HKSAR v. Yeung Ho Yin
Read the full judgment text of HCMA 354/2020 on BabelCite. This High Court CFI judgment was delivered on 25 March 2022.
1. The appellant was charged with the following offences:
Cites 25 cases
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[English Translation – 英譯本] HCMA 354/2020 [2022] HKCFI 569 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 354 OF 2020 (ON APPEAL FROM FLCC 1309 OF 2020) ____________________
____________________ Before: High Court Judge Albert Wong in Court Date of Hearing: 24 November 2021 and 18 February 2022 Date of Judgment: 25 March 2022* _________________ JUDGMENT _________________ 1.The appellant was charged with the following offences:
2.He pleaded not guilty to the two charges. After the trial, the magistrate[3] found him guilty on the first charge but not guilty on the second charge. The magistrate sentenced the appellant to nine months’ imprisonment on the first charge. 3.The appellant appeals against both conviction and sentence in respect of the first charge (“the charge”). Prosecution Case 4.The prosecution claimed that on 26 December 2019, in a restaurant at Tai Po Mega Mall (“the restaurant”), the appellant loitered in the said public place, and his presence there with other unknown persons caused the owner of the restaurant reasonably to be concerned for her safety or well-being[4]. 5.The prosecution summoned three witnesses to give evidence. 6.The first prosecution witness (“PW1”) was one of the police officers who handled the appellant at the scene. He did not witness the incident and his evidence was mainly about the second charge of which the appellant was found not guilty[5]. 7.The second prosecution witness (“PW2”) was the officer who arrested the appellant. Likewise, he did not witness the incident. 8.The third prosecution witness (“PW3”) was the said restaurant owner. According to her evidence, around 2 pm on the day when the incident took place, some 50 people wearing face masks were gathering and shouting outside the entrance of the restaurant. Later, some of them went into the shop, making her frightened. Three to four of them who entered the shop sat at a table near the entrance, took salt and sugar from the shop and scattered them over the table. Some people also threw the tableware onto the floor. She was worried that they might harm the customers and staff. Under the circumstances, some customers just left without paying for what they had ordered and she thus suffered financially[6]. 9.In addition to calling witnesses, the prosecution also produced as exhibits certain footage captured by the shopping mall’s CCTV[7] and a video clip uploaded by Next Media Animation[8]. Defence Case 10.At the trial, the appellant did not testify, nor did he call any witness. 11.The appellant did not dispute that he was the man captured by the CCTV, nor did he take issue over the allegation that he had entered the restaurant[9]. 12.In view of the defence’s written closing submission at trial[10], the appellant’s line of defence was that:
The Magistrate’s Findings 13.The magistrate was satisfied that PW3 was an honest and reliable witness. He took the view that she had tried her best to reveal the truth to the court and gave full weight to her evidence.[11] 14.Regarding the video clips, the magistrate had the following observations[12]:
15.The magistrate made the following findings of fact[13]:
16.The appellant was represented by Mr Kei Rui Tien in the hearing who adopted the grounds of appeal drawn up previously for the appellant by Mr Duncan D.H. Ho[14]:
Discussions and Considerations Ground of Appeal (5) 17.As this ground of appeal involves the elements of the offence in this case, I shall deal with it first. 18.The offence in question was formulated on section 160(3) of the Crimes Ordinance[16] which reads:
19.According to Mr Tien’s submission, the elements of the offence shall consist of:
20.Mr Wayne Lee, Public Prosecutor representing the respondent, took issue with the 6th element put forward by Mr Tien, saying that the prosecution was only required to prove that the defendant’s loitering had caused the concern as described in the provision, but not his mens rea. 21.Provisions on loitering have long been in existence. In 1979, regulation of loitering was incorporated into the Crimes Ordinance[17] as section 160. 22.In the 1990s, the Law Reform Commission had submitted a report on the offence in question[18]. At that time, other than the subject offence which was formulated on section 160(3), there were two other offences[19] formulated on the basis of section 160:
23.Simply put, the suggestions of the Law Reform Commission were that[20]:
24.In 1992, having considered the suggestions above, the Government amended section 160(1)[21] to its current form. Since then, there was no more amendment to its content except the part of the provision on penalty. It reads as follows:
Sections 160(2) and 160(3) were not amended, neither at that time nor subsequently[22]. The provisions have been the same as those set out in paragraphs 22 and 18 above. 25.Both parties pointed out that as at today, there has not been any judicial precedent regarding the elements of the present offence (the offence under section 160(3)). 26.AG v Sham Chuen[23], which was taken to the Privy Council of the United Kingdom on appeal from Hong Kong, was about the offence under section 160(1). The Law Reform Commission had referred to and discussed the case before making the above suggestions[24]. 27.In Sham Chuen[25], the Judicial Committee of the Privy Council interpreted the meaning of “loitering” in section 160. Their Lordships pointed out that the meaning of the word was simply “lingering”. However, there were different interpretations of the word “loitering” in various subsections. The loitering referred to in subsections (2) and (3) was a particular kind of loitering[26]. In fact, subsection (1) is also concerned with loitering of a particular character, namely loitering which calls for a satisfactory account of the loiterer and a satisfactory explanation of his presence. Their Lordships took the view that a person may loiter for a variety of reasons, some entirely innocent and others not so. They concluded in respect of section 160(1) that the loitering this sub-section aimed at is loitering “in circumstances that reasonably suggest that its purpose is other than innocent”.[27] 28.Mr Tien submitted that the Judicial Committee of the Privy Council actually pointed out with its analysis that the “mens rea” of section 160(1) was having “a purpose other than innocent”, the “mens rea” of section 160(2) as stipulated in the provision was “to wilfully obstruct any person”, and the “mens rea” of section 160(3) should be “with intent to cause any person reasonably to be concerned for his safety or well-being”. Each “loitering offence” has a different “character” which comes with the corresponding “mens rea”. 29.Sham Chuen[28] did not touch upon the issue of whether proof of mens rea was necessary in terms of section 160(3). 30.Citing the authorities such as Hin Lin Yee v HKSAR[29] and Kulemesin v HKSAR[30], Mr Tien submitted that according to the established principle of statutory interpretation, the legislative intent would not have been to create an offence of absolute liability. In statutory interpretation, it is essential to take account of the presumption that in terms of each and every element of the offence which is not related to the offender’s state of mind[31], the prosecution is obliged to prove the mental state[32]. 31.In Kulemesin[33], the Court of Final Appeal examined a series of cases and set out five possible alternative regimes in relation to the mens rea of statutory offences[34], namely:
