The Queen v. Yeung Fu-hing

HCMA001183/1988

HCMA 1183/1988

BETWEEN

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Coram : Hon. Hooper J. in Court

Date of hearing : 14th December 1988

Date of delivery of judgment: 6th January 1989

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J U D G M E N T

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1. On the 23rd September, 1988, the appellant was convicted of disorderly conduct, contrary to section 178(2) of the Public order Ordinance, Cap. 245, Laws of Hong long.  The particulars of the charge alleged "you are charged that on the 19th day of July, 1988, outside Shop No. C-5, Ground Floor, 55 Po On Road, Kowloon, in Hong Kong, you did behave in a disorderly manner, whereby a breach of the peace was likely to be caused, by scolding PC 5236 TSE Ki-keung with foul language loudly which attracted a crowd of some 100 persons gathering around and breach of peace is likely to be resulted."

2. Three witnesses gave evidence for the Prosecution.  The first being PC 5236 TSE Ki-keung who at the material time was a uniform police officer on motor-cycle patrol.  He testified that when he arrived outside Shop No. C-5, Ground Floor, 55 Po On Road, he found a few private cars had been parked illegally.  He stopped his motor-cycle and approached those private cars.  A few men came out and drove away their cars.  After they had gone, there was one private car remaining.  He looked at the number plate, CH6667, and stayed for about 5 minutes, but no driver appeared.  He then started to write out a fixed penalty ticket While he was doing so, a man came up and said in a raised voice, to drive away the car".  He got into the car, sat in the driver's seat.  The witness approached him and said that he was already writing and that he could leave after he had finished writing.  An argument ensued and the man (who was the appellant) started off and drove his car forward for about 20 feet The police officer ran up to him admonished him for driving away and insisted on continuing to write out the ticket.  It was at this stage that the appellant alighted and used foul language in a loud voice.  The witness however continued to write out the ticket and did not bother about him.  The appellant asked for his number but the police officer pointed to the ticket and said he was No. 5236 and handed the ticket to him whereupon the appellant again used foul language and tore up the ticket.  The witness walked back to his motor­cycle followed by the appellant who was abusing him with foul language.  The police officer described that at that time there were already about 100 onlookers and he looked for assistance through his heat radio, warning the appellant that his behaviour had attracted about 100 onlookers.  He warned him that if he went on, he would arrest him for disorderly conduct.  Some o£ the onlookers were on the roadway and he heard the horns of vehicles.  The traffic had to move along the opposite carriageway in order to negotiate the onlookers.  The pavement was crowded with people.  However, the appellant did not listen his warning and went on abusing him with foul language.  At this time, PC 45052 arrived and the witness related the incident briefly to him.  The appellant continued to abuse him.  A man wearing a suit approached the police officer and handed a name card to him stating that he was willing to be a witness.  The name on the card was Sin Kam-wing (the second witness for the Prosecution).  The police officer described how a police vehicle arrived and they went back to the station and the crowd were booing.

3. At this stage, the magistrate asked a number of question which are set out below:

"Ct : What were the others doing?

A : They we re watching.

Ct : What was the mood of the crowd?

A : They were watching a scene.

Ct : Did you think the crowd would do any thing?

A : I worried that people in roadway would be knocked down with traffic.

Ct : Did you think there would be any trouble from the crowd?

A : Yes.

Ct : What type of trouble?

A : I didn't think what type of trouble.

Ct : what about the ones that were booing, did you think they would cause trouble?

A : Yes.

Ct : What?

A : They might do something illegal in the confusion.  I felt that I had to stop him, if not the situation would worsen.

Ct : Worsen in what way?

A : More and more people may gather, some may do something against the law during the confusion.

Ct : Such as?

A : Pickpocket and snatching."

4. In cross-examination, the witness admitted that of the crowd "some appeared happy not threatening but they were booing".  He denied that he had been selective in booking the appellant and he denied that the crowd was not the size which he had testified, namely 100, but only 15 to 20 persons.  He admitted that he could not tell what the crowd would do.  Furthermore that they were very excited but he could not tell.

