasion. In view of the fact that he repeated the offence only one day afterwards, I reduced his fine to $750 in each case and the appeal is allowed to this extent.

Magistracy Appeal No. 1604 of 1988

12. This appellant came before this magistrate on 8th November, 1988 and was fined $1,500. He was charged with causing obstruction by hawking in Peking Road/Lock Road. In this case, the magistrate again expressed his disappointment and frustration when he said:

"The most recent appeals have determined that $1,000 is not wrong in principle for a first offender, but this hawker s persistence seems to show that even that does not provide a sufficient element of deterrence."

13. This appellant has to be treated as a first offender and I allowed his appeal and reduced the fine to $600.

Magistracy Appeal Nos 1605 and 1606 of 1988

14. This appellant was charged with two offences of hawking obstruction and he appeared before the magistrate on 9th and 15th of November, 1988 when he was fined $1,000 in each case. For reasons which I have not been able to understand, the magistrate had deescalated his fines from $1,500 to $1,000 in a matter of only one to two days. He did not offer any explanation in his statements of findings except to repeat that:

"The most recent appeals MCA 1304-1311/88 have now decided that it is not wrong in principle to impose $1,000, for first offenders in that part of Kowloon."

15. This appellant also appeared before me in one of the appeals which I heard on 13th and 16th December and for this reason he can no longer be considered as a first offender. In his case, I allowed the appeal and reduced his fine to $700 in each case.

16. It is understandable that the magistrate encountered inconsistencies, confusion and frustration in his approach to a very complex problem. In his determination to eradicate hawking obstruction, which is commendable he must also observe important sentencing principles such as whether the hawker was a first offender or not and whether the offender had the means or ability to pay very heavy fines.

17. I allowed the' appeals to the extent indicated.