HKSAR v. Chan Kwun Fuk

HCMA 170/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 170 OF 2011

(ON APPEAL FROM TWCC 3481 OF 2010)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 21 September 2011

Date of Judgment: 21 September 2011

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J U D G M E N T

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1.This Appellant appeals against his conviction in the Magistrate’s Court (J T Glass, Esq) on a charge of loitering causing concern, contrary to s. 160(3) of the Crimes Ordinance, Cap. 200. The particulars of the charge were that on 5 December 2010 he loitered in a public place, namely on a bus, and that his presence there caused a Madam Cheung Mei-suen reasonably to be concerned for her safety or well-being. A single perfected ground of appeal, consisting of five items of particulars, has been filed. This ground, in which Madam Cheung is referred to as “PW1” reads:

“Despite positive identification evidence from the alleged victim PW1 that the appellant was not involved in the acts of the charge of Loitering Causing Concern, the learned magistrate erred in nevertheless drawing an inference that the appellant was so involved.

Particulars

1. The charge of Loitering Causing Concern was based on the evidence of PW1 that two men followed her on bus N241 on her way home.

2. The evidence of PW1 concerning the appellant’s involvement occurred at a later stage outside the building where PW1 resided.

3. The clear evidence of PW1 was that the appellant did NOT have anything to do with any of the two men who followed her.

4. The learned magistrate wrongly misinterpreted PW1’s evidence and failed to give sufficient weight to PW1’s evidence on this material aspect.

5. The learned magistrate further erred in finding that the only reasonable and irresistible inference was that the appellant had been one of the two men who had followed PW1 from the outset until he was arrested when such an inference was directly contradicted by PW1’s evidence.”

2.The facts duly proved beyond reasonable doubt were as follows.

3.Madam Cheung had borrowed money from a man in Macau, lost it gambling, was required to sign an IOU and was escorted back to Hong Kong.  At the ferry terminal in Hong Kong, the escorting was taken over by two men who insisted on following her home to confirm her address.  They travelled with her on a minibus and then a bus.  When the bus arrived at the housing estate where she lived, she alighted and so did the two men.  She walked back to her building quickly, and the two men followed.

4.If the Appellant was one of those two men, it is clear that he would have committed the offence with which he was charged.  Was he one of those two men?

5.As Madam Cheung was pressing the door code at the entrance of her building, a man dashed forward, jammed the door with his foot and demanded entry.  He was prevented from entering the building by security guards, but remained outside the building: shouting and trying to gain entry.  The police were sent for, arrived and arrested him.  He is the Appellant.

6.The Magistrate was of the view that the only reasonable inference was that the Appellant was one of the two men who had travelled on the minibus and the bus with Madam Cheung.  Unless there was something to show otherwise, the Magistrate was clearly warranted in that view.  It did not depend on Madam Cheung being able to identify the Appellant as one of those two men.

7.The Appellant chose, as was his right, not to give evidence.  It was, and is, submitted on his behalf that Madam Cheung not only failed to identify the Appellant as one of those two men but had given positive evidence that he was not one of those two men.  That is not the view which the Magistrate, who had the advantage of receiving the evidence at first‑hand, took of Madam Cheung’s evidence.  And I am not persuaded that the transcript entitles me to regard that view as unsafe.

8.In my judgement, this appeal must fail.  It is dismissed.

Mr Andrew Mok, instructed by Messrs Raymond T Y Chan, Victoria Chan & Co (assigned by the Legal Aid Department), for the Appellant

Ms Peggy Leung, of the Department of Justice, for the Respondent