Tang Chi Lun v. HKSAR

FAMC No. 9 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 2006 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

hcma No. 645 of 2005)

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Appeal Committee : Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing : 25 April 2006

Date of Determination : 25 April 2006

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.The applicant was charged with an offence under s 20(c) of the Summary Offences Ordinance, Cap 228.  This provides that any person who persistently makes telephone calls without reasonable cause and for the purpose of causing annoyance, inconvenience or needless anxiety to any other person, commits an offence punishable by a fine of $1,000 and imprisonment for two months.

2.The facts were not in dispute.  The defendant, a clerk in the Highways Department, had formed a dislike for Ms Cheung Tak Mei under whom he had once worked.  He decided to cause her annoyance by repeatedly misusing a telephone system set up by the Immigration Department as part of its exercise of replacing ID Cards with new “Smart” ID Cards.  To do this, he dialled a phone number, giving access to an interactive voice response system for making appointments for replacing ID cards.  He entered false ID Card numbers and then entered Ms Cheung’s telephone number as the number to which a fax confirmation should be sent.  Ms Cheung would therefore receive such fax signals on her telephone.  When the calls were diverted to a fax machine, it was revealed that they were purported notifications of appointments for replacing ID Cards.  The applicant did this partly to lessen the workload of his girlfriend, who was employed in the ID Card replacement exercise, so that she would have more free time to chat with him on the phone.  In doing so, on some occasions, he would make phone calls without relaying a fax signal to Ms Cheung.  But where the signal was sent to Ms Cheung, he plainly also intended to annoy or inconvenience her by his acts.

3.The applicant’s main argument, which failed before the magistrate and before Pang J, is that the offence was not made out since he had only called the Immigration Department’s computer which had then itself caused a fax signal to be sent to Ms Cheung’s phone.  It was argued that only “directly” calling Ms Cheung could constitute “making” a phone call.  That argument is misconceived.  The applicant plainly “made” the call which involved dialling the relevant number and using the interactive system.  He did so for the purpose of causing Ms Cheung annoyance.  Those elements were clearly established.

4.Mr Khattak, who appears for the applicant, also seeks to argue that proof of an offence under s 20(c) requires proof of the matters set out in s 20(a), namely, that the call must be grossly offensive or of an indecent, obscene or menacing character.  As a matter of construction, that proposition is not reasonably arguable.  The elements of s 20(c) involve persistently making telephone calls without reasonable cause for the purposes set out in s 20(b).  Section 20(a) is plainly separate and not relevant.

5.It is also contended that the element of “persistently” was not made out.  The word “persistently” connotes some degree of continuance or repetition: Dale v Smith [1967] 1 WLR 700 at 704; Re Arctic Engineering Ltd  [1986] 1 WLR 686 at 692; and R v Tuck [1994] Crim LR 375.  Initially, the charge concerned the period between 5 May 2004 and 5 August 2004 when records showed 134 telephone calls from the defendant’s telephones resulting in 2,300 false bookings.  Since there was concern as to whether an offence based on some of the earlier calls might be time-barred, the charge was amended to relate only to calls made on dates in July and August 2004, resulting in 18 false bookings which were plainly not time-barred.  The facts relating to such calls were admitted.  On such evidence, the magistrate was fully entitled to find that the applicant had “persistently” made the relevant calls and the contrary is not reasonably arguable.  Nothing in HKSAR v Yan Chiu Ming (HCMA 300/2002, 21 May 2002) supports any contrary view.

6.Certain procedural complaints and a purported Basic Law point are also advanced as grounds for appeal.  None of those grounds is reasonably arguable.  Indeed it would be hard to think of a clearer case for liability under s 20(c).  Leave to appeal is refused.

Mr Shahmim K. Khattak (instructed by Messrs Alfred Lam, Keung & Ko) for the Applicant

Mr Eddie Sean and Mr Richard Ma (of the Department of Justice) for the Respondent