32.Mr Tien submitted that the offence of “loitering which causes any person concern” under section 160(3) falls within the first alternative set out in Kulemesin, ie the presumption of mens rea persists and the prosecution must prove mens rea as to every element of the offence. Therefore, the prosecution must prove the defendant’s intention or recklessness in causing another person reasonably to be concerned for his safety or well-being. As to the remaining four alternatives, they do not apply in this case. 33.In HKSAR v Leung Chung Hang Sixtus[35], the Court of Final Appeal reiterated that whether proof of mental state is required as an element in any given statutory offence is a matter of statutory construction. [36] It is only when the provision which creates the offence is silent, ambiguous or equivocal as to the state of mind required[37] would the aforesaid presumption[38] be adopted to supplement the text of the statutory language.[39] However, a statute may, on its proper construction, displace the presumption of mens rea expressly or by necessary implication.[40] 34.The first question of construction arising is whether the presumption of mens rea is to be maintained or displaced. If it is determined to be so displaced, the next thing to be considered is, what is the requisite mental requirement to be established and how. The construction shall have regard to the following: the nature and subject-matter of the offence, its seriousness in terms of penalty, social obloquy, the need to ensure protection of the public, the practicalities of prosecution and conviction, and whether the defendant was the one having sole access to the relevant information, and so on. 35.Section 160 created three different scenarios in which the offence of loitering is committed, and each scenario alone can constitute the offence of loitering. 36.As far as the offences created under section 160(1) and 160(2) are concerned, it is expressly stipulated in the provisions that proof of mens rea is required. Offences under subsection (1) require proof of intent to commit an arrestable offence while offences under subsection (2) require proof of wilful obstruction. 37.As to the offence under subsection (3), that is the present one, the only condition set out on the loitering was one “which caused any person reasonably to be concerned for his safety or well-being”, which is about the consequences of the conduct, and it is not expressly stipulated in the provisions that proof of the offender’s state of mind is necessary. 38.In the circumstances, the first thing I have to decide is whether the presumption of there being a mental element to prove is valid or should be displaced. 39.Mr Wayne Lee, Public Prosecutor representing the respondent, emphasized that when offences under subsections (1) and (2) specifically require proof of mens rea but those derived from subsection (3) do not have such an express requirement, it is a clear indication that it was the legislature’s deliberate choice to have the provision drafted that way. It also shows that it was the legislative intent that for offences under subsection (3), it is not necessary to prove any mental element. 40.I am of the view that the above submission makes sense. It is true that the three kinds of offences were targeted at different conduct and circumstances. Had it been the legislature’s intent that proof of mens rea is an indispensable element of offences created under subsection (3), it would have been really easy to make it clear at the time the provision was drafted. 41.However, in cases such as Sweet v Parsley[41], it was expressly stated that we should not conclude, on that basis alone, that the legislative intent was to dispense with the need to prove mens rea. 42.I have also noticed the fact that at the time the provision was drafted, not only were any expressions on mens rea deliberately avoided, but the phrase “reasonably to be concerned” was also chosen as a criterion to gauge the situation which causes concern. This also shows that the legislative intent was to prove only that the loitering had caused the person concern for his own safety and well-being and that the concern was reasonable, without any need to prove anything on mens rea such as intention, wilfulness, or even recklessness. 43.Besides, I also agree with Mr Lee’s submission that if the prosecution is to prove mens rea as Mr Tien suggested, it would pose an obstacle to the object of creating the offence. 44.According to section 19 of the Interpretation and General Clauses Ordinance[42]:
45.At the Second Reading of the Bill in 1979, the Attorney General stated that crime prevention was a major purpose of creating the offence of loitering. [43] 46.When addressing the court, Mr Tien contended that if proof of mens rea is not required, innocent people are likely to fall foul of the law unwittingly. In so doing, he cited the following as an example: a person loitering somewhere, thinking there was nobody around, may unexpectedly find that someone was there, and if his loitering causes concern to that person, he would be deemed to have contravened subsection 160 (3). In my view, his submission has neglected the provision’s requirement that the concern has to be a reasonable one which entails both subjective and objective tests. Innocent loitering in the circumstances as suggested by Mr Tien is presumably not culpable. 47.With the maximum sentence of two years’ imprisonment, the penalty carried by the subject offence cannot be said to be not severe. I have considered whether dispensing with the requirement to prove mens rea would give rise to the impropriety of imposing absolute liability as pointed out by the Court of Final Appeal in Hin Lin Yee[44]. In that case, it was pointed out by the Court of Final Appeal that to convict a person regardless of the mental state accompanying his conduct even if he can show that he acted in a reasonable, diligent and socially unblameworthy manner, especially if it is a serious offence carrying substantial penalties, is probably contrary to the fundamental values of the common law. [45] 48.The aforesaid are important considerations. However, in Leung Chung Hang Sixtus[46], the Court of Final Appeal said that the court has to take into account other factors including the statutory objectives and the nature of the subject-matter of the offence.[47] The act of the offender in this case was sufficient to cause people reasonably to be concerned, and I reckon that it is the consequences of the act that matters, not whether the person acting that way did it with intent or whether he knew what possible consequences his act might cause. Moreover, any person committing the act which constituted the present offence can hardly be described as the kind of person whose conviction would go against the basic values of common law[48], the reason being that when he committed the act which was sufficient to cause another person reasonable concern, a consequence that is socially unacceptable, he did not do it unwittingly. 49.I have also taken into account other offences in which the consequences of the defendant’s act were considered an element of the offence. It was held that the prosecution only needs to prove causation, but not the mens rea in relation to the consequences. These are some examples:
