The Queen v. Chow Wan Ching

HCMA001075/1989

IN THE SUPREHE COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1075 OF 1989

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BETWEEN

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Coram: Hon. Penlington, J.A. in Court (sitting as an additional High Court Judge)

Date of hearing: 15 December 1989

Date of delivery of judgment: 15 December 1989

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal against conviction of hawking without a licence.

2. The sole ground of appeal which has been argued was that there was evidence from a Police Sergeant who arrived some ten minutes after the Appellant was arrested by a foreman of the Urban Services Department and this Sergeant said that the cart which the Appellant had was covered and, as this was a cooked food cart if it was covered, it was not likely that the food there was not and that the Appellant was in Fact hawking at the time.

3. The trial magistrate in his findings does not specifically consider this evidence which was elicited from the Sergeant, not by the Defendant himself but in cross-examination. However the Magistrate did say this:

"I also found that D.W.2's (i.e. the police sergeant's) evidence did not help the Defendant further as he only arrived after the incident.''

and as pointed out by crown counsel, some ten minutes after the instance. That being so I was quite satisfied that the Magistrate did consider this aspect of evidence which was essentially a matter of credibility. It would have peen preferable if the evidence had been specifically dealt with but I am not satisfied, this being a pure finding of fact, that the trial Magistrate's findings are such as this Court should interfere. The appeal is dismissed.

Representation:

G.C. Rheas, Counsel for Crown

Guy Holland (D.L.A.) for Applicant