Kwong Yan Kin v. The Queen

CACC000727/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 727 OF 1972

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Coram: Huggins, J.

Date of Judgment: 30th November, 1972.

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JUDGMENT

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1. The Appellant appeals against his conviction of an offence under s.4(24) of the Summary Offences Ordinance on the ground that there is no evidence or no sufficient evidence whereon to found the conviction.

2. The evidence was that of one police officer and the burden of the submission made to me has been that that evidence should not have been accepted rather than that it was not of itself sufficient evidence. It has been drawn to my attention, as it was drawn to the attention of the learned magistrate, that had this been charged as a Common Law nuisance two persons would have had to be annoyed by the Appellant's conduct. There was no evidence that anybody saw this incident other than the police officer, although there were other persons in the vicinity. It is not, however, correct to say, as has the Appellant, that the contrary was established, i.e. that nobody did see anything unusual. He says to me, although he did not say this in the court below that he spoke to some young girls who were in the vicinity, but he called none of them as a witness. He also said in the court below, when he was first before the court but, not I think, when he was actually on trial, that the flap of the tent was blown up by the wind and he has further said to me (and did not say at all in the court below) that he was standing with his back to the beach. If that were true then the police officer could not have seen what he alleges he did see and it is remarkable that this was not said in the court below.

3. The Appellant suggests that the evidence given by the police officer was inherently improbable. I would not put it as high as that. The learned magistrate was more impressed by the inherent unlikelihood that the police officer would have concocted this story. The credibility of the witnesses was peculiarly a matter to be judged by the magistrate. He gave the matter the fullest consideration and believed the police officer. It is quite impossible for me to say that he came to a wrong conclusion.

4. The appeal must be dismissed.

30th November, 1972.

Representation: