The Queen v. Ng Chun Wing and Another

CACC000959/1983

HEADNOTE

Loitering - Ingredients to be proved : -

1.     Loitering;

2.     opportunity for suspect to give a satisfactory explanation;

3.     explanation was unsatisfactory;

4.     rejection of explanation by the police was reasonable.

BETWEEN

Coram: Jones J.

Date: 30th August 1983

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JUDGMENT

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1. The appellants who were charged separately were convicted on the 24th June 1983 at Fanling Magistracy of loitering contrary to Section 160(1) of the Crimes Ordinance, Cap. 200. Both appellants were conditionally discharged in their own recognizance of $1,000 for a period of 12 months and were ordered to pay costs of $500.

2. They appeal against their convictions.

PROSECUTION EVIDENCE

3. The facts reveal that the appellants were seen by two police officers at about 9:20 p.m. on the 18th April 1983 in On Ning Road, Yuen Long. The 2nd appellant was looking into the windows of cars parked in the road whilst the 1st appellant acted as if he was a lookout.

4. The police officers approached the appellants and questioned them about their presence. According to the evidence of the police officers the appellants met by chance in Mongkok and went to Yuen Long in a taxi driven by the 2nd appellant. The 2nd appellant explained that he had telephoned a friend Ngau Chai to come out for tea and that he was waiting for him. The police officers ascertained that no such arrangement had been made although there was evidence that the 2nd appellant had seen Ngau Chai earlier the same evening. No further explanation was given by the 2nd appellant.

5. The 1st appellant said that he had come to Yuen Long to visit the son of his former employer to ask him for an introduction to a new employer. The 1st appellant agreed that he had passed the house of this person, but had not called upon him.

6. The evidence of the police officers with regard to the actions of the appellants prior to their request for an explanation was not challenged in cross-examination. The explanations were not regarded as satisfactory with the result that the appellants were arrested and later charged.

7. Ngau Chai testified that he had seen the 2nd appellant, whom he has known for four or five years, earlier in the evening, but did not receive a telephone call from the 2nd appellant later to meet him again. Evidence was admitted that the telephone call may have been received by Ngau Chai's younger brother. This evidence was inadmissible as it was hearsay. Ngau Chai's younger brother did not give evidence.

DEFENCE EVIDENCE

8. Both appellants gave evidence in which they confirmed the details of the explanations that they had given to the police. The 1st appellant admitted leaning against one vehicle, but denied looking into vehicles or hanging around. He conceded that the police were justified in treating him as a suspect. The 2nd appellant also denied looking into vehicles.

9. Section 160(1) of the Crimes Ordinance provides:-

"Any person who loiters in a public place or in the common parts of any building shall, unless he gives a satisfactory account of himself and a satisfactory explanation for his presence there, be guilty of an offence ................"

10. Loiter in the Shorter Oxford English Dictionary is defined as, to idle, to linger indolently on one's way, and to hang idly about a place.

11. There is no doubt upon the evidence that the appellants were loitering at the material time. It was therefore incumbent upon the appellants to give a satisfactory account of themselves and a satisfactory explanation for their presence.

12. Mr. Ford who appeared for the appellants submitted that when the police officers asked for an explanation they should have given a warning as to the consequences that would arise if an explanation was not satisfactory. However, A. G. v. Tse Kam-pui ⁽¹⁾ decided that although it may be desirable or necessary for a warning to be given in some cases it is not an essential requirement to be taken by a police officer. As a result I am satisfied that no duty is imposed on a police officer to give a warning that the failure to give a satisfactory explanation will result in the commission of an offence.

13. Mr. Ford argued that the evidence of Ngau Chai corroborated the 2nd appellant's explanation. I am unable to agree for it only went to confirm that they knew each other and that Ngau Chai lived in the vicinity. His evidence was not relevant to the 2nd appellant's actions at the time when the police officers' suspicions were aroused.

14. Mr. Ford referred to the learned magistrate's failure to analyse the evidence and to give reasons why he disbelieved the appellants. In his judgment given at the conclusion of the trial the learned magistrate said : -

"It is accepted that the two defendants were hanging around at that spot just before their arrest. The only question for me to decide therefore is whether or not it was reasonable for the police constables to reject the explanation they gave for being there.

Having heard both defendants give evidence I can say that I did not believe a word either of them said where it conflicted with police evidence and I am not at all surprised the police constables rejected their explanations that night which they properly regarded as being unsatisfactory."

15. It was submitted by Mr. Ford that the learned magistrate relied upon the opinion of the police officers without making the final determination. On the other hand Mr. Harris who appeared for the Crown argued that the learned magistrate was correct to decide whether the police officers acted reasonably in rejecting the explanations. If he found that they acted reasonably he was entitled to convict otherwise he should acquit.

16. In A.G. v. Chan Chin-hung & others ⁽²⁾ Roberts C.J. in delivering the judgment of the Court of Appeal at page 740 said : -

"........ to establish an offence of loitering the Crown must show both that the suspect was loiter-ing and that, having been afforded an opportunity to do so, he failed to give a satisfactory account and explanation to a police officer who asked for it.

It may sometimes happen that a suspect gives to a police officer an explanation which is palpably unsatisfactory. Thereafter, when he is tried, he may give an entirely different explanation, which the magistrate may find credible. In this event, the defendant would, nonetheless; be guilty of the offence charged, though the magistrate might well take the view that no more than a nominal penalty, if any, should be imposed upon the defendant."

17. I accept Mr. Harris's submission that the learned magistrate is bound by the explanation which he finds was given by the suspect to the police officer and not by his own interpretation as to whether he considers that the explanation given at the time was unsatisfactory. However, having made a finding upon the explanation given by the suspect the learned magistrate should then proceed to consider whether the police officer acted reasonably or unreasonably in rejecting that explanation.

18. Having regard to the authorities I am satisfied that in an offence of loitering the following matters must be proved: firstly that the suspect was loitering; secondly that opportunity was given by the police officer to the suspect to give a satisfactory account of himself and a satisfactory explanation for his presence; thirdly that the explanation was unsatisfactory; and fourthly that the police officer's rejection of the explanation was reasonable.

19. The learned magistrate was faced with evidence given by the police officers of suspicious actions by the appellants which was not challenged in cross-examination, and with the denials of the appellants. This was not a case when it was necessary to analyse the evidence with a fine tooth comb. The learned magistrate saw the appellants in the witness box and was able to observe their demeanour. He therefore had every opportunity to assess their credibility.

20. The appellants were given ample opportunity by the police officers to give a satisfactory explanation for their presence, but failed to do so. The learned magistrate adopted the correct approach when he found that the police officers had acted reasonably in rejecting the explanations.

21. In my judgment the learned magistrate's verdict was right. The appeals will therefore be dismissed.

(1)     (1980) HKLR 338

(2)     (1980) HKLR 737

Representation:

Mr. M.E.A. Ford (Oliver & Driver) for appellants

Mr. Harris (Legal Department) for Crown/Respondent