HKSAR v. Wong Ying Yu and Others

HCMA001082/1996

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1082 OF 1996

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Coram : Hon Pang, J. in Court

Dates of Hearing : 3 and 4 September 1997

Date of Judgment : 19 September 1997

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J U D G M E N T

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1. The five Appellants were convicted of one count of Disorderly Conduct contrary to section 17B(2) of the Public Order Ordinance, Cap. 245 and were each fined $500. They now appeal against their conviction. Mr Dykes appears for the 1st to the 4th Appellants and the 5th Appellant appears in person.

Background

2. In the morning of 10 January 1996, a group of about 30 to 40 demonstrators staged a protest against the poor working conditions of labourers in the toy industry. They were first led to a pre-designated area at the north-west corner of the entrance to the Convention and Exhibition Centre..

3. The group later proceeded towards the vehicle entrance at Harbour Road and continued with their protest. Their activities included displaying banners and placards, shouting slogans, hitting drums and performing a street drama. Some of the demonstrators were blocking the driveway.

4. The security staff of the Convention and Exhibition Centre then requested the demonstrators to move over to the pavement so that they would not be blocking the traffic. They refused. The security staff then moved in and forcefully tried to remove the demonstrators who put up vigorous resistance. The police who were standing by in the vicinity throughout this time moved in to assist the security staff. The scene rapidly degenerated into a melee resulting in the arresting of a number of demonstrators, the present Appellants included.

5. It is not in dispute that the location where the demonstration was held was private premises which is part of the Convention and Exhibition Centre.

The grounds of Appeal

6. There are a total of five grounds of appeal advanced by Mr Dykes. Two of the grounds relate to questions of law and the remaining three are directed towards the learned magistrate's evaluation of the evidence. The 5th Appellant adopted the grounds of the other Appellants and he was invited to raise any grounds which he thinks was appropriate at the hearing. His address was directed at the evidence and the way the learned magistrate had approached it. I shall deal with the two grounds involving questions of law first.

Lack of particulars in the charge

7. The point taken was the lack of particulars of the conduct which was said to be disorderly in the charge. In respect of each Appellant, the summons reads:

"...you are charged that on the 10th day of January, 1996, at the driveway outside Hong Kong Convention and Exhibition Centre, Wanchai, in Hong Kong, you behaved in a disorderly manner, whereby a breach of the peace was likely to be caused."

Mr Dykes who did not appear in the court below makes two points on this ground of appeal. The first is that Rules 3 and 4 of the Indictment Rules require the person who laid the information should have identified, in the body of the summons, the conduct which was said to have amounted to disorderly conduct. Failure to do so, as is in the present case, will be highly prejudicial to the defence because the Appellants would not have known the precise case they had to meet.

8. The trial had taken this course : at the commencement, the prosecution applied for leave to amend the particulars of the summons by substituting the original words :

"... with intent to provoke a breach of the peace."

by the words now appearing on the summons which are :

"...whereby a breach of the peace was likely to be caused."

The defence did not object to the application and learned counsel for the Appellants at the trial did not ask for particulars to be supplied. There seemed to be no difficulty in meeting the case against the Appellants as the trial progressed. The point on insufficient particulars was never taken at any stage of the proceedings in the court below.

9. The second point Mr Dykes made on this ground was this : the prosecution opened the case by reading out from the document labelled the 'Brief Facts' of the case. The alleged conduct complained of, according to the document, was : "pushing and pulling the security staff." The conduct upon which the learned magistrate based his conviction was, however, not that which was described in the prosecution's opening. It was stated by the learned magistrate on page 5 of the Statement of Findings as :

"In my view the sitting down on the road, the standing in the road and the standing on the pavement blocking it was disorderly conduct. It blocked access to the entrance for pedestrians and exit for vehicles."

This, it was submitted, was quite different from what was stated in the prosecution's opening and the Defendants must have been prejudiced. The learned magistrate should not have convicted on the inconsistent evidence.

10. I do not find much attraction in the two points raised by the Appellants. On the lack of particulars, the summons had clearly stated that it was the disorderly conduct of the Appellants at the driveway of the Convention and Exhibition Centre and not anywhere else. The prosecution is not relying on a single act of a particular Appellant or on one collective act of all of them as if the act or acts are capable of depicting in a frozen-frame device in a movie. The court is entitled to look at the conduct of the Appellants over a period of time and to decide if such conduct is disorderly. At the end of the day the court may base its findings of disorderly conduct on one act or on conduct over a period of time.

11. I think a useful analogy can be drawn from a charge of careless driving under the Road Traffic Ordinance. The prosecution is never required, as a matter of practice, to state by way of particulars, the act or the manner of driving which the prosecution relies on to support the charge. After hearing all the evidence, it is always for the court to decide whether the conduct of the driver amounts to careless driving. If the prosecution is required to provide particulars, the difficulties will at once become apparent if the charge is based on conduct of the driver over a period of time. Such particulars may run into pages of alleged acts or omissions of the driver.

12. In a charge of Disorderly Conduct involving multiple Appellants as in the present case, such problems are further amplified. It would be an impossible task if the prosecution is required to give such particulars. On the other hand, if it is a case where a single act of a lone defendant is relied upon, it may be appropriate that the infringing behaviour should be specified.

13. At the trial the defence was informed that it was the collective conduct of the individuals at the driveway of the Convention and Exhibition Centre over a period of time which is the subject of the complaint. The time and location of the alleged offence had been stated in the clearest possible terms and I do not think it is open to the Appellants to argue that they were prejudiced in not knowing the case they had to meet.

14. On the point that the evidence presented at the trial was materially different from that which was contained in the 'Brief Facts' read at the commencement of the trial, I think it is settled law that the 'Brief Facts' when read, has the status of being the prosecution's opening. The contents are never considered as evidence of the trial. If the evidence presented in the course of the trial is at variance with the opening, then it is always open to counsel to explore and to cross-examine the sources of such discrepancies and to attack the credibility of the witnesses. What is stated in the document does not bind the prosecution unless it is expressly admitted by the defence under section 65C of the Criminal Procedure Ordinance. I am of the view that the first ground does not assist the Appellants in this appeal.

What constitutes breach of peace and who caused it?

15. The issue taken on this ground is this : on the evidence, the Appellants did not behave in a disorderly manner which was likely to cause a breach of the peace before the security personnel started to remove the demonstrators. Mr Dykes advanced the bold argument that the actual breach of the peace was caused not by the Appellants but by the security personnel in their forceful removal of the demonstrators from the driveway. He also contended that the learned magistrate had erroneously applied the dicta of Lord Denning M.R. in R. v. Chief Constable of Devon and Cornwall Constabulary, ex parte Central Electricity Generating Board [1982] QB 458 in deciding the type of conduct which would amount to a breach of the peace. The Master of the Rolls observed at page 417 of that case :

"There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it. He is entitled by law peacefully to go on with his work on his lawful occasions. If anyone unlawfully and physically obstructs the worker, by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace."

16. In the same case, however, the other two members of the English Court of Appeal comprising of Lawton,L.J. and Templeman, L.J. differed from the above observation.

17. In Percy v. DPP [1995] 3 All E.R. 124, the view of Lord Denning was held to be erroneous.

18. The law regarding what constitutes breach of the peace has been clearly stated by Watkins, L.J. in R. v. Howell [1982] QB 416 at page 131 :

"...We cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause harm, or which puts someone in fear of such harm being done."

It was also held in the same case that a disturbance alone, without more, cannot constitute a breach of the peace.

19. The learned magistrate had taken the appropriate course of expressly directing himself on the law in this area by referring to the cases of Howell (supra) and Parkin v. Norman [1982] BWL R 523 in his Statement of Findings. In the light of what he did, it cannot be argued that he was unfamiliar with the law applicable.

20. At page 5 of the Findings, he stated :

"In my view the sitting down on the road, the standing in the road and the standing on the pavement blocking it was disorderly conduct. It blocked access to the entrance for pedestrians and exit for vehicles. Evidence was that taxis had to be turned around and make use of the entrance roadway. The incident caused the gathering of journalists and photographers and an ever increasing member (sic) of spectators. This itself was likely to cause a breach of the peace."

Based on the underlined passage the learned magistrate was criticised for having applied the dicta of Lord Denning M.R. in the ex parte CEGB case.

21. The learned magistrate then went on to state :

"However the demonstrator went even further when they refused to leave the roadway when repeatedly requested to do so and were informed that they could be removed if they did not. A refusal would mean they would be physically removed with the inevitable consequences of such a confrontation. A breach of the peace was now likely to be caused.

Indeed this is not a mere supposition because as the security guards moved in to first of all remove the banners that were blocking the roadway a breach of the peace occurred. On the evidence before me the security guards were only using that amount of force that was necessary in the circumstances. The Breach of the Peace is graphically shown in the video's and the evidence of the police officer's and security guards."

When the passage complained of is taken in its proper context the flaw in the Appellants' argument immediately becomes apparent. Clearly this is not reliance in the dicta of Lord Denning in ex parte CEGB (supra) but a careful consideration of the evidence and the application of the law as stated in Howell by the learned magistrate. He performed a methodical analysis of the development of the events at every stage with the aid of the video recordings. He started by identifying the mere disorderly conduct of the demonstrators and then moved on to the possibility of such conduct causing a breach of the peace. He then progressed to the next stage where there was a likelihood of such conduct causing a breach of the peace and finally culminating at the point where peace was in fact breached.

22. Returning to the Appellants' point that there was no causal connection between the conduct of the Appellants and the breach of the peace, I accept that on the strength of the authorities, an act of trespass per se could not have, under the circumstances, caused the breach of the peace. But as I have indicated earlier, the trespass should not be considered in isolation. The magistrate was presented with a continuous chain of events from the time the demonstrators proceeded to the driveway until the time of the arrest. When express warnings were given to the demonstrators that they would be removed by force and they took no heed of such warnings, the security staff were entitled to use reasonable force to remove the demonstrators from the premises and this they did. I cannot subscribe to the contention by learned senior counsel that the use of reasonable force to evict trespassers could ever amount to a breach of the peace on the security personnel's part. On the contrary the demonstrators started to resist and thereby causing further obstruction of the driveway for other lawful users. A crowd soon gathered. When one looks at what is depicted in the video recording, one could hardly fail to conclude that this was conduct which was likely to cause a breach of the peace. This was the way the learned magistrate approached the evidence and I see no reason to disagree with it.

23. This is a case where the learned magistrate found as a fact that there was a breach of the peace and such breach was attributable to the conduct of the demonstrators. This finding must logically include events at the point of time immediately preceding the actual breach which must have been an integral part of the chain of events. Any finding along the lines suggested by learned senior counsel that it was the security staff who was responsible for the breach of peace would, in my view, be contrary to logic and reason.

The evidence against individual Appellants

24. The three remaining grounds of this appeal are directed at the learned magistrate's evaluation of the evidence against individual Appellant.

25. Ground 2 of the Appeal relates to the position of the 1st and 3rd Appellants. It was suggested that at the time of the scuffle these two Appellants were already on the pavement and therefore could not have behaved in a disorderly manner on the driveway as stated in the summons. The learned magistrate found that the demonstrators were requested to leave by the security staff on three occasions through loudhailers and the request was deliberately ignored. The security personnel then moved in and started removing the banners. The scuffle started and the 1st and 3rd Appellants were part of this group. One should not approach the evidence of a continuous state of affairs with blinkers or to examine every single act in isolation. On the evidence before the magistrate he was entitled to come to his conclusions regarding the 1st and 3rd Appellants as he did and I see no reason to disturb his findings.

26. Grounds 3 and 4 are directed at whether the learned magistrate was wrong in holding that by standing on the driveway and pavement and blocking them and causing journalists, photographers and spectators to gather is likely to cause a breach of the peace. I have covered this point sufficiently in the reasons given above, and for fear of repeating myself, the point of time which is material is when the demonstrators refused to leave after requests were made and not before. Whether there is a likelihood of causing a breach of the peace must be looked at in its proper perspective.

27. In the course of this appeal Mr Dykes has put forward a number of ingenious arguments but if the court were to adopt his approach in this case, one would have missed out the totality of the impact of the activities of the demonstrators at the driveway of the Convention and Exhibition Centre at the material time.

28. For the reasons given, this appeal is dismissed.

Representation:

Mr Arthur Luk, D.D.P.P. (Ag.), for Respondent

Mr Philip John Dykes, S.C. inst'd by D.L.A., for 1st to 4th Appellants

5th Appellant, Leung Kwok-hing, in person