THE QUEEN v. PANG SAI-SANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1259 OF 1986

_____________

BETWEEN

______________

__________

JUDGMENT

__________

1. The Appellant pleaded not guilty to a charge that he committed an offence contrary to so 7(1)(a) of the Trade Descriptions Ordinance. The particulars alleged that he applied, in the course of trade, a false description to a Sanyo video camera.

2. The charge arose as a result of the purchase of a camera by a tourist in a camera shop in Tsim Sha Tsui of which the Appellant was the manager. The charge was quickly laid and speedily brought before the Magistrates Court. The prosecution was anxious to have the matter proceed to trial on the same day as the plea was taken because the tourist was leaving before the start of the next court sitting day.

3. The Appellant, just as speedily, briefed counsel. On his counsel's arrival at court the prosecution handed him a document headed "Brief Facts" and asked him to indicate what facts he would agree so as to enable a speedy trial to proceed. The defence counsel suggested certain amendments which were accepted by the prosecution. The amended "Brief Facts" then became a document long on hearsay but rather too brief in relation to the essential facts necessary to constitute "a false description". Spotting the deficiency, defence counsel agreed to the prosecution case being wholly presented through the production of the document. The document was then signed by counsel for the prosecution and the defence and tendered to the learned magistrate. No other evidence was called by either sides The prosecution therefore sought to prove its case by way of formal admission pursuant to s. 65C of the Criminal Procedure Ordinance.

4. The admissions were not expressed in the following way but the following is a fair summary of what the Appellant did admit :-

5. As there was no admission that the description was false defence counsel submitted that the prosecution had not proved its case. The learned magistrate dealt with that submission in the following way :-

"I have heard no evidence on what functions (the camera) does or does not have but these are adequately described in P9. Defence counsel claims that this item cannot be evidence but I disagree. It is one of the exhibits tendered in support of the Crown case."

6. The learned magistrate then read the manual and concluded that the representation was false and that therefore the charge had been proved.

7. The point taken on appeal is the same point.

8. The only admission made by the Appellant in relation to the manual was that it was handed to the tourist by someone at the shop. No admission was made by the Appellant that that document accurately described the functions of the camera. The original "Brief Facts" contained an assertion that it did describe the camera's functions but the prosecution agreed to delete that assertion. After that amendment the only fact admitted by the Appellant in relation to the manual was that it passed from the shop to the tourist. It never became a document admitted in evidence pursuant to s. 22 of the Evidence Ordinance. Consequently, any statement in, that document that the camera would not transmit directly to a television set was not evidence that the camera did lack that capability. Thus, by relying on the contents of the manual to find that an ingredient of the offence had been proved the learned magistrate reached a verdict of guilty not supported by the admissible evidence before him. The conviction cannot stand and must be quashed.