50.However, even if the prosecution is not required to prove the mens rea[51] suggested by Mr Tien, the situation would still be different from that of many other offences such as those related to industrial accidents where it is absolutely unnecessary to prove any mens rea. In the present case, the prosecution is required to prove that the defendant did the act deliberately (the loitering act which caused any person to be reasonably concerned for his own safety or well-being). 51.Based on the above reasons, I found that in the present case, the prosecution is not required to prove that the defendant intended to cause any person the concern as stipulated in the provision, or that he caused any person concern with mens rea. What the prosecution has to prove is simply that the defendant was loitering deliberately which caused another person reasonably to be concerned for his own safety or well-being. 52.Regarding the question of whether mens rea is an element of the subject offence, Mr Lee submitted that it has nothing to do with the decision in the present appeal, the reason being that in any event, the magistrate’s finding was that the appellant was acting in a joint enterprise with those people who actually created disturbances, and any person committing an offence under the doctrine of joint criminal enterprise does have the mens rea necessary for conducting criminal activities in a joint enterprise. 53.I agree with his submission that the magistrate’s finding clearly showed that he was sure about the appellant’s mens rea which was necessary for conducting criminal activities in a joint enterprise. Therefore, the above discussion is immaterial to the present case. 54.Ground of appeal (5) does not stand. Ground of Appeal (4) 55.This ground of appeal is directed at the precise meaning of well-being in the provision and whether the prosecution managed to prove that the particular loitering had caused any person reasonably to be concerned for his own safety or well-being. As it is about the elements of the offence, I shall likewise give priority to this ground of appeal. 56.In the present case, the appellant was charged under section 160(3) of the Crimes Ordinance. The relevant provision is as quoted in paragraph 18 above. 57.Mr Tien submitted that the magistrate erred in following the decision in Ng Chun Yip[52] by holding that the meaning of “well-being” was the equivalence of a happy and contented state[53]. The error stemmed from the adoption of the definition of an English civil case Inland Revenue Commissioners v Baddeley[54] and its application to a criminal case, and the consequence that entails is that any person who lingers in a public place would be held criminally liable if he causes anyone to be reasonably concerned for his own happiness or contentment. Mr Tien criticized the definition as being too broad. 58.Mr Tien also put forward arguments on constitutionality:
59.Mr Tien also pointed out that the decision in Ng Chun Yip[55] was made before the Hong Kong Bill of Rights and the Basic Law came into effect, and therefore did not take account of the protection of personal freedom afforded by the Hong Kong Bill of Rights and the Basic Law. 60.At the trial, counsel for the defence had also raised similar submissions, but the magistrate’s view was that as Ng Chun Yip was a decision of an upper court, he must follow it[56]; and, by looking at the contents of the statement of findings as a whole, it is discernible that the magistrate did express his agreement with the decision in Ng Chun Yip[57]. 61.Mr Lee pointed out that in 1992, on the recommendation of the Hong Kong Law Reform Commission[58], section 160(1) of the Crimes Ordinance was amended to its current version[59], and it was specified in the Bill that the purpose of the amendment was for the provision to conform to the requirement of the Bill of Rights. It is evident that at that time, the offence in the present case, ie section 160(3) of the Crimes Ordinance, was considered not in violation of the Bill of Rights. He also cited HKSAR v Pearce Matt James[60] in support of his argument. 62.Mr Lee also pointed out that since the coming into effect of the Bill of Rights, the courts have been adopting the definitions[61] used in Ng Chun Yip in relation to the elements of the offence of “loitering causing any person concern”. Nevertheless, he was fair in accepting that in those cases, the focus was mainly on the definition of the word “loitering”, without dealing specially with the definition of the word “well-being”. 63.Mr Lee further submitted that, in any event, judging from the facts of the present case, under the doctrine of joint criminal enterprise, the creation of disturbances and shouting about of the appellant and the other people acting in a joint enterprise must have caused PW3 reasonably to be concerned for her well-being, both psychological and material well-being. The magistrate also held that PW3 was worried about the safety of her employees and that of her customers, and he had correctly analysed the issue both subjectively and objectively. He did not err in doing so. 64.The term “利益” as seen in the English text of the Ordinance is “well-being”, the ordinary meaning of which does comprise a state of happiness, contentment and safety. In my view, the tribunal of facts, when considering the evidence as a whole, ought to take on the ordinary meaning of the term in both languages in order to decide:
