THE QUEEN v. SIU KWONG LIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 526 of 1984

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BETWEEN:-

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JUDGMENT

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1. This is an appeal against conviction and sentence on a charge of loitering.

2. The facts were not difficult. There were two main witnesses for the prosecution. One of these said he saw a taxi, and it is not in dispute that it was taxi which was driven on that day by the appellant, in the vicinity of Green Villa in Sai Kung. This witness said he saw the taxi number through the telephoto lens of a camera, but he could not identify the driver, but said he saw him acting in a very suspicious manner and he entered the garden of the second witnesses house. He telephoned to warn her. The second witness identified the appellant said that she saw him through her dining-room window at a close distance and he was looking straight at her. He then undid the button of his shorts and she was very apprehensive as to her safety and that of her children.

3. Mr. Thong in his very careful argument has gone into this matter carefully. He submitted that the evidence of identification not sufficient and the Magistrate has not followed the guidelines laid down in Turnbull. I think quite clearly this was not a case of a fleeting glance, although the second witness was unable to say exactly for how long she saw the man, it clearly was for more than just a few seconds. She had no doubts when she identified him at an identification parade the following day. It was at close range and in clear daylight. There were no obstructions of any sort and I think the evidence was for the Magistrate to accept or reject. It is of course a truism to say that matter of evidence, matters of what is believable or not believable, are matters for the trial Magistrate. The Magistrate has gone carefully into the question of the clothing worn and quite clearly there was some evidence the clothing worn by the appellant when he was arrested was similar to that worn by the man seen by the second witness. She said he was a youth wearing a T shirt, shorts and sport shoes, but she said it was a striped shirt. When he was arrested it was a white shirt. The Magistrate has said the question of clothing really takes the matter no further. There is evidence to some extent supporting the identification, some against it.

4. The appellant called the witnesses an alibi. Again the Magistrate quite clearly has carefully considered that evidence and he has found that he does not accept it. That again is a matter of fact for him to consider.

5. I am satisfied that the Magistrate has considered all the evidence and has come to a conclusion which he was entitled to reach. It was essentially a matter for him and the appeal against conviction is dismissed.

6. On the question of sentence it is true that the accused found has no previous convictions and it is an imediate custodial sentence albeit short. The appellant is 28 years of age. The sentence is considerably less than the 2 years time maximum for the offence. It was an entry onto private premises, not it is true at night but clearly the second witness was considerably worried as she was found alone in the house with her children. The conduct of the appellant was obviously such as to arouse the suspicion of the first witness. I am unable to say that the sentence of two weeks imprisonment is wrong in principle or is manifestly excessive. The appeal against sentence must also be dismissed.