Yeung Sang v. The Queen

Case No.CACC 1020/1974

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC001020/1974

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1020 OF 1974

-----------------

BETWEEN
	YEUNG Sang	Appellant
	and
	The Queen	Respondent

-----------------

Coram: Mr. Commissioner Yang in Court.

Date of Judgment:

-----------------

JUDGMENT

-----------------

1. The appellant was convicted by the magistrate's court of two offences, namely, (A) loitering at night, contrary to section 26(a) of the Summary Offence Ordinance, Cap. 228, and (B) going equipped for stealing, contrary to section 27 of the Theft Ordinance, Cap. 210. The appellant now appeals against those convictions.

2. The case for the prosecution was that P.C. 9979 and another police officer were on duty in plain clothes at about 2.05 a.m. on 1st November 1974 near No. 140 Apliu Street. They saw the appellant touch the padlock of a stall opposite No. 146 Apliu Street. They then saw him stop at a stall in front of No. 148 Apliu Street and push the door of that stall. The two officers then approached him and found on his person one small hacksaw, one hacksaw blade, and three pairs of pliers and one bottle-opener. It was common ground that the appellant was not at that time at his place of abode. On being questioned by P.C. 9979 about the tools, the appellant failed to give a satisfactory account but simply said that he had picked up all these tools that night in Apliu Street and had intended to take them home. He was unable to take the police to the place where he had allegedly picked up those tools. The appellant was then taken to the police station for enquires.

3. The appellant's evidence was that the incident took place at about 1.15 a.m. and he was drunk at the time. He said that he was knocked down by a car driven by a person called Lok Choi, causing him slight injury to one leg. After he was questioned and searched, he was handcuffed and taken to Lai Chi Kok Amusement Park, from where he was taken to the police station in the company of Lok Choi and another person who had joined the group at the amusement park. The appellant also said in evidence that he first saw P.C. 9979 at 9 a.m. that morning. Under cross-examination, the appellant said that he was not taken to hospital after he had been hit by the car because it was only a minor injury. He further said that he was beaten by a police officer and threatened.

4. In assessing the veracity of the appellant the learned trial magistrate had this to say :

	" I found appellant's evidence far fetched and quite unconvincing. He claimed that he was knocked down by a car which was being used at the time by the people who arrested him. Cross-examined on that point he said that he was not sent to hospital because he had only a slight injury to one of his legs. This Court has no doubt that if defendant had been knocked down by a car the police would have sent him for medical examination with all possible speed even if he had no apparent injury. It would be in their interest to do this.
	His assertion that he did not see P.W.1 at all until he was charged by him at 9 a.m. that day is not credible. It is in a policeman's interest to follow up his cases and to give evidence in Court if charges are brought. No policeman of ordinary sense would hand a case over to somebody who knew nothing about it and who was not even to give evidence as to what had happened. The Court had no doubt that the prosecution witness in this case was the man who observed and questioned appellant at the scene and arrested him.
	I accept the evidence for the prosecution and rejected the evidence for the defence wherever it was in conflict with the prosecution evidence."

5. The learned magistrate assumed that the police would always take the victim of a traffic accident caused by themselves to the hospital because it was in their interest to do so. Quite apart from the absence of any evidence to support this assumption, the police might well have thought that it would be against their interest to take the victim to the hospital, particularly, for example, if the police driver were in the wrong and had had something to hide from the authorities. The police driver might have been guilty of careless or dangerous driving, or if he had been driving his own private car in the course of his duties, as is so often is the case, his driving licence might have expired. In these circumstances he might quite likely think it unwise to bring the person he had knocked down to hospital, which would surely lead to enquiries being made.

6. The learned magistrate took the view that it was in a policeman's interest to follow up his own case and that "no policeman of ordinary sense would hand a case over to somebody who knew nothing about it and who was not even at the scene of arrest". This is true if the arresting officer had done nothing wrong which could be the subject of cross-examination, e.g., an accusation on the part of the accused of having been injured by the officer's careless driving.

7. It appears that the learned magistrate's rejection of the appellant's evidence was based on a false premise and that he has failed to give due consideration to the appellant's evidence, improbable as it might seem.

8. For these reasons, appeal allowed and convictions on both charges quashed.

	(T.L. Yang)
	Commissioner of Supreme Court

Representation:

Appellant in person.

Alderdice, C.C. for Respondent.