65.The relevant provisions were put in place to deal with outlaws somewhere taking on conducts that were threatening, and such conducts may not necessarily be active in nature[62]. It was for this lawful and reasonable purpose that the subject offence was set up, and it also served the function of crime prevention[63]. For the purpose of fulfilling the aforesaid three conditions, I find it hard to accept that the requirements of the provision were not made specific or certain enough, but at the same time, I do not find that those requirements had gone beyond what was necessary for achieving the purpose either. For that reason, I do not agree that the provision is in violation of the principle of proportionality. Based on the above reasons, I find that the offence brought under section 160(3) does not violate the rights conferred by the Basic Law and the Bill of Rights, and therefore is not unconstitutional. 66.With reference to the findings of fact, I am of the view that the magistrate’s finding that the act in question had caused PW3 to be reasonably concerned for her own safety or well-being was well justified[64] and supported by ample evidence. 67.Ground of Appeal (4) also failed. Ground of Appeal (1) 68.Mr Tien commented that while the magistrate convicted the appellant under the doctrine of “joint criminal enterprise”, such doctrine was not raised by the prosecution as their case, or at least the prosecution did not make it clear that it was the doctrine of “joint criminal enterprise” that they relied upon in their allegation. Likewise, the magistrate never mentioned during the trial that he was going to consider the doctrine of “joint criminal enterprise”. The result was that the appellant did not put forward any evidence or submission in that regard, which rendered the trial unfair to the appellant. HKSAR v Maeda Hisato[65] was cited in support of his argument. 69.Mr Tien contended that although it was mentioned in the particulars of offence that the appellant was loitering in the restaurant, that his “presence there with other unknown persons caused PW3 reasonably to be concerned for her own safety or well-being”, such particulars of offence cannot be viewed as proof of the prosecution’s reliance on joint criminal enterprise. As the prosecution did not make any opening submission, the prosecution case was based on the contents of the summary of facts[66]. However, the summary of facts prepared by the prosecution did not contain any details about joint criminal enterprise. It only mentioned that “the protesters answered the call on the internet and held a demonstration at [the shopping mall]” and that “it was captured on the CCTV that when two female protesters were messing up the tableware and seasoning containers, [the appellant] was in the restaurant”. These statements do not provide any basis or particulars for an allegation of joint criminal enterprise, such as common purpose, the terms of the agreement and the crime the participants agreed to commit. 70.He also pointed out that during the entire process of the trial, the prosecution never made it clear that the prosecution case was based on the doctrine of joint criminal enterprise, and therefore the appellant did not consider putting forward any evidence in that regard. When it came to the stage of final submission, the magistrate did not invite the prosecution or the defence to make submission on the doctrine of joint criminal enterprise. Nevertheless, it was on the basis of joint criminal enterprise that he found the appellant equally criminally liable for the disturbances caused by the other persons, which rendered the trial of the appellant unfair. 71.Below are the salient points of Mr Lee’s submission:
72.It is to be noted that the particulars of the offence had been amended, and the allegation put forward before the magistrate was about what happened inside the restaurant[69], targeting at acts done inside the restaurant, which basically included that:
73.It was not alleged that the appellant had done any of the above. The basis of prosecution was obviously that the appellant and those people were considered to have committed the same offence based on the doctrine of joint criminal enterprise. 74.I do not agree with the rule as set down by the Court of Appeal in Maeda Hisato[70] which was cited by Mr Tien: The prosecution must state clearly during the opening submission that their allegation against the accused was based on joint criminal enterprise. McWalters JA[71] made it explicit in the judgment that such a need came about only as a result of the specific circumstances of that case[72]. In many cases, even if the prosecution does not expressly set it out, it would become obvious from the material disclosed by the prosecution, including the charge sheet, the summary of facts and witness statements that the prosecution is relying on the doctrine of joint criminal enterprise as the basis of prosecution, and there is no need to mention it separately. 75.In this case, I find it remarkably obvious that the prosecution of the appellant was based on the doctrine of joint criminal enterprise. Having carefully considered the closing submissions of the parties at trial, my view is that any contention that the defence counsel at trial did not notice it would mean that his submission on this point at closing was neglected. As defence counsel at trial had made the submission in that regard, it would not be justified to say that the defence was deprived of the chance to adduce evidence in defence for not grasping the prosecution’s basis of accusation. 76.In respect of this ground of appeal, Mr Tien made further submission that the magistrate did not distinguish between Basic Joint Criminal Enterprise[73] and Extended Joint Criminal Enterprise[74], that the matter was misconceived and as a result, the conclusion made was incorrect. Moreover, the defence was not given sufficient opportunity to respond. 77.Mr Tien’s submission was directed at the magistrate’s use of the expression that “the disturbance created by the two teenage girls was really something foreseeable as part of the common purpose of creating trouble for the restaurant”[75]. In particular, he took issue with the term “foreseeable” as it showed that the magistrate considered the matter on the doctrine of extended joint criminal enterprise. 78.The magistrate failed to state clearly which kind of joint criminal enterprise he relied on when he considered the matter, or he considered both. 79.The Court of Final Appeal, in cases such as Sze Kwan Lung v HKSAR[76], HKSAR v Chan Kam Shing[77] and HKSAR v Leung Tin Kei[78], had elaborated on the doctrine of joint criminal enterprise.[79] 80.Basic joint enterprise, put briefly, involves the defendant and others agreeing to carry out a crime and then executing the planned crime according to the agreement.[80] 81.Where a criminal offence is committed by two or more people, each of them may play a different part. Nevertheless, provided they are acting together as part of a joint plan or agreement to commit the offence, they are all guilty. 