The Queen v. Yip Yuk-wang

HCMA001130/1986

BETWEEN:

Coram: Roberts, C.J.

Date: 10th December, 1986.

Date of Handing Down of Judgment: 17th December, 1986

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JUDGMENT

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1. The appellant("D. 1") was convicted on six charges of making off without payment.

2. In each instance it was alleged that D.1 had failed to pay a bill for a meal which he had consumed at the Fu Yu Restaurant, Kowloon. The six occasions fell between 22nd June, 1985 and 3rd September, 1985.

3. The Crown called only one witness, the Manager OF the Restaurant, who testified that D.1 was a regular customer and that on these six occasions he had failed to pay his bill. The manager added that on a number of other occasions D.1 had assaulted waiters.

4. D.1, who was not represented, gave evidence on his own behalf, denying that he had failed on any occasion to pay his bill.He admitted that he was a regular visitor to the restaurant, going there about 10 days in the month. He denied ever having assaulted or threatened staff at the restaurant.

5. The sole ground of appeal was that the magistrate had not warned herself of the dangers inherent in the identification of an accused person by a witness.

6. It may very well be that, had she warned herself in the usual manner of the care which is necessary where a case depends substantially on identification, the magistrate would have come to the same conclusion, in view of the fact that D.1 was a regular visitor to the restaurant.

7. Nevertheless, where identification is concerned, it is important that the dangers of it shall always be present in the mind of the magistrate and that a statement of findings shall contain a reference to the caution necessary where identification is in issue.

8. In view of this omission, I could not feel that the conviction was safe and accordingly quashed it and ordered a retrial before another magistrate.

Representation:

Miss J. Spruce (D.L.A.) for Appellant

Mr. J.E. Halley, Senior Crown Counsel, for Respondent/Crown Prosecutor.