THE QUEEN v. TSUI WAI-MING

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 581 6F 1989

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BETWEEN

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J U D G M E N T

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1. This is an appeal against a conviction for loitering.

2. Two police officers gave evidence for the Crown.

3. The Crown's evidence was that the appellant was seen, in the corridor of the fourth floor of a building, trying the handles of the iron gates of two flats. When the officers revealed their identity the appellant fled but was stopped on the ground floor.

4. PW1 testified that his colleague, (PW2), had questioned the appellant, inter alia, as follows:

" Q : Why were you on the fourth floor?

A : I was just having a walk.

Q : Why touch the metal gates on the fourth floor You must explain satisfactory or else you will be arrested for loitering.

A : Ah Sir, I Just went for a walk.

5. There is no evidence that PW1 asked the appellant any questions or for an explanation as to why he was on the fourth floor.

6. When PW2 came to give evidence he made no mention of asking the appellant why he was trying to open the iron gates or to explain his presence on the fourth floor.

7. The magistrate in his Statement of Findings said that PW1 questioned the appellant who replied he was going for a walk.

8. Later he said that PW1 and PW2 had corroborated each other and he could find no inconsistencies in their evidence and he felt he could safely rely on the evidence of each officer.

9. Mr Macrae, counsel for the appellant, pointed out that neither officer had said he had questioned the appellant as to why he was trying the door handles or to explain his presence at the scene. Furthermore the officers had not corroborated one another in respect of what is alleged to have been said to the appellant.

10. As was pointed out in A.G. v SHAM Chuen (1986) HKLR 1043 mere loitering is insufficient to constitute the offence. It is important in cases of loitering that there is unequivocal evidence of the questions asked which were designed to elicit from the suspect a satisfactory explanation of his behaviour:

11. In this case, the evidence of the questions asked did not emanate from the witness who allegedly asked them.

12. In think the conviction unsafe and unsatisfactory. The appeal is upheld and the fine set aside.