HKSAR v. Sit Kwok Fun

HCMA001112/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1112 OF 1997

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Coram: The Hon. Madam Justice Beeson in Court

Date of Hearing: 18 February 1998

Date of Delivery of Judgment: 31 March 1998

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J U D G M E N T

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1. The Appellant was charged in a Magistracy with one count of disorderly conduct in a public place and a second of assaulting a police officer. He was acquitted of the charge of assaulting a police officer and convicted on the first charge. The Appellant now appeals against his conviction in respect of the charge of disorderly conduct.

2. The charges arose from an incident when Appellant endeavoured to hire a taxi at Lockhart Road near Tonnochy Road. The Appellant opened the door at the left side of the taxi to board the vehicle. The taxi-driver, who had already put up the out-of-service sign because he wanted to have a meal, refused to take the hire. An argument ensued during which the Appellant broke a beer bottle he was carrying. Later, he entered the taxi and sat on the rear seat refusing to leave, so the taxi-driver radioed for assistance. Police officers arrived at the scene 3 or 4 minutes later; at that stage Appellant was in the rear seat of the taxi with both feet up against the back of the front seat. When the police officers arrived the Appellant swore them. Because traffic was obstructed by the stopped taxi, the police asked the taxi-driver to drive forward to Tonnochy Road.

3. After the taxi had been driven forward and stopped, another police officer went to the right side of the taxi for further investigation, at which point the Appellant suddenly opened the door of the taxi and the second witness had to retreat to avoid being knocked by the door. Thereafter the Appellant left the taxi and chased after the police officer and was swearing at him in the middle of the road. The Appellant appeared to be very excited and was waving his arms and hands about. The police officer retreated to avoid the Appellant. The Appellant was given two warnings and when this had no effect on the Appellant's behaviour, the police arrested him. The chase lasted several minutes. During the incident at least 20-30 people were gathered around looking on and there was a great deal of noise.

4. The witnesses for the prosecution were the taxi-driver, two police officers including the police officer who was allegedly assaulted, a newspaper hawker who had been conducting his business near the scene of the chase and a third police officer who saw the incident but not from such a close vantage point as the first 2 police witnesses.

5. The grounds of the appeal were that the Magistrate erred in treating the early dispute between the Appellant and the taxi-driver and the later dispute involving Appellant and the police officers as one continuous act. The second ground was that the Magistrate erred in applying a different standard of proof from that of beyond reasonable doubt in finding the Appellant's behaviour at the material time was likely to cause a breach of the peace. The third ground was that the Magistrate failed sufficiently to consider the evidence of the taxi-driver and a third police officer (P.W.5). It was suggested that P.W.5's evidence had been wrongly assessed and inconsistencies not taken account of. The fourth ground was that the Magistrate failed to consider the evidence of the newspaper hawker P.W.4.

6. In respect of the third and fourth grounds, I am satisfied that these were not substantiated. The Magistrate carefully considered all the evidence. He noted the evidence of PW5 was inconsistent with PW1's but found cogent reasons for ignoring PW5's assessment of events.

7. In respect of the newspaper hawker, the Magistrate rejected his evidence altogether, again on good grounds. The Magistrate found he was not a reliable witness, he was unable to give evidence about the incident apart from saying he heard someone shouting "arrest me" and "arrest him" at the scene of the incident. He was a man of 66 and the Magistrate felt he could not rely on his observation of events although he accepted that he was probably an honest witness.

8. The Magistrate not only examined the evidence of the witnesses carefully but also reviewed the legal principles relevant to the charge of disorderly conduct. He referred to the cases of Parkin v Norman, Valentine v Lilley [1983] Q.B.92 which considered the criteria for words and conduct likely to cause a breach of the peace. It was stated at p.98 that:

"The purpose of the Act was to promote good order in places to which the public have access ...... Parliament intended to prevent activities liable to lead to public disorder, regardless of whether or not those engaging in them intended that disorder should result. The use of the phrase 'whereby a breach of the peace is likely to be occasioned' in section 5 reflects this thinking ...... It was the likely effect of the conduct on those who witnessed it with which Parliament was chiefly concerned. What is likely to cause someone to break the peace is his feeling that he has been threatened or abused or insulted, and this will be so whether or not the words or behaviour were intended to threaten or to abuse or to insult."

and at p.99:

"What is required is conduct of a threatening, abusive or insulting character which is likely in the circumstances to occasion a breach of the peace. If the conduct in question is of this character it does not, in our judgment, matter whether anyone feels himself to have been threatened, abused or insulted ...... In Ballard v Blythe (unreported) ....... Donaldson L.J. said: 'the court has to find the circumstances in which the conduct takes place and to consider the question posed by the statute: is this conduct such as is inherently likely to occasion a breach of the peace? .... the general test is "What is the natural and probable result of the conduct?"' ......

9. The Magistrate referred to the case of R v Kam Man-fai Criminal Appeal No.930 1993 which accepted the principles enunciated in these cases as being applicable in Hong Kong. The Magistrate correctly considered those principles when he decided whether in this case the Appellant's behaviour was likely to cause a breach.

10. Having done so, the Magistrate decided that the Appellant's behaviour in breaking the beer bottle that he was holding; in violently opening the door of the taxi and chasing the officer swearing and gesticulating as he did so, all under the gaze of 20-30 onlookers constituted disorderly bebaviour in the sense that is referred to in the section. There was no question here of the Magistrate not applying the correct standard of proof: such references that he made to objective standards applied only to the necessity for considering whether a breach of the peace was likely to be caused. The elements constituting the facets of the conduct had to be proved beyond reasonable doubt and only when they were could the Magistrate consider whether the conduct was such that a breach of the peace was likely to be occasioned..

11. Appellant's counsel argued that the charge was duplicitous in that there were two incidents which concerned the Appellant rather than one and that separate charges should have been laid. The first was the incident with the taxi-driver, the second was the incident which involved the altercation with the police officers once Appellant left the taxi. Having considered the argument I do not accept that this was a matter where separate charges were justified; the Magistrate correctly treated this as one continuous incident. The Appellant forced his way onto the taxi; he had an argument with the taxi-driver and he smashed the bottle thereby putting the taxi-driver in fear of an assault. The taxi-driver called for help. At that stage the police came and ordered the taxi-driver to move. This moving of the taxi did not signal the start of a separate incident as the change of position was occasioned by the Appellant's behaviour in refusing to leave the taxi. It was only after the taxi-driver had been ordered to move the taxi to Tonnochy Road and had done so, that Appellant left the taxi and continued the altercation with the police officers on foot in the street. The prosecution was entitled to and did rely on the whole incident as being the proper basis of the charge.

12. The suggestion was that the Appellant's sitting in the taxi without engaging in any special action meant it did not constitute part of the actus reus of the alleged offence.R. v. Jones and others 59 Cr App R. 120 @ p.121 was relied on by Appellant "that the actus reus of affray was fighting or showing of force; so long as the fight or show of force continued, the offence continued; once it terminated the offence ceased. The count on the face of it showed that there were clearly defined and separate places at which the affray was alleged to have taken place, and did not allege any continuation of the actus reus between the sites." The court concluded that the count in that case including as it did more than one activity should have been quashed. Jones related to an affray charge against striking workers which took place "on the seven building sites named in the indictment." The sites were separated by significant distances. Here the entire incident took place within the compass of about ten minutes from the time the Appellant got on the taxi until the time he was eventually arrested. During that time, the taxi-driver moved the taxi only because he was ordered to; at the time he moved the taxi the Appellant was still on board. The fact that he continued his misconduct directing it against the police officers rather than the taxi-driver himself, does not mean these are two separate incidents. This was one incident and properly treated as such by the Magistrate.

13. I am unable to see that any grounds have been substantiated which convince me that the conviction is unsafe.

14. This appeal against conviction is dismissed.

Representation:

Mr. Bianca Cheng, G.C., for D.P.P.

Mr. Bey Muftyzade, Zia Reshid & Mr. Philip Wong, instructed by Messrs. Ford Kwan & Company for Appellant - Mr. Sit Kwok Fun.