Yeung Pui-hung v. The Queen

CACC000368/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 368 OF 1973

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Coram: Trainor J. in Court

Date of Judgment: 14th June, 1973

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JUDGMENT

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1. The appellant in this appeal was found guilty in the Magistrate's Court on the 10th of April last of keeping a dog over the age of three months without a licence on the 11th day of March 1973 and of keeping a dog on the 13th of March 1973 which was accustomed to annoy neighbours by barking. He was fined $50 on the first count and $15 on the second count and now appeals against conviction.

2. To put it mildly the record of the case is very far from satisfactory. The recording of the evidence is in many cases incomplete and difficult to follow. Moreover there is no statement of findings although there is what might appear to be a judgment given by the learned magistrate after the close of the defence.

3. The basis of the appeal centres round the unsatisfactory evidence as to the ownership of the dog in question.

4. The first prosecution witness was a Sergeant in the Royal Hong Kong Police Force, who said that on the 10th of March when he called at house No. 16, Jardine's Terrace, as a result of a complaint he saw a yellow Alsatian dog. He said that he returned at about half past ten on the same day and met the defendant. He said that in a conversation with the defendant the defendant admitted the dog was his and that there was no current licence in existence for it. He did produce a licence with regard to this dog but it was one that had expired some time previously. This man, the defendant, in his conversation with the Sergeant said that normally his dog did not make any noise.

5. There was a cross-examination of this witness on the question of ownership of the dog but it was not pressed to any real conclusion. I was informed by Mr. Howell who appeared for the appellant that he was told by the learned magistrate not to cross-examine, but that after the third prosecution witness was heard the magistrate recalled the witness for cross-examination. However, when the defendant gave evidence he said that the Alsatian dog, which was the one referred to by the first prosecution witness and by a lady who complained of its barking, did not belong to him but belonged to his employer. The employer gave evidence and said that the defendant was a foki in his home and that he, the witness, was the owner of the Alsatian dog in question.

6. As I said earlier the record of this case is most unsatisfactory as was the procedure adopted by the learned magistrate. Apart from saying at the close of the defence's case that he was satisfied beyond reasonable doubt that these two counts had been proved the learned magistrate made no reference whatsoever to any of the conflicting facts as presented by the various witnesses and there is no Statement of Findings to indicate how they were resolved.

7. In the circumstances I think it would be dangerous to uphold the decision of the court below and accordingly I allow the appeal on both counts.

Representation:

Mr. Howell (Gunston & Chow) for Appellant

Mr. Donaldson, C. C. for Respondent