The Queen v. Yau Siu Pang

HCMA000733/1985

HDADNOTE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No, 733 Of 1985

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BETWEEN

Coram: The Hon. Penlington J. in Court

Date of Hearing: 6th September 1985

Date of Delivery of Judgment: 6th September 1985

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JUDGMENT

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1. This is an appeal against conviction on a charge of loitering contrary to section 160(1) of the Crimes Ordinance. The appellant was charged that on the 4th of July 1985 he loitered at a public place, to wit the Kowloon Tong Railway Station, and did not give a satisfactory account of himself and a satisfactory explanation for his presence there.

2. At the hearing of the appeal the Crown considered that the Magistrate's decision was contrary to my judgment in The Queen v. Ma Kui Magistrate Appeal No. 244 of 1985 and they could not support the conviction. Crown Counsel indicated that it was the intention of the Crown to take a suitable case to the Court of Appeal as soon as possible, presumably because they did not agree with my decision in that case. The appeal was therefore allowed and the conviction quashed.

3. In my view it is not fatal to a prosecution if, when a suspect is approached, he is informed of the conduct which has aroused suspicion. In this present case the appellant was seen by two constables at the railway station and he was observed to get onto a train bound for Sheung Shui and then just before the train departed to get off it again. Another train then came to the platform but the appellant made no effort to board it but stood on the platform looking round. A few minutes later a Tai Po train arrived but again the appellant made no effort to board it. There was then evidence of the appellant jostling a woman and reaching out his hand towards her handbag.

4. This evidence was then very similar to that considered by the Court of Appeal in the Attorney General v. Tse Kam-pui 1980 H.K.L.R. 338, a case to which I referred in R. v. Ma Kui. There the Court of Appeal held that it was not always fatal to a prosecution if a defendant was asked for a satisfactory explanation for his presence in the public place but was not warned as to the consequences of his failure to give such an explanation though such a warning was certainly most desirable. McMullin J.A. said at p. 340 -

"In any case taken under Section 160(1) two matters have to be proved i.e. the loitering and the failure to give a satisfactory explanation for his presence at the scene. We think that, with respect, it is correct to say that before the arrest of such a person an opportunity should be given to him to give an account of himself and to make an explanation for his presence there."

In R. v. Ma Kui the defendant was not asked for an explanation of his presence but was asked why he tampered with letter boxes. A denial of attempting to commit an offence can't, in my view, be then taken as a failure to give a satisfactory explanation for ones presence in a public place.

5. In this case the appellant was asked for an explanation of his presence but he was also clearly accused for attempted theft. The constable said, inter alia, "I saw you jostle towards the train following a lady reaching out your hand to her handbag. Why did you do that?". The appellant replied he did not do that. He was then given another chance to explain "Why you got out of Lo Wu bound train behind a lady and reached out your hand to her handbag". The constable went on to ask the appellant to explain his presence, which was perfectly proper but it seems to me to be so linked with the accusation of attempted theft as to entitle the appellant to believe that was what he was accused of.

6. If there had been a clear statement first of all of what conduct had caused a constable's suspicion and the appellant had then simply been asked for an explanation as to his presence on the railway station, the conviction could be supported. Equally if, as in Ma Kui, the explanation asked for is not as to the accused presence but as to why he attempted to steal, that is in my view wrong. He was entitled to say nothing to the accusation of attempted theft but he was obliged to give an explanation for his presence. For the reasons I gave in Ma Kui therefore, I allowed the appeal and quashed the conviction.

7. As the law now stands, following the decision of the Court of Appeal in A.G. v. Chan Chin-hung (1980) H.K.L.R. 737, it is the explanation given to the police officer at the time which must be considered. That is different from the position when Huggins, J. (as he then was) was considering the case of Yan Ying-kuen v. R. (1980) H.K.L.R. 286. There he said that the appellant was unable to give a satisfactory account of himself at the trial "therefore it is a reasonable inference that he was unable to give a satisfactory account at the time of his arrest". The position now seems to be clear that an explanation given at the trial is of no consequence, only the explanation given at the time. Where a police constable considers a person's conduct in a public place to be suspicious and he considers he is there for an unlawful purpose, there is no objection to that person being told of what the constable had seen him doing. He should then be simply asked for an account of himself and an explanation as to his presence, not as to whether or not he had committed the act complained of. It is therefore, then a matter for the Court to consider whether the explanation given or the failure to give an explanation is unsatisfactory under all the circumstances. This may put considerable demands on police officers but I consider that this legislation should be interpreted strictly and it should not be assumed that the right to silence on being charged with an offence has been taken away unless it is clearly stated in the legislation.

Representation:

Simon Westbrook (Arthur Au & Co.) for Appellant

Kevin Browne, Counsel for Crown/Respondent