HKSAR v. Tong Yiu Wah

HCMA811/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 811 OF 2005

(ON APPEAL FROM TWCC 3509 OF 2004)

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BETWEEN

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Before : Hon McMahon J in Court

Dates of Hearing : 30-31 March 2006

Date of Judgment : 28 April 2006

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J U D G M E N T

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1.This is an appeal against conviction and sentence.

2.The appellant was convicted after a trial in Tsuen Wan Magistracy of an offence of loitering in the Hong Kong International Airport Bylaw area without reasonable cause, contrary to section 20(1) of the Airport Authority Bylaws to the Airport Authority Ordinance, Cap. 483 (“the Bylaws”).  The appellant was sentenced to two months’ imprisonment.

3.Section 20(1) of the Bylaws is in the following terms :

“20. Loitering

(1)   No person shall loiter in any part of the Bylaw Area without reasonable cause. An Authorized Officer or an Authorized Person may request a person to leave the Bylaw Area or any particular part thereof if that person is reasonably suspected of loitering in any part of the Bylaw Area without reasonable cause.”

4.Contravention of section 20(1) is made an offence by section 62 of the Bylaws and is punishable by way of a fine at level 3 and three months’ imprisonment pursuant to Schedule 4 to the Bylaws.

5.The facts of the case as found by the magistrate were quite straightforward.  As set out in the Statement of Findings, they were :

“4.   The basic facts of the case were that the defendant was observed by PW1 and PW2, who were police officers dressed in plain clothes, hanging around the bus route notice board in the Hong Kong International Airport Passenger Area.  During this time he had approached several tourists, who had ignored him, and then he had subsequently approached two Asian males with whom he had a short conversation before he led them to Car Park 1.  At Car Park 1, the defendant stopped near the escalator close to the shroff’s office whilst the two Asian men proceeded to the pick up and setting down area of the car park.  The defendant was then approached by PW2 and he was, inter alia, warned that he was suspected of touting and would be arrested if he was seen doing the same again and he was told to leave the By Law area.  Thereafter, the defendant was allowed to leave and he was seen heading away from the car park towards the bus terminus.  Subsequently, about 35 minutes later, the defendant reappeared at the same location in the International Airport Passenger Area and he again hung around the bus route notice board.  During this time he was observed by PW1 and PW2 to approach three tourists, who had also ignored him.  He was then arrested for loitering.”

6.There was no evidence given or called by the appellant at trial.

7.The grounds of appeal advanced on behalf of the appellant by Mr Nicholas Lau against conviction and as expanded by his submissions are able to be stated shortly as follows :

(1)	that section 20(1) of the Bylaws is inconsistent with article 11(1) of section 8 of the Hong Kong Bill of Rights, Cap. 383 (“HKBOR”);
(2)	(a)	that if the magistrate was wrong in finding the prosecution had the onus of proving there was no reasonable cause for the appellant’s loitering then the appellant was prejudiced by that ruling as because of it he elected not to give evidence;
	(b)	that the magistrate reversed the onus of proof in any event and convicted the appellant on the wrongful basis he had not given any explanation as to his loitering within the Bylaw area of the Airport; and
(3)	that the magistrate erred in inferring that the appellant had no reasonable cause to loiter in the Bylaw area of the Airport.

8.Prior to going to those grounds of appeal, it is convenient here to set out the terms of section 94A of the Criminal Procedure Ordinance, Cap. 221 (“CPO”) and article 11(1) of the HKBOR, the latter of which is in the same terms as article 14.2 of the International Covenant on Civil and Political Rights as implemented through the provisions of article 39 of the Basic Law.

9.Section 94A of the CPO reads :

“(1) It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

(2)   For the avoidance of doubt it is hereby declared that in criminal proceedings—

(a)   it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and

(b)   the burden of proving the same lies on the person seeking to avail himself thereof.

(3)   This section applies to criminal proceedings in the District Court or a magistrate's court.

(4)   The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter.”  [emphasis added]

10.Article 11(1) of the HKBOR reads :

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law.”

Ground 1

11.To decide whether section 20(1) of the Bylaw offends against article 11(1) of the HKBOR, the meaning of section 20(1) must first be determined.

