THE QUEEN v. CHAN CHOR KIU

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

WAGISTRACY CRIMINAL APPEAL NO. 1392 OF 1989

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BETWEEN

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J U D G M E N T

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1. The appellant pleaded not gulity to charges unlawful possession, contrary to Section 30 of the Summary Offences Ordinance.

2. The particulars of the charge were that on the 4th August 1989 at the junction of the O'Brien Road and Gloucester Road, he had in his possession two tubes of chemical hardener; two cans of glue and a marble cutter-plate, reasonably suspected of having been stolen or unlawfully obtained. He was found guilty and fined $1,000. He now appeals against conviction.

3. It is common ground that the appellant was intercepted by two police officers at about 7:25 p.m. on the 4th August at the junction of O'Brien Road and Gloucester Road. At the time he was carrying the articles mentioned in the charge in the yellow bag. The polio officers said in evidence that when they asked him where he was taking the glue, he said that he had bought it, was taking it home to use at a construction site the next day. Asked further questions as to where he bought it, he said at a metal shop but he made no reply to follow up questions regarding his failure to have a receipt and the whereabouts of the metal shop. He was then told he would be arrested for unlawful possession as he failed to give a satisfactory explanation and he responsed by saying that he had picked the things up. Asked where he said: "The Luk Kwok contraction site." He was asked to take the officers there and he did. According to one officers there was no one at the site; according to the other, there was a security guard. However, it was never put to any of the police officers that they did not go with the appellant to the Luk Kwok construction site and the suggestion to the PW1 in cross-examination was that the appellant has told the police officers, not that he had been given permission by his boss to take the articles, but that he had picked them up at the construction site where he was working.

4. The appellant's evidence was that he told the officers he obtained the articles from a construction site, not the Luk Kwok site, but the Convention Exhibition Centre site. He said that he had in fact taken the articles from that site, that it was his place of work and that he took them with the permission of his employer. He said that he went to the police station the day after his arrest with his employer to explain but the police would not accept his explanation. In cross-examination he said that on the night of his arrest he did not take the officer to Luk Kwok site nor did he accompany them there.

5. The appellant called a witness. He said that he worked at the Convention Centre construction site as the officer- in-charge of marble work, that he allowed the appellant to use the articles and that he had permission to allow the appellant to take the articles away.

6. In his appeal against conviction, the appellant relies on 7 grounds but it will only be necessary for the purposes of this appeal for me to deal with the 2nd ground which reads as follows:-

The learned magistrate wrongly admitted evidence which was clearly hearsay from both the prosecution witnesses. At no time did the learned magistrate indicate that it was not admissible nor at any stage did he warn himself thereof. The learner magistrate then referred to such evidence in his findings again without qualification or warning."

7. The evidence in questions was first extracted from the PW1 in cross-examination. The appellant's counsel at the trial - it was not Ms. Van der Eb who appears him today - pressed PW1 for the details of the inquiries he had made at the Luk Kwok contruction site. On the 11th question seeking information as to what PW1 was told by the contractor, when the witness visited the site again on the day following the appellant's arrest, PW1 said that the contractor told him that that type of article was not used on that site and that no one had reported that any such article have peen lost from the site. The prosecution then elicited the same evidence from the PW2 in examination-in-chief.

8. In his Statement of Findings the magistrate under the heading "Evidence in the Trial, Prosecution" said this:

"The officers made subsequent enquiry at the site but the contractor said the items in question were not products used by them on the site."

9. The evidence extracted from PW1 in cross-examination was evidence of the fact that he did make subsequent inquiries at the Luk Kwok construction site.

10. That evidence was made relevant by the cross-examination which suggested that the appellant had not mentioned that site at all as the source of the articles. If PW1 did go to the site for the purpose of enquiries his conduct in doing so was:

a.    Consistent with a belief, at the very least, that the appellant had told him that that was the source of the articles, and

b. Inconsistent with subsequent invention that the appellant inspired that belief.

11. It could not, however, be evidence negating the assertion that the Luk Kwok site was a source of the articles.

12. It is in my view highly unlikely that a magistrate as experienced as the learned magistrate who tried this case would have regarded the evidence as admissible for that purpose. However, the absence of any reference to its inadmissibility for that purpose in his statement of findings and the unqualified reference to it as part of the evidence for the prosecution, makes me feel bound to hold, on the basis of the record, that the learned magistrate may well have found the appellant and his witness not worthy of credit through having considered the evidence relevant to an issue for which it was not admissible.

13. It is for that reason that I consider that the conviction is unsafe. I therefore allow the appeal and quash the conviction.