HKSAR v. CHUNG YEE KANG

HCMA8/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.8 OF 2004

(ON APPEAL FROM NKR19 OF 2003)

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J U D G M E N T

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1. The appellant appeals his conviction for an offence of spitting in a public place, contrary to sections 8A(1) and 23(1)(a) of the Public Cleansing and Prevention of Nuisances Regulations made pursuant to the Public Health and Municipal Services Ordinance, Cap.132.

2. The facts of the case as found by the magistrate were that a health control officer from the Food and Environmental Hygiene Department (PW1) whilst on patrol duties saw the appellant spit on the top of a litter bin at the junction of Nanking Street and Temple Street in Yaumatei. PW1 approached the appellant and told him he would be prosecuted. The appellant then denied he had spat on the litter bin. He took out a tissue and wiped up the sputum on the top of the bin and said words to the effect that he could not be prosecuted in any event as there was no evidence. The appellant was then given a fixed penalty notice.

3. The appellant's ground of appeal before me was that there was insufficient evidence against him. His particular complaint was that PW1 must have been too far away from him to have seen clearly whether he had spat on the rubbish bin or not.

4. The prosecution case depended entirely on the sole prosecution witness, PW1. The appellant elected not to give or call evidence. There was therefore no evidence to undermine or contradict the evidence of PW1.

5. PW1 said he was an eye-witness to the appellant's spitting on the bitter bin. He gave quite straightforward evidence. He said he was about five metres from the appellant when he clearly saw the appellant spit. The simple issue then was whether PW1 was a reliable witness.

6. The unrepresented appellant did not cross-examine PW1 nor did the appellant make any submissions before the magistrate. He was given opportunities to do both these things.

7. The magistrate considered the evidence of PW1 and concluded that he was reliable. He said :

" I found PW1 to be an honest and believable witness and I accept what he says. He gives a truthful account of what the appellant did and he had seen this from a distance of 5 metres, which was an unobstructed view. In fact his evidence is not challenged."

8. Given the absence of any evidence contradicting that of PW1 or of any successful challenge being mounted to his evidence in cross-examination, it is difficult to see how it could be said there was insufficient evidence before the magistrate to establish the offence. In my judgment, in those circumstances, the magistrate was entitled to rely on the evidence of PW1.

9. There is no merit to this appeal and it is dismissed.