Wong Kwan-cheung and Another v. The Queen
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CACC000069/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 69 OF 1980 -----------------
----------------- Coram: Silke, J. in Court. Date of Judgment: 11 February 1980 ----------------- JUDGMENT ----------------- 1. The appellants Wong Kwan Cheung and Liu Kam Pui appealed, respectively, against their convictions for loitering and loitering and going equipped for stealing, the loitering charges being brought under section 160(1) of the Crimes Ordinance. 2. The appellants were represented by the Duty Lawyer at trial and by Mr. Cheng Huan, instructed by John Ip & Co., on the appeal. 3. At the conclusion of the hearing I dismissed the appeals giving oral reasons, stated I would reduce them to writing and this I now do. 4. It was the evidence for the prosecution that a police party in plain clothes were watching the vicinity of the numbers 6, 6A and 6C bus stops near 680, Castle Peak Road on the 8th November at about 6.10 p.m. 5. People were waiting for buses and the two appellants were seen together in the area. They separated and Wong was seen by one of the constables in the police party to follow people attempting to board a No. 6 bus. He was seen to touch the back pocket of an intending male passenger with his right hand. The man became aware of this and covered the pocket with his hand. The appellant Wong retreated. Then came a No. 6A bus and again people attempted to board, one of whom was a lady with a shoulder hand bag. Wong touched the opening of the bag, appeared to notice the constable and his colleague and started to leave the bus stop. He was then approached by the two policemen, searched - nothing being found - and asked what he was doing there. After the question had been repeated Wong said he was going to find a friend but he could not give the name nor did he reply when asked where the friend lived. 6. He was then, in the words of the constable (PW 3) "cautioned for loitering", taken to a car and later to the police station. 7. Meanwhile other members of the police party were watching the second appellant Liu. The No. 6 bus came, Liu separated from Wong and made as if to get onto the bus. He was seen to pat the rear trousers pocket of a male intending passenger. The passenger boarded but Liu did not. He walked to another bus stop outside No. 688 Castle Peak Road - this being the stop for Nos. 33, 35A and 36A, where there were also intending passengers waiting. 8. The constables followed him and he looked at the rear pockets of these waiting passengers. 9. He then moved onto yet another bus stop - this outside No. 652 and for buses Nos: 12, 30 and 50. Intending passengers were waiting. A No. 12 bus came, passengers attempted to board and the appellant Liu followed them. He was seen to pat the rear pockets of a male with his right hand. 10. Liu did not board the bus but walked away in the direction of Yee Kuk Street. The police followed him stopped him and revealed their identities. In the right hand of Liu, held between the first and second fingers, was found a piece of razor blade. He was searched without further result. 11. He was asked why he "wandered" at the three bus stops and he replied that he was going to visit a friend who worked in a nearby factory. He did not name it and when asked to show the way remained silent. In answer to a further question he said he picked up the razor blade in the street. He was then cautioned, in the words of the constable (PW 1) "for loitering and being in possession of a razor blade for unlawful purposes". 12. He was brought back to the car where the appellant Wong already was and then to the police station. 13. In cross examination the constable said that he did not arrest Liu at the original bus stop because he at first thought that Liu was going to board the bus and had touched the pocket accidentally. 14. It was his further evidence, in answer to the question in reexamination "Q. How close are these bus stops?", that they were "About thirty feet and fourty feet respectively." 15. This has some bearing as will be seen in a moment. 16. The defence put forward was that the two appellants who were proceeding on their innocent way were arrested together. They were simply looking for the Ho Lee Garment Factory where a friend worked, and with the hope of employment there. 17. Liu said that he had no blade but that the arresting constable said, when told this, "Alright. Let us go back and I will give you one". To which Liu replied "You could as well give me a pistol". He did not see the blade until he was charged on the following day. 18. Cross examination of both the defendants was rudimentary and could have been of little assistance to the learned trial Magistrate. 19. Mr. Cheung Huan took the point that in the charge in respect of the 2nd appellant Liu - the appellants were not jointly charged though the two loitering charges were heard together - the particulars stated that he "did loiter in a public place to wit at the bus stop outside No. 680 Castle Peak Road" and no more. Whereas the evidence showed a movement along Castle Peak Road as far as No. 652 Castle Peak Road and, further, that the arresting constable thought the actions of Liu at 680, Castle Peak Road could be "accidental". 20. I accept that this charge could have been more finely drawn - the matter was, briefly, raised at the trial. But I do not think, in view of the juxtaposition of the bus stops, thirty and fourty feet from each other on the same road, the appellant to have been misled as to the matters alleged against him. Had it been necessary, and I do not think it is, I would have applied the "proviso" on this aspect. 21. Generally the evidence was attacked as being insufficient to ground the convictions and specifically the failure of the arresting constables to warn the appellants at the time of their arrest, that failure to give an explanation or a satisfactory one could lead to their arrest for loitering, was advanced as a ground for finding the convictions unsupportable. 22. The new section 160 creates, inter alia, the offence - not of loitering with intent - but simply loitering by a person without a satisfactory account of himself and a satisfactory explanation for his presence being given. 23. This places a very considerable power in the hands of junior police officers. It could be said that anyone standing around in the streets of Hong Kong is susceptible to an approach by a member of the Police Force and, if he fails to give, to the satisfaction of the policeman, both an account of himself and an explanation of his presence in that street, that person could find himself before the courts. 24. I would acho, with respect, that which my brother O'Connor had to say in Ng Yuk Sin v. The Queen, C.A. 997/1979 "What the police ought to do when they have this section in mind is tell him that he has been loitering in such a place and that unless he gives a satisfactory account and explanation they will arrest him or proceed by summons. Having done that, if he does not give satisfactory answers, they are entitled to proceed on the basis that he has committed the offence. 25. He went on "The offence under S. 160 of the Crimes Ordinance is not completed by an inability to give a satisfactory account or explanation but by a failure to do so. There could be a failure even though there was no inability. A failure could be due to ignorance that an explanation was required. I am therefore of the opinion that S. 160 envisages an opportunity being given prior to arrest, to give an explanation, and for that to be a real opportunity the suspect should be asked for an account and explanation and told of the likely consequences of failure to give them". 26. Here the arresting constables clearly had "loitering" charges in mind, they did ask for an explanation. Neither gave any warning of the consequences of failure. 27. The evidence was fully considered by the learned trial Magistrate and on that evidence he was entitled to come to the conclusions he did. He was also aware of the judgment of my brother O'Connor for the made reference to it in his Statement of Findings and he was fully aware of opinions expressed therein as to a warning being given. 28. A warning is not obligatory, nor I might add, is it a counsel of perfection. There are cases which I can envisage where failure to give such a warning could be fatal to a subsequent conviction. 29. On the whole of the evidence here this is not one of them and the appeals are dismissed. 30. I would, however, emphasise that this is a very wide reaching section indeed and it would be most advisable if that which my brother O'Connor called a "real opportunity" be given to any suspect where a loitering charge is contemplated and that he be warned of the likely consequences of failure to give an account and an explanation - and not simply as matter of rote either.
Representation: Mr. Cheng Huan (John Ip & Co.) for 2nd appellant Mr. Maxwell for Crown 1st appellant in person |