12.In that regard it is not part of a court’s task to attribute an unnatural or artificial meaning to legislation so as to preserve it from infringing any part of the HKBOR or similar legislation.  The fundamentally correct approach must be to give the challenged provision its true meaning as intended by the legislature and then to determine whether the provision is consistent or otherwise with the provisions of the HKBOR.  It should be remembered that a provision which on its face encroaches against the provisions of the HKBOR may still be found to be consistent with that legislation if the encroachment is rational, necessary and proportionate.  More specifically the reversal of the legal onus is permitted in appropriate circumstances : AG’s Reference (No. 1 of 2004) [2004] 1 WLR 2111 per Woolf CJ.  If the provision is inconsistent then consideration must be given to whether the provision can sensibly be “read down” so as to give it an effect which is not inconsistent with the HKBOR.

13.Section 20(1) of the Bylaws must also be read in conjunction with any other legislation which bears upon its operation.  In the present case that means the meaning and operation of section 20(1) must be considered in conjunction with section 94A of the CPO.

14.Though Mr Lau argued to the contrary, it seems plain to me that the legislature intended section 20(1) to carry with it a negative averment of the sort set out in section 94A(4) of the CPO.  It is quite obvious that the legislatures intent was to create an offence which contained within its provisions an exception to the offence in circumstances where the acts, the subject of the offence, were undertaken for a reasonable cause.  In other words, section 20(1)’s requirement that the act of loitering in the Bylaw area be “without reasonable cause” falls squarely within the provision of section 94A(4) of the CPO and triggers the operation of (2) of that section.

15.That means on a proper construction of section 20(1) in the light of section 94A of the CPO that it was not for the prosecution in the present case to prove the appellant had no reasonable cause for loitering in the Bylaw area of the Airport, rather it was for the appellant to prove on the balance of probabilities, as a legal or persuasive burden in the event his loitering in that area was established, that he had a reasonable cause for doing so.

16.Hence, the prosecution has to prove in establishing an offence pursuant to section 20(1) of the Bylaws two matters.  Firstly, that the defendant was loitering and secondly, that he did so in the area defined by section 35(1)(b) of the Airport Authority Ordinance as the Bylaw area.  It is then up to the defendant to establish, if he was loitering, that he had reasonable cause for doing so.

17.In my view there is no doubt that this is the proper construction of the operation of section 20(1).  In support of that conclusion, I note the offence created by section 20(1) falls squarely within the description of exceptions to the usual rule that the prosecution must prove each element of an offence given in R. v. Edwards (1975) QB 27 and as approved by the Privy Councilin AG of Hong Kong v. Lee Kwong Kut & Others (1993) 2 HKCLR 186.

18.In Edwards, the court was dealing with the common law exception to the prosecution having to prove a negative averment.  But the comments of Lawton LJ in that case apply to section 94A, which arose from and is declaratory of the common law principle :

“… over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged.  This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities.  Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception.”

19.In the present case, the important elements of the offence to be proved by the prosecution are, as I have said, that firstly the appellant was loitering and, secondly, that he was in the Bylaw area of the Airport when doing so.  Both matters must be proven to the criminal standard by the prosecution, they are the substantial elements of the offence which effectively create the offence.

20.Mr Lau argued that it is the substance of the offence creating provision which must be looked at and not the form of words used and I agree with that contention.  But he further says, if I follow his argument, that loitering can never be in itself an offence wherever it occurs, and therefore the phrase “without reasonable cause” in section 20(1) cannot merely be a negative averment to which section 94A of the CPO applies, but must itself be an important element of the offence which the prosecution must prove.  That is, he argues as I understand him, that the phrase “without reasonable cause” in section 20(1) defines the act of loitering itself and must be part of the law creating the offence, so that section 94(A) of the CPO does not apply as section 94A(1) restricts the operation of that section to averments which fall outside the “law creating the offence”.

21.I disagree.  It is true that mere loitering cannot of itself be an offence, if it is defined as akin to lingering or simply hanging about a place for no apparent purpose or reason such as one might be expected to have in the conditions existing : Hagan v. Ridley (1948) WALR 112 and R. v. Mok Chi Ho (1979) HKLR 118 (the latter of which provided a truncated version of that definition from Hagan v. Ridley).  That is because people may loiter within the terms of that definition for perfectly innocent reasons and it would be wrong for them to be prima facie guilty of a criminal offence in doing so.

