THE QUEEN v. LEE FUNG HING

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HEADNOTE

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Police records - not produced under Section 22 of Evidence Ordinance- evidence of clerical officer hearsay - conviction quashed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 448 of 1986

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BETWEEN

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JUDGMENT

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1. The appellant was convicted of breaching the conditions of a massage establishment licence, contrary to section 13(2) of Cap. 266.

2. Mr. Whitehead's only ground of appeal is that the appellant was convicted on hearsay evidence.

3. The magistrate found that the three persons named in the charges were employed at the time, date and place alleged by the prosecution and that such employment was not authorised by the licensing authority.

4. His finding that their employment was unauthorised was based on the evidence of a police clerical officer, who testified that he had charge of the records of the masse establishment and that he was able to say from these records that the employees in question were not approved for employment there.

5. The prosecution did not seek to put these records in evidence, though it seems they would have been admissible under section 22 of the Evidence Ordinance.

6. Counsel for the Crown concedes that the evidence was hearsay and does not support the conviction.

7. It is true that the clerical officer produced a document which states that one of the employees had formerly been refused approval but, since the prosecution had to prove affirmatively that the employees were not authorised persons on the date in the charges, this takes the matter no further.

8. For, these reasons the appeal is allowed and the conviction quashed. The fine, if paid, should be repaid to the appellant.