HKSAR v. LIU KIN

HCMA934/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.934 OF 2006

(ON APPEAL FROM KCR 68 OF 2006)

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J U D G M E N T

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1. The appellant was convicted after trial of a summons of depositing a cigarette end in a public place, contrary to sections 4(1)(a) and 23(1A) of the Public Cleansing and Prevention of Nuisances Regulation made under the Public Health and Municipal Services Ordinance, Cap.132.

2. PW1, an assistant hawker control officer, was on plain-clothes duty outside the address stated in the summons.  He saw, at a distance of 5 metres, the appellant sitting in the driver’s seat of a stationary public light bus with the driver’s window open.  PW1 said he saw the appellant smoking a cigarette and then threw the cigarette butt out through the open window onto the road.  He then approached the appellant, told him what he saw and the appellant asked for a chance to be dealt with by way of a warning.  PW1 said that he checked the cigarette butt.  It was 3 cm long and brown in colour, still emitting smoke.

3. The appellant elected to give evidence at the trial.  He denied to be smoking and that there was an argument between him and PW1, and PW1 simply made up the story against him.

Grounds of appeal

4. The appellant stressed that he did not throw away cigarette butt as alleged by PW1 and had he done so he would not have taken the trouble of pleading not guilty and ending up in front of this appeal court.

Respondent’s reply

5. Counsel for the respondent submitted that the magistrate was a sole fact finder.  Having seen and heard the witnesses, he was entitled to find PW1 credible and accepted his evidence in full whilst rejecting the appellant’s evidence.

My judgment

6. This case was one which turns purely on findings of facts on two conflicting versions of event.  The magistrate found PW1 to be an honest and reliable witness and rejected the evidence of the appellant.  He was satisfied that the incident happened in the manner as described by PW1. 

7. Having heard and seen the witnesses, he is entitled to make the findings as he did.  It is not for me to reassess the evidence just on the transcript.  This appeal is dismissed and I affirm the conviction.