刑事檢控科各律師/高級律 - Department of Justice

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adduced by the Appellant as to his means. Second, it was said that
in all the circumstances the fine and the default order of
imprisonment were manifestly excessive and wrong in principle.
Held :
(1) An examination by the magistrate of the circumstances
under which the bail money was obtained and whether he was able
to, or wished to, use it to pay a fine was not necessarily the same
as an enquiry as to a defendant’s ability to pay a fine;
(2) No information was given by the defence counsel in
mitigation as to the Appellant’s ability to pay the fine. The
magistrate did not ask any questions as to means, but immediately
seized on the bail money as a possible way of paying the fine. The
Appellant said he borrowed the money from his brother and did
not want to use that money for paying the fine;
(3) The magistrate should have made enquiries as to the
financial circumstances of the Appellant generally and considered
(a) whether or not a fine of $20,000 was appropriate; (b) whether
or not the Appellant was able to pay it, and (c) if so, how long it
would take him to pay it. Although the Appellant was a repeat
offender, there was no evidence before the court to show he had
profited in any way, except as an employee from the venture for
which he was arrested;
(4) A magistrate should decide whether a fine was appropriate
in the circumstances of the case and, if so, what the amount should
be. That might involve some enquiries of a defendant in person,
or submissions from counsel if represented, as to a defendant’s
means and ability to pay a fine. If a defendant agreed, money for
the whole or part of a fine could be taken from the bail money;
(5) If a defendant declined to use bail money because, as in this
case, it was borrowed, or was to be used for some other purposes,
enquiries should be made as to whether or not time was needed, or
should be given, for payment. The magistrate’s enquiry focused
solely on whether or not the bail money was the Appellant’s to
dispose of as he wished, rather than his ability to meet a fine;
(6) Having decided that the bail money was the Appellant’s to
dispose of, it appeared that the magistrate was annoyed by his
continued refusal to use the bail money to pay the fine. This
resulted in the additional, immediate 3 months’ imprisonment in
default of payment. That was wrong in principle, because it must
have appeared to the Appellant that he was being punished with 3
months’ imprisonment for refusing to use his bail money to pay
the fine, rather than being fined as a deterrent linked to his