Yip Har Tai v. The Queen
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CACC000591/1970 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 591 OF 1970 -----------------
Coram: Rigby, C.J. Date of Judgment: 22 December 1970 ----------------- JUDGMENT ----------------- 1. The appellant, a woman aged 50, was convicted of the offence preferred against her of being a suspected person found loitering with intent to commit a felony, namely, stealing. She now appeals against that conviction. 2. The brief facts of the case were that at about 6.50 p.m. on the 14th August three police officers on plain clothes duty with the specific purpose of looking for pickpockets were in the vicinity of Peking Road, Kowloon. Whilst in that road they saw three Chinese women walking along the road. It would appear that one or more of these police officers knew two of these Chinese women; and because he or they knew these two Chinese women they decided to follow these three of them. They followed these three Chinese women along Peking Road. They observed that the Chinese women were following some distance behind a European woman. Sometime later in Peking Road the European woman boarded a taxi, and that was that. 3. Clearly, the fact that they happened to be walking along the road behind a European woman who later boarded a taxi is an entirely neutral factor and it can be of no assistance to the prosecution. However, almost immediately afterwards they then saw these three Chinese women follow behind two European women. The European women were seen to look into a jewellery store, and it would appear from the evidence of the police officers that one of these Chinese women then approached and stood close to one of the European women as she was looking in the shop window and +ampered with her handbag. The two other women, one of whom was the defendant, stood about three feet away and behind these two European women. It is suggested that they were standing in that position so as to screen the action of the other Chinese woman who was tampering with the handbag so as to prevent passers-by seeing what was happening. However, almost immediately afterwards the two European women then entered the jewellery shop. The three Chinese women then continued along the road, and they were seen to follow another European woman. That woman stopped and looked in a jewellery shop and, according to the evidence, the present appellant went and stood at the side of the European woman and tried with her left hand unsuccessfully to open the handbag of the European woman. Her actions were unsuccessful and it would appear that she then left and changed places with another of the other two Chinese women and this woman tried, again unsuccessfully, to open the European woman's handbag. It would appear that the three Chinese women, or one or more of them, then saw, or thought they saw, that their actions were being observed and they left and one of them hailed a passing taxi. The three police officers then approached them and arrested these three women. That was the evidence which was given by the prosecution. 4. The appellant told an entirely different story. She gave evidence to the effect that she was living at home as a housewife; that two of her sons were in employment earning a good salary and that her husband was also in employment, the inference to be deduced being, of course, that it was totally unnecessary for her to resort to an offence of this nature. She said that during the course of the afternoon she was visited by her niece and another woman and that whilst they were there two other Chinese women [being in fact the two women who were later arrested with her] came to the house. She said that one of these two Chinese women tried to borrow some money from her in order to go to a tailor's shop to settle an account there which had been placed by the woman's husband. She said that she had not sufficient money but that she would do what she could to assist her and the five women then went out together. They boarded a bus and alighted somewhere in Nathan Road. She said that almost immediately afterwards the five of them were then approached by a number of police officers who. for no apparent reason, arrested them - at first all five of them. She said that one of the police officers produced a photograph showing three women; the suggestion being, it would appear, that the photograph was a photograph of the appellant and the other two women who were arrested at the same time. All five of them were then taken to the police station but her niece and the other woman who accompanied her were released; she herself and the two other Chinese women being detained. That was the defence put forward. The learned magistrate apparently accepted and believed the evidence of the three police officers and convicted the appellant of the offence as charged. 5. The appeal, if I may say so, has been very well argued by Mr. Denis Cheng o appears for the appellant. It is, of course, necessary in a charge of this nature for the prosecution to prove two essential ingredients of the charge, namely, first, that the person so charged was in fact a suspected person found loitering, and secondly, that that person was loitering with intent to commit a felony, namely, to steal. It is well known that in charges of this nature it must be proved that the person so charged was a person who, apart from the particular occasion and antecedently thereto, has become the object of suspicion [See Stone's Justices Manual, 1970, Vol. 2, p.3641]. I would refer to a passage from the judgment of Lord Justice Greer in what is probably the leading authority when considering cases of this kind, namely, Ledwith v. Roberts(1). In the course of his judgment in that case Lord Justice Greer said :-
And I would stress the words "by reason of his antecedent conduct". He went on to say :-
6. Mr. Denis Cheng has submitted that in this case there was no antecedent act such as would arouse the suspicion of a police officer that the person so charged had become the object of suspicion, that is to say, had already become a suspected person. He has submitted that the only suspicious act in this case as far as the appellant herself was concerned was her act immediately before she was arrested, that is to say, the act in which she herself tried to open the European woman's handbag. He has submitted that the appellant, at worst, prior to that incident was in the company of two reputed or suspected pickpockets, namely, the other two Chinese women, and he has submitted that in so far as the earlier act was concerned the evidence only went to show that the appellant was standing behind the two European women and it would seem from the evidence that the she and the other Chinese woman were in fact looking towards a bus stop at the time the first Chinese woman was tampering with the handbag of one of the two European women. He has submitted that that evidence is entirely consistent with innocence on the part of the appellant at that stage. 7. For my part I would not be prepared to accept that argument. In my view at that stage the conduct of the appellant was consistent with the fact that she was acting in concert with the two Chinese women and was standing behind the one who was tampering with the European woman's handbag, and was standing behind her with the object of screening the woman who was tampering with the handbag from being seen by passers-by. But a very much more substantial point taken by Mr. Denis Cheng is that it is apparent from the statement of findings of the learned magistrate that he has at no time directed his mind to the fact that it was necessary for the prosecution to prove the antecedent act which had caused the appellant to become a suspected person before she committed the act which actually led to her arrest. Looking at the statement of findings of the learned magistrate it is quite clear that he has done no more than set out the evidence given by the three main prosecution witnesses and the evidence given by the defence witnesses and simply to say that he believes the evidence of the defence witnesses. In my judgment there was evidence upon which the learned magistrate could properly have come to the conclusion that there was an antecedent act committed by the appellant in concert with these other two Chinese women; that act being the tampering with the handbag of one of the two European women by one of these three Chinese women while the other Chinese woman and the appellant remained standing close by in circumstances in which it might reasonably be inferred that they were in fact trying to screen their companion from being seen by passers-by. But the learned magistrate at no stage has given any indication as to what evidence he relied upon as forming the antecedent act which caused the appellant to become a suspected person. In my judgment it is necessary, particularly where a judge or magistrate is sitting by himself, that a judgment should clearly indicate the act or acts of the person charged which caused the court to be satisfied that that act or acts was, or were, the act or acts which caused the person so charged to become a suspected person. It seems to me quite clear in this case that the learned magistrate has not really directed his mind to what were the essential ingredients to be proved before a conviction on a charge of this nature can be sustained. 8. In those circumstances, although it may well be that there was evidence which could have supported a conviction, I have come to the conclusion that this appeal should be allowed. The conviction must accordingly quashed and the order of binding over for six months be set aside. Representation: Denis Cheng (Hastings & Co.) for Appellant. Stapp, C.C. for Crown/Respondent. (1) (1936) 3 A.E.R. p.570 |