Attorney General v. Tse Kam-pui

CACC000283/1980

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Coram: McMullin & Li, JJ.A. and Barker, J.

Date of Judgment: 14 May 1980

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JUDGMENT

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McMullin, J.A. :

1. This is an appeal by way of case stated at the instance of the Attorney General.

2. The defendant in the case was brought before the court upon a charge under section 160 of the Crimes Ordinance. The circumstances under which he was arrested appear in the case stated. There was evidence that two police officers who were upon duty at a tram stop in Des Voeux Road on the 20th of September 1979 observed the defendant acting suspiciously. They saw him touching a handbag held by a woman who was about to board a tram and the rear pocket of a man who was in a similar position. The defendant was approached by the police officers who asked him for an explanation of his conduct. The defendant replied that he wished to take a tram to Wanchai. In view of the fact that immediately after the suspicious conduct which had been observed the defendant had made no move himself to board the tram but had removed himself from that place, that explanation was not one which could have been regarded as satisfactory and it was not so regarded. The defendant was arrested and later charged.

3. Nevertheless the learned magistrate dismissed the charge upon a finding of no case. He did so because he took the view that there was binding upon him a decision of the High Court which made it imperative, when a police officer was acting under section 160, to warn a suspect of the possible consequences of his failure to give a satisfactory explanation. NG Yuk-sin v. The Queen⁽¹⁾ a case similar to the present. It was taken under section 160 (1) of the Crimes Ordinance and very similar circumstances were involved in it. The officers who observed the suspicious conduct in that case are not said to have specifically asked for an explanation but they did ask certain questions, for example, the address and phone number of the defendant, and upon his answering that he did not live in that place they arrested him. In the course of the judgment Mr. Justice O'Connor said :

"What the police ought to do when they have this section in mind is tell him that he has been loitering in such a place and that unless he gives a satisfactory account and explanation they will arrest him or proceed by summons. Having done that, if he does not give satisfactory answers, they are entitled to proceed on the basis that he has committed the offence."

And at the conclusion of the judgment he said :

"I am therefore of the opinion that s.160 envisages an opportunity being given, prior to arrest, to give an explanation, and for that to be a real opportunity the suspect should be asked for an account and explanation and told of the likely consequences of failure to give them."

It is the final words in that judgment upon which the appeal in the present case turned and they are the words upon which the learned magistrate acted in dismissing the charge.

4. In any case taken under section 160(1) two matters have got to be proved i.e. the loitering and the failure to give a satisfactory explanation for presence at the scene. We think that, with respect, it is correct to say that before the arrest of such a person an opportunity should be given to him to give an account of himself and to make an explanation for his presence there. But we are likewise satisfied that there is no requirement whether in the section itself or by implication from its language that in addition to such an opportunity a warning must be given in every case that failure to give a satisfactory explanation will result in the commission of an offence and of the arrest of the defendant. When he has given an explanation which proves unsatisfactory he should be told that that is the reason for his arrest. That is all the law requires. We think that the expression to which I have referred in the judgment of Mr. Justice O'Connor concerning such a warning must be regarded as obiter or at most as the expression of something that may in certain cases be desirable. As Crown Counsel pointed out, if the learned judge had intended to establish a rule that the warning must be given if the charge is to be sustained he would not have dismissed the appeal before him.

5. In WONG Kwan-cheung and Another ⁽²⁾ Mr. Justice Silke was dealing with circumstances similar to those to the present case and to those before Mr. Justice O'Connor in NG Yuk-sin. He considered what had been said by the latter judge in the passages cited earlier and he concluded in these words :

"A warning is not obligatory, nor might I add, is it a counsel of perfection. There are cases which I can envisage where failure to give such a warning could be fatal to a subsequent conviction."

In the course of argument various hypothetical cases were posed and no more need be said on that aspect of the matter other than that there may be cases in which such a warning might be necessary to afford a genuine opportunity for explanation, as, for example, where the suspect remains silent when asked for an explanation.

6. Apart from such exceptional cases, it remains, at best, upon the level of a desideratum and it cannot be regarded as a necessary ingredient of those preliminary steps which a police officer must take before he is entitled to conclude that an offence has been committed under the section. The answer to the questions framed in Paragraph 7 of the case stated are in each case 'No'. The appeal must therefore be allowed and the case remitted to the magistrate to deal with.

Representation:

E. Martin, for Attorney General/appellant.

M. Bharwaney, instructed by Director of Legal Aid for the respondent

(1) Criminal Appeal No. 997 of 1979.

(2) Criminal Appeal No. 69 of 1980.