THE QUEEN v. TSANG CHUN-FAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 663 of 1985

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BETWEEN

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JUDGMENT

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1. On the 4th of April this year, the defendant was in his own vehicle, stationary in an area which was restricted. He was duly approached by a traffic police constable. The defendant allegedly said to the constable that he was a "Forki". That term is well known in Hong Kong and would require no further elaboration. At the time, the defendant had a Government Vehicle Log Book on the passenger seat. Upon further inquiry made by the police officer, the defendant produced an identity card, holding himself out to be a staff of Government House. It is common ground that the defendant was no longer working in Government House but as a Station Master with the MTR.

2. In the course of the trial, it was contended on behalf of the defendant, and in fact that was his evidence, that what he said to the police officer was "former Forki", "Gau Forki", and not merely "Forki". That controversy was gone into with great care by the learned Magistrate who took into consideration the defendant's demeanour, his credibility as well as his implausible explanation for the presence of the Government Vehicular Log Book and the carrying on his person of the expired, as far as he was concerned, Government House staff identity card, allegedly kept as a souvenir.

3. The same argument was repeated before me as it was put before the learned Magistrate. In my view, none of the factual determinations made by the learned Magistrate can in any way be faulted.

4. The mainstay of this appeal is, whether the proceedings against the defendant before the learned Magistrate were to be solely regulated by the general words of the charge without paying due regard to the particulars. The learned Magistrate conceded that a Station Master of the MTR falls within the definition of a Public Officer in Section 2 of the Summary Offences Ordinance, Cap. 228. Nothing has been shown to the contrary before me, and I assume that to be a proper and correct concession. Counsel submitted in essence that it would not be open to charge any public officer with an offence under S. 22 of the Summary Offences Ordinance whatever the particulars of offence were.

5. In my view, the matter may be resolved by asking the following two questions : (1) Whether the Particulars of Offence are inconsistent with the Charge itself? To that question, Mr. Van Buuren quite fairly conceded that they were not. The second question to be asked mast therefore be. Were the Particulars of offence proved beyond reasonable doubt before the learned Magistrate against the defendant?

6. It is clear that the Particulars of Offence in this Charge faced by the defendant were proved beyond reasonable doubt against him. His guilt was to be decided, as it was, on the charge particulars. A public officer of one class may be guilty of falsely pretending to be a public officer of a different class, and he is susceptible to being charged under S. 22. There is no substance in Counsel's submission.

7. Little could be made on the facts. The defendant himself never made any oblique proposition as a public officer in the category of a MTR staff member. He allegedly claimed and was found by the learned Magistrate to have claimed that he was a public officer in the category of a Government House staff.

8. Of all the grounds advanced to me on behalf to the defendant, none is, in my view, meritorious. It remains for me to say that the appeal must fail and I dismiss it without having to call upon Mr. Kilgour, Counsel for the Crown.