Attorney General v. Chan Chin-hung and Others
Read the full judgment text of CACC 391/1980 on BabelCite. This Court of Appeal judgment.
1. Mr. Paul Trehey, a magistrate at Causeway Bay, stated a case, at the instance of the Attorney General, for decision by a Judge of the High Court. O'Connor, J., when the matter came before him on the 18th August, 1980, reserved the matter for the consideration of the Court of Appeal.
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CACC000391/1980
Coram: Roberts, C.J., O'Connor & Liu, JJ. Date of Judgment: 15th October, 1980. ---------------------------------- CASE STATED ---------------------------------- Roberts, C.J.: 1. Mr. Paul Trehey, a magistrate at Causeway Bay, stated a case, at the instance of the Attorney General, for decision by a Judge of the High Court. O'Connor, J., when the matter came before him on the 18th August, 1980, reserved the matter for the consideration of the Court of Appeal. 2. The three respondents were jointly charged with an offence against section 160(1) of the Crimes Ordinance (Cap. 200), in the following terms -
3. The information was dismissed by the magistrate on the ground, inter alia, that a charge under section 160 (1) can be properly laid against one person only and not against joint defendants. 4. The question of law stated for the opinion of the court was as follows -
The offence of loitering 5. Counsel for the Crown submitted, and this was not disputed by counsel for the respondents, that the question could not be answered without considering the constituents of the offence of loitering. 6. The present section 160 of the Crimes Ordinance, (which was enacted by Ordinance No. 37 of 1979) replaced section 26 of the Summary Offences Ordinance (Cap. 228). The relevant portion of the latter read as follows -
7. Section 26 (a) of Cap. 228 was considered by Huggins, J. in Criminal Appeal 699/1967, in which he ruled that it was wrong to charge persons jointly with loitering contrary to section 26(a) because the offence was not one which could be committed jointly. 8. Section 160(1) of Cap. 200 reads as follows -
9. The effect of this section has been considered in three cases which were cited to us. In NG Yuk-sin v. The Queen(1), O'Connor, J. ruled that the failure of a suspect to give a satisfactory account of himself and a satisfactory explanation for his presence was "an ingredient of the offence and not simply a condition to be fulfilled before conviction and that, unless there has been such a failure, no offence has been committed. Silke, J. reached the same conclusion in WONG Kwan-cheung v. The Queen(2). 10. The Court of Appeal in Attorney General v. TSE Kam-pui(3) dealt with the matter as follows -
11. The Court of Appeal disagreed in one respect with the views of O'Connor, J. that a suspect should, in addition to being given an opportunity to furnish an account and explanation prior to his arrest, also "be told of the likely consequence of failure to give them." Silke, J. regarded such a warning as desirable though not obligatory. 12. The Court of Appeal stated that if a suspect has given an account and explanation which is unsatisfactory, he should thereafter be told that that is the reason for his arrest and added that that is all the law requires. 13. Although, therefore, this court has recently ruled that the failure to account and explain is an integral part of the offence, counsel for the Attorney General sought to persuade us that the decision in TSE Kam-pui(3) was reached per incuriam. 14. He argued that the attention of the court had not been drawn in that appeal to section 10 of the Prevention of Bribery Ordinance, Cap. 201, which deals with the offence of possession of unexplained property. 15. He argued that since it has been ruled by this court that an offence against section 10 of Cap. 201 is not complete until the accused fails to give a satisfactory explanation to the court, the same should apply to the offence of loitering. Although he conceded that, as a matter of practice, a police officer intending to arrest a suspect for loitering ought to give him an opportunity to account and explain, he argued that there was no such obligation in law. 16. The difficulty which faced him is that section 10 of Cap. 201 specifically provides that the explanation of the accused should be given to the court. Similarly, section 30 of the Summary Offences Ordinance (Cap. 228) states that a person brought before a magistrate, charged with having in his possession anything reasonably suspected of having been stolen, is guilty of an offence if he does not give an account as to how he came by the same to the satisfaction of the magistrate. 17. From these two references we have come to the conclusion that, if the Legislature had intended that the account and explanation provided for under section 160 (1) was to be tendered to a magistrate, it would have said so. 18. Furthermore, in the absence of clear words, it is surely desirable to adopt that interpretation which best safeguards members of the public. If an offence is complete solely on the basis that a person is seen 'loitering', he could thereupon be arrested and brought before the court, without more. This would put innocent people at hazard and would be an unnecessarily wide power in the hands of the police. 19. Thus we see no reason to diverge from the view which this court expressed in the Attorney General v. TSE Kam-pui(3), that to establish an offence of loitering the Crown must show both that the suspect was loitering and that, having been afforded an opportunity to do so, he failed to give a satisfactory account and explanation to a police officer who asked for it. 20. It may sometimes happen that a suspect gives to a police officer an explanation which is palpably unsatisfactory. Thereafter, when he is tried, he may give an entirely different explanation, which the magistrate may find credible. In this event, the defendant would, nonetheless, be guilty of the offence charged, though the magistrate might well take the view that no more than a nominal penalty, if any, should be imposed upon the defendant. Joint charging 21. If failure to account and explain to a police officer is an ingredient of the offence of loitering, and not merely a matter for defence at the trial, it can only be in rare circumstances that persons can be jointly charged with loitering. 22. Suspected persons who are asked to give an account and explanation, are likely to do so in dissimilar terms. It would be the duty of the police officer to direct his attention to each account and explanation separately and form a separate view as to whether or not it is satisfactory. 23. Although both defendants might be physically present, at the same time and place, the explanation of each is a separate transaction and the offence of each is complete only when the police officer finds the explanation to be unsatisfactory, which he will do at a separate time for each defendant, and for different reasons. Nor is the answer of one the answer of the other, so that their offences are not joint, even if they are nearly contemporaneous. 24. It is possible to conceive of circumstances in which a joint charge would be proper. For example, one loiterer might have been heard to say to the other "Don't tell the police anything", after which both suspects refuse to give any explanation. It might then be correct for the Crown to charge them jointly, one having counselled or procured the other's failure. 25. However, we suggest that the Crown would be well advised, in order to avoid the complications which are likely to follow from any joint charge of loitering, not to adopt this course even when, technically, it might be permissible. It is surely much easier for all concerned if loiterers were separately charged in all circumstances. 26. The answer to the question posed is, therefore, "No", but only in the very limited circumstances specified above. 27. In view of this answer the appeal should be allowed. 28. We make no order for re-hearing, which the Crown did not seek. Representation: K.B. Egan for Crown/appellant. R.G. Kotewall (D.L.A.) for respondents. (1) Crim. APP. No. 997/1979 (2) Crim. APP. No. 69/1980 (3) Crim. APP. No. 283/1980. |