A. Hawking without a licence

A. Hawking without a licence

Under section 83B(1) of the Public Health and Municipal Services Ordinance (Cap. 132), no person may hawk in any street unless this is done in accordance with a licence issued under regulations made under section 83A. A person who hawks in a street without the required licence commits an offence. The penalty is a fine of $5,000, 1 month’s imprisonment and a daily fine of $300 on a first conviction, and a fine of $10,000, 6 months’ imprisonment and a daily fine of $300 on a second or subsequent conviction. 

Meaning of “hawking” 

“Hawking” means selling goods, wares or merchandise, or displaying them for sale. An observed sale or money transaction is strong evidence of hawking. However, hawking may also be inferred from surrounding circumstances, such as the display of goods and conduct indicating that the goods are being offered for sale. 

Relevant indicators of hawking may include:  

• goods displayed on the ground or stall; 
• the presence of goods arranged in a manner consistent with sale; 
• passers-by choosing or inspecting goods; 
• words of solicitation or promotion addressed to potential customers; 
• the defendant taking goods out to show potential customers; and 
• an observed transaction or exchange of money. 

Meaning of “street” 

For the purposes of the hawking provisions, “street” is given its ordinary meaning and can include a street on privately owned property. A place may still count as a street if the public has access to it, or are allowed to use it, even though the land is privately owned. 

Power of arrest without warrant 

An authorised public officer may arrest without warrant a person whom the officer reasonably suspects of being guilty of a scheduled offence. If the person forcibly resists arrest or tries to escape, the officer may use all means necessary to effect the arrest. 

Entry into premises and post-arrest procedure 

If the officer reasonably believes that the person has entered or is inside a place, the person living in or in charge of that place must allow the officer to enter and must provide reasonable facilities for the search. After arrest, the arrested person must be taken forthwith to the nearest police station or handed over to a police officer. 

Seizure and storage of equipment and commodities 

A public officer authorised in writing, or a police officer, may seize any equipment or commodity if there is reason to believe that a hawker offence has been committed in respect of it. Equipment or commodities found in a public place that appear to have been abandoned by a hawker can also be seized. 

The items may be removed and kept at the owner’s risk in a government depot, police station or another place approved by the Director of Food and Environmental Hygiene, pending disposal under the Ordinance. 

If the seized goods are perishable, they may be disposed of immediately by the Commissioner of Police or the Director of Food and Environmental Hygiene. If a claim is made within 48 hours, and no information is laid within 72 hours after seizure, the property must be returned to a claimant who is shown to have been entitled to possession, or its value must be paid if perishable goods have already been disposed of. 

The power of seizure is discretionary, not automatic. The courts have said it should be exercised sparingly, especially because seizure can have a punitive effect that is out of proportion to the seriousness of the hawking offence. 

Forfeiture following conviction 

Where a person is convicted of a hawker offence involving seized equipment or commodities, the informant must tell the court about the seizure. The court may then order forfeiture in addition to any other penalty, and in some cases the statute makes forfeiture mandatory unless special reasons are found. 

Return of property 

If the accused is acquitted, or if the court finds special reasons not to order forfeiture, the court must order the return of the property, or payment of its value in the case of perishable goods already sold, provided the person was lawfully entitled to possession at the time of seizure. If entitlement is not proved, the court may make some other order for disposal.