5. The second prosecution witness, Sin Kam-wing, was the man who had given the 1st witness his name card and had made himself available as a prosecution witness.  He testified that at 5:45 p.m. on the 19th July, he was inside the Tin Sun Motor Company on Po On Road, chatting with a friend.  It was very noisy in the street outside the shop, so he went out to have a look and saw a person abusing a policeman.  He watched it and then returned to the shop.  It was very noisy again.  He went out, again and saw that the man was still abusing the policeman.  He gave the policeman his name card because he knew that the man abusing the police officer was wrong.  He testified that the man swore at the police officer in a raised voice for rather a long time, at least ten minutes.

6. Having said this, the witness was asked a number of questions by the magistrate which are set out below :

"Ct : What was he saying?

A : Foul language.

Ct : Can you tell us please?

A : He pointed at the police officer with finger (magistrate sets very abusive language).  He kept saying this.  After a while many police arrived.  There were many onlookers, police arrived.

Ct : How many onlookers?

A : I think 100 odd, I think whole street was out.

Ct : What were they doing?

A : They were watching a scene, I didn't take notice of the crowd the man was very noisy.  When he was abusing the police officer his voice was very loud.

Ct : What was the of the crowd, angry, happy, threatening?

A : They were watching the scene."

7. In cross-examination when it was suggested that the onlookers started to gather when other police officers arrived, he said "In fact when he was alone with police officer there were a large number of onlookers." And when it was suggested that there were many more onlookers when the police arrived, he replied "there were in fact less as they were told to disperse."

8. The third witness PC 45052 Yeung Chi-shing described how at 17.45 hrs he was requested to give assistance to his colleague and he arrived outside Shop No. C-5 Po On Road, and saw his colleague (PW1) at the scene with another man.  He saw a crowd of people, there were 100 odd people.  They were onlookers.  They were surrounding and watching.  Some of the onlookers were pointing with their fingers, waving their hands.

9. There then followed some questions from the magistrate as follows :

"Ct : What did he think that meant?

A : I think they were discussing what was happening.  They seemed to want to go closer and closer they wanted to see what was the development and they started to make a noise.

Ct : Did you think there was any danger?

A : Yes.

Ct : Why?

A : Because they were getting closer and closer to my colleague and cause him an obstruction and they started to get excited.  When they became more excited, it might cause obstruction to police office.

Ct : Did you think there might be a breach of the peace?

A : Yes.

Ct : Why?

A : If crowd excited, it would attract more and more onlookers and the situation would not be controlled."

In cross-examination he said that some of the onlookers shouted "policemen, what the hell do  you think you are doing" and that it was not a conversation.  He said that some of the onlookers said that the police were wrong.

10. Despite the defence submission of no case, the magistrate held that there was a case to answer and, the appellant gave evidence in his defence, and called one witness.  He complained that despite the presence of at least four cars ahead of his car, the police officer was not interested in them and went straight to the left hand side of his windscreen and produced a book and wrote.  He went on:

"I noticed him coming, so I returned to my car.  He came to the left hand side of my wind screen and he was writing, I don't know what but he produced a book of fixed penalty ticket.  I said to him 'Sir, I am going to leave'.  He didn't bother about that, I could not go away he was standing by left of my wind screen, if I had left, he would have been hit.  Subconsciously, I intended to manoeuvre to the right, at that moment he approached me and pointed at my noise, but he didn't touch my noise.  He said to me impolitely, he said some foul language, he said if I left he would arrest me.  He use foul language, if you fucking go away you will be arrested, he also called my mother names.  He didn't say what he might arrest me for, and I had no idea.  He meant if I was arrested I would be charged, I could not move.  I did not move my vehicle 20 feet, I can swear, I had not driven away, if I had he would not have been able to intercept me."

