The Queen v. Li Wing Tat and Others

HCMA001286/1990

Headnote

Use of loudhailers in public - collection of donations in public - S. 4(17) and (29) of the Summary Offences Ordinance - nuisance - whether actual nuisance has to be proved - lawful excuse - meaning of.

Abuse of Courts process - categories of - where there is a practice of warning by police without prosecution - is it an abuse to suddenly prosecute cut without warning of change of such practice - balance of  public interests in deciding to prosecutes or not to prosecute.

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 1286/90

BETWEEN

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Coram: Hon. Yang, C.J.

Dates of Hearing: 9 and 10 January 1991

Date of Judgment: 18 January 1991

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JUDGMENT

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Hon. Yang, C.J.:

1. This is an appeal against both conviction and sentence on informations laid under Section 4(17) and (29) of the Summary offences Ordinance, Cap. 228. The two sub-sections read:

"Any person who without lawful authority or excuse -

shall be liable to a fine of $500 or to imprisonment for 3 months."

2. D1, D2 and D4 were each found guilty of an offence under sub-section (17) and another offence under sub-section (29). D3 was found guilty of two offences under sub-section (17).

3. D5 was found guilty of one and the same offence erroneously laid under two informations in exactly the same terms. The Crown concedes that the error had been overlooked, and the trial magistrate in her Statement of Findings also admitted her oversight in this respect. For this reason, as well as other reasons given below, the appeal against conviction on the second information laid against D5 is allowed; the conviction is accordingly quashed and the sentence set aside.

4. The undisputed facts are that in February and March last year, the defendants at different times and on different days took part in a sit-in to demonstrate against what they perceived to be the undemocratic political model envisaged in the draft Basic Law. Loudhailers (described as a loudspeaker in the informations) were used in the delivery of short speeches and the playing of music to boost the morale of the participants. Donation boxes were used to collect funds for their campaign literature. Police warnings against the use of loudhailers and collection of donations were ignored.

5. The appeal is divided into three parts:

Whether actual nuisance has to be proved

6. It is submitted on behalf of the appellants, that in the absence of any evidence in this case of any nuisance, such as obstruction or annoyance to members of the public, the convictions cannot stand because an essential ingredient of the offences under the two sub-sections now under consideration is missing. Section 4 is headed: "Nuisance committed in public places, etc." Counsel seeks assistance in the word "nuisance" in the heading of the Section and reads that word into the sub-sections. However, it would be helpful to examine the wording of a number of sub-sections, e.g., sub-section (5) - "causes any annoyance or obstruction"; sub-section (7) - "when it endangers or may endanger"; sub-section (8) - "which is dangerous to the public"; sub-section (10) - "to the annoyance of", sub-section (14) - "to the damage or danger of"; sub-section (22) - "disturbs any inhabitant", etc. In those sub-sections the acts complained of must result in actual nuisance before the offence is completed.  On the other hand, in other sub-sections, the very act which is prohibited constitutes the offence without the kind of actual nuisance described above, e.g. sub-section (3) - obeying any call of nature; sub-section (9) - leading any horse etc. upon any footpath; sub-section (15) - playing any musical instrument in any public place; sub-section (30) - trespassing, etc.

7. In my judgment the acts prohibited under sub-sections (17) and (29) are by themselves capable of constituting the offences specified therein, without the need for additional proof of actual nuisance.

Excuse

8. The contention here is that because the police over a long period of time, some 18 years or more, have not prosecuted any person under either of the two sub-sections, save for one single occasion when a boutique was summonsed for using a loudspeaker without permit to attract passers-by, the defendants had an excuse in using loudhailers, honestly and reasonably believing that it was permissible so to do. Similar arguments were advanced in respect of the sub-section (17) offences.

