Yau Ting-chu v. The Queen

CACC000232/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 232 OF 1980

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Coram: Silke, J. in Court

Date of Judgment: 8 April 1980

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JUDGMENT

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1. The appellant was convicted upon a charge of Disorderly Conduct in a Public Place contrary to section 13(2) of the Public Order Ordinance CAP 245.

2. He had originally been tried upon two charges, the second being Resisting a Police Officer in the Execution of his duty and upon which charge he was acquitted.

3. The evidence of the prosecution witnesses was such that it constituted a flowing narrative covering the elements of both charges.

4. The main thrust of the argument advanced on the hearing of the appeal by Miss Tam, who appeared for the appellant, was the apparent inconsistency of the two verdicts.

5. The learned Magistrate gave no reason for his acquittal on the Resisting Arrest charge. I appreciate that a busy Magistrate has better things to do than to give reasons for an acquittal but in a case of this nature it is, to put it at its lowest, preferable if such reasons are given.

6. The prosecution evidence came from P.C. 20079, P.C. 21068 and Sergeant Wu and concerned the giving of Fixed Penalty ticket to a car and van parked at expired meters. The appellant came on the scene, an argument took place he suggested in strong language he was being framed-both vehicles had a connection with him and his firm - a crowd was present which increased and that crowd was incited to a disturbance by the appellant.

7. The appellant was arrested by P.C. 20079 and, while being cautioned, ran away and was chased by the constable. When he caught up with the appellant a struggle occurred and, after he had successfully subdued the appellant, the constable found his hand to be bleeding and his right leg bruised.

8. He was unsure how his hand was injured but thought it might have come in contact with the handle of the glass door of the premises to which the appellant had run. The door in fact to his firm.

9. The appellant himself gave evidence and called a number of witnesses and there was controversy as to the state of the meters, the state of the crowd, that which was said by the appellant and generally the tenor of the entire incident.

10. Miss Tam has submitted that if the Magistrate felt that the Resisting Arrest charge had not been proved beyond reasonable doubt on the evidence of the prosecution witness chen there must also have been doubt in his mind in respect of the Disorderly Conduct charge as the evidence on that emanated from the same witnesses.

11. On the face of it her submission has force. The Magistrate had said of those witness that P.C. 20079's evidence was not corroborated by P.C. 21068, whom he found both confusing and inconsistent, but the Sergeant did corroborate him as to the size of the crowd. The Sergeant had arrived on the scene after the general incident had taken place.

12. Hence my earlier statement that it would have been preferable if an Appeal Court were made aware of the reasons for acquittal in a case of this nature.

13. But be that as it may the Magistrate did consider the defence evidence, albeit somewhat cursorily, and having considered the evidence as a whole made certain findings of fact which, on that evidence, he was entitled to do. Those findings of fact were sufficient to ground the conviction.

14. As I had occasioned to say in the course of another appeal recently which inconsistent verdict were also under attack that which a Magistrate says in his statement of finding - and his verdict - is not to be equated with the finding of a jury where inconsistent verdicts may well make a conviction unsafe and unsatisfactory.

15. Here I cannot say that the Magistrate was wrong in coming to the conclusions, on the evidence, which he did.

16. In the event the appeal is dismissed.

Representation:

Miss M. Tam (L.H. Kwan & Co) for appellant

Mr. Cross for Crown