R. v. Yen Chi Wai

HCMA001391/1996

1996, NO. MA 1391

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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Coram: Hon Patrick Chan, J. in Court

Date of hearing: 19 March 1997

Date of judgment: 19 March 1997

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J U D G M E N T

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1. The appellant was found guilty of carrying a lighted cigarette in a no smoking area and he was fined $1,500.

2. The officers said that he went on patrol duty to a game centre in Tuen Mun and saw the appellant there holding a lighted cigarette in his left hand and it was a place where no smoking was allowed. Therefore he asked for the personal particulars of the appellant and recorded those details in his notebook. Subsequently the appellant was charged.

3. The appellant said he was not in the game centre on that day, he was in fact at a taxi stand in Yan Oi Tong Clinic. He had just been to see a doctor. The police officer came to ask for his identity card. He could not remember whether it was the same police officer. The defence case was that the officer mixed up his particulars with another person.

4. In the present case, it is one man's word against the other. The learned magistrate said that he believed the evidence of the police officer. In the normal course of event, I would not have interfered with the conviction. But there is one thing which causes me concern.

5. During the course of the case, the learned magistrate asked to and did look at the notebook of the police officer. He said that he did so for the purpose of helping the appellant. He wanted to ascertain whether in fact there was a contemporaneous note. If that was the purpose of looking at the notebook, I cannot rule out the possibility that the officer's notebook had indeed affected the magistrate's view of the officer's evidence. But that was obviously a previous consistent and self-serving statement. It does appear to me that the officer did not have any recollection on a number of matters, including the clothes of the appellant, his hair style and the rest. His memory would depend very much on his own note. It is likely that the magistrate had relied on the notebook which was inadmissible as a previous consistent statement. If the magistrate had not looked at the notebook, would he have still accepted the officer's evidence ? I note also that the appellant said that he had been to see a doctor and there were a medical certificate to support his evidence.

6. Looking at all the circumstances of this case, I am not free from doubt that the conviction was safe or satisfactory. There is just a lurking doubt in my mind as to whether the officer had indeed mixed up this appellant with another person he had seen somewhere else. I would allow the appeal, quash the conviction and set aside the sentence.

Representation:

Mr Frank Veltro, S.C.C., for Crown

Appellant in person