Ng Yuk-sin v. The Queen
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CACC000997/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 997 OF 1979 -----------------
----------------- Coram: O'Connor, J. in Court. Date of Judgment: 8 November 1979 ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction on a charge of loitering contrary to section 160 of the Crimes Ordinance Cap. 200. The evidence before the learned magistrate established that two police officers observed the appellant in a public playground at about 2.30 a.m. where there were a number of persons sleeping. They saw the appellant move from person to person, touching their pockets. After seeing him do this they went up to him and asked him what he was doing, to which he replied that he was looking for his younger brother. The officers then asked him where he lived, and in reply he gave an address. They asked for the phone number, whereupon he said he did not live there. They then arrested him. The appellant in evidence gave a different version of the incident. The learned magistrate believed the police evidence, as he was entitled to do. Having considered the matter with which I am now going to deal, I dismissed the appeal. 2. Section 160(1) of the Crimes Ordinance provides:-
3. I consider that there are two ingredients that the Crown must prove in order to establish this offence, firstly a loitering in a public place or common parts of a building and secondly a failure to give a satisfactory account of himself and a satisfactory explanation for his presence. The failure to give a satisfactory account and explanation is an ingredient of the offence and is not simply a condition to be fulfilled before conviction as it is in some other offences, see for example Andrews v. Lucas (1876) 10 Irish Law Times Reports 146, Lee Fan v. Dempsey (1907) 5 C.L.R. 310, Zanetti v. Hill 36 Australian Law Journal Reports 276. This section does not make it an offence for any person to loiter in a public place or common parts of a building, nor does it result in a power to arrest and charge any such person. I leave aside the question of what power, if any, may be given to detain for sufficient time to ask for an explanation. The failure to give an account and explanation is an ingredient of the offence and without it there is no offence committed. 4. The section does not expressly require that the suspect be asked to give an account, but it seems to me that the police should always ask for an explanation before making an arrest for this offence, or having a summons issued in the unlikely event that they decide to proceed by summons. They ought not to give a normal type caution before asking for an account and explanation as a caution might inhibit the suspect from speaking, and thereby result in the completion of the offence. Of course I am dealing with where police are considering going ahead under this section, not where they are considering action for another offence. What the police ought to do when they have this section in mind is tell him that he has been loitering in such a place and that unless he gives a satisfactory account and explanation they will arrest him or proceed by summons. Having done that, if he does not give satisfactory answers, they are entitled to proceed on the basis that he has committed the offence. 5. I have considered the case of R. v. Yan Ying Kuen 1963 H.K.L.R. 286 wherein it was held, in respect of a somewhat similar section, that it is not necessarily fatal to a prosecution that the defendant was cautioned instead of being asked to give a satisfactory account, and that inability to give a satisfactory account at the trial left open the inference that he was unable to give a satisfactory account at the time of arrest. In that case the defendant in a statement from the dock, a course then open to him, gave an unsatisfactory account. In that case the wording of the section was -
whereas under S.160 of the Crimes Ordinance it is -
I think there a real distinction can be drawn between the sections. Subsequent events may show prior inability, and on that basis I do not query the decision in R. v. Yan Ying Kuen. It is to be noted that in that case the court indicated that an account should be asked for and that a caution should not be given prior to the opportunity for an account to be given. 6. The offence under S.160 of the Crimes Ordinance is not completed by an inability to give a satisfactory account or explanation, but by a failure to do so. There could be a failure even though there was no inability. A failure could be due to ignorance that an explanation was required. I am therefore of the opinion that S.160 envisages an opportunity being given, prior to arrest, to give an explanation, and for that to be a real opportunity the suspect should be asked for an account and explanation and told of the likely consequences of failure to give them.
Representation: Appellant in person. J.W. Dick, Senior Crown Counsel, for the Crown/Respondent. |