THE QUEEN v. CHAN PING-KUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 955 of 1985

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BETWEEN

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JUDGMENT

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1. According to evidence given by two police officers in the Magistrates Court, the Appellant was found at about 11.15 a.m. on the 17th June 1985, on the second floor of a block in the lower Ngau Tau Kok Estate walking along and looking into a corridor from the staircase of the block. The officers said that they were suspicious of him and eventually intercepted him and searched him and found in the waistband of his trousers three lady's brassieres and two pairs of lady's underpants. The officer who found the articles asked the Appellant why he had them and added that if he did not give a satisfactory explanation he would be arrested. According to the officer, the Appellant said that he did not know. The Appellant was eventually charged with an offence against Section 30 of the Summary Offences Ordinance, the particulars being that he had in his possession the articles just mentioned "reasonably suspected of having been stolen or unlawfully obtained".

2. The Appellant also gave evidence before the Magistrates Court. In his evidence he said that he did not have those articles in his possession before being intercepted by the police but that the police officers themselves produced them from somewhere and "planted" them on him.

3. Section 30 of the Summary Offences Ordinance provides as follows:

"Any person who is brought before a magistrate charged with having in his possession anything which may reasonably be suspected of having been stolen or unlawfully obtained and who does not give an account to the satisfaction of the magistrate how he came by the same shall be liable to certain penalties. "

4. In The Attorney General v LO Man-cheung [1980] H.K.L.R.687, Macdougall, J., held that the failure to give an account which satisfies a magistrate need not be alleged in the charge. He did, however, hold that that ingredient had to be present before a person could be properly convicted of that offence.

5. In this case, the Appellant was convicted on the 12th August 1985. After conviction the magistrate ordered that he be imprisoned for seven days notwithstanding that he was a man who had a clear record before that conviction. In the minute of conviction prepared on the day of conviction, the Defendant is recorded as having been convicted "for that he [on the date and place alleged] had in his possession [the said articles], reasonably suspected of having been stolen or unlawfully obtained contrary to Section 30 of the Summary Offences Ordinance". The minute discloses that the Appellant was convicted on the basis of his being in possession of "suspect" articles. That is not an offence against section 30. To commit an offence against that section one must, in addition to being in possession, fail to account for that possession satisfactorily to the court. The certificate of conviction omits that essential additional ingredient. It, therefore, records that the Appellant was convicted by the magistrate of an offence unknown to the law. The conviction is, therefore, unsatisfactory and must be quashed. I accordingly allow the appeal, quash the conviction and set aside the orders made consequent upon that "conviction".