9. In this connection I need only refer to cambridgeshire v Rust (1972) 2 QB 426. There Lord Widgery CJ, sitting with Shaw and Wien JJ, described the word "excuse" as a reasonable belief that you have the right to do what you seek to do. A defendant therefore has a lawful excuse if, on reasonable grounds, he is honestly mistaken as to a fact (at p. 433 E, p. 434B). He went on to say, "I do not believe at any time one can have lawful excuse for conduct because one is mistaken as to the law; everyone is supposed to know the law, but a mistake of fact of the kind which I have described seems to me to amount to lawful excuse." (at p. 434B).

10. I see no mistake as to fact in the present case.

Abuse of Court's Process

11. The first argument under this head is that the Hong Kong Government on three separate occasions made representations that the use of loudhailers in Hong Kong was not banned.

12. It is said the first representation was made when the Government accepted that Section 4(29) contravened or might contravene the draft Bill of Rights and consideration was given to its repeal. Even if there was such an indication from the government, it cannot in my view amount to an undertaking that contravention of an existing and valid sub-section is to be disregarded.

13. The second representation, it is submitted, is in the form of a statement of Her Majesty's Government in its Third Periodic Report on behalf of the Hong Kong Government to the United Nations Committee on Human Rights pursuant to Paragraph 40 of the International Covenant on Civil and Political Rights. In that Report it is expressly stated that "general guidelines under which use of amplification equipment, other than hand-held loudhailers, might be banned", thereby making clear representation that the use of loudhailers in Hong Kong would not banned. There again, if there' is a representation at all, it is not a representation that an existing law is not to be enforced.

14. The third representation relates to what police officers said. According to D2's evidence, a Chief Inspector in 1988 had told him the police would warn him but not prosecute. D5"s evidence is that D2 had told him formal warnings would he given by the Police but there would be no prosecution. During the sit-in in February last year the participants had been warned in a very casual and friendly manner and the police officer who gave the warning said it was given as a matter of formality. What the police officer said could not by itself amount to a representation of no prosecution. I shall consider this aspect of the question of representation together with the second limb of counsel's submission on abuse of process that the practice of no prosecution over a long period of time gives rise to a legitimate expectation that the use of hand loudhailers and collection of money in public would not attract prosecution.

15. Whilst the first argument (on representation) relates only to the use of loudhailers, the second argument (on practice) relates to the use of loudhailers as well as the collection of Money.

16. D1 had taken part in demonstrations and gatherings since 1985 and used loudhailers for making speeches and collected money. He had been warned by the police that to do so without permit was illegal but never prosecuted.

17. D2 had been using loudhailers and amplifying equipment to make speeches for 21 years and never prosecuted. Similarly he had collected funds in the past and the police had never interferred with those collections.  Though warned, he became convinced that the police would never in fact prosecute him.

18. D3 had used a loudhailer and collected money on many occasions, and had never been prosecuted. He said in evidence that the police attitude had led him to think his using a loudhailer and collecting money would not lead to his prosecution., Though warned against such activity, the police did not normally interfere with his resumed use of loudhailer. On one occasion in March 1988, and another occasion in March 1990, he was severely warned, that he should stop using his loudhailer otherwise he would be prosecuted. As he wanted to avoid a confrontation he stopped. He did not explain what he meant by saying he wanted to avoid a confrontation, but it could be that whilst he did not think he would be prosecuted, he did not want any unpleasantness with the police.

19. D4's experience in demonstrations and public processions was limited.

20. D5 had involved himself in demonstrations since 1972. Loudhailers were used for making speeches, especially since 1984. His use of donation box for collection of money seemed limited to two or three occasions only. He had never been prosecuted for either of the two activities.

21. Senior police officers who gave evidence could not recall any prosecutions save for the summons against the boutique in D' Aguilar Street.

22. The only conclusion to be drawn from the evidence is that for well over a decade the police often issued warnings against the use of loudhailers and collection of money without permit but never actually prosecuted any person. Often the warnings were given as a formality or routine, which can only mean to those warned that it would not be followed by a prosecution even if the warning was not heeded. In those circumstances, a practice has been stablished whereby breaches and continued breaches of the law would not encounter anything worse than a warning. The appellants, and any one who takes part in demonstrations may therefore be forgiven for arriving at the conclusion that warnings will not be followed by prosecution even if the warnings were ignored.