82.The words “plan” or “agreement” do not mean that there has to be any formal plan or agreement between them. An agreement to jointly commit an offence may arise on the spur of a moment. Nothing needs to be said at all. The agreement can be made with a nod or other kinds of indication, or even a facial expression to reach an understanding. It can also be inferred from the behaviour of parties. The essence is that the accused all shared a common intention to commit the offence and played his part in it, however great or small, so as to achieve that aim. 83.The extended version of joint enterprise usually addresses the situation where certain people have agreed on jointly committing a certain crime, and in the course of carrying out the agreed plan, one of them (A) commits a more serious offence. Whether the other people in the agreement shall be criminally liable for the more serious offence committed by A depends on whether A’s conduct was foreseeable by them in the execution of their agreement. [81] 84.Judging from the statement of findings’ formulation as a whole, I am of the view that the magistrate had considered and made his final decision as to whether the appellant committed the present offence under the doctrine of basic joint enterprise. In my view, when the magistrate used the word “foreseeable”, he was merely talking about one of the factors he took into account in analysing whether there was an agreement between the appellant and the other people involved. It was the magistrate’s finding of fact that the common purpose between the appellant and that group of people was to cause a disturbance in the restaurant[82]. There are various kinds of disturbances. What the magistrate meant to say with that expression was that the actual disturbance caused was not something unexpected to the appellant and had not gone beyond the parties’ common purpose. What actually happened in the present case was not that the conduct of the girls constituted another offence or a more serious offence. What they did was simply a manner or extent of disturbance caused within the scope of the common purpose of disturbing the restaurant which was not beyond the appellant’s expectation. 85.Even if the magistrate did consider the matter under the doctrine of extended joint enterprise (which I believe is not the case), when joint criminal enterprise was obviously the basis of prosecution and defence counsel at trial had raised the relevant arguments in his closing submission, my view is that the magistrate did not handle it improperly and there was nothing undue or unfair in terms of procedures. 86.Ground of Appeal (1) cannot stand. Ground of Appeal (2) 87.Mr Tien contended that the magistrate erred in finding that the appellant’s presence there supported and incited others to cause disturbances and that a tacit understanding and a common purpose existed between the appellant and the youngsters causing disturbances in the restaurant, which was “a plan to jointly commit a crime”. That is erroneous because it is not the only reasonable inference to draw from the evidence. 88.Mr Tien pointed out that both the CCTV footage and the Apple Daily video clip did show that the appellant entered and left the restaurant at a time close to that of the other people and that he sat down at a table inside the restaurant for approximately one minute. However, during the entire incident, the appellant and his accompanying female friend(s) had never had any communication or conversation with the youngsters who created disturbances. 89.Besides, Mr Tien also pointed out that from Apple Daily’s video clip, one can see that those youngsters only started to cause a disturbance after they had sat down for 38 seconds (37:53-38:31), and the appellant was already sitting behind the thick pillar, ie at the table in front of the cashier counter before the youngsters began to cause a disturbance. With the pillar in between, his table was separated from the table of the disturbance-causing youngsters. The appellant apparently did not and could not talk or communicate with those youngsters who caused a disturbance. He was not even able to see the tabletop that the youngsters were messing up. 90.Mr Tien further submitted that PW3 admitted in her testimony that except for one table of youngsters, all the other people who entered the restaurant did not cause any disturbance. Obviously, it was beyond the appellant’s ability to foresee that the table of youngsters were going to cause a disturbance, not to mention him deliberately taking part in it or having a plan to jointly commit the crime of causing a disturbance with them. 91.On the other hand, Mr Lee submitted that the evidence accepted by the magistrate, including the following, is sufficient to prove that the appellant and the other protesters at the scene of crime (counting the protesters who messed up the tableware and seasonings) did share a common purpose in loitering together:
92.I have watched the video clips. There were people gathering outside the restaurant, chanting slogans. The undisputed facts are that the appellant was among the crowd in which many, including the appellant, were wearing masks. Certain people among the crowd entered the restaurant, and then the appellant also went in. The appellant did not get in the restaurant through the same entrance used by the girls who caused substantive disturbances. The girls went in by the entrance called the near door while the appellant used the entrance called the far door. After the appellant went inside, he could no longer be seen in the video clip. It was not known exactly where he was and what he had done. PW3 in her testimony said that the person who went in by the far door got a table, sat down and checked the menu, appearing calm. 93.In addition to the findings of fact as set out in paragraph 15 above, the magistrate also made the following observations[83]:
94.The magistrate made the following conclusion[84]:
95.I take the view that the conclusion made by the magistrate is well-reasoned and supported by ample evidence. I agree that the appellant’s presence there supported and incited the other people to cause a disturbance and it was his intention to do so, and that there was a tacit understanding and a common purpose between him and the people who caused a disturbance in the subject restaurant, which constituted a joint criminal enterprise. 96.Therefore, Ground of Appeal (2) also failed. Ground of Appeal (3) 97.According to Ng Chun Yip[87], as far as the present offence is concerned, loitering means “idling, lingering or hanging about”[88]. In Tong Yiu Wah v HKSAR[89] , the Court of Final Appeal agreed with that view. 98.Mr Tien submitted that the magistrate erred in finding that the appellant’s act amounted to idling, lingering or hanging about, for that conclusion was not the only reasonable inference to draw from the evidence. Therefore, the magistrate also erred in finding that the appellant’s act was sufficient to constitute “loitering”. 99.Mr Tien submitted that the magistrate neglected the following part of PW3’s evidence with which he was satisfied: Those who came in by the far door also sat down at a table and looked at the menu. She was at the cashier counter but she did talk with the persons occupying one of the tables. 100.Mr Tien contended that although the appellant did not patronize in the end and left the restaurant within two minutes after he went in, sat down and finished reading the menu, he could have done so for a legitimate reason. Perhaps the price did not suit him or the appellant simply wanted to confirm whether borsch, the soup which others kept shouting for, was not available there. In the circumstances, “idling, lingering or hanging about” was not the only reasonable inference to draw from the evidence. 101.On the other hand, Mr Lee for the prosecution stressed that the appellant had stayed in the restaurant for one minute and 42 seconds while he was occupying a table without patronizing. During the time of his stay there, some people who had been gathering with him caused a disturbance in the restaurant. At least within that time, the appellant’s act could be categorized as loitering. 102.As to whether the appellant could have stayed in the restaurant for some innocent reason, the argument was untenable in the circumstances when the appellant did not testify at trial. In HKSAR v Tai Chi Wai and another[90] cited by Mr Lee, the Court of Appeal pointed out that:
103.In the present case, since the appellant did not testify, there was no evidence from the appellant himself as to why he entered the restaurant, what was in his mind at the material time and the purpose of him doing so. The duty of the magistrate was to make his findings on the basis of the totality of the evidence adduced. The magistrate’s findings were that the appellant was loitering, that he and the other people had a tacit understanding and a common purpose, and that his presence at the scene was for supporting and encouraging others to cause a disturbance. I agree that this was the only reasonable inference to draw from the evidence as a whole, and his findings were not contrary to or contradicted by any of the evidence in the case. 104.Ground of Appeal (3) cannot stand. Ruling on the appeal against conviction 105.For the above reasons, the appellant’s grounds of appeal all failed. I am of the view that the magistrate did not err in the process of handling and analysing the case. Having scrutinized the evidence at trial, I find the magistrate’s findings of fact justified. I rule that the conviction was safe and satisfactory and supported by ample evidence. Therefore, the appeal against conviction is dismissed and the conviction is affirmed. Appeal against sentence 106.The magistrate said that in sentencing, he took into account mainly the following:
107.The magistrate took 10 months as the starting point for sentence and gave the appellant a discretionary reduction of one month as he admitted part of the evidence and elected not to give evidence, thereby saving the court’s time. 108.Mr Tien submitted the following grounds of appeal against sentence for the appellant:
109.Mr Tien contended that as no sentencing guidelines had been laid down for the present offence, sentencing depended very much on the facts of each individual case. The loitering in the present case was relatively trivial in nature. The restaurant in question did not suffer any substantial damage to property. The time of the disturbance was short. Not all of the customers left in apprehension. Only part of the business was affected, and the appellant did not cause any disturbance. In the circumstances, an immediate custodial sentence of nine months is manifestly excessive. As the facts of the present case are similar to those of Ng Chun Yip[99], the Court should consider imposing a fine, a community service order or a suspended sentence. 110.Mr Tien also pointed out the following which he said the magistrate did not handle properly:
111.Mr Tien also cited the authorities below in support of his argument that it was too heavy a sentence:
112.On the other hand, Mr Lee endorsed the magistrate’s reasoning in adopting a deterrent sentence. He submitted that the appellant and his accomplices premeditated the commission of the offence. They took advantage of their numerical strength in maliciously causing a disturbance to the restaurant and committed the illegal acts in a wanton manner. The court is obliged to convey a deterrent message in order to safeguard Hong Kong’s business environment. 113.He also cited Secretary for Justice v Wong Chi Fung and two others[114] to support his argument. That case, as he submitted, involves the offence of unlawful assembly which is different from the present offence, and no violence was involved in the present case. However, the observations of the Court of Appeal in that case equally apply. He contended that the conduct of the appellant and his accomplices in the present case amounted to collective violation of public order and breach of peace. Since the restaurant was open for business when the incident took place, quite a number of customers were inside, including elderly people. A lot of people were then surrounding the restaurant and some participants kept shouting about. Having entered the restaurant, some protesters deliberately tipped the seasonings and tableware over the table and made provocative comments. What they did might also bring about confrontations or stir up the emotions of the people there who might commit other offences as a result. The behaviour of the appellant and that of the other people caused not only apprehension in the restaurant owner and the customers there, but also a financial loss to the restaurant owner. The facts cannot be described as trivial. When the appellant was convicted on the basis of joint criminal enterprise, he was just as culpable as all other participants. Moreover, given the social environment at the time when there were increasing incidents of unrest and a rising number of large-scale public protests, a deterrent sentence not only lowered the risk of the appellant re-offending, but it also served the purpose of a preventive measure as well as a warning to others not to follow suit.[115] 114.Mr Lee submitted that under the circumstances, considering the number of the people present and the behaviour of the participants, the sentence imposed by the magistrate may seem a bit too severe, but it was within his discretion and not manifestly excessive. Whether the magistrate handled some of the matters correctly is open to discussion, but the crucial thing is whether the sentence passed on the appellant was appropriate and suitable. Given the facts of the present case, neither a community service order nor a probation order would be sufficient to reflect its seriousness. 115.I will first deal with the criticisms raised by Mr Tien in para 107 above, in particular about the magistrate’s comment that:
