Wong Kwan-cheung v. The Queen

Case No.CACC 359/1976

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000359/1976

IN THE COURT OF APPEAL

	1976 No. 359
	(Criminal)

BETWEEN:
	WONG Kwan-cheung	Appellant
	and
	THE QUEEN	Respondent

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 11th June, 1976.

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JUDGMENT

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1. This appeal first came before a single judge who ordered that it should be set down before the Court of Appeal under section 118(1)(d) of the Magistrates Ordinance. The appellant was charged with two offences of theft. In effect, they were two cases of pick-pocketing. In Charge A, the appellant was charged with theft from one LIU Yip-kei and in Charge B he was charged with theft from one WONG Shing.

2. The magistrate convicted the appellant on Charge A and acquitted the appellant on Charge B

3. It is unnecessary to go into the facts but, in effect, the magistrate intended to acquit the appellant on Charge A and to convict the appellant on Charge B.

4. The mistake occurred because the Crown called as the first and second prosecution witnesses, Mr. and Mrs. WONG Shing, who were concerned with the B Charge and not the A Charge. The third and fourth witnesses concerned Charge A.

5. In his findings, the magistrate said that he acquitted on the second charge because he was not certain that the third prosecution witness had been able to see the defendant commit the offence. But P.W. 3 was not concerned with Charge B, he was concerned with Charge A. The findings therefore showed that the magistrate had a reasonable doubt as to the evidence given by P.W.3 and yet on that charge he convicted under Charge A. This cannot have been right. The Court directed its attention to paragraph (d) of section 118(1) of the Magistrates Ordinance, the relevant portion of which reads as follows:-

"..... and the Full Court shall have power to hear and determine any such appeal or point so reserved or so directed to be argued and may in connexion therewith exercise all or any of the powers conferred on a judge by this Part or may remit the matter to the judge with the opinion or decision of the Full Court and may also make any such other order in relation to the matter and such orders as to costs as to the Full Court shall deem fit;"

6. Mr. Nahar Singh, who appeared on behalf of the appellant argued that the phrase "may also make any such other order in relation to the matter" must refer to the appeal. The appeal was an appeal against the conviction of the appellant on Charge A. The fact that he was wrongly acquitted on Charge B, argued Mr. Singh, was immaterial and it would be wrong for the court to upset both the conviction on Charge A and the acquittal on Charge B and substitute an acquittal on Charge A and a conviction on Charge B.

7. We think there is merit in this argument. We do not think that the phrase quoted above is sufficiently wide to enable a court to reverse an order of acquittal. In the event, therefore, the appeal must be allowed and the conviction and sentence set aside.

	(Geoffrey Briggs)
	President.

Representation:

Nahar Singh (D.L.A.) for appellant.

Marash for crown.