23. The question which now has to be considered is whether the prosecution in the present case amounts to an abuse of the Court's process.

24. Lord Fraser, in C.C.S.U. v Minister for Civil Service (1985) 1 AC 372 said (at p. 401B) that a legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice (my emphasis) which the claimant can reasonably expect to continue. In such a situiation the Courts may well find the public authority guilty of abuse of process if it chose to go back on the promise or practice so as to defeat the claimant's expectation. It seems that the rationale behind this proposition is one of fairness. However, it is for the executive and not the Courts to decide whether, in any particular case, the requirements of national security outweigh those of fairness (see pp. 403D, 406G, 407G, 412H - 413B, 420D, 423B - 424B).

25. Fuad, V-P, in Keung Siu Wah v the Attorney General Civil Appeal No. 112 of 1989 referred to the law on the abuse of process in the criminal field as still a developing and unsettled area of the law. He said:

"In my judgment it is a constitutional imperative that the Courts do not attempt to interfere with the Attorney General's discretion to prosecute, but once the charge or indictment comes before a Court for hearing, it can consider whether the prosecution should be allowed to continue if grounds amounting to an abuse of process are raised."

26. The leading authority in Hong Kong on the subject is R v Harris Criminal Appeal No. 72 of 1990. There Silk V-P in his explanation of the law on abuse of process in the criminal field, observed that the decision to prosecute or not to prosecute is that of the Attorney General alone (at p. 10), but went on to say (at p. 14): "I accept that a Court is entitled to safeguard its process from abuse. But it is a grave and serious matter for a Court to refuse jurisdiction ... I would accept that it is unnecessary for the appellant in order to succeed to prove prejudice."

27. Fuad V-P was concerned with the balance of public interests, and said (at p. 22):

" I agree with the judgment just delivered by Silke, V-P but with one respectful reservation. I prefer not to express an opinion on the question whether or not the Attorney General should have resiled from his original decision not to prosecute Mr. Harris. This was, in my view, entirely a matter for the Attorney General. He was, in these unusual circumstances, entitled (and, in my view, bound) to Consider whether the public interest would better be served by sticking to his earlier decision or by directing the prosecution to continue. He might have felt (and I assume that this is what happened here) that the public interest demanded the latter course and that this consideration outweighed any possible erosion of confidence in the Attorney General's decisions. It Seems to me that the public would have good reason to feel more concerned that he prosecution of a serious charge was not allowed to go forward simply because the Attorney general obstinately adhered to a decision he was later convinced was erroneous."

28. The important judgment of Richardson, J in the New Zealand Court of Appeal in Moevao v Department of Labour (1980) 1 NZLR 464 was cited with approval, and I note, in passing, the words of Richardson J quoted (at p. 25) in Fuad V-P's judgment: "Different persons may well have very different views as to what constitutes an abuse of process in the particular case."

29. Kempster JA stressed that the categories of abuse are never closed, and observed (at p. 31):

"Overall the weight of authority in England and in the Commonwealth generally demonstrates that the Courts may exercise a discretionary power to stay if the conduct of the prosecution amounts to abuse in that it results in an unfair trial, oppression or prejudice to a defendant in the conduct to his case or if it involves the breach by the Crown of an agreement not to prosecute. The inroads which any exercise of the latter power may make on the Attorney General's responsibility must be acknowledged."

30. He continued (at pp. 32 - 33):

"In determining whether or not the law should so be extended I am, I confess, loath further to restrict the constitutionally exclusive responsibility of the Attorney General in this field since any involvement by the courts in the prosecution process is liable to compromise and to be perceived to compromise their impartiality. A passage from the speech of Lord Dilhorne in R v Humphryes (1977) AC 1 (at p. 26) seems in point: -

'A Judge must keep out of the arena, he should not have or appear to have_. any responsibility for the institution of a prosecution, the functions of prosecutors and of  judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should he brought then it may soon be thought that the cases he has allowed to proceed are cases brought with his consent or approval.'

