The Queen v Fung Chi Wood

Judgment Date08 February 1991
Year1991
Judgement NumberHCMA1123/1990
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA001123A/1990 THE QUEEN v. FUNG CHI WOOD

HCMA001123A/1990

1990, M.A. No.1123

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HEADNOTE

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SENTENCE - COLLECTING MONEY WITHOUT A PERMIT - FIRST PROSECUTION - FAILING TO PRODUCE PROOF OF IDENTITY - NOT IN COURSE OF IMMIGRATION INQUIRY - ABSOLUTE DISCHARGE APPROPRIATE IN BOTH CASES.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1123 OF 1990

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BETWEEN

THE QUEEN

Respondent

AND

FUNG CHI WOOD

Appellant

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Coram: Hon. Bewley, J. in Court

Date of hearing: 25 January 1991

Date of handing down of judgment: 8 February 1991

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JUDGMENT

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1. This was an appeal against conviction and sentence. The convictions were affirmed on 7th January, but the appeal against sentence was allowed in part on 25th January. I now give my reasons.

2. The appellant was fined a total of $750 after conviction upon the following three informations :

1. Participating in the collection of money without a permit, contrary to ection 4(17) of the Summary Offences Ordinance (NKS7301)

2 . Failing to produce proof of identity on demand, contrary to section 17C(3) of the Immigration Ordinance (NKS7302).

3. Obstructing a police officer, contrary to section 23 of the Summary Offences Ordinance (NKS7303).

NKS7301

3. In the course of his address to the magistrate in mitigation of sentence counsel for the appellant said that this was the first time that this section (s.4(17)) had been used for the prosecution of persons collecting funds from the public. Mr Coghlan, who also represented the Crown on appeal, replied that he was not challenging what was said in mitigation.

4. At the hearing of the appeal Mr Coghlan said that he had not intented to make that admission below and, in fact, did not accept that it was true. He did not ask for leave to adduce evidence to that effect.

5. This is significant in the light of what followed the convictions in R v. Li Wong-tat and others, Mag App. 1286/90 In that case a similar admission was made by a police officer to the magistrate in respect of prosecutions for using loudhailers and collecting money without permits. Subsequently, it was revealed by the Secretary for Security that there had been no less than 80 prosecutions for using loudhailers without a permit in the last five years. He made no reference in his statement to prosecutions for collecting money.

6. Prosecutions for offences such as these are not recorded on computer and I accept that it is a time-consuming business to produce past records. Neverthless, having regard to the admissions made on behalf of the Crown, I considered that the appellant was entitled to be dealth with on the basis that this was the first such prosecution for many years. He had been warned - as was the general practice - but not told that he might be summonsed.

7. In those circumstances I felt that it was not right that any punishment should be imposed and substituted for the fine an absolute discharge.

NKS7302

8. In the course of the appeal against conviction it was strenuously argued on behalf of the appellant that...

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