HKSAR v. Yip Tak Ming

HCMA727/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.727 OF 2004

(ON APPEAL FROM KCCC 4550 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge Fung in Court

Date of Hearing : 16 September 2004

Date of Judgment : 16 September 2004

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JUDGMENT

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1.The appellant, Yip Tak Ming, was convicted after trial by a magistrate of behaving in a disorderly manner in the public place, contrary to section 17B(2) of the Public Order Ordinance, Cap.245. 

The prosecution case

2.The prosecution alleged that the appellant behaved in a disorderly manner, namely, he placed his mobile phone and held it under the skirt of a female (PW1), whereby a breach of the peace was likely to be caused. 

3.On 15 March 2004 (which is a Monday), at 6:30 p.m., PW1 was travelling on an ascending escalator leading from the platform to the concourse at an MTR station.  The appellant was on the step immediately behind or below PW1.  On the next step down stood PW2.

4.The appellant had a folding type mobile phone with a camera on the top-flap.  The appellant held the lens facing upwards under the skirt of PW1. 

5.PW2 saw the appellant’s act and she patted or pushed the appellant once and challenged why he was taking photographs up the skirt of another.  PW2 alerted PW1 of what happened.  The appellant denied taking shots up PW1’s skirt and offered to show the phone to PW1.  The appellant pressed on certain buttons of the phone and showed it to PW1.  PW1 saw photographs of the appellant and his friends.  Later, the police arrested the appellant and found no indecent material inside the phone. 

6.The Magistrate found that the behaviour of the appellant caused concern or consternation on the part of PW2 so as to cause her to push or pat on the appellant. 

The defence case

7.The appellant called no evidence.  The appellant was of clear record.

Reasons of the magistrate

8.The Magistrate accepted the prosecution evidence and concluded that the appellant was attempting to take a photograph of PW1’s skirt.  The Magistrate held that :

“… the ‘breach of the peace’ would involve threatened or actual violence.  Mere disturbance without more, insulting behaviour per se, or ‘noisy or disorderly behaviour’ simpliciter would be sufficient to constitute a breach of the peace ….  The threatened or actual violence need not be perpetrated by the defendant but might proceed from some third party ….”

9.The Magistrate referred to the finding by the trial magistrate in HKSAR v. Cheng Siu Wing as approved by Beeson J upon appeal in [2003] 4 HKC 471, 481 :

“Taking into account the likely reaction of members of the public to a person photographing under the skirt of a woman I am very firmly of the view that there is every likelihood of a breach of peace being caused.  In my judgment, the average Hong Kong citizen is likely to be outraged by such behaviour and it is entirely predictable that a hue and cry would be raised and that concerned citizens would endeavour to detain an alleged miscreant.  In so acting, it is entirely predictable that both the members of the citizenry and the alleged miscreant would be likely to commit a breach of the peace.  In my judgment, therefore, the behaviour alleged against the Appellant is entirely capable of being the sort of behaviour that would make it likely that a breach of the peace would be caused.”

10.The Magistrate further observed that the words of his learned brother were not confined to a situation where actual force had in fact been used.

11.The Magistrate found that in view of the reaction of PW2, the behaviour of the appellant vis-à-vis PW1 was such that whereby a breach of the peace was likely to be caused, and such likelihood was real and not a mere supposition.  

Consideration upon appeal

12.Under section 17B(2) of the Public Order Ordinance :

“      Any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any writing containing, threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for 12 months.”

13.Mr Choy, for the appellant, did not seek to challenge any finding of primary facts by the Magistrate, nor did he seek to argue that the escalator between the platform and concord at the MTR station was not a “public place”.

14.In Cheng Siu Wing, Beeson J held that disorderly conduct meant behaviour in the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.  There needed not to be any element of violence, whether present or threatened.  It covered conduct which was not necessarily threatening, abusive or insulting.  The conduct of an attempt to photograph or photographing under the skirt of a female was properly categorized as “disorderly conduct”.  Mr Choy also did not seek to argue otherwise in this case.

15.In Ground 1 of the perfected grounds of appeal, Mr Choy argued that the learned Magistrate erred in finding that the alleged conduct of the appellant was such whereby a breach of peace was likely to be causer when no breach could have been occurred in the circumstances of the case.

16.Alternatively, in Ground 2, the learned Magistrate failed to properly adequately address the issue of likelihood of occurrence of any breach of peace with reference to the particular circumstances of the present case.

17.In R. v. Howell [1982] 1 QB 416 per Watkin LJ at 426 :

“…. we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. …”

18.Mr Reading, SC, for the respondent, accepted that in order to constitute a breach of the peace, there must be an act or threat of force or violence, or the likelihood of such act or threat.

19.In Parkin v. Norman [1983] 1 QB 92, McCullough J in delivering the judgment of the English Court of Appeal stated that the court must conclude that a breach of the peace is likely to occur and not liable to occur.  He also stated that :

“…. In Ballard v. Blythe (unreported), November 3, 1980, the appellant insulted, abused, threatened and spat at a man who, unknown to him, was a headmaster, and who reacted with an unusual degree of self-restraint.  In dismissing his appeal, 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?’’

Where the defendant is addressing an audience which he knows has special susceptibilities, a breach of the peace may be the natural and probable result of behaviour which would not provoke an audience not having this susceptibility in such a way.”

20.Mr Choy conceded that section 17B(2) speaks of the likelihood of a breach of the peace and the fact that in spite of such likelihood, no breach of the peace actually occurred would not make it impossible to convict.  However, what was likely to happen should have a tendency that it would have taken place.  The fact that no breach of peace had taken place would thus be strong circumstantial evidence pointing to the lack of such likelihood in the first place.