22.But section 20(1) is not an offence which, apart from the phrase “without reasonable cause”, criminalizes mere loitering.  The loitering must importantly be proven to have occurred in the Bylaw area of the Airport.  An airport is a unique place and particularly so in Hong Kong where it provides the main port of entrance and exit to the city for overseas travel.

23.Considerations apply to the safe and efficient functioning of an airport which may not be relevant to other areas of Hong Kong.  The unobstructed flow of passengers, the efficient provisions of service, and the security and safety of the travelling public are important matters to govern within the Bylaw area.  Accordingly, in my view, the element of proof that the loitering took place in the Bylaw area of the Airport is a significant and important element of the offence and it cannot be argued as Mr Lau attempted to do that, in the absence of the prosecution being required to prove “without reasonable cause” as an element of the offence, section 20(1) criminalizes mere loitering.

24.In my view, as I have said, the phrase “without reasonable cause” within the context of section 20(1) is plainly not a part of the law creating the offence but an exception to or qualification of the operation of the law creating the offence which comprises the two substantive elements of loitering and of that loitering being in the Bylaw area, and section 94A(4) and therefore (2) applies.

25.The question that remains, if my construction of section 20(1) and my conclusion that section 94A applies is correct, is to determine whether, on the basis of that construction, section 20(1) in its operation is inconsistent with article 11(1) of HKBOR.

26.Any reversal of onus in any criminal provision, whether pursuant to section 94A or otherwise, must raise a question as to its consistency with article 11(1).

27.As I have said, it is not every encroachment upon article 11(1) which will render an offence creating provision inconsistent with that article.  If an encroachment is justified in the sense that it is necessary and rational, and is proportionate in the sense that it goes no further than is required, then the encroachment is not inconsistent with article 11(1).  In this case, given what I have said concerning the special considerations applying to the security and efficient operation of the Airport and its importance to Hong Kong and further and importantly the peculiar position of a defendant to be able to provide evidence as to any one of a possible myriad of reasonable excuses he may have had for loitering in the Bylaw area, the reversal of the legal burden under section 20(1), in my view, is justified and proportionate and the provision must survive this challenge under article 11(1) of the HKBOR.

28.I might add that the operation of section 94A in respect of a negative averment such as that contained in section 20(1) will, in my view, rarely offend against the provisions of article 11(1), though such cases of course will occur, see Lam Yuk Fai v. HKSAR, FACC12/2005.  That is because the substance, if not the form, of provisions such as section 20(1) is effectively to create a broad based defence to what is otherwise an offence which must be proven by the prosecution.  It is not a question of a defendant having to negative a presumption or disprove one of the fundamental elements of the offence, but simply of the defendant being provided with an opportunity, once the elements of the substance of the offence have or may have been established against him, to offer an excuse or explanation for his actions which renders them reasonable.  In most such cases, though the legal or persuasive burden is reversed, that reversal will be proportionate and go no further than necessary for the simple reason that the defendant is usually and pre-eminently in the best position to state whether he had a reasonable excuse or licence or authority for doing what he did.

29.As the Privy Councilsaidin AG of Hong Kong v. Lee Kwong Kut [1993] 2 HKCLR 186 :

“… it is their Lordships’ opinion that, in applying the Hong Kong Bill, it is not necessary, at least in the vast majority of cases, to follow the somewhat complex process now established in Canada in order to assess whether an exception to the general rule that the burden of proof should rest upon the prosecution throughout a trial is justified.  Normally, by examining the substance of the statutory provision which is alleged to have been repealed by the Hong Kong Bill, it will be possible to come to a firm conclusion as to whether the provision has been repealed or not without too much difficulty and without going through the Canadian process of reasoning.  The application of a test along the lines suggested by Lawton, L.J. in Edwards (supra) in the manner already indicated will often be all that is required.  The court can ask itself whether, under the provision in question, the prosecution is required to prove the important elements of the offence; while the defendant is reasonably given the burden of establishing a provision or an exemption or the like of the type indicated by Lawton L.J.  If this is the situation Article 11(1) is not contravened.”  [emphasis added]

30.In my view, the comments of the Privy Council in Lee Kwong Kut are directly applicable to section 20(1) of the Bylaws.