11. He testified as to how he got off his vehicle to reason with the police officer and asked for his service number because he was so impolite.  However, the police officer did not bother about him and continued writing and did not respond to his further request.  He admitted tearing up the penalty ticket.  The tenor of his evidence was that it was the police officer who was abusing him in foul language and not the other way round.  It was his evidence that there was not a crowd of about 100 people.  There was a crowd, buy there were ten to twenty police officers.  The crowd first congregated as soon as he was booked and people checked to see if their cars were being booked and some shouted police booking.  There was a greater crowd after the police arrived.  He complained that he had been arrested without being told why.  In cross-examination he claimed he did not know why the police officer had issued a fixed penalty ticket to him.  He denied that there was a crowd of 100 persons attracted by the incident and that by such a gathering, a breach of the peace was likely to be occasioned.

12. He called as his witness, a taxi driver who happened to be at the scene at the material time because he was "sending a tyre for repair" to the garage and he was parked outside the yre company.  This witness testified that he did not leave his vehicle, he was standing outside it.  On that day he did not know the defendant.  He also testified that there were other vehicles in front of and behind his taxi and the vehicles in front were also parked by the pavement.  There, were about four or five cars ahead of him and some cars behind, and some cars were parked on the opposite side of the road.  However, the police, motorcyclist issued a ticket to a vehicle two cars in front of his vehicle.  He testified that the police, officer went directly to this car and he did not see him issue any, tickets to other people.  At that, time he did not know to whom the black car belonged.  He heard somebody ting 'police booking' an then saw the owner of the vehicle come out from the Lee Cheong Company and, get into his car.  The appellant wound down the window and said "Sir, I am going to leave", but the  police officer did, not bother about him and continued to write the ticket.  The appellant said the police officer was wrong writing the ticket, and asked, for his service number.  The police officer did not bother about him and continued to write the ticket.  He testified that the appellant did try to leave the scene in his vehicle when the ticket was being written.  The appellant did move the steering wheel of the car and the car moved less than one foot.  He had to stop because the police officer shouted if he left, he would be arrested.  He testified that the police officer went round to the front of his car and that the police officer was speaking in a loud voice.  He denied that the police officer had said "look at the ticket for the service number.  He testified that both the police officer and the appellant abused each other.  Then another police officer arrived, then another police office then a sergeant and a group of police officer, then a vehicle.  All told that there were more than 10 police officers.  He testified that at some stage a crowd of people gathered.  Before the arrival of the group of police officers there were 2-3 onlookers.  The police vehicle arrived, the air had become tense and more and more people had crowded together.  The crowd were attracted by the police.  He described the crowd as "talking, some watching, some laughing" He heard a man say "the police are not catching bad people.  The police are bad people." In cross-examination, he said that there were 10 onlookers.  He said that the polite arrived, the air became tense, some of the passersby who were "chicken", took a look and left, the others who were not, stayed and looked.  He disagreed that a hundred people gathered there whilst the police officer and the appellant were quarrelling.

13. The general ground of appeal is That the conviction was against the weight of evidence and that there was no sufficient evidence whereon to found the said conviction.  It is said that in all the circumstances of the case, the conviction was unsafe and unsatisfactory because of the magistrate's direction and findings of fact in relation to the breach of the peace, her alleged bias and prejudice against the appellant as shown by the question she asked, and the fact that she failed to make findings of facts and to resolve the conflicts between the Defence case and the Prosecution case, and/on to properly evaluate the evidence.

14. Mr Wong for the appellant argues that the law relating to breaches of the peace is properly set out in the case of R. v. Howell [1982] Q.B. 421 which was followed in Parkin v. Norman (1982) 2 All E.R. 583, both of which were followed by Garcia J. in R. v. Kam Man  Fai Cr. App. No. 930 of 1983.

