The Queen v. Fan Kong

IN THE SUPREME COURT
MATGISTRACY APPEAL

1986 No. 1153
(Criminal)

BETWEEN

THE QUEEN

AND

FAN KONG

Coram: Roberts, C.J.

Date: 13th January, 1987

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JUDGMENT

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1. This is an appeal against convictions for loitering and resisting arrest.

2. At about 1.40 a.m. on the morning of 23rd July, police officers were on duty as part of a mobile patrol. A member of the police party, D.P.C. 21386, observed the defendant near the junction of Leighton Road and Keswick Street acting suspiciously. He saw the defendant go upstairs at No.14 Pennington Street, come down after about a minute and a half, walk along Keswick Street to a side lane of No. 4C Keswick Street, where he stopped outside a shop, then entering a construction site, where he remained for about three minutes.

3. DPC 21386 revealed his identity, as he was in plain clothes, and asked the defendant for his I.D. card, occupation and address. The defendant said he was hawking in front of the Jade Theatre. When asked for an explanation of his activities, he denied having been to the first two places at all and said he was just wandering around the construction site.

4. The police officer warned the defendant that he would be arrested for loitering if he did not give a satisfactory explanation. The defendant repeated his earlier explanation, whereupon he was arrested for loitering.

5. The defendant refused to be handcuffed and began to struggle. This was the subject of the second charge of resisting arrest.

6. The defendant, who was represented at his trial, elected to give evidence and call a witness. His version of events was that he had put the wooden hand-cart, from which he sold coconut Juice, at the rear of 4C Keswick Street and that he was intercepted by police officers who told him that they were going to 'fix’ him, because he had been acquitted about two weeks' before on a similar charge of loitering.

7. His defence, therefore, was that he was being framed by the police officers, who told him that he was cheeky last time when he found witnesses to prove that he was not guilty. One of them said "Well, let's see if you go to the same court and in front of the same judge and be as lucky next time."

8. The defendant also alleged that, in the course of his arrest, he was beaten up by the police officers.

9. During his appeal, the defendant has repeated his version of events, namely, that the police were out to get him as a result of his previous acquittal.

10. This defence, however, was fully put before the magistrate, who rejected the evidence given by the defendant and accepted the version put forward by the police officers.

11. It would have perhaps, been better if the magistrate had, in terms, stated in his Statement of Findings that he rejected the allegation that the defendant had been framed, but this is inherent in his findings.

12. The magistrate was satisfied that the defendant behaved and answered as the police officer described and that, on the balance of probabilities, which is the correct approach, the defendant’s explanation was not satisfactory. There are on grounds on which I could properly magistrate's Findings of Fact.

13. I should add that there has been made available to me the CAPO file containing the inquiry conducted by CAPO into the defendant's complaints. In the course of a very careful investigation, during the months of October and November, a statement was taken from a Mr. Wazal Khan, a security guard, who saw a man being arrested at exactly the same time and place as described in the police evidence. It can reasonaoly be assumed that this was the defendant. He stated that the defendant was not assaulted by the police officers. It is not surprising that CAPO decided that the complaints by the defendant had not been substantiated.

14. I mention this because although it is not strictly part of the proceedings before me, it does show that great care has been taken, both during the trial and outside it, to investigate the defendant's allegations.

15. The appeal is dismissed.

Appellant – FAN Kong - in person.

Mr. P. Cahill, Sen. Asst. Crown Prosecutor for Respondent/Crown Prosecutor.