21.Mr Choy argued that the court must consider the tendency of the characters present at the scene in considering whether there is a real likelihood of a breach of the peace.  He referred to HKSAR v. David Morter [2003] HKLRD 510 per Beeson J.  The appellant, Morter, was convicted of behaving in a disorderly manner in a public place whereby a breach of the peace was likely to be caused.  He swore and screamed at people going into a police station.  He dashed into the station where he paced around erratically in front of the reception desk and continued to swear and shout abuse, in particular, to a woman police constable.  He continued this behaviour in the report room where he was heard by members of the public a few feet away in the lobby.  The WPC gave evidence that she felt threatened and frightened by his behaviour and the prosecution alleged that he had scared some members of the public.  At issue on his appeal against conviction was whether his disorderly conduct was likely to cause a breach of the peace.

22.In allowing the appeal, Beeson J said at p.517, para.26 :

“      There was no evidence, apart from the fact that people were frightened, or appeared frightened, that any one of them was likely to use violence, or be provoked into causing a scene, as a result of the appellant’s behaviour.  Nor were the police officers present likely to have been incited to violence, or put in fear of harm being caused to their persons, or property, by one elderly, four-mouthed male in a police report room.  The situation might have been different if the members of the public had been, say, the triad brothers of persons arrested and being investigated for a gang fight.  A disturbance such as that caused by the appellant might well have provided an opportunity for a general brawl.  There was no suggestion that was the position.”

23.Mr Choy also referred to R. v. Li Wai Kuen [1973-1976] HKC 346 per Huggins J (as he then was).  The appellant, Li, was convicted of behaving in a disorderly manner likely to cause a breach of the peace for using abusive language, namely “Du Nei Lo Mo” against a police officer at a pedestrian crossing.  In allowing the appeal, Huggins J found that there was no evidence showing that the appellant’s conduct might cause a breach of the peace.  Police officers were trained to conduct themselves with outstanding tolerance and good humour even in the face of provocation.  His lordship observed that there were members of the public present but he was not persuaded that there was evidence justifying the conclusion that there was a real possibility that what the appellant said would provoke them to violence; abuse of the police in the presence of third parties does not ipso facto constitute incitement of those third parties, even in Hong Kong.

24.Mr Choy submitted that Cheng Siu Wing did not lay down any immutable principle of law that the sort of behaviour such as placing a camera under a female’s skirt in a public place will be a breach of the peace.

25.Mr Choy sought to distinguish Cheng Siu Wing on the facts.  The appellant, Cheng, followed a mother and her daughter up a public staircase leading to a footbridge.  The appellant was holding a digital camera in his palm and reached under the skirt of the daughter with the hand holding the camera.  The mother stopped him and tried to restrain him from leaving the scene.  Three others rendered assistance and a struggle followed.  The appellant was subdued and arrested.  Mr Choy argued that in Cheng Siu Wing, there was an angry mother and an appellant who tried to run away.  Actual violence resulted when members of the public tried to subdue the appellant.

26.Mr Choy submitted that in the present case, the Magistrate concluded that there was a likelihood of a breach of the peace from PW2’s reaction of concern and consternation.  He had failed to consider the particular circumstances of the case, such as the co-operativeness of the appellant and the reaction of the members of the public.  He submitted that the Magistrate erred in simply relying on the finding in another case without reference to the particular circumstances of the instant case.

27.Mr Choy said that he could understand the normal indignation and public outcry as to the impugned behaviour.  However, disapproval of such behaviour does not ipso facto means there is a real likelihood of a breach of the peace.  In the absence of any direct legislation on the matter, the law should not be stretched to the limit to cover the conduct in question.

28.Mr Reading responded by saying that although it is accepted that the evidence does show that the appellant was co-operative and he did not resort to violence, that the citizen acted calmly and did not react with outrage to the conduct of the appellant was fortunate, but those events were ex post facto the disorderly conduct of the appellant, and it was the potential breach of the peace at the time that the appellant placed his camera phone beneath the skirt of PW1, that was the crux of this case.

29.Mr Reading submitted that the make up of the characters present at scene is not the only relevant matter, but the circumstances such as the time, place and flow of the people are relevant.

30.Would the conduct of the appellant have been likely to provoke anyone else to commit a breach of the peace?

31.It is important to consider the nature of the alleged disorderly conduct.  It is not the mere uttering of any four-letter abusive words.  It is placing a camera underneath a female’s skirt in a public place.  With respect, I agree with Beeson J and the learned Magistrate at trial that an average Hong Kong citizen is likely to be outraged by such conduct.  I cannot think otherwise having applied the standards of any right minded person in Hong Kong.

32.The circumstances are relevant.  The incident took place on the escalator in an MTR station during the rush hours of a Monday evening.  It is notorious that MTR stations in Hong Kong are crowded with people from all-walks.  During such hours and the commuters are captive in close proximity along escalators until reaching the next level.

33.Cheng Siu Wing provided an illustration of how right minded members of the public might react to such behaviour.  There is no indication that those members of the public are idiosyncratic that it could not have happened the same way in any other given situation.  A fortiori, it is inherently natural and probable that citizens would take the law in their own hands in particular circumstances such as the present case.

34.I agree with the Magistrate that there is a real likelihood of the appellant’s disorderly conduct in provoking anyone else to resort to an act of force or violence against the appellant.  The fact that there was no actual violence for detention against the appellant by PW2 or anyone else at the material time was fortuitous and non sequitur.

35.Hence, I shall dismiss the appeal.  I thank Mr Reading and Mr Choy for their helpful submissions.

Mr John Reading, SC, DDPP, leading Miss Lily Wong, SGC of Department of Justice, for HKSAR

Mr Edwin Choy, instructed by Messrs Haldanes, for the Appellant