15. At page 35 of the appeal record, the learned magistrate says :

"My attention was drawn to the case of Kam Man-fai v. R (Crim. App 930/83) reported in Addison 1980-1985 page 213 paragraph 569 which I found of great assistance.  In coming to my verdict I bore in mind the fact that a mere disturbance not involving violence or a threat of violence could not amount to a breach of the peace.  I also bore in mind the authority of Reg. v. Howell (1981) 73 Crim App R 31 per Watkins, L.J.  'There is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.  It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant."

16. In these circumstances, I find it difficult to understand how it can be said that the learned magistrate did not properly direct herself on the meaning of a breach of the peace.  So far as her findings of fact are concerned, the first ground of appeal alleges that she erred in finding that she could draw the inference from the evidence that a "breach of the peace" within the meaning of the law was likely to be caused when there was no or no sufficient evidence to support such inference.

17. With respect to Mr Wong, in my view, the evidence of the prosecute on witnesses, if aecepted, was sufficient to prove this element.  Having set out the evidence in her statement of findings, she made the following findings of fact :

"I found that the prosecution witnesses gave considered and believable accounts of what took place on the date and at the time in question and I accepted the accuracy of their evidence.  Where the appellant's and his witness's version differed, I rejected it."

I found:

a.That PC TSE arrived outside 55 Po On Road and for about 5 minutes before starting to write a ticket.  I found that the Appellant's car was the first in line and that the police officer was legally entitled to write out the ticket.  The Appellant's cars were of no importance.

b.That the Appellant was angry from the time he observed PC TSE writing the ticket, and that he was almost immediately very abusive and offensive and insulting to him.  I also found that he did move his car a distance of a few feet before he was forced to shop due to the position of PC TSE.  I found that PC TSE did not respond abusively and act in a very proper manner.  I therefore found that the Appellant was clearly acting in a disorderly manner.

c.That a crowd of about 100 people gathered.  Some were just watching and enjoying the spectacle, other were booing and others were waving their hands and moving towards the scene.  The crowd were clearly causing an obstruction to traffic.  Some of the crowd were accusing the police of misconduct and that together with the conversation overheard by TSOI Kar-kui, the Appellant's witness, clearly showed that some of the crowd were in a threatening and volatile mood.  I further found on the facts that any small incident within the crowd, or any slight reaction, by PC TSE to the abuse he was receiving, or any further reaction by the Appellant may have all too easily resulted in a breach of the peace and injury to either party or within the crowd.  I determined that I could draw this conclusion from all the evidence despite the fact that the 2 police officers were more concerned with the occurence of offences  such as snatching, pickpocketing and obstructing, rather than injury or harm or the possibility or threat of injury or harm to themselves or other people which may have resulted from such misdemeanours in such a large and excitable crowd.

I was not impressed by the manner in which the Appellant and his witness gave their evidence.  It was clear that from the beginning the Appellant was very angry, and had lost control of his conduct very early on.  Also there was no suggestion by the defence that the fixed penalty ticket was wrongly issued.  Further the Appellant stated that he was angry because he had not been told the reason for the ticket and yet upon receipt he tore it up without inspection.  I did not accept this explanation, nor his other evidence."

18. Assuming that the magistrate reached the right conclusion on credibility, I cannot say that her finding that in the circumstances, there was a likelihood of a breach of the peace occuring, was unreasonable.

19. The third ground of appeal is that the learned magistrate was or appeared to be biased and prejudiced against the appellant.  It is suggested that by reason thereof, she was rendered incapable of forming a just and fair view on the evidence before her in that she had adopted the role of a prosecutor, and persistently asked questions of prosecution witnesses (PW1 and PW2) in a leading form, tending to establish the prosecution case.

