Kwong Chun-yan v. The Queen

CACC000251/1980

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 251 OF 1980.

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Coram: Hon. LIU, J. in Court

Date of Judgment: 15 July 1980

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JUDGMENT

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1. The appellant was charged with loitering contrary to section 160(1) of the Crimes Ordinance. He was tried and duly convicted by the learned magistrate. The appellant was bound over in the sum of $500 for a period of two years. Leave is now being sought to appeal against his conviction.

2. This piece of legislation has aroused not inconsiderable public disquiet, and from the records of appeal it is comforting to see that the learned trial magistrate has given the evidence his very careful and thorough consideration.

3. The grounds of appeal converge to one single issue. The appellant was arrested on the 4th December last year, and he was charged accordingly with the offence before the learned magistrate. It is now common ground that two days after his arrest, on the 6th December, he made a complaint against the arresting officers. Before the learned magistrate, reference was made to and reliance was placed on this complaint.

4. In the course of the cross-examination and through no fault on the part of prosecuting officer, the appellant was asked: "Put it to you that if you had made a complaint, you would have heard from Complaints Office a long time ago." Thereupon, the appellant categorically denied the suggestion and volunteered a fair amount of details in his reply: "I did lodge a complaint and I can go with you to (sic) there. There was a sergeant YU and whose number is 10109 if my memory serves but I am not sure." The matter rested there, and no further step was taken by the prosecuting officer.

5. In his Statement of Findings, the learned magistrate commented: "He acknowledged too that he had not yet heard anything from Complaints Against Police Office about the complaint he had made to it." Emphasis, I think, ought to be placed on the words "not yet heard anything from" and the repetition of the version given by the appellant "about the complaint he had made". In the next paragraph, the learned magistrate specifically referred to material sought to be made capital of by the defence: "The appellant's action in filing the complaint with Complaints Against Police Office suggested that the appellant was most unhappy with the whole event".

6. The choice of words "not yet heard from the Complaints Office" together with the following recitation of the defence's reliance thereon is, in my view, good indication not only of that the learned magistrate had been constantly alive to the appellant's conduct consistent with his alleged version before the court but also that the complaint disclosed to the Court was assumed by the learned magistrate to be in terms most favourable to the accused. I can find no real justification for criticizing a judicial analysis so fully and cautiously conducted. Furthermore, as for the allegations made in the complaint, by themselves they must be self serving. The learned magistrate was prepared to and did accept the complaint in the best light advantageous to the appellant, and he must have therefore taken into consideration consistency of conduct.

7. On, what I might fairly describe as, an exemplary evaluation of the evidence, the learned magistrate rejected the allegation of the appellant as to what in fact transpired on the date of his arrest. On the evidence, he was satisfied beyond reasonable doubt that the charge against the appellant was proved. Consequently, it remains for me to order that the appeal be dismissed and the conviction affirmed.

Representation:

Mr. Tom Gall, counsel for the Crown/Respondent.

Mr. Marriner instructed by Director of Legal Aid for Appellant.