THE QUEEN v. HUI CHI SHUN

Coram: Roberts, C.J.

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JUDGMENT

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1. This is an unusual case in that it has emerged that a serious miscarriage of justice occurred, which has been put right as a result of the vigilance of the Complaints Against the Police Office (CAPO) which investigated the appellant's complaint, and of the good sense of the Attorney General's Chambers.

2. When the matter came before me, the arguments in favour of the appellant were very properly put to me by Crown Counsel, for whose assistance I am grateful.

3. The appellant was charged before the magistrate with causing an obstruction in a public place, by leaving newspapers and magazines on a pavement at the Star Ferry between 1650 and 1750 on 29th December, 1984.

4. The sole witness against the appellant was a police officer, who gave evidence of the obstructions. He admitted that he could not recognize the appellant, but said that he had called upon him, shortly before he arrested him, to produce his identity card. When the appellant did so, he noted down his name, HUI Chi-shun, and the number of the Identity Card.

5. The appellant gave evidence at the trial that he was the owner of a jewellery shop, that he never had anything to do with selling newspapers at the Star Ferry and that he did not know how someone else could have got hold of his Identity Card.

6. The magistrate assessed the evidence of the two witnesses and accepted that given by the police officer, whom he regarded as honest and convincing, whereas he found that the appellant was neither.

7. In view of the Crown's attitude towards the matter, I accepted the following statement of what had occurred thereafter from Crown Counsel, without requiring any witnesses to be called.

8. The appellant, having been convicted of the offence, and fined $200, on the 16th April, made a complaint " to CAPO in Kowloon on l7th April.

9. As a result of investigation by CAPO it was discovered that the main police witness had made a serious mistake.

10. It appears that, when the police officer interviewed the person who had caused the obstruction at the Star Ferry, at about 1750 on 29th December, he wrote the name and Identity Card number of that person on a sheet of paper.

11. Later that same evening, between 1945 and 1900, the police officer visited the appellant's jewelry shop in response to a call. While there, he wrote down the appellant's name and Identity Card number on another piece of paper.

12. At about 1930 that evening, when he came to complete the summons, which was issued against the appellant, the police officer copied down the particulars of the wrong piece of paper.

13. It is perfectly clear therefore that the wrong man was charged and that, consequently, the conviction against the appellant must be quashed and his fine returned to him.

14. The appellant when asked whether he had incurred costs in the former hearing and in appearing to-day, said that he had and agreed that a sum of $500 would cover these. I ordered that he be paid this sum in costs accordingly.

15. I should make it clear that on the evidence before him, the magistrate was perfectly entitled to reach the conclusion which he did, since there was no mention of the visit of the police to the jewelry shop and nothing to alert him to the possibility of such a mistake as occurred.

16. It is much to the credit of CAPO and of the Attorney General's Chambers that this matter was brought before me in the way that it was, so that a wrong could be redressed.

Representation:

Appellant - Mr. HUI Chi-shun, in person.

Mr. J.L. Abbott, Crown Counsel, for Respondent.