20. The questions complained of are all set out above.

21. In this connection, Mr Wong has referred me to R. v. LAU Wing On Crim.  Appeal 378 of 1986 where it was held by the Court of appeal allowing the defendant's appeal against conviction, that (1) taken overall the questioning was aggressively hostile and could only have given the neutral server the impression that the judge was not impartial and (2) a judge must continue to preserve an appearance of neutrality throughout a trial.  This applied even more strongly, to a trial by a single judge.  If the judge assumed the role of an advocate not only was the appearance of neutrality lost, but since the judge was a judge of fact as well as law, there was a real possibility that his judgment would be influenced by his conduct and the defendant genuinely deprived of a fair and impartial trial.  Reference was there made to R. v. Tam Chi Pang & Others, [1986] H.K.L.R. 1122 and R. v. Hamilton [1969] Crim LR 486; and there was a further finding that the nature and purpose behind a judge's questions had to be considered.  The length of the questioning or the number of questions was not necessarily crucial.  I have also been referred to the judgment of the Court of Appeal in R. v. Leung Shui Ming & Another Crim.  Appeal No. 411 of 1985 where an appeal was allowed because the judge had descended into the arena.  The Court of Appeal stressed that questions which may be asked by a judge should be limited to the purpose of clarification following Jones v. National Coal Board [1957] 2 Q.B. 55.  They cited the dictum of Lord Parker in R. v. Hamilton [1969] Crim. L.R. 466 that the categories of intervention by a judge which might result in the quashing g of a conviction were s (a) those which invites the jury to disbelieve defence evidence which was put to the jury in such strong terms that it could not be cured by the common formula for directing the jury that the facts were for them; (b) those which made it impossible for counsel to presentthe defence properly and (c) those which prevent the defendant from doing himself justice and telling his story his own way.

22. It is Mr contention that the magistrate in asking the questions which she did went too far and in fact showed herself to be biased and prejudiced.

23. Miss Catherine Fung for the Crown submits that the questions which were asked were asked for the purpose of clarification.

24. It seems to me that even before she asked her first question, there was evidence before the magistrate which suggested that a breach of the peace was likely.  In seeking to ascertain more precisely what was the mood of the crowd, she may have overstepped a little her province of clarification.  However, her questions were to the point and not persisted in.  I do not consider that I would be justified in allowing this appeal on this ground.

25. In my view none of her questions could be described as aggressively hostile.  Indeed she did not question the appellant or his witness at all.  An accusation of, bias or prejudice against a magistrate is a very serious allegation to make.  I do not consider, having examined the record closely, that such an accusation is fair or justified in this case.

26. The fourth ground of appeal is that the learned magistrate failed to make findings of facts and to, resolve the conflict between the Defence case and the Prosecution case and/or to properly evaluate the evidence in a number of particularised matters.

27. I have been referred to R. v. Lee Tat Choi Magistracy Appeal No. 304 of 1988 and LEUNG Sai Cheung v. R. Magistracy Appeal No. 1062 of 1987.  I have also examined LAM Tin Chung v. The Queen [1970] H.K.L.R. 105; YEUNG Chiu v. The Queen Crim. Appl. No. 1043 of 1975; R. v. Chan King Man & Others [1980] H.K.L.R. 112; LAI Yuk-kui v. The Queen [1981] H.K.L.R. 691; The Queen v. Chong Kam-sau Magistracy Appeal No. 859 of 1985 and The Queen v. Chung Chu-choi Crim.  Appl. No. 85 of 1986.

28. In LAM Tin Chung the Full Court held that a tribunal must evaluate the evidence before it and in the case of oral testimony must weigh it in the context of other salient circumstances.  It should also be made apparent that such an evaluation has in fact been made.  The closer a judgment comes to what would be expected in a summing up, the less danger is there that an appellate court will find itself compelled to interfere.

