Leung Wing Kei @ Leung Chi Ming v. The Queen

CACC000954/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 954 OF 1975

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Coram: Huggins, J.

Date of Judgment: 11th November 1975.

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JUDGMENT

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1. The Appellant appeals against conviction and sentence on a charge of possession of an offensive weapon in a public place. He was sentenced to twelve months' imprisonment.

2. It is a rather remarkable case in that the Appellant was alleged to have been driving a motor car in Ivy Street in Mongkok. The police say they stopped him because he was driving "without head-lights". Why he should be driving with head-lights, to the detriment of other road users, I do not know, but the evidence was that he was stopped and that a knife was found under the driver's seat. As the learned magistrate said, the only real issue in the case was whether or not the Appellant was properly identified. Both the driver and the passenger were arrested. Subsequently the driver was remanded on bail and the case was not proceeded with against the other Defendant. After several adjournments the remaining Defendant failed to appear in answer to his bail. A warrant of arrest was issued and this Appellant was arrested. Neither of the police officers was able clearly to identify the Appellant as the man who was in the car. One of them said he looked very much like the driver while the other said that he recorded the name of the driver in his notebook. That is the name to which the Appellant answers. No other details were recorded.

3. The Appellant, perhaps wisely, did not give any evidence. The magistrate took the view that because the Appellant did not deny that he was the person who was previously before the court there was sufficient evidence that he was the driver of the vehicle.

4. Counsel for the Crown feels unable to support this conviction and he has referred me to the case of Cooke v. McCann 1973 Crim. L.R. 522, which he felt forced to distinguish. This is a case where the prosecution could easily have called evidence of identification by finger prints and the police officers could have been asked whether the person who first came before the court was the person that they arrested.

5. In all the circumstances I agree that this conviction is unsafe and the conviction must be quashed.

11th November 1975.

Representation: