WONG WAN CHING v. THE QUEEN

                Criminal law - loitering - where facts raise suspicion of loitering or alternatively another criminal offence - if evidence goes beyond loitering proper procedure is not to ask for explanation for presence but to caution suspect for other offence - only where loiterer not suspected of other offence should he be asked for explanation of presence -- in which event he should only be questioned as to presence and if explanation unsatisfactory charged with loitering - The Queen v. Ma Kui Mag. App. No.244/85 applied - Held: Conviction quashed - Section 160(1) Crimes Ordinance, Cap.200.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 529 of 1985

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JUDGMENT

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1. The appellant was convicted on 10th May 1985 after trial of loitering in a public place, namely outside the Good-View Theatre, Tsuen wan contrary to Section 160(1) of the Crimes Ordinance and sentenced to 3 months imprisonment. He now appeals against that conviction.

2. The facts were unexceptional. A police constable observed the appellant in the Theatre lobby approach two male persons and touch their pockets.  Nothing was taken. The police constable then approached the appellant and asked him why he was at the Theatre. The appellant replied that he had gone there during a walk and intended to place bets at an Off Course Betting Centre. When informed that there were Off Course Betting Centres at Yuen Long nearer his home, he was asked why he had come to Tsuen Wan for that purpose. When the appellant did not reply he was informed that he would be arrested for loitering if he failed to give a satisfactory answer. The appellant nodded his head but remained silent. The police constable then put to the appellant that he had touched the pockets of the other persons which he denied and asked for a chance. He was then arrested for loitering:

3. Mr. Remedios for the appellant points out that the facts are very similar to those which recently arose in The Queen v. Ma Kui Magistracy Appeal  No. 244/85 where, after a helpful summary of the law relating to loitering, Penlington J. considered the propriety of combining a demand for an explanation for the purposes of Section 160(1) with an accusation of having committing an additional and separate offence. The learned judge observed that where combined accusations of loitering and other criminal offences are made the obligation to provide an explanation under Section 106 has the effect of taking away a suspect's right to silence. When that possibility arises the learned judge considered:

"In my opinion where a police officer has evidence of the commission of an offence or of an attempt to commit an offence, as here, the suspect should not be asked for an explanation for his presence with a view to a charge under. Sect ion 160(1)."

4. In the instant case, it was submitted, the police constable's observations caused him to suspect that the appellant had attempted to steal from the two persons whose pockets he touched. Those alleged actions were actually put to the appellant before being arrested for loitering. In those circumstances, it was submitted, the police constable should not have asked for an explanation for the purposes of Section 106(1) as he also suspected the appellant had attempted to steal. In accordance with The Queen v. Ma Kui, it was submitted, the conviction should be quashed.

5. Counsel for the Crown submitted that the evidence was significantly different to the position which arose in The Queen v. Ma Kui. In that case the police constable did suspect the defendant of attempting to steal. In the instant case the police constable's observations had not led to that conclusion. The fact that the police constable first merely asked the appellant why he was at the Theatre indicated, it was submitted, the limited extent of his suspicion at that stage and it was only subsequently that he told the appellant he had been observed touching other persons pockets.

6. I recognise the practical difficulties which the clear cut and certainly logical approach enunciated in The Queen v. Ma Kui may pose to police constables.  Amidst the pressure of patrolling they will have to elect, when observing a suspect, whether to arrest him on a loitering charge or whether to observe him further in case his actions culminate in theft, attempted theft or some other offence. If they suspect that he has committed any of the latter offences and put to him the ingredients of the latter offences they should not in accordance with The Queen v. Ma Kui, charge him with loitering but with one of the appropriate latter offences.

7. Pushed to its logical conclusion, the approach adopted in The Queen v. Ma Kui, may result in the kind of evidence which often in the past substantially strengthened a prosecution for loitering, now being fatal to even the bringing of a charge. However, on the instant facts that is not a prospect which deters me or on which it is necessary to dwell. In any event, as a famous American judge once remarked, the life of the law is not logic but experience.

8. The Crown submit that because of the factual differences in the instant appeal it is open to the Court to hold that The Queen v. Ma Kui does not apply. I appreciate that there are some differences but in my view they are not substantial. After consideration I hold that there are no material differences between the former case and the present case. In that event I propose to follow The Queen v. Ma Kui. Accordingly being satisfied that the police constable not only asked for an explanation under Section 106 but before arrest, effectively combined that request with an accusation of attempted theft, the appellant was entitled to remain silent and should not have been charged with loitering. The appeal is upheld and the conviction quashed.