THE QUEEN v. YEUNG SING-KUEN

CACC000358/1983

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 358 of 1983

 

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Between

	The Queen	Respondent
	and
	YEUNG Sing-kuen	Appellant

 

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Coram: Hon. Addison, J. in Court

Date: 12th April, 1983

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JUDGMENT

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1. The appellant was convicted of hawking without a licence, contrary to Section 83B(3) of the Public Health and Urban Services Ordinance, Cap.132 and was fined $50 and ordered to pay $50 costs. The magistrate also ordered the forfeiture of dresses which the appellant was then hawking unlawfully. He said

"

I found that the articles were seized by a police officer pursuant to Section 86(1) of Cap. 132 because he had reason to believe that an offence contrary to Section 83B(1) had been committed. Accordingly a forfeiture order was made pursuant to Section 86A(1)(a) (ibid). I could not find any special reasons to bring Section 86A(1)(b) into operation. "

2. The appellant appealed against the order of forfeiture.

3. In the evidence given before the magistrate it was only the appellant who referred to the fact that the police officer took possession of his goods. The magistrate recorded

"	Case proved.
	Defendant convicted H.K.$50; H.K.$50 costs. Goods forfeited. "

4. Section 86A(l)(a) of Cap. 132 enacts :

"	Where any person is convicted of a hawker offence in respect of any equipment or commodity seized under Section 86(1), the informant shall inform the Court of the seizure and the court shall, in addition to any other penalty
	(a)    order the forfeiture of the equipment or commodity ....... if the offence is one designated for the purposes of this Subsection by regulations made under Section 83A ....... "

5. It is quite clear that Section 86A(l) is punitive and as such it must be strictly complied with. I am of the view that the obligatory power of the court to order forfeiture only arises after the court has been informed of the seizure by the informant. He has a legal duty to impart that information and where this is not done, as happened here, the order of forfeiture is invalid. It was for this reason that the order forfeiting 350 dresses was set aside.

6. The dresses are to be returned to the appellant.

	(F. Addison)
	Judge of the High Court

Representation:

Mr. S.H. Cotsen for Crown.

Appellant in person.