The Queen v. Lo Lau Ming and Another

HCMA000306/1985

BETWEEN:-

Coram: The Honourable Mr. Justice Penlington in Court

Date of hearing: 29th April 1985

Date of delivery of judgment: 29th April 1985

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JUDGMENT

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Preliminary

1. Both appellants were convicted on the 26th of March of ticket scalping. at the Macau Ferry Pier on the 12th of December 1984. The 1st appellant was fined. $2,000.00 and sentenced to 3 months imprisonment suspended for 2 years. He had 3 previous similar convictions. The second appellant who has a clear record was fined $1.000.00.

The Evidence

2. In this case the evidence against the 2nd appellant, KWONG Chi-keung was very strong indeed. He was seen by a constable to approach a member of the public, a Mr. Or, and to give him a ticket for which $100.00 was paid and $20.00 given as change. This was confirmed by Mr. Or although he could not identify the accused. It was clear that he had paid $80.00 for ticket costing $74.00. It is true that is not a great profit but there was evidence that it was only this particular sailing that was full and that there were other vessels going to Macau that day on which seats were available, so no doubt no great premium could be charged. The magistrate accepted that evidence and I am satisfied that he has every right to do so and it was undoubtedly sufficient to prove the charge against the 2nd appellant. At the hearing of the appeal he said that He was going to give Mr. Or the balance of his change but the police officer came up before he could do so. He did not give evidence in the court below and I am satisfied that explanation was groundless.

3. So far as the 1st appellant is concerned the only real evidence against him was that he was present with the 2nd appellant for approximately three-quarters of an hour prior to the transaction. They were talking together, he was present when the 2nd appellant sold the ticket to Mr. Or. Undoubtedly there was sufficient to cast grave suspicion that he was acting in concert with the 2nd appellant in scalping tickets. However the only basis for the charge against him was his presence when the transaction took place and his being with, and talking to the 2nd appellant for three-quarters of an hour before that. As has been said in many appeal cases suspicion is not sufficient. On the evidence the magistrate was not entitled to come to the conclusion that he did in respect of the 1st appellant. His appeal must be allowed and the conviction quashed, fine if paid, to be refunded.

4. The 2nd appellant's appeal will be dismissed and he will pay $300.00 costs of the appeal. He may have 7 days to pay them.

Representation:

Kenneth Ho (Ronald Ho & Co.) for 1st Appellant.

2nd Appellant, KWONG Chi-keung in person.

M. Jennings, S.C.C. for the Crown.