116.These may well be no more than some imperfect comments made by the magistrate, but they do bring about misgivings that they were misconceived. 117.A defendant’s denial of a charge is certainly an important factor to be considered in sentencing, but the main concern was really that it shows his lack of remorse. Even when it is a plea of guilty, as long as it is not a timely plea, the percentage of sentence reduction will likewise be affected. [118] Nevertheless, if the need to proceed to trial is taken as an aggravating factor, it would be a violation of the defendant’s right and an infringement of the presumption of innocence. 118.It is certainly improper for a sentencing judge to “pamper” a defendant who has been found guilty, but generally speaking, the court in sentencing will take into account the overall circumstances of the case as well as the personal circumstances of the offender and strike a proper balance with reference to the following four sentencing principles: retribution, deterrence, prevention and rehabilitation.[119] 119.As for Mr Tien’s criticisms set out in paragraph 107(3) above, I take the view that the magistrate was only saying that the appellant committed the offence under the doctrine of joint criminal enterprise, which does not render the sentence unsafe or have any bearing on the key factors in sentencing. The magistrate’s finding was that the harm done to the restaurant’s business by the relevant conduct was not limited to the day in question. I agree with that finding and I also concur that the relevant conduct is going to damage the overall reputation of Hong Kong. 120.It was not an offence committed by triads, but no doubt it involved a large number of people acting together, which the court must take into account. 121.The magistrate did mention that the maximum sentence of two years’ imprisonment for the present offence was heavier than that of the other two loitering offences which was one of six months’ imprisonment. That is what the Ordinance requires. However, the difference has been there for decades, and it is not the result of any recent amendment that would raise the maximum sentence for the present offence. In any event, it is quite unnecessary for the magistrate to think that he was bound to impose a prison sentence of more than 6 months[120]. The duty of the court is to take account of the overall circumstances of the case as well as the personal circumstances of the defendant with reference to the relevant sentencing principles and case authorities to see what the most appropriate sentence to pass is. 122.My duty is to decide whether the sentence imposed by the magistrate is in defiance of the sentencing principles or manifestly excessive. 123.I have referred to the cases cited by Mr Tien, but every case is unique in terms of background and facts, and there are different considerations in sentencing in light of the circumstances of individual cases and personal circumstances of the defendants. Therefore, it does not serve any real purpose to simply compare the gravity of the sentences. 124.In the present case, the magistrate attached a lot of weight to deterrence in sentencing. I agree that the way he approached the matter is consistent with what the authorities said. However, it is still necessary to make adjustments according to the nature and facts of the present case. 125.Having considered the overall circumstances, I took the view that neither a community service order nor a probation order is sufficient to reflect the gravity of this case. Moreover, as the appellant pleaded not guilty and appealed against conviction, I am not convinced that he has satisfied the condition of full remorse which is necessary for a sentence of community service order.[121] 126.I concur with the magistrate’s view that an immediate custodial sentence is the only sentence that is appropriate. 127.Mr Tien in his submission stressed that in view of the appellant’s personal behaviour, his case should be relatively less serious than that of some other offenders there in terms of culpability. 128.This is a case of joint criminal enterprise[122]. In HKSAR v Thapa Ramkishna[123], having reviewed AG v Tam Ka Lok[124], the Court of Appeal had this to say:
129.The same view was taken by the Court of Appeal in quite a number of cases, including SJ v TSO Tsz kin[126], HKSAR v Lai Kam Tong[127] and AG v Sin Wai Lun[128]. 130.Although the substantive acts of disturbance were only those referred to in para 15 above, in assessing the gravity of the case, the court must take into account the social environment at the time as well as the nature of the case, instead of focusing only on the disturbances that actually happened. The instant case took place on 26 December 2019 when social events were rife and acts of violence were common. During the incident, there were many people acting together. Although they did not stay long in the restaurant, they were all wearing face masks and had been causing disturbances for quite some time, which was bound to cause PW3 to be reasonably apprehensive, and the overall circumstances were very much worrying. The incident came to an end when the police arrived, which must have brought relief to PW3. However, her worries came not only from what had actually happened, but also from not knowing whether something more serious would occur. As far as the present case is concerned, given the social environment at that time, such worries about the unknown are something which the court must take into consideration. In fact, other than gauging the severity of the things that had actually happened, the court must also take notice of the consequences of the matter. As I have mentioned earlier, the consequences are not confined to the day in question. 131.Taking into account the overall circumstances of the matter, the nature and facts of the case, the appellant’s personal background and the fact that there were doubts about the way the magistrate handled the matter, I take the view that there is room for sentence reduction. Having carefully considered the matter, I am allowing the appellant’s appeal against sentence and the sentence is reduced to one of 6 months’ imprisonment.
Mr Wayne Lee, Public Prosecutor of the Department of Justice, for the Respondent. Mr Tien Kei Rui, instructed by Ho Tse Wai & Partners, for the Appellant. Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor. * The original date of judgment set down for 7 March 2022 was deferred due to the severity of the pandemic. [1] Contrary to s.160(3) of the Crimes Ordinance, Cap. 200. [2] Contrary to s.36(b) of the Offences against the Person Ordinance, Cap. 212. [3] Mr Chan Ping Chau, Kenneth. [4] Charge Sheet, Appeal Bundle, pp 3-9. [5] For his testimony, see the Statement of Findings, paras 20-28, Appeal Bundle, pp 22-26. [6] For her evidence, see the Statement of Findings, paras 31-40, Appeal Bundle, pp 26-29. [7] Exhibit P7. [8] Exhibit P8. [9] Statement of Findings, para 5, Appeal Bundle, p 18. [10] Transcript of the trial proceedings, Appeal Bundle, p 95S – p 105Q. [11] Statement of Findings, para 63, Appeal Bundle, p 37. [12] Statement of Findings, paras 65 and 66, Appeal Bundle, pp 38-46. [13] Statement of Findings, paras 68 and 101-109. [14] At the trial, the appellant was also represented by Mr Duncan D.H. Ho. [15] [1985] HKLR 427. [16] Cap. 200, Laws of Hong Kong. [17] See footnote 16. [18] See item 6 of the respondent’s list of authorities dated 19 March 