Chu Chuen v. The Queen
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CACC001287/1976
Coram: Trainor, J. Date of Judgment: 4th January, 1977. ----------------- JUDGMENT ----------------- 1. On the 14th December, 1976 Chu Chuen was convicted of causing an obstruction on a public footpath contrary to Section 4 (A) of the Summary Offences Ordinance and was fined $100. He appealed against his conviction and I allowed the appeal. 2. The evidence on which the appellant was convicted was that of the only witness, a police officer. He told the Court that on the 14th August last he saw two machines outside a certain building and they were causing an obstruction to pedestrians. In the building, outside which the obstruction was, "machines" were made but no indication was given to the Court as to what sort of machines were made; it was told the factory made "a variety of machines". The police officer ascertained that the appellant was in charge of the factory, as he put it, and told him to remove the machines as soon as possible. He said the appellant asked him what he would do if he did not and was told that he would be prosecuted. The police officer returned in a quarter of an hour and found the machines still there. He asked the appellant why he had not removed the machines and was told by the appellant: "Then summons me. I am getting used to it". The witness said he had prosecuted the appellant previously for a similar offence. That was the entire case against the appellant. 3. At the close of the case counsel for the appellant submitted that the charge against the accused was that he "caused" the obstruction to be left on the footpath but that no evidence that the obstructing machines belonged to him was adduced, and submitted that no prima facie case had been established. In his reply to the submission the prosecuting officer erroneously, at least so far as the record shows, said that the accused had told the witness that the machines were his. On the Court holding that there was a prima facie case the appellant did not give evidence but relied on Counsel's address. The learned magistrate convicted saying: "P. W. 1 is truthful and reliable, it seems to me. Accused, I am satisfied, by his actionsand his words acknowledge that the machines were there and that he had caused them to be there." 4. With respect, I do not think that the conclusion reached by the learned magistrate on the undisputed facts was the only logical conclusion to be derived from them, and that is the criterion on which a court may convict. If evidence is as susceptible to a conclusion other than guilt as it is to one of guilt then the person charged is entitled to the benefit of the ensuing doubt, even if the court is of the opinion that guilt is probably the correct conclusion. 5. In the Court below there was no evidence to support that the machines causing the obstruction were similar to any one of the variety of machines manufactured or emanating from the factory. There was no evidence that the appellant placed them where they were found or that he owned them. I allowed the appeal. 6. I would leave the matter there were it not for a reference made by the learned magistrate in his Statement of Findings on the facts to the case of Ross Hillman Ltd. v. Bond, (1) in which he said he sought for a definition of "cause", and as a result concluded that the prosecution did not need to prove that it was the appellant who caused the objects to be placed there. I would interpret what the magistrate there said to indicate that he concluded that, because the appellant was in charge of the factory producing machines there was an absolute liability on him whether or not he caused the machines to be left there; in other words it was not essential to prove mens rea. 7. I do not intend to expand on the absolute liability of a person in charge as distinct from an owner in such cases but would like to say that when the Court of Appeal in the Ross Hillman case held: "... that on the true construction of the word "causes" in Section 40 (5) (b) of the Road Traffic Act, 1972, the offence of causing unlawful user required proof of mens rea in knowledge of the facts rendering the user unlawful", it would appear to be a conclusion directly the contrary of what the learned magistrate considered it to be.
Representation: Mr. C.Y. Wong (Thomas Wang & Co.) for appellant. Miss Harris C.C. for respondent. (1) 1974 Q.B.D. 435 |