The Queen v. Fu Chun-ping and Another

CACC000633/1983

BETWEEN

Coram: Hon. McMullin, V.-P. in court.

Date: 17th June 1983

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JUDGMENT

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McMullin, V.-P. :

1. The Appellants were convicted by a magistrate of an offence of attempted theft. The Grown case was borne by the testimony of three police officers. This was to the effect that upon the 14th November 1982 at about 2.10 p.m. they were on duty in plain clothes in the vicinity of Argyle Street and junction of Nathan Road when they saw the two defendants turning into Argyle Street from Sai Yeung Choi Street heading in a westerly direction. They said that they followed the defendants and observed that they were looking around them and peering at the pockets and handbags of passers-by. They kept them under observation for some time until they arrived at the zebra crossing in Argyle Street near Nathan Road. They then saw that the two defendants went and stood behind a girl waiting to cross the road. PW2 DPC 16523 said that he saw the 1st defendant stretching his right hand out and unzipping the handbag which the girl was carrying across her shoulder. The police officer said he saw the defendant insert his hand inside the bag to feel what was there. Seeing this he ran up with the other two officers and the girl started to cross the road unaware of anything having happened. The two defendants made off but were seized by the police officers and were accused of having attempted to steal from the handbag of the girl. The part played by the 2nd defendant and this was described by one of the officers who said that he had seen the 2nd defendant put his arm across the shoulder of the 1st defendant as though to screen his activities. The identity of the girl was not discovered.

2. The defendants gave evidence. The 1st defendant said that the only reason that he had been arrested was because he was a wanted man. He admitted at the trial that he had been charged with a previous offence sometime in March but had absconded while on bail. He gave evidence that PW2 was the officer who had dealt with that case. Both the defendants gave evidence to the effect that the 2nd defendant was addressed by one of the police officers upon their arrest and what was said by that officer was that the 2nd defendant could hardly be a decent person since he was in the company of a wanted man.

3. These brief and simple facts were recited by the magistrate and she accepted the evidence of the police officers. Mr. Midgley who appears this morning on behalf of both appellants argues that the magistrate overlooked two matters of cardinal importance in coming to her conclusion - matters which if she had attended to them might well have pre-disposed her towards acquitting the defendants. She noted that the 2nd defendant in giving evidence ascribed his arrest to the fact that he was in the company of a person who was wanted. She said that PW2 had denied this and she said that the evidence was that PW2 only knew that the 1st defendant was wanted when they all went back at the police station. That was a misapprehension of the evidence. Although PW2 did say he only knew about the wanted person matter after he arrived at the police station, he added immediately thereafter : "Even though I knew Dl absconded before I did not know if he had been arrested by others". Clearly that tends to support the 1st defendant's testimony as to his having been dealt with by that officer before and it also lends some colour to his suggestion that he had been arrested only because he was a wanted person. Mr. Midgley makes the valid point that if that was indeed the true situation, it would be a surprising thing that the officer, upon recognizing a person who had absconded in respect of a previous case, would not at once have gone up to arrest him without hanging around to see if he was going to do anything further.

4. The second point which it is said was overlooked by the magistrate concerns a witness called for the defence, Ho Tak Yee. He told the court that he had been the employer of the 1st defendant and on the day in question he had been having tea with the 1st and 2nd defendants in the Man Yin Wah restaurant, the purpose being apparently to consider the possibility of employing the 2nd defendant. Each of the defendants had testified to the fact that, upon leaving that restaurant, they were at once arrested. Ho Tak Yee's evidence supported this. He did not purport to say what had happened immediately prior to the arrest but he did support the two defendants inasmuch as he testified that he had been having tea with them in that restaurant and upon leaving the restaurant was proceeding ahead of him when suddenly, upon turning round, he observed that they had been arrested.

5. That evidence clearly conflicted with what was said by the three police officers as to the place and circumstances of the arrest. It may be that had the magistrate attended to these two difficulties she might have indicated that she still believed the two police officers and she might have given grounds for rejecting the testimony which was adverse to the testimony of those officers. These were however difficulties of a character which was far from negligible and if she had been aware of them one would have expected that she would have dealt with them expressly and disclosed in what manner she had nevertheless satisfied herself as to the truth of the police constable's evidence. For these reasons I am satisfied that the conviction is unsatisfactory, the appeal will be allowed, the convictions set aside and the sentence is quashed.

Representation:

J.M. Midgley of Haldane & Midgley for both Appellants

P.A. Nicholas for Respondent/Crown.