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HONG KONG URBAN COUNCIL
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HONG KONG URBAN COUNCIL
Both Section 86A of Public Health and Urban Services Ordinance and the present Hawker By-laws were introduced in the year of 1973, which came into effect more or less at the same time. Section 86A(1) reads as follows:
"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 thereupon the court shall, in addition to any other penalty-
(a) order the forfeiture of the equipment or commodity, or, in the case of a perishable commodity disposed of under section 86(2) by way of sale, the proceeds of sale, if the offence is one designated for the purposes of this subsection by regulations made under section 83.
(b) unless it finds and specifies special reasons, which reasons shall be special to the facts of the case and not special to the offender as distinct from the offence, shall in the case of any other hawker offence, make such an order."
Section 83 of the Public Health and Urban Services Ordinance has a very wide meaning of "commodities", "equipment", "hawker offences" and "stalls". Reading Section 83, it covers everything which can possibly be connected with hawkers or hawking.
Hawker By-law 5 reads as follows:
"(1) No person except one in respect of whom a licence has been issued under these by-laws may hawk any commodity or service.
(2) No licensee may hawk any commodity or service that is not specified in his licence."
By-law 22:
"(1) A licensee whose licence is issued in respect of a hawker permitted area shall not hawk outside the hawker permitted area to which his licence relates.
(2) No licensee shall hawk in or on any hawker permitted area that the Council has declared under by-law 4(1) to be restricted to licensees of a class other than that to which the licensee belongs.
(3) The Council may at any time endorse on an itinerant hawker licence a condition prohibiting the licensee from hawking otherwise than in specified streets or places."
By-law 36:
"(1) No person (whether a licensee or otherwise) shall use a fixed pitch unless he is the holder of a fixed-pitch hawker licence.
(2) A licensee who holds a fixed-pitch hawker licence shall not hawk from any place other than that to which his licence relates."
By-law 48:
"Except as provided in by-law 49, a licensee, while using a fixed-pitch, shall ensure that all commodities being hawked by him or on his behalf, and all equipment or other objects used by him in connexion with hawking, are placed within the boundaries of the pitch."
These are the by-laws which the legislature wants to enforce with very strict measure, i.e. mandatory confiscation. In my view, this measure of mandatory confiscation has created problems for ourselves. The enforcement of Hawker By-laws must depend on the actual circumstances of the locality and conditions concerned. I should think it would make more sense if we leave the question of confiscation to the discretion of the Magistrates.
Furthermore, "special reason" mentioned in Section 86A(1)(b) is a very technical and legal term. Even a lawyer finds it very difficult to understand and explain. How could we expect a hawker to understand such a very peculiar legal point and to be abided by them.
I venture to suggest that the Legislature would reconsider Section 86A of the Public Health and Urban Services Ordinance in the line that:-
A. Change the word "shall" to "may" in Section 86A(1)(a); and delete Section 86A(1)(b), and consequently Section 86A(2)(a) and (b) and also Section 86A(3).
B.
C. Insert provision to enable the Court to order the return of the goods or equipment seized or the payment of compensation.
I hope, Mr. Chairman, that this brief resume of the Select Committee's activities does not give the impression that we reach unanimous agreement on all points with the minimum of discussion. As you are aware, agreement is sometimes reached only after considerable discussion.
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