The Queen v. Li Tak-man

HCMA000642/1989

IN THE SUPREME COURT OF HOIIG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 642 of 1989

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 8 September 1989

Date of Delivery of Judgment: 8 September 1989

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J U D G M E N T

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1. The Appellant was found guilty after trial in the Magistrates Court on a charge of loitering. The charge alleged that on 1 April 1989, he loitered in a public place, namely, the Royal Hong Kong Jockey Club off-course betting centre at No. 68, Hoi Yuen Road, and did not give a satisfactory account of himself and a satisfactory explanation of his presence there.

2. The evidence for the prosecution was given by two police officers. They said that during a period of about 1 hour or so on the afternoon of that day, whilst apparently a race meeting was in progress, they saw the Appellant on occasions join a queue lined up at a betting counter and then leave the queue when he was about two or three persons away from the counter attendant.

3. They saw him walk from one floor to another in the premises and on occasions looking at the hip-pockets of other people in the betting centre. The Appellant was eventually accosted by the police officers and searched. On his person the police officers found cash of $9.40. On finding this amount of cash the officers suspected that the Appellant could not have been in the centre for the purposes of betting as the minimum amount required for a bet was $10. The Appellant was arrested and eventuall charged with loitering. He claimed at the time that he was in the centre for the purposes of betting and had placed a bet earlier in the day. It is agreed that after he was charged he made a complaint that he was framed by the officers who arrested him.

4. The Appellant gave evidence and told the Magistrate that he was at the premises for the purposes of making bets and that the $9.40 found on his person by the police officers was the money left over after he made all his bets which unfortunately were not successful.

5. The learned Magistrate accepted the evidence of the police officers and did not believe the Appellant's explanation for his presence in the betting centre during the time that the police officers observed him. The Magistrate, having believed the police officers, proceeded to conviction.

6. The Appellant was represented at his trial, but not by Mr. Haynes who represents him today on the hearing of this appeal. Generally, the basis on which Mr. Haynes attacks the conviction is that the Magistrate's reasoning reveals a "one-sided" approach in the type of case where the superior Courts have said that, since the power to charge people with this particular type of offence is so open to abuse by unscrupulous police officers, the evidence should be very carefully scrutinised. Implicit in Mr. Haynes' submission is the contention that, if it can be shown that a Magistrate has not examined the evidence with the scrupulous care required, any resultant conviction becomes unsafe and unsatisfactory.

7. As an indication of the one sided approach Mr. Haynes listed a number of matters. Firstly, he said that the Magistrate having found that the police were suspicious of pick-pocketing activity in the betting centre, nevertheless found, inconsistently with that finding, that the police officers did not cell the Appellant that they so suspected. The police officers said that they did not say this whereas the Appellant said they did. Mr. Haynes' point was that even if the police did not specifically mention suspicion of pick-pocketing their description of what they saw and did indicates suspicion on their part of pick-pocketing activity. It was therefore unfair of the Magistrate to decide adversely as regards the Appellant's credit because he maintained that the officers did tell him they suspected him of pick-pocketing.

8. It was a rather narrow point for the Magistrate to make but it was, however, still a valid point. It was not the police officers case that the Appellant had actually picked or attempted to pick any pocket.

9. Mr. Haynes also pointed to the Magistrate's comment that he was unable to find any possible reason for the police to lie and he said this is another matter indicative of the Magistrate's one sided approach because, in a case such as this, it must always be possible to find a reason why the police would lie.

10. On this point I think that Mr. Haynes is a little bit too technical because I think what the Magistrate means by that expression is that on the evidence in this case there was no reason for the police to lie. The undisputed evidence was that they observed the defendant wandering around without having made a bet and being found with not enough money to bet. In those circumstances, there was no reason for the police to lie about what the Appellant was doing to support a charge of loitering.

11. Mr. Haynes also complained that the police officers not having made a note of what they observed at the scene and not having done so until after their return to the police station, the Magistrate's comment that they were meticulous was unwarranted. If they were so meticulous, Mr. Haynes submitted, the Magistrate should have expected them to make their notes during their observations at the betting premises. I do not think there is any substance in this complaint because, as Mr. Kilgour pointed out, it would be rather ridiculous for the police to be making notes at the time when they were making their observations and thereby "BLOW THEIR COVER".

12. The Magistrate saw and heard the police officers and the Appellant. He came to the conclusion that the police officers were telling the truth and that where there was conflict bctween them and the Appellant's version that the Appellant was not telling the truth. The matters to which Mr. Haynes has pointed are not sufficient to allow me to say that the Magistrate was wrong in coming to that conclusion.

13. There is, therefore, no basis on which I can interfere with the conviction and the appeal must be dismissed.

Representation:

Mr. John Haynes instructed by C.W. Leung & Co. for Appellant.

Mr. D. Kilgour, SACP for Crown/Respondent.