31.Further, I am satisfied also that the interpretation I have placed on section 20(1) in conjunction with section 94A in no way prevents a fair trial.  As I say the person who would best know why he was loitering in the Bylaw area is a defendant.  If he has a reasonable cause for so doing that can simply be stated.  Indeed it would be unfair to place upon the prosecution the onus of proving “without reasonable cause”.  That would potentially require the prosecution to disprove a plethora of possible reasonable causes as to a defendant’s presence in the Bylaw area.  A person lingering or hanging about a particular area is peculiarly best able to say why he was doing so.  It seems unreasonable to suggest it is unfair to place an onus upon that person to say why he was there.

32.In my judgment, this first ground must fail.

Ground 2

33.Mr Lau’s first complaint in this regard must be placed in the context of what happened at trial.

34.The same constitutional point as to section 20(1) infringing article 11(1) was argued before the magistrate.  His ruling in that regard, contrary to my ruling in this appeal, was that :

“(u)    I found it was the legislature’s intention that without reasonable cause was to be an integral part of the prosecution case, as I believe the legislature intended that all these elements were to be proved beyond reasonable doubt by the prosecution only.  I found it inconceivable that the Legislature would intend Loitering to stand on its own (making the ‘without reasonable cause’ a negative averment to the proved by the defendant) after the Bill of Rights had been enacted.  To do so would mean that the prosecution had very little to prove in each case, and that part of the proof would be virtually a formality, and it would cause every person at the airport waiting around (as was legally done most of the time by people) to be at risk of prosecution unless they could show reasonable cause.  As I have said, it was conceded that the requiring of a person to offer an explanation to an officer was contrary to his rights enshrined in statute.  It simply was not ‘an offence plus an exception’ if it was treated as a negative averment.”

35.Mr Lau argues that because the magistrate found that the onus of proof was on the prosecution to prove the appellant loitered “without reasonable cause” then the appellant was led to decide not to give evidence, no onus being placed on him, and was thereby prejudiced.

36.In my view that argument contains within itself a considerable degree of speculation.  The appellant at all times had the right to give evidence.  He was in no way prevented from doing so.  He was aware that a live issue in the trial was whether there was any reasonable cause for his loitering and in the face of that nevertheless elected not to give evidence or call witnesses.  In these circumstances the magistrate wrongly placing a burden of proof upon the prosecution, which they should not have had to shoulder, did not prejudice the appellant’s case.  If anything it assisted the appellant.

37.I am satisfied on the evidence before the magistrate, whether or not the burden of proof of the question of “reasonable cause” had properly been allocated to the appellant or not, the result of the trial would inevitably have been the same and it is quite plain in the context of the trial as a whole that the appellant suffered no real prejudice from the magistrate wrongly requiring the prosecution to prove the appellant had no reasonable cause to loiter in the Airport Bylaw area and this complaint must fail also.

38.Mr Lau further argues under this ground that the magistrate in any event wrongly placed the overall onus of proving his case on the appellant.  What Mr Lau complains of is encapsulated in the following excerpts from the magistrate’s Statement of Findings :

“9.   The defendant elected to remain silent and I reminded myself that it was his right to remain silent and that I should not assume his guilt or draw any inference from his silence.  However his silence left me without any explanation from him to undermine, contradict or explain the prosecution evidence against him.”

and later :

“(d)   Whilst I accepted that the defendant had an absolute right to silence at law and I should not draw any inference from it, I did however note as part of my findings that he had not explained what he was doing to the officers, …”

39.So far as the earlier comment was concerned, there was no reversal of onus implicit in the words of the magistrate.  A court is perfectly entitled to take into account that by electing not to give evidence a defendant thereby offers no evidence of his own to undermine or contradict the evidence of the prosecution.

40.Equally in the latter statement the magistrate simply noted that there was nothing said by the appellant to the police officers who spoke to him which went towards establishing any reasonable cause for his presence in the Bylaw area.

41.In respect of both matters the magistrate expressly stated he drew no inference against the appellant from his silence.

42.There is no merit in this complaint and the second ground must also fail.

Ground 3

43.Mr Lau complains in this ground that the magistrate had no sufficient evidential basis to infer that the appellant was loitering “without reasonable cause”.

