Chan Cheuk-kim v. The Queen
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CACC001128/1978 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 1128 OF 1978 -----------------
----------------- Coram: O'Connor, J. Date of Judgment: 5th December, 1978 ----------------- JUDGMENT ----------------- 1. The appellant was convicted of loitering contrary to section 26(c) of the Summary Offences Ordinance and possession of an instrument fit for an unlawful purpose contrary to section 17 of the same Ordinance. A police officer gave evidence of seeing the appellant on two occasions with his right hand feeling the hip pockets of men and on another occasion putting his left hand into a woman's shopping basket. These facts if true would warrant the convictions. However the officer went on to say that after he had stopped the appellant he noticed that the appellant appeared to be holding something in his right hand which was closed like a fist and that the officer opened the appellant's fist and found what he described as a modified piece of razor blade concealed between the appellant's first and second fingers. The razor blade was not available on appeal, though it ought to have been, so I do not have the advantage of seeing the blade. The appellant gave evidence to the effect that he was an innocent passerby who was stopped by the officer who fabricated the story about witness touching pockets, putting his hand in a bag and being in possession of a razor blade. 2. In cross-examination the officer was asked whether he noticed that the appellant had a large part of his first finger right hand missing and the witness said he did not. The appellant when giving evidence showed his hand to the magistrate. The learned magistrate records that two joints of the index finger are missing. I have myself seen the hand and that description does not do justice to the injury. In fact there is only remaining a short withered stump of that finger. The learned magistrate says that he was satisfied that the appellant could readily hold the piece of blade between that joint and the middle finger. Not having seen the blade I am not in a position to disagree with the learned magistrate, but having seen the stump I would have grave doubts as to whether the appellant would choose to hold it in that position, granted that it were possible for him to do so. His grip on it in that position would be insecure and inflexible. If he intended to use it for opening pockets it is highly unlikely he would hold it in that manner having regard to his disability and his ability to hold it more flexibly with other fingers. Furthermore, I consider it inconceivable that if the officer had opened the appellant's fist and seen the razor blade in the position he says he saw it, that he would have failed to observe, note and subsequently remember the condition of the appellant's finger. The arrest took place in the street shortly after 4 p.m. on an August afternoon so the lighting conditions were good. 3. I considered that if the learned magistrate had given the proper weight to these matters he could not fail to have had a reasonable doubt as to the appellant's guilt and accordingly I allowed the appeal, set aside the convictions and ordered the fine, if paid, to be refunded.
Representation: Mr. Goodbody (Alfred Lau & Co.) for appellant Mr. D.Y. Marash, c.c., for Crown/Respondent |