THE QUEEN v. DAVID LOUIS COHEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 459 OF 1991

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JUDGMENT

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1. This is an appeal against a conviction in the western Magistrate's court on 16th April 1991 on a charge of making a false report to a police officer of an offence, contrary to s. 64(b) of the Police Force Ordinance. The section reads as follows:

                 "64. Any person who knowingly -

shall be guilty of an offence ..."

 

2. The appellant was alleged to have made a false report that he had lost two Diners Club application forms which he had signed. These forms had been later used by a Madam Lee Man Lee to obtain an additional Diners Club credit card which she had then used to obtain goods. The appellant had refused to pay the amount due, some $29,000.

3. Evidence was given by police officers and by Madam Lee and other witnesses. At the conclusion of their evidence the trial magistrate said that he was of the view that the evidence did not support an offence contrary to s. 64 (a) of the Ordinance in that he was not satisfied that what had been said by the appellant to the police officer related to an offence having been committed by madam Lee. However he did consider that the evidence supported a charge under s. 64 (b) of the Ordinance in that he had made a statement which he knew was false and had misled the police officer thereby. Accordingly, pursuant to s. 27 of the Magistrates Ordinance, he amended the charge. He then very properly gave the defence solicitor an opportunity to re-call any witness or to call any further evidence and to make any further submissions. This invitation was accepted and two witnesses were re-called by the defence.

4. On the amended charge it was vital that the prosecution prove not only that the appellant knowingly made a false statement to a police officer but that the officer was hereby misled. The officer Detective Police Constable 23790 Cheng Kam Wah. Understandably, in view of the nature of the offence which was before the court when he gave his evidence, he simply related that the appellant had come to him on 13th December 1990 at Central police station and that at 10:20 p.m. he had made statement which he sighed and confirmed that it was accurate. The constable did hot give any further evidence and, in particular, did hot say that, whether or not it was true, he was Misled by this statement.

5. There was further evidence given by another Detective Police Constable 17422, Lee Hau Cheung, who said that on the following day he was asked to make enquiries into a complaint made by the appellant. It could possibly be inferred) from that if DPC Cheng had hot been misled by the statement he would not have been handed it oh to a colleague for further investigation. However the trial magistrate has made no such finding and it is not a necessary inference. DPC Cheng may well have had the gravest doubts about the statement but concluded it should nevertheless be investigated.

6. On that basis it seems to me clear that there was not sufficient evidence that the officer to whom the statement or the false information was given was misled. I have been referred to R. V. Yim Chung Fat, a decision of Ryan J. on 20th February of this year where the facts are very similar indeed. He also came to the conclusion that there had to be evidence that the officer to whom a statement was made had been misled and there the officer had hot given any evidence at all.  Here Miss Christina Ma, who appears for the Crown, submitted that in this case the constable had given evidence but quite properly she had to concede that he does hot in that evidence say that he was misled. It would be a matter of inference which the trial magistrate, sitting as a jury, may have come to but it is not an inescapable inference.

7. Therefore I find that an essential part of the amended charge had hot been mane out and consequently this appeal must me allowed and the conviction quashed.

8. Miss Ma suggested that as this was a mistake of the trial magistrate in not asking the prosecution if they wished to call evidence to support the amended charge and I should order a re-trial. This matter occurred in December 1990, some eight months ago. There was a lengthy trial and at the end of the day the appellant was fined $1,000.  I am satisfied that it would not be in the interest of justice to order a re-trial and I do not so order.

9. Appeal allowed, conviction quashed. Fine, if paid, to be remitted.