I conclude that if public confidence has been shaken in the integrity of that part of the judicial process whereby decisions whether or not to prosecute are made and communicated it must be the concern of the Governor-in-Council rather than of the courts."

31. Applying that authority, I come to the following conclusions: -

32. Counsel for the Crown suggested five categories of abuse of process which have been considered by the Courts, namely, (i) unconscionable delay in prosecution, (ii) "double jeopardy", as in the case of Connelly v DPP (1964) AC 1254, (iii) abuse of committal proceedings, (iv) improper motives for prosecuting, (v) breach of bargain between the executive and the defendant, as in Re Bruneau and the Quee (1982) 69 CCC (2d) 200.

33. In Scotland at least, a unilateral and public announcement by the Lord Advocate to relinquish his right of prosecution of a particular individual on a particular charge would render subsequent proceedings on the same charge incompetent: see Thom v H.M. Advocate (1976) SLR 2.32. The High Court of Justiciary there left open the question as to whether the right to prosecute Thom in that case had been exercised so oppressively to his prejudice, that the Court should have intervened to stop the proceedings.

34. The facts of the present case do not fall readily within any of the known categories. The categories are however never closed. Bearing in mind the Court's reluctance to extend the categories, I would say that it offends against the sense of fairness for the police, having established a regular practice of not prosecuting over a long period of time, thereby reading those who are concerned to arrive at a legitimate, or reasonable, expectation that such practice will continue, to suddenly alter that practice without prior warning, and start prosecuting those very same offences which had attracted nothing worse than a warning, or repeated warnings, in the past.

35. However, it is for the executive, and more particularly the police or the Attorney General in our case, and not the Courts to decide whether in any particular case the requirements of public interest (e. g. national security in CCSU vi Minister for Civil service (supra)) outweighs those of fairness so that the defendants' legitimate expectation must yield.

36. The Crown however does not base their arguments on the balance of public interests. Instead it was contended there had been no stated policy by the police not to prosecute, that the executive cannot suspend the law, that the defendants could not have a legitimate expectation that they would not be prosecuted, that no prejudice to the defendants had been demonstrated, that the police had on more than one occasion threatened prosecution, that the law had not fallen into desuetude, and there was nothing more than "a pattern of discretion" not to prosecute. Nothing was said about the authorities having weighed competing interests.

37. In my judgment a case of abuse of the Court's process has been made out. The trial magistrate should have exercised her discretion to stay the proceedings.

Sentences

38. In the light of what I stated above, it is not necessary for me to consider the appeals against sentence. It would however be helpful for me to refer to The Queen v So Man-king (1939) 1 HKLR 142, which was a decision on the sentence on illegal immigrants.  There Cons V-P said (at p. 146):

"The difficulty which faces courts in such a situation is obvious. The legislature has decreed that it shall be a criminal offence to come into or remain in Hong Kong unlawfully, to be punishable by a substantial fine and imprisonment. The courts must apply that law, and this Court has laid down that a magistrate upon whom the principal reponsibility falls in such cases, should regard sentences of 15 months as appropriate for most occasions. On the other hand the executive has ensured that for the past eight years the law should for the most part be a dead letter and that in particular, those in the position of the appellants should not be punished at all.

We express no opinion as to whether the executive ought, as a matter of practice, to give public notice of any intended change in policy. That is a matter entirely within the executive's own discretion. But we are satisfied that the fact that the authorities have, by a well publicised course of conduct over many years, lulled a particular class of persons into a justifiable sense of security that the law would not be strictly enforced so far as they are concerned, and then suddenly proceeded to enforce the law without giving those persons any opportunity whatsoever to reconsider their position, is a factor that may properly be taken into account when assessing sentence."

39. For the reasons stated above, the appeals are allowed, the convictions are quashed and the sentences set aside.

Representation:

Mr. Daniel Fung, QC, Mr. Martin Liao & Mr. Poon Siu-chor (Woo, Kwan, Lee & Lo) for Appellants

Mr. P.J. Dykes & Mr. Patrick Li for Crown/Respondent