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Tang Wing-kwan v. The Queen

Read the full judgment text of CACC 1371/1977 on BabelCite. This Court of Appeal judgment.

1. The Appellant was charged under s. 15 of the Theft Ordinance with the unlawful abstraction of electricity. He formerly lived in the flat in question with his father and two other relatives. It is conceded that at the material date electricity was being unlawfully abstracted from these premises and it is conceded that the Appellant was living in the premises until September 1976. The two other relatives left the premises and the father also eventually left. It is implicit that at the date the

Case No.CACC 1371/1977
Court
Court of Appeal
Date—
Judge—
Case Document
100%Judiciary

CACC001371/1977

IN THE SUPREME COURT  
   
  Criminal Appeal
  1977 No. 1371

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BETWEEN    
  TANG Wing-kwan 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. The Appellant was charged under s. 15 of the Theft Ordinance with the unlawful abstraction of electricity. He formerly lived in the flat in question with his father and two other relatives. It is conceded that at the material date electricity was being unlawfully abstracted from these premises and it is conceded that the Appellant was living in the premises until September 1976. The two other relatives left the premises and the father also eventually left. It is implicit that at the date the father left the Appellant was still in the premises. The father left the Appellant was still in the premises. The father gave evidence and he said, according to the note of evidence,

"In September 1976 I approached a solicitor forcing my son to leave".

Taken at its face value that suggests that the solicitor was forcing the son to leave for some unspecified reason. It may well be that it was meant to say that the father took action through a solicitor to force the son to leave but that is speculation and I am not disposed to speculate in the matter. The question is whether or not there was any evidence that the Appellant was in fact living in these premises at the material date. The learned magistrate in his Statement of Findings says that the father

"testified affirmatively that his young son the appellant was the only person residing at the said flat after April, 1976, and even at the date of the trial".

It is conceded by counsel that the first part of that is correct but he challenges the second part and, in my view, with good reason. There was no affirmative evidence that the Appellant was living in these premises at the date of the trial. That could easily have been given in evidence. The father was not asked any questions about the occupancy at the material date. I do not think that it necessarily follows that because the son was living there in September 1976 he was still living there on 10th August 1977. He gave evidence himself. He stated that at the date of the trial he was living at an address in Jaffe Road, Wan Chai, and he said that he did not live in the premises to which the electricity was being supplied. He was not cross-examined on any part of his evidence. It has been suggested that he could have called evidence to support his defence, and that no doubt is true, but the fact remains that it was for the prosecution to establish its case and not for the Defendant to prove his defence. In my view the evidence did not support the finding made by the learned magistrate and this appeal must be allowed. The conviction is quashed and the sentence set aside.

25th January 1978.

Representation: