THE QUEEN v. YAM KING YUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 983 of 1985

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BETWEEN

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REASONS FOR JUDGMENT

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1. Judgment having been given this morning when this appeal was allowed and conviction set aside, I indicated that I would give written reasons for my decision. I now do so.

2. The appellant was convicted in the Magistrates Court at Kwun Tong of loitering contrary to section 160(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong.

3. He was charged that on the 23rd August 1985 in Kowloon he did loiter in the common parts of a building, in particular the ground floor, middle corridor of Block 7, Tsui Ping Road Estate, and did not give a satisfactory account of himself and a satisfactory explanation of his presence there.

4. The evidence of D.P.C. 19088 (P.W.1) was the main evidence upon which the conviction was based. His evidence was to the effect that he saw the appellant walking around outside the middle corridor of the ground floor of Block VII. After about 1.5 minutes the appellant went into the middle corridor and went up the staircase. He went to the third floor and again he stayed and looked around the middle corridor. Then the D.P.C. saw the appellant walk to the flats on this floor and look into residents' premises. He did this to five to six flats on this floor and then turned back. On his return he looked into flats until he reached the middle corridor. Then he looked in the direction of the police officers in Block VIII. The two police officers felt suspicious and went downstairs to Block VII. DPC 17697 went to the staircase at the end of Block VII. DPC 19088 went to the middle staircase to intercept the appellant. D.P.C. 19088 intercepted him, showed him his warrant card and revealed his identity. He asked him his name and address. The appellant showed the D.P.C. his identity card and stated that he lived in Block 5. The D.P.C. 19088 asked him what he was doing there, to which the appellant replied that he was going to buy a piece of popsicle. Then the D.P.C. asked him why he was walking around and looking into other people's flats, and the appellant denied going up to the third floor. The D.P.C. told him that he saw him go up to the third floor and if he did not give a true reason as to why, he was there he would charge him with loitering. However, the appellant remained silent.

5. The learned magistrate found that -

6. One of the grounds of appeal in this Court was that the appellant had a right to silence, and by exercising that right he could not be guilty of failing to give a satisfactory explanation.

7. Crown Counsel did not support the conviction because of the decision of the Court of Appeal in A.G. v. Sham Chuen, Mag. App. 722 of 1985, in which judgment was given on the 8th November 1985. In fairness to the Magistrate, Crown Counsel has pointed out that that decision came just over a week after the Magistrate made his findings.

8. It appears from the judgment of Kempster, J.A. and Yang, J.A. in that appeal that the evidence to the effect that the appellant was seen looking into flats on the third floor was irrelevant, prejudicial and inadmissible.

9. In the light of the decision of the Court of Appeal when asked for an explanation as to his presence on the third floor looking into flats, the appellant was entitled to remain silent. He could not, therefore, be found guilty of failing to give a satisfactory explanation when he was exercising a right which he had. The Magistrate did not comment on his explanation that he was going to buy a piece of popsicle.

10. For these reasons, I allowed the appeal and set aside the conviction.