HKSAR v. Tung Wai Cheong

HCMA001222/1998

HCMA 1222/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1222 OF 1998

(On appeal from ESCC 2428 of 1998)

-------------------

Coram: Deputy Judge McMahon in Court

Date of Hearing: 25 March 1999

Date of Judgment: 25 March 1999

----------------------

J U D G M E N T

----------------------

1. The Appellant was convicted after trial by Mr. Tong Man at Eastern Magistracy on 3 November 1998 of an offence of unlawful assembly contrary to section 18(3) of the Public Order Ordinance, Cap. 245.

2. The Prosecution's case was that the Appellant had been one of a number of young men who had gathered at the intersection of Luard and Jaffe Roads in Wanchai at about 10:30 p.m. on 13 March 1998. It was alleged during the course of trial that a van had delivered some of those individuals to that intersection. That gathering had attracted the attention and concern of the management of a bar located at that intersection and a phone call had been made to the police. Upon the arrival of the police, those assembled had then attempted to flee but a number were arrested.

3. Much of the evidence in the case had been agreed. The formal admissions at trial pursuant to s. 65C of Cap. 221 were, in brief :-

(A) At the scene along Luard Road and Jaffe Road junction there was a crowd of around 100 to 150 persons on the street.

(B) Police officers in plain clothes as well as in uniform came to the scene.

(C) The Appellant was present at the scene holding on to his mobile telephone.

(D) Two police officers (i.e. PW4 and PW5) heard the Appellant outside a 7-11 store talking over the phone telling the person (on the phone) that "policemen had arrived to search the van" around 11 p.m. on 13 March 1998. The Appellant also stated to the youths in the street "Disperse! Disperse! Policemen had come." People then began to leave the scene.

4. There are effectively 2 grounds of appeal advanced by Mr. Macrae for the Appellant. The first is that there was no sufficient evidence that those at the gathering had conducted themselves in an intimidating manner so as to make the assembly an unlawful one.

5. The magistrate in the course of his findings inferred from the admitted facts and from the evidence of a staff member of the nearby bar that that there was an intimidatory aspect to the gathering and that there was in the minds of bystanders a reasonable fear that a breach of the peace would be committed by these young men. He said in his findings in this regard that -

"In my judgment, applying the objective test spelt out in R. v. To Kwan-hang MA 945 of 1993, any reasonable by-stander would not fail to apprehend some sort of violence was forthcoming."

6. He went on to expand his reasons for that finding by stating that it was supported by his acceptance of the evidence of PW1 the bar staff member to the effect that she had been made apprehensive by the presence of such a large group and he further concluded :-

"Here in this case, I was dealing with groups of young men gathering together to show force. It was the size of those groups in the context of the time frame and the background of their appearance that worried others. For this reason, I was satisfied that for all those taking part in that gathering did conduct themselves in an intimidating manner which was likely to cause other persons to reasonably fear that they would commit a breach of the peace."

7. In other words the learned magistrate found that any member of the group must have realised that it was an intimidatory gathering of its own nature and by joining it thereby themselves act in an intimidating manner.

8. His findings in this regard in my view cannot be faulted. He was entitled to, as he did in reaching this conclusion, to take into account the homogeneous nature of the assembly, young men aged 21 or less, many with dyed hair, and dressed similarly in T shirts and jeans in concluding that the assembly of 100-150 such persons was in its own nature, at that time of night and at that location, intimidatory.

9. This was not a sporting meeting or a political rally. There was no suggestion of any possible innocent purpose for the gathering put forward in evidence. The magistrate was entitled to consider the whole of the circumstances in a Hong Kong context in coming to the conclusion that he did. That approach is in fact supported by the case of Allan v. Ireland (1984) 79 Cr. App. R. 206 and the case of R. v. To Kwan Hang Mag. App. No. 945 of 1993 as relied upon by Mr. Macrae in his submissions.

10. That disposes of the 1st ground of appeal.

11. Mr. Macrae's 2nd ground is to the effect that there was no sufficient evidence that the Appellant had taken part in the unlawful assembly. He argued that the evidence at its highest established no more than that the Appellant was present in the vicinity of the assembly and subsequently exhorted someone to disperse.

12. In this regard the magistrate said :-

"..........I further found from the appellant's formal admission (Exhibit P2), in particular paragraph D of the same, any reasonable jury properly directed would not have failed to draw an inference that the appellant was a member taking part in the unlawful assembly."

13. In my view the magistrates findings as to the meaning and effect of Paragraph D of the formal admissions also cannot be faulted.

14. What else, taken together with the other evidence, could the words "Disperse! Disperse! Policemen had come" mean other than that the Appellant had a role in alerting others involved in the assembly as to the arrival of police. That warning given by the Appellant was in fact acted upon by many of those assembled. Further the Appellant had apparently been keeping a person informed by telephone as to the progress of the police intervention by informing them of the search of the van found at the scene. That van was the same van which had allegedly brought some of those assembled there.

15. The suggestion made to the trial magistrate that the Appellant may simply have been relating events to a curious and innocent associate by telephone was in my view on the whole of the evidence quite properly rejected by him.

16. Accordingly, it seems to me that the magistrate in drawing the inferences that he did from the words of the Appellant as agreed in paragraph D of the formal admissions was, as a tribunal of fact, entitled to arrive at the conclusions he did. I might add that the matters pointed out by Mr. Macrae as to the two possible meanings of paragraph D do not carry the matter any further in my view. I think Mr. Macrae himself said it was a small point and indeed on either basis my judgment remains the same.

17. Indeed it seems to me no other conclusion other than that arrived at by the magistrate as to the Appellant's involvement in this gathering was reasonably open to him. The words spoken by the Appellant show him to have been both connected with the persons involved in the unlawful assembly and acting at the very least whether as a lookout or in some other way on their behalf. From the circumstances in which the unlawful assembly gathered the Appellant must have been aware he was a partner in the "show of force" or intimidatory conduct of the assembly with the other members of that assembly.

18. I am satisfied the conviction of the Appellant was entirely proper and this appeal against conviction is dismissed.

19. That leaves the Appeal against sentence.

20. The maximum penalty for this offence is, on summary conviction, 3 years imprisonment and on indictment, 5 years.

21. The Appellant was aged 29 years at the time of the offence, he had prior convictions, he was convicted after trial. There was little that could be said for him in mitigation apart from his family history and I do not think that there was anything so exceptional in his family history or circumstances either then or now so as to give rise to any significant mitigation.

22. Any sentence for an offence of this nature must depend very much on the facts of the individual case. The present offence on its face as the magistrate rightly said was serious. It was committed in complete disregard for law and order. In my view, the magistrate was perfectly correct when he said that intimidatory behaviour of this sort must attract a sentence involving a factor of deterrence. In my view, in the circumstances of this offence, the sentence of 4 months imprisonment cannot be criticised.

23. Accordingly the Appellant's appeal against sentence is dismissed and the sentence will take effect forthwith.

Representation:

Mr Gary Lam, Senior Government Counsel (Ag.), for the Respondent (HKSAR).

Mr Andrew Macrae instructed by M/s Chong Leung & Co for Appellant, Tung Wai Cheong.