HKSAR v. WONG NGA SAN

HCMA 848/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 848 OF 2001

(ON APPEAL FROM SPCC NO. 3766 OF 2001)

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JUDGMENT

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1. The appellant was convicted on 30 July 2001 of one charge of profiteering on the sale of travel tickets in a public place. She was fined the sum of $500. The facts alleged by the prosecution were that, on 25 May 2001, at the Hong Kong to Macau Ferry Pier, the appellant was said to have been approached by two officers acting under cover and that she offered to them two tickets to Macau at the price of $100 each. $200 in marked money was handed to her and in return she gave 2 tickets, face value $75 each. The appellant was arrested and the prosecution was brought.

2. The first ground of appeal argued by Mr Boyton is that the learned Magistrate erred in law when he failed to deal with the possibility that the appellant denied the offence at the time of her arrest. This would have, or could have, afforded a beneficial doubt as to the appellant's guilt and supported her defence of mistake.

3. The allegation that she had denied the offence was put to the first police officer who gave evidence, PW1. He denied that anything such as that had been said. In cross-examination the allegation was put to PW2. She was asked this question:

"Q. I suggest to you she denied that she was selling the tickets for profit. No, just -- now, you haven't put this in your notebook, but I'm suggesting to you, if you can remember, that she did make some objection or that she denied the offence at the time. Can you now cast your mind back to the incident, rather than your notebook?

A. Sorry, I can't recall.

Q. But it's -- it may be possible.

A. Yes, it is possible. I cannot recall."

4. Mr Boyton argues that if there is a possibility that the words were said, then the Magistrate would have had to consider that possibility. If the words had been said, there was a discrepancy between the evidence of PW1 and PW2 as to whether a denial was made at the time of the arrest, and the Magistrate would have had to resolve that issue. If an inference were to be drawn, both in favour of and against the interests of the appellant, it would have been his duty to draw that in favour of the appellant unless the only reasonable inference to be drawn was that against her interests.

5. The matter was further complicated by the fact that, in her evidence, it is accepted by Mr Boyton, the appellant made no claim to have denied or objected to the fact that there was an allegation that she had committed the offence at the time she was arrested. The Magistrate therefore was required to put the lack of memory and the concession by PW2 of the possibility that some words of objection or denial had been made at the arrest in the context of the appellant not having alleged that she had said any such words. In those circumstances, the possibility referred to by Mr Boyton is not one which, in common sense and practical terms, the Magistrate ought to have considered.

6. I am satisfied from his approach to the whole of this matter that the Magistrate has not erred in law in failing to deal with a discrepancy because, given the evidence of the appellant, that discrepancy did not in fact arise.

7. Mr Boyton has decided not to proceed with the second ground of appeal, which was a discrepancy relating to whether or not the first prosecution witness answered, reliably and credibly, questions concerning the proper approach to the arrest of persons who commit offences for which an arrest is not appropriate but a summons the appropriate remedy. Notwithstanding his abandonment of that, I have, in my consideration of these papers, carefully considered that ground and, had I needed to do so, I would not have allowed the appeal upon the basis of it.

8. I am satisfied the Magistrate has acted properly throughout this matter and this appeal against conviction is dismissed.