Lo Fei Fan v. The Queen
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CACC000087/1981
----------------- Coram: Liu, J. in Court. Date of Judgment: 20th February, 1981 ----------------- JUDGMENT ----------------- 1. I feel disturbed by the conclusion at which I will soon arrive. However, this appeal will have to be judged entirely on the evidence before the court. This is a somewhat unusual case, unusual in the manner in which the appellant was implicated. 2. Early in the morning at about 5.23 a.m. on the 28th August, 1980, the appellant was kept under surveillance by Constable Fung at the junction of Victory Road and Liberty Avenue. He was seen tampering with a parking meter. Thereafter, away from that parking meter, the appellant virtually walked into the arms of the police officer on his way out of Peace Avenue. He was stopped and searched. From his left trousers pocket were found 60 50¢ coins. A Japanese coin and a Korean coin were also found on his person. On his upper left shirt pocket was retrieved a 2" long wire. Thereupon, the appellant was hauled along by the officer in search of damaged parking meters. Good fortune was apparently on the side of the police officer. Not long after the search, a parking meter No. 6576A, different from the one the appellant was allegedly seen to have interfered with, was found on the floor, broken wide open, empty. Enquiry ensued. Incredible answers were given, as was the extraordinary excuse repeated by the appellant in this court, that he had intended to proceed to Kwun Tong with a view to seeking employment and changed no less than $30 in 50 coins for public transport. Whilst possession of the 2" wire was not denied, the appellant strenuously contended that no parking meter could have been left undamaged after the application of a like instrument. 3. Crown counsel endeavoured to assist me on the nature of the appellant's previous similar conviction. I declined to be so influenced. 4. Circumstances are gravely suspicious, but suspicion is no guilt. It was incumbent upon the prosecution to prove not only that the appellant did tamper with parking meter No. 6576A but also that there were contents for the taking. 5. Possibilities are almost inexhaustible. The appellant might have stolen from other parking meter or meters. Even if this particular parking meter had been interfered with by the appellant, it might well have been empty. Possession was obviously inexplicable. The crux of the matter is whether such possession could only be explained by the theft charged. There was no evidence to connect the coins or any of them found on the person of the appellant with the contents, if any, of parking meter 6576A, particularly when the damage caused to it was never pinpointed in point of time. The learned magistrate returned a verdict of guilty against the appellant on circumstantial evidence. On closer examination of the evidence, I am unable to say with any reasonable degree of certainty that guilt is the ONLY irresistible inference that may reasonably be drawn therefrom. 6. For all these reasons, the conviction of the appellant cannot, in my judgment, be supported. Despite grave suspicion in the circumstances in which the appellant was apprehended, his conviction cannot stand, and I order that his appeal against the conviction be allowed, his sentence be set aside.
Representation: Mr. S.K. Leung, counsel for the Crown. Appellant in person. |