Lai Ming v. The Queen

CACC000697/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 697 OF 1975

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Coram: Cons, J.

Date of Judgment: 29 August 1975

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JUDGMENT

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1. This is an appeal against conviction for being a suspected person found loitering with intent.

2. The first ground of appeal is that there was insufficient evidence to support a finding that the appellant had acted in such a way as to warrant suspicion. The evidence was that he was one of three men who at 6.30 a.m. in a resettlement estate were described as "standing by leisurely .... looking around", or in the words "two stood nearby. The one sat by railing looking around". One of the witnesses, both of whom were police constables, said that the three men were "acting suspiciously". But to my mind that is an expression of opinion and not a piece of evidence.

3. That is the sole evidence upon which the appellant could be said to be brought within the category of a suspected person. And I am constrained to say that it is not sufficient. It was suggested that in the present state of Hong Kong, particularly with regard to resettlement areas, any group of three persons sitting or standing around is sufficient to excite suspicion. However, I am not prepared to go that far. There can be may innocent explanations for three young men to be killing time outside a resettlement block even at 6.30 in the morning. My attention was drawn to Fitzgerald v. Lyle⁽¹⁾ where it seems that an act which could easily have an innocent explanation was found sufficient by the court. But that is a very brief report and it is not fully clear to me exactly upon what circumstances the court did rely.

4. Finally on this point it was argued that if two experienced police officers formed a suspicion, which incidentally was borne out by later conduct, that should in itself by sufficient for the court. However this argument has already been met in Cohen v. Black ⁽²⁾ where at p.301 Oliver, J., said:

"... there must be some antecedent evidence which brings the person charged with loitering into the category of being a suspected person. He may not be put into that category merely because some policeman seeing him loitering thinks that he is loitering with intent ....".

5. The second ground of appeal was abandoned at the hearing.

6. The third ground was that the quality of the evidence was so unsatisfactory that the learned magistrate should not have relied upon it . I agree that there appears to be a disturbing feature common to the evidence of both constables, but this feature was made very obvious by the cross-examination by counsel for the appellant and was again referred to in his submission. But the magistrate had the advantage of seeing the constables and he would also have borne in mind that their evidence was not contradicted in any way. I do not think I would have interfered on this account.

7. I was then asked in effect to apply the proviso on the ground that this was merely a technical failure. I do not think it was. It was a lack of evidence. I appreciate that the appellant from his record could have been shown to be a reputed thief and convicted in that way. But that would have been a different matter. I am satisfied that this appeal must be allowed and the conviction quashed.

Representation:

K-John Cheung (George Liang & Co.) for appellant.

Haldane, Crown Counsel, for Crown/Respondent.

(1) [1972] Crim.L.R. 125

(2) [1942] 2 All E.R. 299