The Queen v. Leung Sau Hing and Another

HCMA000232/1991

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 232 OF 1991

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 30 April 1991

Date of Delivery of Judgment: 13 June 1991

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J U D G M E N T

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1. The Appellant pleaded not guilty to a charge of Failing to Comply with a Liquor Licence Condition contrary to the provisions of the Dutiable commodities Ordinance, Cap. 109. The particulars of the failure ware that he contravened a condition lawfully imposed under that ordinance, namely, that he did supply liquor on the licensed premises between the hours of 2 a.m. and 8 a.m.

2. The evidence for the Prosecution was given by two police officers. PW1 said that on the date alleged in the charge he and his colleague "were at" the licensed premises"at 0205 hours" when the Appellant served them with two glasses of beer.

3. PW2 said that "at 0150 hours" on the date alleged in the charge he and his colleague were briefed by their Station Sergeant inside a room at some unspecified place. They were told to go to the licensed premises. "we arrived at 0205" he said. The Appellant served them with two glasses of beer.

4. To both witnesses it was put that the beer was served to them before 2 a.m. Each answered with a simple denial.

5. At the close of the Prosecution case the Appellant's counsel submitted that there was no case to answer on the basis, inter alia, that tile time of serving of the beer had not been proved. Tne learned magistrate overruled the submission. The Appellant did not give evidence and was convicted.

6. On his appeal against conviction the Appellant relies on several grounds but the only one which caused me any concern was "the time element".

7. Even though their evidence as to tile time of serving was challenged the witnesses gave no evidence regarding their knowledge of the tide. Proof that tile serving nad taken place after 2 a.m. was crucial to proof of tile charge. It therefore had to be proves beyond a reasonable doubt. Time is proved by relating the readingor a water, or clock, that is, the reading of a measuring or recording instrument. What that instrument indicates is "real evidence" so that when a witness says that he looked at his watch and that it showed a certain time he is hot giving hearsay evidence. And that is the only way that a witness can testify precisely as to time. One does hot see, hear or feel 2 o'clock in the morning any more than one sees, hears or feels what the temperature of a beer is. Proof of that fact requires evidence of a reading of a thermometer which has been immersed in the bee

8. The witnesses here could have proved the time element by saying what their watches indicated at the time. The accuracy of their timepieces would have been presumed in the absence of evidence to the contrary. (Castle v. Cross [1984] 1 W.L.R. 1372, 1377; Taylor On Evidence, 12th edh., p.167).    

9. The evidence given in this case was insufficient to prove the time. As that had to be proves beyond a reasonable doubt the conviction cannot be allowed to stand. The Appeal is therefore allowed and the conviction quashed.

Representation:

Mr Paul Leung, Crown Counsel, for Crown

Mr Marash Daniel (David Tsang & Co.) for Appellants.