In Yeung Chiu McMullin J, said :-

"Now it is always a delicate point for a Court of Appeal to decide to what extent, it is entitled to intrude upon the domain of a trial Judge or magistrate in respect of findings of prim any fact.  Certainly, there are cases in which the body of evidence led on behalf of the prosecution and the body of evidence led on behalf of the defence are each of them so simple so straightforward and so succinct and within such a short and clear compass that the magistrate can virtually do no more than recite the evidence and then say that he believes one set of witnesses rather than another.  Beyond such a simple case I think it may be said that there are cases, somewhat more complicated than that, in which nevertheless the failure of the Judge or a magistrate to assign reasons for rejecting one body of evidence rather than an other may not necessarily be fatal since it may be evident from what has been recited of the evidence, that such discrepancies or incoherences as exist in the story which he eventually does accept are of minor nature and therefore too trivial to have disturbed the judgment of a reasonable magistrate But where the body of evidence upon which the Crown relies in a criminal case shows on the face of it, difficulties and incoherences of a substantial sort then I think in any such case it must always be the duty of a magistrate or a judge in giving reasons for deciding which body of testimony he believes to discuss these difficulties and to give some reasonable indication of the manner in which he has disposed of them."

29. In Chan King Man & Others, Roberts C.J. giving the judgment of the Court of Appeal said that LAM Tin Chung should be followed.  But that did not mean that a district judge or a magistrate has to act in relation to facts as if a summing-up was being delivered.  The court approved an earlier statement of the law contained in a judgment of Blair-Kerr J. in R. v. R.E. Low (1961) H.K.L.R. 13 when he said:-

"The District Judge's only statutory duty is to record a short statement of the reasons for the verdict.  There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence."

30. O'Connor J. in Chong Kam Sau commented on the requisites for a magistrate's statement of findings in the following words :-

"…… the reasons for verdict should, in a manner appropriate to, the circumstances of the case, illustrate the salient, points in the case and demonstrate that the evidence has been evaluated.  Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved.  There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case.  The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty."

31. In Chung Chu Choi the Court of Appeal followed Chan King Man as correctly stating the law.

32. In Leung Sai-chuen de Basto J. found himself in agreement with the words of Huggins J. in R. v. Ma Kwai-chong (1968) H.K.L.R. 654 at 656 which appear in the following passage:-

"It is suggested, in particular, that even if one can interpret the words used by the learned magistrate as indicating that he believed the evidence given by the prosecution witnesses, it was still required of him to state what were the reasons for his belief.  Mr Gunston has argued the matter on behalf of the appellant most forcefully, but I cannot accept that this is required under the statute.  What is required is a statement of findings and nowhere does it say that the magistrate is required to give reasons for his findings. ......... I do not say that in every case it is unnecessary for a magistrate to state why he believed a certain story.  It may be that he comes to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and in such a case, if he does not give reasons which commend themselves to an appellate court, it may well be that the appellate court will come to the conclusion that his finding of fact was unsafe and may therefore quash the conviction."

33. The learned judge also cited R. v. Chan King-man, R. v. R.E. Low and Lai Yuk Kui v. The Queen.

34. Bewley J. also in R. v. Lee Tat-choi referred to Lam Tin-chung v. R. [1979] H.K.L.R. 105 and Lam Kam Ming and another v. R. Crim. Appl. 107 of 1979 in which latter case O'Connor J. giving the judgment of the Court of Appeal stated the principles he reiterated in Chong Kam Sau.

35. It would seem from all these authorities that it is very much a matter of degree whether in the individual circumstances of each case the appellate tribunal will feel that the magistrate's statement of findings on the fact sand other grounds for his decision are sufficient to rule out any suggestion that the decision is unsafe or unsatisfactory.

36. Mr Wong argued that Mr Tsoi, the defence witness was an independent witness and that his evidence contradicts the prosecution witness' on two material points, one being the size of the crowd and when it arrived and the second being on the deliberate selection of the appellant's car for issuing a ticket, but that no reason was given for disbelieving him.

37. Having studied the evidence as recorded and considered the magistrate's 'Statement of Fingings' and her comments thereon as to why she believed the prosecution witnesses and rejected the defence witnesses, I consider that sparse though her reasons are, they are adequate.

38. In all the circumstances, do not have any feeling that the verdict of the magistrate was unsafe or unsatisfactory and I dismiss the appeal and confirm the conviction.

Representation:

Mr Wong Po Wing (Patrick Chung & Co.) for Appellant.

Miss Catherine Fung, C.C., for Crown.