Page 97 of 382
172
HONG KONG URBAN COUNCIL
judgment of the offence? In cases of obstruction, have they the right to seize the goods within the object causing obstruction?
MR. B. A. BERNACCHI, Chairman of the Hawkers Select Committee, replied as follows:-
The powers of a police officer or any public officer authorized by this Council to seize and dispose of goods in the possession of a person committing a scheduled offence (which term includes the offence of obstruction) are set out in section 86 of the Public Health and Urban Services Ordinance 1960. This section is a long one and divided into 3 sub-sections designed to protect both the hawker and the officer making the seizure. It may be dangerous to paraphrase the section but in general it does make provision for the hawker himself (or herself) to make a claim for the return of goods seized, to the Commissioner of Police or to this Council within a limited time and (alternatively) for the magistrate to order the return of the goods or compensation in lieu, if, but only if, he finds the hawker not guilty of the offence charged in relation to the goods seized. The answer to the last sentence of the question is therefore "yes" but subject to the relief under this Section.
MRS. ELLIOTT:- Mr. Chairman, may I ask the Chairman of the Hawkers Select Committee through you to clarify this point about the obstruction. In Court it is the charge of obstruction by a basket. Now does that include what is inside the basket because the goods are left inside the basket? The obstruction was actually the basket actually taking up room on the pavement and I do not see what the goods have to do with it, and it is enough to make any of the hawkers mad.
MR. BERNACCHI :- Well, giving a purely personal opinion I consider the charge badly framed—it should be obstruction by a basket containing such and such goods. (Laughter).
MRS. ELLIOTT:- Mr. Chairman, the charge was actually obstruction of the pavement so that passersby could not pass because of the basket. Do the goods, therefore, come into it at all?
MR. BERNACCHI:- I think my answer would be the same.
MRS. ELLIOTT:- Mr. Chairman, may I ask another question. I am rather concerned about this because two police inspectors have seemed to suggest to me that they were the law and anything in the Hawker by-laws would be subject to their decision. May I ask if the police in hawker cases are there to carry out our by-law insofar as they affect them, or are they there to make the laws on the spot?
HONG KONG URBAN COUNCIL
173
MR. BERNACCHI:- Their authority is derived from Section 86 of the Public Health and Urban Services Ordinance. This Ordinance was considered section by section by a Select Committee of this Council assisted by Mr. BODILLY, now Chief Justice-designate of Honiara, Solomon Islands. But it was drafted by this Council and forwarded to the Legislative Council as a Bill for passing by Legislative Council.
MR. HENRY H. L. Hu:- Mr. Chairman, I would ask one question through you to the Chairman of the Hawkers Select Committee. In the first sentence he referred to the powers of a police officer or any public officer authorized by this Council to seize and dispose of goods in the possession of a person committing a scheduled offence. Does the Chairman of the Hawkers Select Committee agree with me that police powers are much wider than that? Their powers include "appearing to be committing"; they are not limited to actual commission of an offence. It is sufficient if it appears to the police officer that they are committing something and the police officer can see this? Is that correct?
MR. BERNACCHI:- I think that is the correct statement of the law.
MR. HU: And Mr. Chairman, through you, I would ask a further question in that the Chairman of the Hawkers Select Committee agrees with me that police power is too wide. Therefore, (laughter), as Mrs. ELLIOTT said, are the Police officers making the law on the spot?
MR. BERNACCHI:- I seek the protection of Standing Orders. The questioner must not ask for a personal opinion. (Laughter).
MR. HU: Mr. Chairman, I would through you, also ask this question. Is it correct that sub-section 2 of Section 86 that the hawkers cannot make complaint to the Urban Council, but only limited to make a complaint to the Commissioner of Police?
MR. BERNACCHI:- Section 86 sub-section 2 authorizes the complaint to be made either to the Commissioner of Police or to the authority which means in this section the Urban Council, but reading the section as a whole, I am of the personal opinion that, in respect of goods seized by the police, complaints or the requests for return should be made to the Commissioner of Police and that in the case of goods seized by officers of the Urban Services Department, the request for return should be made to this Urban Council.
MR. HU:- Mr. Chairman, through you I would also ask another question. Is it impossible, practically, that the hawkers would make complaint themselves to the Magistrate Court. Is it practically impossible?
Page 98 of 382