HKSAR v. Yang Xianu

HCMA28/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.28 OF 2006

(ON APPEAL FROM FLCC 2178 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 18 August 2006

Date of Judgment : 18 August 2006

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J U D G M E N T

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1.This is an appeal by the appellant against her conviction by Miss Julia Livesey on 7 December 2005, of the offence of loitering with two persons not in custody with intent to commit an arrestable offence, namely, deception, contrary to section 161 of the Crimes Ordinance, Cap. 200.

2.The evidence for the prosecution was that the appellant had approached Madam Ma Mei Kuen, PW1, as she was walking her dog and asked her for the location of a particular company and a particular person.  Madam Ma had told the appellant that is was a residential area where they then were and had pointed the direction to the appellant.  As she was pointing the direction to the appellant a second woman who had been standing about 10 feet away, said that she knew the company and that there was a spiritual doctor in the company.

3.Madam Ma had learnt of cases involving deceptions relating to alleged spiritual doctors from the television.  She decided to ignore the two women and walk on.  Nonetheless the two women went on to have a conversation as they walked close to her.  Their conversation was as to the merits of this spiritual doctor.  Madam Ma formed the impression that they were talking for the purpose of letting her hear what they were saying.  After a short while they left Madam Ma and joined a third woman who had been watching what was going on.

4.The learned magistrate was satisfied that the only inference that could be drawn from the circumstances was that this discussion was preparatory to the later implementation of a street deception.  She said this :

“This is a classic street deception.  In the absence of any other evidence to the contrary, I was satisfied that the only reasonable inference which could be drawn was that there was an intent on the part of the appellant, with others, to commit an arrestable offence, namely, deception, and that there was sufficient evidence to prove an attempt to commit the deception.”

5.The first ground of appeal is that the learned magistrate erred in taking judicial notice of facts that were not put before the court.  There was no express reference to judicial notice made by the magistrate either in the course of the trial, or in her Statement of Findings, but Mr Davies for the appellant submits that the magistrate must have taken judicial notice of a particular modus operandi allegedly used by those practising deception.

6.Although Mr Wong for the respondent has sought to persuade me to the contrary, I am satisfied that Mr Davies’s submission is correct.  Without taking judicial notice the magistrate could not have been satisfied, beyond reasonable doubt, on the evidence adduced before her that the appellant necessarily had an intention to practice deception.  The magistrate must have taken judicial notice of a particular modus operandi allegedly used by those who practise street deceptions. 

7.Judges and Magistrates may take notice of facts that are so generally known that ordinary persons may be presumed to be aware of them.

8.Mr Wong argues that this particular modus operandi falls within that category.  I do not agree.  Whilst some, indeed many members of the public who read newspapers and watch television may be aware of deceptions practised using similar introductions, I do not accept that it falls within the knowledge of which ordinary persons can be presumed to be aware.  There are matters upon which judges and magistrates may have specialised knowledge by reason of their experience.  There are certain of these matters of which they can take judicial notice.  I have not been referred to any authority where it has been suggested that judges or magistrates can take judicial notice of a particular deception used by fraudsters. 

9.It is not necessary for me to decide in this case whether a particular deception can be the subject of judicial notice.  That may well turn upon the nature of the particular deception.  I tend to think it unlikely that judicial notice could be taken of the sort of matter about which judicial notice was taken in this case.  However, even if it was a matter about which judicial notice could be taken, it was incumbent on the magistrate in the circumstances of this case to make clear to the parties that it was a matter upon which she intended or might take judicial notice, so as to give the defence sufficient opportunity to call evidence and/or make submissions on the matter.

10.The magistrate did not intimate to defence counsel that she intended to or might take judicial notice of the particular modus operandi in this case.  The mere fact that Mr Davies may in his final submissions have made brief reference to what he said happened in the usual run of these cases, does not cure this omission by the magistrate.  The defence should have been given express warning about the matter upon which the magistrate would or might take judicial notice.

11.In view of my finding on this matter it is not necessary for me to hear argument on the second ground of appeal. 

12.I allow the appeal against conviction.

Mr Vincent Wong, SGC of the Department of Justice, for HKSAR

Mr Oliver H. Davies, instructed by Messrs Francis Kong & Co.,for the Appellant