HKSAR v. YIP SUI HING

[English Translation – 英譯本]

HCMA 402/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 402 OF 2014

(ON APPEAL FROM KTCC 4464/2014)

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REASONS FOR JUDGMENT
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1.  The appellant pleaded guilty and was convicted in Kwun Tong Magistrates’ Court by Principal Magistrate Mr. Ernest Lin of one charge of “causing obstruction in a public place (extension of a shop)”, contrary to s 4A of the Summary Offences Ordinance, Cap 228. He was sentenced to imprisonment for 7 days, suspended for 2 years, and was also fined $3,000.  He appealed against the suspended sentence.

2.  At the conclusion of the hearing, I allowed the appeal and set aside the 7-day custodial sentence and the 2-year suspension thereof. The fine of $3,000 was upheld. I now give reasons for my decisions.

Facts of the Case

3.  The facts are simple. The appellant was the proprietor of an eatery situated at Shop A, Ground Floor, Fu Cheong Building, 29-35 Temple Street, Kowloon. On 7 December 2013, the appellant without lawful authority or excuse placed on the public pavement in front of his shop 17 tables, 38 stools and a fish tank occupying a public area of 30 square metres (10 metres times 3 metres), thereby enlarging the area of his shop by illegally occupying a public place, which might obstruct any person or vehicle in that place.

Mitigation

4.  The appellant is a first offender. He was unrepresented in the original hearing. He told the Principal Magistrate that he had been off the dole since 1 January 2014, and he very much wished to earn a living on his own and dared not run an eatery business again. He asked for the court’s leniency.

Reasons for sentence

5.  The Principal Magistrate stated that under the relevant statutory provision, any person on conviction shall be liable to a fine of $5,000 and to imprisonment for 3 months.

6.  The Principal Magistrate said:

“5. I also understand that this kind of behaviour is not heinous crimes. The most common example is that some unlicenced small merchants occupy public spaces to hawk their wares in the hope of earning a small profit. The court therefore will in general only impose a fine to conclude the matter if the modus operandi is not over the board.

6. The defendant’s behaviour on the other hand was that he had occupied 30 [square metres] of public space, which was even larger than a small shop in general, to run his eatery. He had even moved the fish tank on to the street to attract customers, making the already narrow street look even narrower. That would simultaneously create traffic, hygiene and fire risk problems as a result. For the above reasons, I am of the view that a heavy sentence is warranted so as to stop people following suit.”

7.  Having related the mitigation as above, the Principal Magistrate said:

“In my view, having considered the circumstances above, a starting point of 10 days of imprisonment is appropriate. That is remitted to 7 days because of his guilty plea. And he asserted that he had ceased running the above eatery. The chance of reoffending is not high. I therefore order that the above prison

sentence be suspended for two years. The primary purpose of the defendant’s selfish behaviour is to obtain profit. I am of the view that the sentence imposed on him ought to deprive him of his profit. Therefore I fined him $3,000.”

Grounds of appeal

8.  The grounds of appeal advanced by Mr. Tony C Y Li for the defendant were that the Principal Magistrate had failed to consider adequately and/or give proper weight to the facts that:

(a) the appellant was a first offender;

(b) the area of obstruction taken up by the appellant did not fall within the over-the-top or serious category of obstruction;

(c) the appellant had ceased operating his business after being prosecuted for the offence so the chance of reoffending was very slim.

9.  Mr Li pointed out that the sentence on the whole was manifestly excessive and/or wrong in principle.

10.  Mr Li relied on HKSAR v Chan Lai Yan (HCMA 33/2014, unreported) to bolster his arguments. In that case, the bistro of the offender took up an area of public place of 266.47 square metres in Sam Pei Square of Tsuen Wan. Forty-two tables were placed outside the bistro. She was sentenced on her own plea of guilty by the magistrate to seven days of imprisonment, suspended for 24 months, and fined $5,000. Her appeal against sentence was dismissed.

11.  M Poon J of the Court of First Instance of the High Court was of the view that the range of obstruction was a main factor reflecting the culpability of the offender and had a direct impact on sentencing.

12.  Mr Li contended that there was a glaringly obvious disparity between the area of public place occupied by the appellant, namely 30 square metres, and the area of public place occupied in Chan Lai Yan, i.e. 266.47 square metres.

13.  Mr Li submitted that the appellant was a first offender while Chan Lai Yan had had similar previous convictions involving the same eatery before. Eateries with Chan Lai Yan as their licensee on many occasions had contravened offences of a similar nature to that case but prosecuted under different ordinances. Chan Lai Yan even claimed to the court that she was a first offender. Even though the bistro operated by Chan Lai Yan had been closed down, M Poon J still thought that it was necessary to guard against her “altering her appearances” and then reoffending. The chances of Chan Lai Yan reoffending were substantive whereas those of the appellant were slim since he was indeed a first offender.

14.  Moreover, Mr Li referred to M Poon J as saying that for first offenders it did not necessarily require a sentence of suspended sentence. In his submission, Mr Li contended that the 7-days’ imprisonment suspended for two years was manifestly excessive and wrong in principle.

My deliberations

15.  I note that there was no information before the Principal Magistrate about the size of the fish tank involved in this case, the layout of the 17 tables and 38 stools, as well as the size of the shop operated by the appellant at the time of the incident. There are no sketches or plans to assist the court, either.

16.  Instructions obtained by Mr Li indicated that the fish tank measured two feet by four feet, and was moveable with casters. The appellant’s shop had an area of 15 square metres. The public place occupied therefore was twice the area of his shop.

17.  Regarding the offence in this case, I note that the offence in question refers to the scenario that the area occupied “may obstruct any person or vehicle in that place”. In other words, the ordinance is aiming at dealing with “obstructions” of the street. I agree with M Poon J’s view in Chan Lai Yan: the range of obstruction was a main factor reflecting the culpability of the offender and had a direct impact on sentencing.

18.  Frankly, besides “obstruction”, if there were nuisance caused to the residents living nearly, or problems of hygiene or fire risks created as a result, then those would have been aggravating factors.

19.  In this case, despite the fact that I was told the size of the fish tank, there is still no substantive data indicating the degree of obstruction (other than the fact that the area was 30 square metres) caused by the fish tank and the objects of prosecution (namely the tables and stools). I can draw my own inference, of course, using common sense. There were indeed in this case narrowing of the street, pedestrians having to walk round the objects causing the obstruction, water from the fish tank making the public place wet possibly creating problems of hygiene, etc. Nevertheless, I fail to see how there would be problems of “fire risk”. The appellant was not cooking food over a stove in the public place. If the Principal Magistrate referred to the scenario that in case there was a fire in the shop, the objects in question causing obstruction would make escaping more difficult, then every “obstruction” case will entail this very same issue.

20.  Regarding “obstruction” cases, they are generally disposed of by way of imposing a fine on the defendant. It is indeed an aggravating factor that the appellant moved the fish tank on to the street. However, the appellant is a first offender, and there is no evidence to show that he was lying when he said he was no longer operating any restaurant business. The chance of him reoffending is low.

21.  In respect of a first offender, unless the offence or the facts of the case are particularly serious, it’s not necessary to impose a deterrent sentence involving a term of imprisonment. Having taken into account the size of the fish tank, which was not very large, and despite the fact that moving a fish tank outside a shop for business was more serious than simply moving tables and stools on to the street causing obstruction, in my view, the level of culpability was not sufficient to warrant imposing a term of imprisonment on a first offender such as the appellant, albeit the prison term was suspended.

22.  For the above reasons, I allow the appeal and set aside the order for seven days’ imprisonment, suspended for two years.