HKSAR v. Tsui Kwok Keung

HCMA 208/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 208 OF 2005

(ON APPEAL FROM FLR 33/2004)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 31 March 2005

Date of Judgment: 31 March 2005

Date Reasons for Judgment Handed Down: 11 May 2005

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REASONS  FOR  JUDGMENT

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1.This appeal was heard on 31 March 2005 at which time I dismissed the appeal against the conviction.  I indicated that reasons for the decision would be handed down in due course.  Those reasons now follow.

2.The Appellant was convicted after trial in the Magistracy of one charge of dumping litter in a public place.  The sentence was a fixed penalty of HK$1,500.00, a further penalty of HK$1,500.00 and costs of HK$500.00.  He appeals against his conviction only.

3.The particulars of the offence were that at about 7.15 am, the Appellant deposited waste, a bag of refuse, in a public place, the pavement at the side of a lamp post outside Kam Tsin Village, Sheung Shui, New Territories.  The only witness was a foreman of the Food and Environmental Hygiene Department, PW1.

4.The prosecution case was that PW1 while on duty in uniform, saw the Appellant walking towards him holding a plastic bag and then throw it onto the pavement near a lamp post and continue walking.  At the time the Appellant threw the bag of refuse down, he was about 20 metres away from PW1.

5.PW1 approached the D and stopped him immediately.  He told him that he had committed a littering offence, cautioned him and asked him to produce his ID card so that he could issue the Appellant with a Fixed Penalty notice.  The Appellant responded that the place was within the area of the village and demanded that PW1 go and look for the village head.  He did not cooperate with the request to produce his ID card, but asked PW1 to produce his warrant card that he could take his particulars.  PW1 complied with the Appellant’s request.  Again he asked the Appellant to produce his proof of identity and told him if he did not do so, he would have to call for police assistance.  Only then did the Appellant produce his proof of identity.  PW1 issued a Fixed Penalty notice.

6.The defence evidence was given by the Appellant.  He was not legally represented at trial.  He said he was a supervisor of a construction company and lived in Kam Tsin Village.  At about 7 am, he left his house to go to work.  He said he did not have with him a plastic bag of refuse, but held a briefcase.  It was his evidence that PW1 approached him from behind and, walked in front of him to block his way.  He told the Appellant that he had thrown a bag of rubbish near the playground and asked him to produce his ID card.  The Appellant then asked PW1 to produce his warrant card.  PW1 did so, but kept waving it in front of him without allowing him to see it properly.  An argument ensued.

7.The Appellant claimed that PW1 said the village head had asked him to come to the village for a cleaning campaign and that is why he asked the village head to come out.  They waited for 15 minutes but the village head did not attend.  PW1 told him that if he still refused to produce his ID card he would call the police.  He waited for a further 15 minutes, the police did not arrive.  As it was about 7.30 am he was in a hurry to go to work, so eventually he gave the witness his ID card and rushed off.

8.The Appellant contended that if PW1 was really in front of him in uniform and if he was carrying a bag of rubbish, he would not have thrown it on the ground knowing PW1 was present.  He denied depositing any rubbish and claimed that the path he took that morning did not go anywhere near the location where PW1 claimed he had deposited the rubbish.

9.The Appellant claimed that the Magistrate failed to take account of the evidence correctly and that PW1 was framing the Appellant in order to fulfil a quota of fixed penalty tickets.

Perfected Grounds of Appeal

10.The 1^st ground was that the Magistrate failed to consider that PW1 was at a long distance from the Appellant when allegedly he saw the Appellant dump the refuse.  It was submitted that the identification might have been the result of PW1’s observation of the Appellant after he intercepted him, not when the alleged dumping occurred.  It was possible that he had identified the wrong man.

11.The 2^nd ground was that the Magistrate failed to consider that the Appellant was not intercepted at, or near, the spot where the dumping of litter allegedly took place, but some distance from the scene, at a point not directly visible from the alleged dumping site.  Accordingly, there was a lurking doubt as to whether PW1 had intercepted the Appellant in error.

12.The 3^rd ground was that the Magistrate erred in not admitting as a defence exhibit a plan produced by the Appellant which highlighted the points made in the 1^st and 2^nd grounds and consequently the conviction might be unsafe or unsatisfactory.

13.The Appellant was represented on appeal.  Leave was granted to include as part of the appeal bundle, the transcript of PW1’s evidence, requested by the Appellant.  Leave was granted to the Appellant to adduce fresh evidence in the form of photographs taken by the Appellant.  15 photographs, a supporting affidavit, plus a further photograph showing the scene, were relied on.

14.Basically, there was a challenge to the identification by PW1 of the Appellant.  It was suggested that the distances given by PW1 were incorrect and the Magistrate did not deal with the discrepancies.  It was suggested that the distance referred to by PW1, was so great that it was difficult to identify the Appellant.  It was submitted he could not be identified with certainty at the time the rubbish was dumped.  The Appellant at trial had questioned the quality of PW1’s eyesight.

15.Reference was made to the photographs to show the distances between PW1 and the Appellant at the time the rubbish was dumped, and later when he was stopped by PW1.  It was submitted that PW1 was wrong about the location where he stopped the Appellant and further, that he wrongly identified the place at which the rubbish was dumped.

16.The 3^rd ground of appeal was withdrawn during the appeal hearing, after it was revealed to the Appellant’s legal representative that the Magistrate had taken the plan (Exh D4) into account in assessing the evidence.

17.The Magistrate in assessing the evidence noted the salient factors and recognized that credibility was an important issue, as was identification.

18.The Magistrate rejected suggestions by the Appellant that PW1 deliberately framed him to fulfil a quota.  The Magistrate expressly said that she did not believe the Appellant’s account of what happened, and set out the improbability of the Appellant waiting as long as he did when, allegedly he was in a hurry to go to work.  She found his reaction on being stopped was not consistent with that of someone who denied an accusation of this nature.

19.The Magistrate bore in mind there was no onus on the Appellant to prove or to disprove anything.  She did not accept that PW1 suffered from any health or eyesight problem that affected him in carrying out his duty on that day.  She was satisfied that PW1 had seen the Appellant deposit the plastic bag of refuse on the public place as he said he had.

20.Despite the detailed submissions made by Mr Pang who appeared for the Appellant, there was nothing advanced to show the Magistrate acted improperly, or that there was a basis for disturbing her findings of fact.

21.Accordingly, this appeal was dismissed.

Miss Anthea Pang, SGC, of Department of Justice for Respondent

Mr Kenneth Man-Kui Chow, of Messrs Chow & Choy for Appellant