2021. [19] Formulated in 1979. [20] See p 44 of the report. [21] See legislative materials, item 7 of the respondent’s list of authorities dated 19 March 2021. [22] There were subsequent minor amendments to s.160(3); for the current provision, see para 18 above. [23] [1986] AC 887. [24] See paras 22 and 23 above. [25] See footnote 23. [26] Both offences involve someone being affected. Subsection (2) is about loitering which causes obstruction to others while subsection (3) is about loitering which causes any person reasonably to be concerned for his safety or well-being. [27] The Judicial Committee of the Privy Council set out their reasons as follows: It would be unreasonable to construe the sub-section to the effect that there might be subjected to questioning persons loitering for plainly inoffensive purposes, such as a tourist admiring the surrounding architecture. Therefore, it was the Privy Council’s view that what these people do is insufficient to constitute “loitering”. The putting of questions is intrusive, and the legislation cannot be taken to have contemplated that this would be done in the absence of some circumstances which make it appropriate in the interests of public order. [28] See footnote 23. [29] [2010] 2 HKLRD 826. [30] (2013) 16 HKCFAR 195. [31] Ie “actus reus”. [32] Ie “mens rea”. [33] See footnote 30 [34] The judgment was written in English. The Chinese version of the headnote in the law report was adopted. [35] (2021) 24 HKCFAR 164, FACC 2/2021. [36] See judgment, para 9. [37] The original text reads “silent or ambiguous as to the state of mind required”. [38] See para 31(1) above. [39] See judgment, para 10. [40] The original text reads “displace the presumption expressly or by necessary implication”. [41] [1970] AC 132. [42] Cap. 1, Laws of Hong Kong. [43] See the Second Reading materials of Crimes (Amendment) (No. 2) Bill 1979, item 4 of the respondent’s supplemental list of authorities dated 4 February 2022. [44] See footnote 29. [45] See judgment, para 105. [46] See footnote 35. [47] See judgment, paras 36 and 37. [48] See para 47 above. [49] [1992] 1 AC 699. [50] [2020] 1 WLR 2320. [51] See para 19(6) above. [52] See footnote 15. [53] The judgment in Ng Chun Yip was written in English. The original text reads “a happy and contended state”, see para 8 of judgment. [54] [1955] 1 All ER 525. Baddeley is a civil case in which the court construed the term “well-being” as it appeared in a land transaction document where it was specified that the land could only be used for the residents’ “well-being”. It was held that the term was equivalent to a “happy and contented state” of the residents, and therefore failed to meet the requirements of a charitable trust. [55] See footnote 15. [56] See Statement of Findings, para 98. [57] See Statement of Findings, paras 94-97. [58] See paras 22-24 above. [59] See Crimes (Amendment) (No. 2) Bill, para 10. [60] HCMA 635/2006, paras 22-25 of judgment. [61] For instances, HKSAR v Wong Chun Yam [2018] 4 HKLRD 840; Tong Yiu Wah v HKSAR FACC 7/2006. [62] In the legislative materials, the expression used by the Secretary for Justice was “may be passive”. [63] See footnote 43. [64] See para 15 above. [65] [2017] 3 HKLRD 605. [66] Brief Facts. [67] See Appeal Bundle p.104 J-U. [68] (2011) 14 HKCFAR 453. The respondent cited para 46 of the judgment: “…I am satisfied that in appropriate cases, the judge does have the power to consider the case or direct the jury on the case on a basis different from that presented by the prosecution, provided that this is open on the indictment and the evidence and the parties are given an opportunity to address the judge before he takes that course…”. [69] See the amended charge, Appeal Bundle, p.6. [70] See footnote 65. [71] McWalters JA. [72] See judgment, para 74. [73] Ie “Basic Joint Criminal Enterprise”. [74] Ie “Extended Joint Criminal Enterprise”. [75] See Statement of Findings, para 79, Appeal Bundle, p. 51. [76] (2004) 7 HKCFAR 475. [77] (2016) 19 HKCFAR 640. [78] FACC 6/2021. [79] See the judgment in Leung Tin Kei, para 52. [80] See the judgment in Leung Tin Kei, para 52. [81] See Judgment in Leung Tin Kei, para 53. [82] See para 15(4) above. [83] Statement of Findings, para 75. [84] See Statement of Findings, paras 76, 77 and 84. [85] See Statement of Findings, para 76, Appeal Bundle pp 49-50. [86] See Statement of Findings para 77, Appeal Bundle p.50. [87] See footnote 15. [88] The judgment was written in English and the original text reads “idling, lingering or hanging about”. For the Chinese translation, reference was made to the Chinese headnote of Tong Yiu Wah in the law report. [89] (2007) 10 HKCFAR 324, FACC 7/2006. [90] CACC 355/2013. [91] Statement of Findings, paras 112 and 113. [92] Statement of Findings, para 114. [93] Statement of Findings, paras 118 to 122. [94] See footnote 15. [95] Statement of Findings, paras 115 to 116. [96] Statement of Findings, para 117. [97] Statement of Findings, para 126. [98] Statement of Findings, para 127. [99] See footnote 15. [100] Statement of Findings, para 117, Appeal Bundle p.61. [101] Statement of Findings, para 117, Appeal Bundle p.61. [102] Statement of Findings, para 118, Appeal Bundle p.61. [103] Statement of Findings, para 118, Appeal Bundle p.61. [104] Statement of Findings, para 121, Appeal Bundle p.62. [105] Statement of Findings, para 121, Appeal Bundle p.62. [106] Statement of Findings, para 122, Appeal Bundle p.62. [107] See footnote 15. [108] [2018] 4 HKLRD 840. [109] [2004] 1 HKLRD 641. [110] [2008] 3 HKC 544. [111] HCMA 586/2009, 9 October 2009. [112] HCMA 970/2010, 15 April 2011. [113] Footnote 60. [114] [2018] 2 HKLRD 657. [115] See 香港特別行政區訴蔡妙兒 [2020] HKCFI 2358, paras 22-24. [116] Statement of Findings, para 117. [117] Statement of Findings, para 117. [118] See HKSAR v Ngo Van Nam (吳文南) [2016] 5 HKLRD 1, CACC 418/2014. [119] Ie “retribution, deterrence, prevention and rehabilitation”, see R v Sargeant (1974) 60 Cr App R 74, at 77. [120] See Statement of Findings, para 123. [121] Secretary for Justice v Wong Chi Fung, see footnote 114. [122] Ie joint enterprise. [123] CACC 375/2003. [124] [1990] 1 HKC 201. [125] The judgment was written in English. The Chinese translation is not official. The original text of the judgment reads: “But while in that judgment it was recognised that there may be room for differentiation in that, for example, an identified ‘ring leader’ may properly receive a stiffer sentence, it was recognised that the scope for differentiation between the culpability of those who participate in a joint enterprise will invariably be limited as, in respect of each, the sentences must reflect their shared basic criminality. Unless the facts clearly demand it, it is not therefore obligatory for a sentencing judge to draw distinctions between differing degrees of participation in a joint enterprise.” [126] [2004] 2 HKC 139. [127] [2005] 1 HKC 232. [128] [1988] 1 HKLR 580. |
Cases cited in this judgment
Further hearings and rulings under HCMA 354/2020