R. v. CHAN CHI HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.391 OF 1996

-------------------

--------------------

----------------------

J U D G M E N T

----------------------

1. The Appellant was convicted of Causing an Obstruction in a Public Place and Hawking without a Licence. He was fined $300 and $500 respectively. In addition, a Forfeiture Order was made, the effect of which was that a goods van which the Appellant was in possession under a Hire Purchase Agreement was forfeited. He now appealed against conviction and the Forfeiture Order.

2. The Appellant was seen by a police sergeant on duty in plain clothes, selling T-shirts and towels on the pavement outside the entrance to Lai Chi Kok Park. He observed the Appellant's activities for 10 minutes during which he saw the Appellant receiving money in return for goods handed over to customers. He went up to arrest the Appellant for hawking and obstruction offences. The Appellant took the goods he was selling into a van which was about 4 feet from the Appellant. There was no evidence that the Appellant was operating his sales activities from this van. The evidence as to what was inside the van was not clear. There were boxes, according to the sergeant, some of which were torn and from these he could see some T-shirts. The arrest of the Appellant was part of an operation that morning to clear hawkers. The van together with the goods were seized by the sergeant and subsequently handed over to an authorised officer of the Urban Services.

3. The Appellant admitted he was a hawker but he said that on that day he had not hawked because on arrival at the scene, he saw there were police vehicles around the area and he dared not start his business. When he was about to go away, the sergeant stopped his van and arrested him for hawking and causing an obstruction. The Appellant called two witnesses to testify that he was not hawking at the time.

4. The magistrate accepted the sergeant's evidence and disbelieved the defence case and convicted the Appellant of both offences. He also found that he was bound under s.86A(1) of the Public Health and Urban Services sOrdinance to forfeit the van which had been seized during the operation.

5. Mr Cheung for the Appellant submitted that there was insufficient evidence to show that the Appellant was hawking that morning. The evidence of the sergeant was not reliable. One of his grounds of appeal was that the magistrate did not state in his findings his reasons for believing the sergeant. As regards the Forfeiture Order, Mr Cheung submitted that there was insufficient evidence that the van had been used in connection with the Appellant's hawking and there was special reason for not confiscating the van.

6. Mr Veltro for the Crown submitted on the Forfeiture Order that there was evidence connecting the hawking to the van and the van was "equipment" within the meaning of that term in the Ordinance. The magistrate was bound to confiscate.

7. This is a straightforward case. There were two conflicting versions of facts - one given by the sergeant and another by the Appellant and his two witnesses. Even though there were more witnesses on the defence side, it remained a case of two conflicting stories. The body of evidence in support of either case is short and simple. This is one of the cases where, as the Full Court in Lam Tin Chung v. R. (1970) HKLR 105 had put it,

"... the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes ............".

The magistrate having assessed the credibility of the witnesses before him, accepted the prosecution version of facts and stated in his findings that he believed the sergeant and not the Appellant and his witnesses. That was all he could do in his findings. He needed to do no more in the circumstances. The magistrate was entitled to conclude that both the hawking offence and the obstruction offence were established. The appeal against conviction is dismissed.

8. On the Order of Forfeiture, the forfeiture of the van was disproportionate to the triviality of the two offences which resulted in a total fine of $800. The extent of obstruction was 4 x 6 feet and the hawking activities were conducted within this limited area. The hawking activities were thus not extensive.

9. Section 86(1) of the Ordinance gives a discretion to a police officer or an authorised public officer to seize any equipment or commodity in respect of which he has reason to believe that a hawking offence has been committed. It is not mandatory that there should be a seizure of his goods and/or equipment when a hawker is arrested. In R. v. Chan Ning Cri. App. 230/83, MacDougall J. in relation to a forfeiture order and s.86(1) of the Ordinance had the following to say :

"In a case where the value of the goods seized is substantial a forfeiture order can have a punitive effect far out of proportion to the gravity of the hawking offence that had been committed. Such an order may be crippling to a hawker. The courts will not give any legislation which has such serious repercussions on the rights of an individual any wider interpretation than its words oblige them to do."

10. On the same point, Li J. in R. v. Kwok Chung Lap Cri.App.743/78 thought that this power was not mandatory and he said :

"... Personally I feel such power should be exercised sparingly and exercised only in serious cases of obstructions and persistent offenders".

With that opinion, I respectfully agreed.

11. In the present case, the van was seized at the time of arrest of the Appellant and it was later handed over to the Hawker Control Officer who seized it together with other goods. At that time the officers were not aware if the Appellant was a persistent offender. There was no evidence of the Appellant had previously, on a number of occasions, operated his hawking activities there or anywhere else. The Appellant's previous convictions of similar offences only came to light after his conviction of the present offences. On the evidence that was an isolated incident. The extent of the hawking activities was limited to the area of 4 x 6 feet and the sale of T-shirts and towels. There was no evidence that the van was used in such activities. The fact that the Appellant later took the goods back to the van after his arrest was insufficient to show that a hawking offence was suspected to have been committed in respect of the van. In any case, having regard to the scale of the offences, the seizure of the van, the value of which greatly exceeded the value of the goods being sold by the Appellant, was not reasonable. This was not one of the rare cases where this power of seizure should have been exercised. The appeal is allowed. The Forfeiture Order quashed and the van to return to the owner.