Yau Yin-man v. The Queen

Case No.CACC 1369/1977

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC001369/1977

IN THE SUPREME COURT

	Criminal Appeal
	1977 No. 1369

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BETWEEN
	YAU Yin-man	Appellant
	and
	THE QUEEN	Respondent

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Coram: Huggins, J.A.

Date of Judgment: 25th January 1978.

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JUDGMENT

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1. This is a most unusual case - one which I have not found easy to decide. The Appellant was convicted by the learned magistrate of being a suspected person found loitering and he was sentenced to one month's imprisonment suspended for twelve months. He appeals against both conviction and sentence. This judgment is concerned only with the appeal against conviction.

2. A police officer who originally said that he was on patrol but who subsequently agreed that he was off-duty but noticed the Appellant acting, as he said, in a suspicious manner. He described the action of the Appellant - how he went to various gates and stalls, tried to open the gates, looked under the stalls as though he were hoping to steal something therefrom, and eventually the police officer arrested him after asking him what he was doing. The Appellant gave evidence, saying that he had just come down from his own house, which was in the vicinity, and was going to take his wife out for a mid-night snack. There is a note in the record that the wife refused to give evidence. It is not entirely clear who said that or how that note came to be made in the record, but it is pointed out to me that the Appellant was represented by an advocate in the court below: no objection was taken and it is quite obvious somebody must have said that the wife refused to give evidence.

3. The most important thing, however, is that in the Reasons for Findings the learned magistrate made this note:

"A lady had been sitting behind the appellant vigorously shaking her lead in a negative manner whilst the appellant was telling the court that he was waiting for his wife".

After the Appellant had been convicted an application was made for a review and it was sought to cross-examine the police officer further, to call the wife as a witness and, somewhat unusually, the counsel then appearing produced a plan which he himself had drawn of the scene, and counsel endeavoured to persuade the magistrate that the evidence which had been given was quite inconsistent with this plan. No objection was taken to the inclusion of this plan as part of the evidence but the magistrate was satisfied that the alleged inconsistencies had not been made out and, with respect, I entirely agree with him.

4. It was also complained on this appeal that the verdict was unsatisfactory because the wife had not given evidence. That was entirely a matter for the representative advising the Appellant whether this woman should be called or not and it could not be said that the fact that she was not called made the verdict unsatisfactory.

5. The two matters which did cause me some concern and upon which I have had the benefit of argument are the reference to the lady's shaking her head during the evidence of the Appellant and the fact that the magistrate on the review would not allow the Appellant's wife to give evidence. Now I think Mrs. Jewkes probably has a very good point when she suggests that the note which I have read out in relation to the reasons for the conviction may have been included solely because of the bearing that it had on the subsequent review, because the ruling of the magistrate on the review was

"I pointed out that I had seen the lady quite clearly on the previous occasion and had noted her demeanour which was quite striking although I did not know then that she was the wife of the defendant. In the circumstances I felt little point would now be served by her giving evidence."

The implication of that seems to be that the learned magistrate at that time concluded that the wife had been disagreeing with the evidence of the husband and that if she now went into the witness-box and said that she agreed with his evidence he would in any event be unable to believe it. I think perhaps this was not a desirable way to approach the matter, although it is certainly understandable. I think the most that the magistrate ought to have done would have been, if he thought it appropriate, after allowing the witness to be called, to put some questions to her as to why she had been shaking her head on the previous occasion, and she might have had difficulty then in explaining an apparent conflict. As I say, I think there may be a great deal in this argument that the earlier note is bound up with what happened on the review and that that is probably the explanation, but it is just possible that the magistrate did err. I have very grave doubts whether he did, but justice must be seen to be done as well as be done and I have no doubt that the Appellant will feel himself aggrieved if this conviction is allowed to stand: he will be convinced that the magistrate did take into account the fact that this woman was apparently disagreeing with his evidence and that that was why he was disbelieved. It is with very great reluctance but, nevertheless, a sense of compulsion that I allow this appeal and quash the conviction.

25th January 1978.

Representation: