ATTORNEY GENERAL v. LAM YUK CHUEN

THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 178 OF 1987

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JUDGMENT

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1. On the 3^rd November 1986, the respondent was observed by 3 Detective Police Constables from CID, Wanchai Police Station, in the early evening, to stand outside the MTR Station in O'Brien Road. He was then seen to follow a woman into the station, and there he stood behind her in a queue, paying particular attention when she took out money to pay her fare. The respondent did not buy a ticket and when the woman passed through the turnstiles, he returned to the entrance of the MTR Station.

2. From O'Brien Road, he went to Thomson Road where he looked into two buildings and dashed inside one. He then went to the entrance of a house inside the rear lane of 102 Thomson Road, from where he stood for 2 minutes looking around. He then made his way to the Wanchai market where he squeezed himself amongst the customers of a hawker's stall at 77 Wanchai Road. He then went to another stall where he paid particular attention to a woman customer and after she had made her purchase he followed after her but noticing the presence of one of the detective police constables, stopped following her and made off at an accelerated pace. He was stopped and asked why he had entered the MTR Station at O'Brien Road. His reply was he was just there: for a stroll.

3. The respondent was charged with (1) loitering in a public place, contrary to Section 160(1) of the Crimes Ordinance, Cap. 200 and (2) resisting arrest, contrary to Section 36(b) of the offences against the Person Ordinance, Cap. 212, to which charges he pleaded not guilty.

4. At the trial before the learned magistrate on 29th December 1986, the magistrate stopped the trial during the evidence in chief of the first prosecution witness, D.P.C. 20784, one of the 3 D.P.Cs. mentioned earlier, dismissed both charges against the respondent and ordered the appellant to pay $2,500 costs to the Duty Lawyer Scheme.

5. His reasons for stopping the trial were, firstly, that there was not sufficient evidence to suggest a purpose other than innocent, secondly, that the respondent's explanation that he was taking a stroll was perfectly reasonable and proper in the circumstances, and thirdly it was proper to do so since the prosecution was not in any position to establish a case to answer and fourthly in the circumstances the respondent was entitled to resist arrest.

6. Without expressing any view on the merits of the appellant's case up to the time the witness was prevented from giving his evidence further, it is my opinion that the magistrate heard only the first part of a two part explanation which is required of a suspected loiterer under Section 160(1) of the Crimes Ordinance, i.e. a satisfactory account of himself and a satisfactory explanation for his presence there. The witness i.e. DPC 20784 was not given the opportunity of telling the court whether or not the respondent gave any, or any satisfactory account of himself. Taken in the context of the particulars of the charge of loitering in a public place, it would not in myview be a satisfactory explanation if all the respondent stated in answer to the question what he was doing then was that he was having a stroll.

7. In R. v. Lee Yung-chi, the Chief Justice stated:-

“I need not refer to any authorities for the proposition, which is indeed self-evident, that it it improper for a court to reach a decision as to whether or not there is a case to answer until it has heard the whole of the evidence which the Prosecution wishes to put before it.”

8. In that case, the magistrate ruled that there was no case to answer in a loitering charge after the first prosecution witness had given his evidence, and this fact prompted the above-mentioned statement by the Chief Justice.

9. With respect, I fully agree with the views expressed by the Chief Justice in that case and would only add that the prosecution is entitled to put its case in full before a judge or a magistrate before it is ruled upon, and it is wrong to indicate his view of the prosecution case whilst evidence is still being adduced on its behalf.

10. To the question posed by magistrate “Could I have erred in law in acting as I did in making the order dismissing the said charge"? I would answer in the affirmative.

11. The appeal is allowed and the case is accordingly remitted to the Central Magistracy for re-hearing of the 2 charges against the respondent before another magistrate.

12. The order for costs is also set aside.