THE QUEEN v. HO KWAI YEUNG

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO.167 OF 1985

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JUDGMENT

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1. The appellant was tried and found guilty by a magistrate of an offence, commonly known as touting, under section 6A(1) of the Summary Offences Ordinance. The relevant part of the section provides:

"6A(1) Any person who in a public place, to the annoyance of or in a manner likely to annoy any other person, importunes such person to buy any article or thing ..... shall be guilty of an offence....."

2. The evidence against the appellant was that a plain clothes police officer on anti-touting duty at the Far East Macau Ferry Terminal observed him standing near the railing of a ticket counter holding a hydrofoil ticket in his hand. The appellant then went up to a man who was approaching the counter and asked him "Will 12 o'clock be alright?" The man paused and looked at the ticket then waved his hand and said "No" and proceeded to the counter to purchase a ticket.

3. Approximately one minute later the appellant went up to another man who was approaching the counter. The man stopped and looked at the ticket, then waved his hand and said "No" and proceeded to the counter.

4. The police officer then arrested the appellant for touting. The appellant told the officer that he had merely been offering the ticket for sale at its face value.

5. In his testimony before the magistrate the appellant offered a version of the circumstances under which he had approached the two men that the magistrate did not believe. I cannot say that I am surprised that the magistrate took the view that he did of that aspect of the appellant's evidence.

6. An employee of the appellant testified that he had had an appointment with the appellant to meet him that day at the ferry pier in order to accompany him to Macau on the 12 o'clock hydrofoil but that he had been delayed and had arrived after the appointed meeting time only to find the appellant under arrest.

7. The magistrate accepted the evidence of the police officer and observed that "the defendant in his own examination in chief cooked his own gooses" For these reasons he found the appellant guilty. After hearing a plea in mitigation the magistrate decided not to record a conviction against the appellant but bound him over on his own recognizance in the sum of'$200 to be of good behaviour for 12 months and ordered that he pay $500 court costs.

8. At the very outset of the hearing of this appeal Crown Counsel Mr. Michael Reid very properly and fairly conceded that there had been insufficient evidence before the magistrate to justify him in convicting the appellant and that therefore the appeal must succeed. I agree.

9. In order to succeed it was incumbent on the prosecution to prove not only that the behaviour complained of had occurred in a public place but that the defendant had importuned another person to buy the ticket and that his behaviour in so doing either actually annoyed or had been likely to annoy that person.

10. The Shorter Oxford English dictionary defines "importune" as "to solicit pressingly or persistently, to beset with petitions, to ask for a thing urgently and persistently". In the context of the present case the word clearly means "to solicit pressingly or persistently".

11. The evidence for the prosecution failed to establish both that the appellant had importuned either person he had approached and that he had actually annoyed either person or had behaved in such a manner as to have been likely to annoy either of them.

12. The fact that the appellant had regrettably done himself a disservice by giving a less than truthful account of the matter to the magistrate was completely beside the point. The prosecution had failed to prove its case and the magistrate should have found him not guilty.

13. The appeal is allowed. I set aside the order that the appellant be bound over and order that the sum of $500 in court costs, if already paid, be refunded to the appellants