THE QUEEN v. YIM CHUNG FAT

MAGISTRACY APPEAL NO.1591of 1990

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HEADNOTE

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CHARGE LAID UNDER S.64(b) OF POLICE FORCE ORDINANCE CAP. 232 OF KNOWINGLY MISLEADING A POLICE OFFICER BY GIVING FALSE INFORMATION ESSENTIAL ELEMENT OF THE CHARGE TO BE PROVED IS THAT THE POLICE OFFICER WAS IN SOME WAY MISLEAD.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1591 OF 1990

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JUDGMENT

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1. The appellant was convicted after trial of an offence contrary to s.64(b) of the Police Force Ordinance, Cap. 232, which reads :

                "Any person who knowingly-

2. The charge alleged that on the 5th March 1990, at Room 109 Tuen Mun Police Station, the appellant knowingly misled police officer Woman Sergeant 15394 by giving her false information, namely that he had on the 19th February 1990 assisted in the pushing of a broken down vehicle to the roadside in Castle Peak Road, information which was not true.

3. It is admitted as a fact under s.65C of the Criminal Procedure Ordinance that the appellant had made a statement to the woman Sergeant to this effect.

4. The magistrate heard evidence of the incident which had occurred on the 19th February 1990 and found that the statement made to the Woman Sergeant on the 5th March wasfalse. He proceeded to convict the appellant and it is against that conviction that the appellant now appeals.

5. The only ground of appeal is that there was no evidence adduced by the prosecution to prove an essential element of the charge, namely that Woman Sergeant 15394 had been misled in some way by the information supplied by the appellant.

6. Mr Tse who appears for the appellant submits that assistance in interpreting the section can be gained by reference to s.33 of the Crimes Ordinance and to s.47 of the Firearms and Ammunition Ordinance.

7. The court is entitled to consider provisions in other ordinances relating to the same topic where they assist in interpretation, see R.v.Westminister Betting Licensing Committee [1963]2 Q.B. 750 and Clowser v. Chaplin, Finnigan v. Saniford [1981]1 W.L.R. 837.

8. S.33 of the Crimes Ordinance provides that any person who in a written statement (a) handed to the court under . s.80c(1) of the Magistrates Ordinance; (b) tendered in evidence under s.65(B) of the Criminal Procedure Ordinance;, or (c) served and delivered under s.6, 13 or 21 of the Complex Crimes Ordinance; wilfully makes a statement material to the proceedings which he knows to be false or does not believe to be true, shall be guilty of an offence.

9. S.47 of the Firearms and Ammunitions Ordinance provides that any person who makes a statement which he knows to be false or misleading, or recklessly makes any statement which is false in a material particular (a) for the purposes of s.15(1); or (b) for the purpose of procuring whether for himself or another the grant, renewal or amendment of a licence commits an offence. -

10. Mr Tse argues that in these two provisions, the making of the false or misleading statement constitutes the offence . whereas in s.64(8), a further element has been added, namely that the police officer to whom the false information was given was misled by that information. He submits that if the legislature had intended that the giving of false information to a police officer was sufficient to constitute the offence, the word "misleads" would not have been used. I agree with this.

11. In paragraph 861 of Vol. 44, Halsbury's Statute of England, 4th edn., under the heading of presumption that words are not used unnecessarily, there is a passage which reads:-

"It may be presumed that the words are not used in a statute without a meaning and are not tautologous or superfluous and so effect must be given, if possible,to all the words used for the legislature is deem not to waste its words to say anything in vain."

 

12. It is quite possible that a police officer to whom false information is given knows at the time, from some other source, that what is being told is false and is not misled in any way, or that a police officer records as part of his duties, the information given to him and simply hands on that information to a superior without ever directing his mind to its contents.

13. In my view, in those circumstances, the police officer could not be said to have been misled.

14. I am satisfied that it is an element of the charge for the prosecution to prove that the police officer to whom the false information was given was in some way misled. In this case, there was no such evidence as the woman sergeant not give evidence. This was not a point taken before the magistrate.

15. The appeal is therefore allowed and the conviction quashed and the fine refunded.