Ng Chun Yip and Others v. The Queen

HCMA000280/1985

Headnote

Loitering - group of persons staying on in a shop and misbehaving - threat to "well-being" of shop owner and assistant even if not to their safety - no need for  evidence of each defendants acts if it is clear the group were acting in pursuance of common intent to make nuisances of themselves.

BETWEEN: -

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Coram: The Honourable Mr. Justice Penlington in Court

Date of hearing: 12 April 1985

Date of delivery of judgment: 12 April 1985

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JUDGMENT

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Preliminary

1. The 7 appellants, aged from 17 to 23 years, were convicted of the offence of loitering under Section 160(3) of the Crimes Ordinance in that on the 27th September 1984 in the 7-Eleven shop at Block 9 Pak Tin Estate, by their combined presence they caused Yau Ka-leung and Chan Pui-hing and persons unknown to be reasonably concerned for their safety or well-being. The seventh appellant was also convicted of disorderly conduct, but sought leave to abandon his appeal against that conviction which I granted.

The evidence

2. Mr. Yau Ka-leung said that he was the manager of the 7-Eleven shop in Pak Tin Estate and that on the 20th September 1984 at 3 p.m. the 7 appellants came into his shop as a group. Four of them bought food and soft drinks and then sat on top of a refrigerator while the others chased each other round the shop. They were all laughing at each other. Some teased other customers, in particular two young girls who were asked if they had stolen goods and put them up their skirts. One appellant caught a dragon-fly and put it in the microwave oven which is available for customers to use, on a self-service basis, to heat refrigerated food which they had bought. All the other customers in the shop left and Mr. Yau tried to calm the appellants, but he was unable to do so. He then decided to call the police who arrived some 10 minutes later. By that time, the appellants were leaving and an argument developed between them and the police outside the shop. Mr. Yau said that he was frightened and the shop could not do any business due to the activity of the appellants and that was why he called the police. He agreed in cross-examination that customers were allowed to stay on in the shop after buying food to consume it and that the microwave oven was provided for their use. There was however no seating accommodation in the shop. In re-examination he said he was concerned for his safety, although only in reply to what was clearly a blatantly leading question.

3. Mr. Yau's assistant. Miss Chan Pui-hing said that when the group came into the shop some sat on the refrigerator and some played inside the shop. She said they were very noisy and she was "very spared". She said she left it to the manager and went to the store-room and when she came out the defendants head gone.

4. There was the only prosecution evidence relating to the charges with which I am not concerned. The only evidence given for the defence was that of the 7th appellant, CHAN Yuen-hing and his evidence related almost entirely to events which took place after the group left the shop. However it was a denial of behaving in the manner alleged by Mr. Yau and Miss Chan.

Considerations

5. It was submitted by Mr. Tang who appeared for the appellants in the court below that first of all the shop was not a public place in that it was privately owned. He points out that public place is not defined in the Crimes Ordinance, although it is defined in other ordinances. That is so, but I think "public place" must be given its ordinary meaning and that is a place that is accessible to the public, even if it is privately owned. In R. v. Kane & Others (1965) 1 A.E.R. 705, Barry, J. held that a private club was a public place in the context of a charge of affray. I have no doubt that for the purposes of this section a shop is a public place.

Loitering

6. In R. v. Mok Chi-ho (1979) H.K.L.R. 118 Yang, J. said:-

"As I understand it, loitering means idling, lingering or hanging about."

7. I think that is as good a definition as any. It is obvious therefore that everyday many people in Hong Kong loiter. They may be simply out for a stroll. They may be just sitting in a park. They may be doing one of many things in a public place by not proceeding directly from point A to point B or not engaging in any particular form of activity but to so loiter is not in itself a criminal offence. Here the appellants were not just sitting or standing idly about, and if they had been doing so no doubt Mr. Yau would have had no complaint but having concluded buying their food and drink they lingered on. There was no suggestion of them buying more food or drink or making legitimate use of the microwave oven. I am therefore satisfied that on the evidence the magistrate was quite entitled to find that they were loitering.

8. The further requirement and it is the essential requirement which the Crown had to prove, was that Mr. Yau, Miss Chan and other persons who were in the shop were "reasonably concerned for their safety or well-being". Both Mr. Yau and Miss Chan said that they were scared and frightened. There is evidence that customers who were in the shop left. I do not think either Mr. Yau or Miss Chan had any real reason to feel apprehensive for their safety in the sense that at no stage was there evidence that there was a threat of physical violence to either of them. There was however distinct apprehension as to their well-being. "Well-being" is not defined in the Ordinance but I am content with the definition given by Lord Somervell, in admittedly a different context, in Inland Revenue Commissioners v. Baddeley & Others (1955) 1 A.E.R. 525 as a "happy and contented state". I am satisfied that for a period of time, the appellants effectively prevented Mr. Yau from carrying on his business. I am also satisfied that because of what the appellants were doing Miss Chan left the shop and went into the store-room because she was scared. In my view, the action of the appellants did amount to something which made both Mr. Yau and Miss Chan reasonably concerned for their well-being. They were far from "happy and contented" due to the appellants' actions.

9. Mr. Tang argued that there was no evidence as to what each individual appellant did in the shop. The evidence was that some of them sat on the refrigerator and some chased themselves round the shop. There is no evidence as to which individual appellant did what. He relies on the case of Kwan Kwok-hing v. The Queen C.A. 255/1977 where McMullin, J. said that:-

"If the evidence was equally susceptible of the interpretation of acquiescence or silent complicity in the act of his companions that is not sufficient.".

10. There must be either a positive physical act of participation or an attention or actual encouragement to the others who did take part. Here I am satisfied the evidence was such that the magistrate was quite entitled to come to the conclusion that all the appellants were acting in a common purpose and that was to make thorough nuisances of themselves, to put the most charitable view on it, in the shop. They were either chasing round the shop, teasing customers, misusing the microwave oven or they were actually encouraging the others to do so. In my view that makes them all equally guilty of the offence and I am satisfied that the prosecution did prove this charge beyond reasonable doubt. It was a foolish episode, not particularly serious perhaps, which is reflected in the nominal penalty inflicted by the magistrate, but nevertheless one that should not be tolerated. I have no doubt the prevention of this sort of behaviour was one of the reasons for the enacting of this section. The appeal is dismissed.

11. The only other matter I would like to mention is that the appellants first appeared in the Magistracy on the 22nd September. They were represented by a solicitor presumably at their own expense. They pleaded not guilty and were remanded until the 26th October. On that date, again represented, it was found that no magistrate was available and a further remand was granted to the 7th November. On the 7th November again the matter was further adjourned, this time to the 7th December. On the 7th December, again represented by a solicitor, the prosecution applied for two weeks adjournment so that appropriate legal advice could be sought. The defence naturally objected to this, but the matter was, nevertheless, adjourned to the 21st December, for mention only. There was no order made for costs although in my view it should have been. On the 21st December the matter was again remanded, a date of hearing fixed for the 4th February 1985 when it was heard. It seems to me that this was an incredibly large number of appearances, no doubt at substantial cost, to dispose of what was essentially a very simple matter.

Representation:

C. Newall, C.C. for the Crown.

E. Tang (Tang & Knight) for the Appellants.