HKSAR v. WONG AIDA ALCAIDE

HCMA 230/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 230 OF 2001

(ON APPEAL FROM ESHW 98/2001)

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J U D G M E N T

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1. This is an appeal by Madam Aida Alcaide Wong against her conviction by Mr Siu at Eastern Magistrate's Court on 21 January 2001 of one count of "causing obstruction in a public place contrary to Section 4A of the Summary Offences Ordinance Cap. 228" and one count of "hawking without a licence contrary to Section 83 B(1) and (3) of the Public Health and Municipal Services Ordinance Cap. 132".

2. The grounds of appeal filed by her allege "that the conviction was against the weight of the evidence upon the hearing of the proceedings in that behalf, or that certain evidence was improperly admitted or rejected upon the hearing of the proceedings in that behalf or that there was no evidence, or no sufficient evidence whereon to find the said conviction."

3. At the hearing of this appeal the appellant has appeared in person .

4. The prosecution evidence in relation to these two charges came from an Assistant Hawker Control Officer. He had been in Statue Square in Central at around noon on Sunday, 21 January 2001. He said that he had an unobstructed view of the appellant from a distance of about 5 metres giving a plastic bag of food and a drink in paper cup to another Filipino female who had walked over to her. This woman had given the appellant a bank note which she had placed in the pouch she was wearing around her waist. The woman then walked away. Beside the appellant on the ground were two travel bags and two nylon bags which covered an area of about 1.5 metres by 1.2 metres and obstructed the passage of pedestrians. When he approached the appellant, she gave some bank notes from her waist bag to another Filipino female whom she instructed to take away the two travel bags. This second Filipino female could not be apprehended. One of the two remaining nylon bags contained food stuff, the other a thermos flask which contained coffee.

5. The appellant denied she was hawking. Pointing to her waist bag, she said "I have no money here". She said that she had only given her friend a drink. She only admitted owning the thermos flask and denied that the other items belonged to her.

6. The appellant's evidence in Court was that she had met friends in Statue Square and that they had finished the coffee in the thermos flask which she had taken with her to the Square. Just as she was tidying up, the Assistant Hawker Control Officer had arrived with other officers. He had taken the nylon bags over to her and accused her of hawking.

7. In essence her account was an allegation of frame up by the Assistant Hawker Control Officer. The issue as the learned Magistrate rightly said in Court was one of credibility.

8. The learned Magistrate had the benefit to seeing both parties giving evidence in order to assist him in assessing their credibility. He assessed the evidence he had heard and concluded that he believed the evidence of the Assistant Hawker Control Officer and rejected the evidence of the appellant.

9. Having done so, there was ample evidence to justify his verdicts against the appellant on the two charges she faced. All the evidence was properly admitted. He had seen her hand over food and drink to another Filipina in exchange for money. She had attempted to remove evidence of this when approached by the Assistant Hawker Control Officer by handing the money to another woman and claiming she had no money with her.

10. She admitted owning the thermos flask which according to the officer was contained in one of the nylon bags which was causing an obstruction. That bag was connected to the other bag containing the food not merely by proximity but by the presence of a lid which was "compatible" in the words of the Assistant Hawker Control Officer with a container containing macaroni in the other bag. Although the learned Magistrate said PW1 had said this lid "fitted" the macaroni container, this is not in fact what the officer said. Nevertheless I do not regard that is significant. Although the lid is not an exact fit, it was a sufficiently close fit to have been able to be used to cover the macaroni container.

12. One matter to which I have given very careful consideration was the learned Magistrate's comments when he was considering the appellant's allegation of a frame up. He said this:

"The incident occurred on a Sunday at around noon time in Statue Square, a popular rendezvous for the Filipino people. It is hard to believe that PW1 would frame up the Appellant in such an ethnic gathering place. On the other hand I do not see any motive on the part of PW1 to frame up the appellant. In recent years hawker control officers charged and prosecuted for preventing the course of public justice aroused a lot of publicity. I see no reason why PW1 should risk himself by concocting such a story against the appellant. If he really did concoct such a story, then there was no need for him to repeat the denial by the appellant and the explanation that the thermos flask containing coffee to treat her friends. In this regard the appellant said the same thing."

13. It was undesirable for the learned Magistrate to have referred to the consequences to PW1 of fabricating evidence. I am nonetheless satisfied having considered the comprehensive review of the law by Woo JA in the case of HKSAR v Leung Ka Yin CACC 225 of 1999, that this remark does not undermine the safety of convictions. As Woo JA pointed out in that case a professional judge of magistrate is in a different position from a jury which has little legal training or experience with the testimony of witnesses. A professional judge is unlikely to think that a police officer, or indeed a hawker control officer is less likely to lie another witnesses. Indeed the learned Magistrate pointed out the Hawker Control Officers had been prosecuted for such offences. He was not putting Hawker Control Officers in any special position as to credibility or saying that they would be less likely to lie. What he was pointing out was that it was hard to believe that a Hawker Control Officer would be so unwise as to frame up the appellant in such a popular rendezvous for Filipinos without any apparent motive.

14. Accordingly, the appellant has failed to satisfy me that there is any force in her grounds of appeal. I accordingly dismiss the appeal.