HKSAR v. BRYAN KELLY

HCMA238/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.238 OF 2000

(ON APPEAL FROM WSS 9862-3 OF 1999)

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REASONS FOR JUDGMENT

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1. The appellant pleaded guilty to two summonses involving infringement of sections 4(1)(b) and 4(4) of the Protection of Investors Ordinance, Cap.335. He was convicted and given a fine of $3,500 ($3,000 and $500 respectively). There was also a costs order of $500. The appellant failed to pay on time and he was advised to take out this appeal out of time on sentence.

2. The situation was that the appellant had been declared bankrupt. However, he did not mention this fact to the sentencing magistrate. In his Reasons for Sentence, the learned magistrate very fairly pointed out that had the appellant raised it before him, he would have a dilemma, but he might consider imposing a term of suspended imprisonment instead of the fine. If that course was adopted, the appellant would be, by his appeal, inviting this court to increase his sentence. I felt uncomfortable about that, although I agreed with the magistrate that a binding over order would not be appropriate for the offences. The magistrate commented that he would also refrain from making the costs order in the circumstances.

3. At the helpful suggestion of counsel for the respondent, Mr David Leung, a Community Service Order Report was obtained. The report now disclosed that the appellant would rather pay the fines by instalment. He confirmed his intention in open court. Hence, I would allow the appeal and make the following orders :

1. The fine of $3,500 for the two summonses shall stand;

2. The costs order of $500 would be quashed;

3. The $3,500 to be paid by seven instalments of $500 each, the 1st instalment to be paid on or before 28 August 2000, and the other six instalments to be paid on or before the 28th day of each subsequent months until the amount is fully paid. The last payment should be on or before 28 February 2001; and

4. The usual default clause applies. (Explained to the appellant).