44.The magistrate had made his finding in that regard as a result of concluding that the appellant had in fact been touting some sort of service to tourists as they arrived in the Airport greeting area.  In that regard the magistrate said :

“12. I found I drew the irresistible inference that the defendant had been touting and was therefore not loitering without reasonable cause.  I found the following assisted in my findings:—

(a).  The defendant had walked up to several tourists on the first occasion and 3 tourists on the second occasion and that on all these occasions the tourists ignored him.  I find that the only logical explanation was that he did not know any of these tourists and he was asking them something, which they were ignoring.

(b).  The defendant had a car at the airport and I believed he would not leave the car parked for such a long period 1.40 to 2.50 pm if he was simply there meeting someone.  I found he did not remove the car from the car park when he left PW1 and PW2 on the first occasion as he walked away from the car park towards the bus station.  I believed he had not paid for the car park ticket because of police intervention and I found that the defendant did not intend to use his car at that time after police intervention to transport the Asian men in it.

(c).  The defendant did not hold up any placard with the Asians’ names before he met the two Asians, but simply went up to them and spoke to them.  I believed he therefore did not know them before he spoke to them.  I further believed that if he was simply picking them up there as a driver he would not need to have a conversation with them before leading them off to the car park and he would also not leave them after police intervention and walk away from them.”

45.Those conclusions were open to the magistrate on the evidence and in my view were inevitable.  Mr Lau argued that there was no proof that the appellant did not know these people and was simply saying hello to them, and that there was no evidence the persons approached were tourists.  I disagree.  In the circumstances of these people being seen on their way out from the arrival area, and bearing in mind that the appellant spoke to these people as they viewed the bus-route map at the arrival area, the magistrate’s conclusion that they were tourists was sustainable.  In any event whether they were tourists, businessmen, or Hong Kong belongers meant little to the important finding of the magistrate that the appellant had been touting.

46.Some criticism was also levelled at the magistrate’s reference to the appellant’s car being parked at the Airport.  It was suggested there was no evidence of that.  I am satisfied from a review of the partial transcript provided that there was such evidence.  In short then there was ample evidence to enable the magistrate to conclude that the appellant had been touting some sort of service in the Bylaw area of the Airport.  Loitering in a particular area for the purpose of touting a service cannot be for a reasonable cause.  A reasonable cause must, as a starting point, be lawful and touting is itself an offence under section 26(1) of the Bylaws.

47.I am satisfied there is no merit to this final ground and the appellant’s appeal against conviction is dismissed.

Sentence

48.The appellant was sentenced to two months’ imprisonment.  The maximum penalty for a loitering offence pursuant to section 20(1) of the Bylaws as specified in Schedule 4 to the Bylaws is three months’ imprisonment.

49.The appellant had an extensive criminal record comprising some 38 previous convictions, eight of which were for touting at the Airport.  The magistrate, given that background, cannot be criticized for imposing a sentence of immediate imprisonment.

50.But Mr Lau has a forceful point when he argues that the real offence committed by the appellant as found by the magistrate was, in fact, once again, that of touting.  I agree that was the basis of the magistrate’s findings.  Mr Lau points out that the maximum penalty for touting under the provisions of section 26(1) through section 62 and Schedule 4 to the Bylaws is one month’s imprisonment.

51.In my view the appellant had in fact been touting.  His loitering was simply incidental to that offence.  Indeed it is difficult to realistically imagine circumstances where touting activities do not include the sort of loitering that the appellant was convicted of in this case.  It would have been, given the facts of this case, appropriate to sentence him on the basis of the principal activity he was in fact undertaking.

52.For that reason, I order that the sentence of two months’ imprisonment be set aside and a sentence of three weeks’ imprisonment be substituted.  That is a sentence at the high end of the range for an offence of touting but given the appellant’s previous convictions in that regard, it is warranted.

53.The appellant has recently been sentenced by me on another appeal to six weeks’ imprisonment for a wholly separate offence of assault occasion actual bodily harm.  I order that the present sentence be served consecutively to that sentence, that is, a totality of nine weeks’ imprisonment.

Mr Simon Tam, SGC, of the Department of Justice, for HKSAR

Mr Nicholas Lau Yiu Kan, instructed by Messrs Paul Kwong & Co., assigned by DLA, for the Appellant