THE QUEEN v. LO YUI-SANG

HCMA000801/1984

IN THE SUPREME COURT OF' HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL N0.801 OF 1984

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BETWEEN

	The Queen	Respondent
	against
	LO Yui-sang	Appellant

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Coram: The Hon. Barnes J.

Date of Hearing: 18.1.1985.

Date of Judgment: 18.1.1985

Written Judgment handed down: 23.1.1985.

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JUDGMENT

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1. The Appellant pleaded not guilty to a charge of Loitering contrary to section 160(1) of the Crimes Ordinance.

2. Only two witnesses gave evidence at the trial - the arresting police officer and the Appellant. The police officer said in evidence that he saw the Appellant mingling with the crowd in a street market. After observing the Appellant touch two women on their buttocks he accosted him, and asked for his name, address and reason for his presence at the scene. The Appellant produced his identity card, supplied his address and said that he was shopping. The officer then informed the Appellant of what he had seen and asked why he had touched the two ladies. The Appellant denied that he had acted in the way alleged. The officer then ''warned the [Appellant] that since he had pressed against two ladies and touched their buttocks, if he couldn't give a satisfactory explanation [he] would arrest him for loitering". The Appellant failed to give an explanation and was arrested. The Appellant said in evidence that he was at the scene to do some shopping and that he did not touch "any lady's buttocks".

3. The learned magistrate in his Statement of Findings in dealing with the conflict between the evidence of the only witnesses said

"It followed that either the policeman was lying and had fabricated the case or the defendant was lying".

4. Mr. Fenton, for the Appellant, submitted that the magistrate misdirected himself as to the onus of proof, that he balanced one version against the other rather than asking himself whether the prosecution had proved the case beyond reasonable doubt. He submitted that, even though the magistrate might have concluded that the Appellant was lying, it did not necessarily follow that the officer was telling the truth about the incident.

5. It has been held by the Full Court that, if a magistrate "approaches the question of guilt or innocence of the accused on the basis of deciding which of two stories he should believe", he is not applying the correct principle ⁽¹⁾   It was Mr. Fenton's submission that there was a third possibility to which the learned magistrate did not advert: both could have been lying. "A court must always bear in mind the possibility that neither story is true and the law requires in a criminal case that the court shall be satisfied that the prosecution story is true".⁽²⁾

6. I think the reality in the present case was that the learned magistrate ruled out the possibility of both versions being false. He specifically said that he ruled out the possibility that the officer could have been mistaken. On the other hand, since it has been held to be a misdirection where a magistrate in his Statement of Findings suggests that he might have reached his verdict by deciding which of the opposing versions to believe, I must accede to Mr. Fenton's submission and allow the appeal.

7. I allow the appeal and quash the conviction and sentence.

	(E.C. Barnes)
	Judge of the High Court

(1)	R v. Tsui Sheung & Ors., (1963) HKLR 164, 174;
	Pau Wing Sheun v. R, (1970) HKLR 47

(2)    R v. Lok Chi Wai, (1973) HKLR 577, 579

Representation:

Mr. Cross, Crown Counsel for the Crown.

Mr. J, Fenton (D.L.A.) for the Appellant.