THE QUEEN v. TANG MEI TAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 305 of 1985

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BETWEEN

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JUDGMENT

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1. The Appellant was charged in the Magistrates Court with two offences: (A) Hawking without a Licence, contrary to section 83B of the Public Health & Urban Services Ordinance; and (B) Hawking Obstruction, contrary to section 4(5)(a) of the Summary Offences Ordinance. To both she pleaded not guilty and instructed counsel to appear for her at the trial. She was found guilty on both and now instructs another counsel to appear for her on tile hearing of this appeal.

2. The charges arose out of an incident outside a shop at No. 57 Main Street, Stanley during mid-afternoon on 28th January 1985. A police officer in uniform in the course of clearing the pavement of hawkers' carts arrested the Appellant and her husband.

3. Her husband was hawking toys from a handcart parked on the pavement. Another handcart parked on the pavement next to his contained more than 200 T-shirts and a price list. It was the prosecution case that the Appellant was exposing those T-shirts for sale when the policeman arrived. It was her case that neither the handcart nor the T-shirts were hers, that she was not selling the goods on the cart but that she was standing near the unattended cart because she had joined her husband at his handcart just before the policeman arrived.

4. The arresting officer was the only witness for the prosecution. The Appellant gave evidence and called three witnesses.

5. In his Statement of Findings the learned magistrate said:-

"For me to accept the evidence of the [Appellant] and her witnesses, I would have to accept that a handcart containing 268 T-shirts with world renowned trade marks on then, was left unattended for several five minutes, that when the apparent owner did appear he made what must have been very little protest at having his goods removed and has never ever again appeared to claim those goods."

6. At the hearing of the appeal it was submitted, on behalf of the Appellant, that the remarks just quoted indicated that the learned magistrate was misdirecting himself regarding the onus of proof. I do not accept that. What the learned magistrate is pointing out in a convincing manner is the inherent incredibility of the version related by the Appellant and her witnesses. He does make it appear less credible by wrongly asserting that the defence witnesses claimed that the handcart "was left unattended for several five minutes". But with that phrase omitted, the learned magistrate's reason for rejecting the defence version was still sound and it would have been difficult to find a weakness in his chain of reasoning had he not gone on subsequently to say:-

"With regard to the evidence of the [Appellant], I realised that in her defence she was not motivated by the urge to save her goods which must undoubtedly have been of some considerable value to her. Her defence was that they were not her goods at all. However with such quantities of such particular items bearing such well known trade marks being hawked in Stanley, there was strong suspicion that such goods would not be genuine and the trade marks attached could well be false and that far more serious charges could be faced by the [Appellant] if it was found that she was in possession of them."

7. Once it is accepted that there may have been a plausible explanation as to why the hawker of those goods would abandon his claim to them after their appropriation by a police officer, the Appellant's version is no longer inherently incredible. The learned magistrate was able to see that a dubious origin of the goods could motivate the Appellant to indulge in a persistent and expensive disclaimer of association but was unable to see that the faceless man, if he existed, could have been equally motivated to effect a less troublesome and cheaper - in other words, a "hawker-like" - disclaimer by slinking away and limiting his loss to the cost of purchase.

8. If the learned magistrate had concluded - as he would have done if he had followed his own reasoning a further logical step that the Appellant's version was not inherently incredible he would then have looked more closely at the evidence which he accepted and upon which he found that it was the Appellant who vias hawking the goods and causing the hawking obstruction.

9. On taking a closer look he would have noted these features:-

10. Having considered those features of the evidence the learned magistrate may well have concluded that the officer did actually see the Appellant exercising some form of control over the cart while the goods on it were displayed for sale. In that event it would have been his duty to find her guilty.

11. On the other hand, he may have thought that those features were symptomatic of the "jumping-to-the-wrong-conclusion” syndrome suggested by the defence. If all that the officer did actually see was the Appellant standing in close proximity to the cart and no one else who could possibly have been in control of it, he could understandably draw the inference, without perceiving any more than that, that she was the hawker trading from that cart. Having done that he could assert with confidence two months later that she was "doing business there" and yet be unable to describe with any degree of confidence any act done by her indicating that she was in control of the cart. The learned magistrate could therefore have concluded not only that the officer was asserting an inference "as an observation but also that that inference was not the only reasonable one to be dram where, as the learned magistrate pointed out, the goods in question may themselves provide evidence of the commission of an offence more serious than the offence of hawking without a licence. Had the learned magistrate not rejected the defence account out of hand as inherently incredible he may have thus been led to conclude that the prosecution had not proved beyond a reasonable doubt that the Appellant was exposing the goods for sale.

12. As the Appellant's case did not receive the full and fair analysis it should have received in the light of the learned magistrate's own reasoning her convictions are unsatisfactory. They must therefore be quashed.

13. I allow the appeal, quash the convictions and set aside the sentences. The order for confiscation was a valid order and remains unaffected by this decision.