HKSAR v. Wong Wing Hong

HCMA307/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.307 OF 2006

(ON APPEAL FROM KTCC 7541 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 20 July 2006

Date of Judgment : 20 July 2006

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J U D G M E N T

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1.The appellant is convicted after trial of one charge of behaving in a disorderly manner in a public place, contrary to section 17B(2) of the Public Order Ordinance, Cap.245.  He was put on probation for 12 months.  He now appeals his conviction.

PROSECUTION CASE

2.The prosecution called four witnesses.

3.At the material time, a girl in school uniform was standing on an escalator in a shopping centre in Sau Mau Ping, proceeding from the 2^nd to the 3^rd floor.  The appellant was behind her, and when they were half-way up, the appellant was seen by PW1, a security guard, standing at a lower level some 8 feet behind, to have held and positioned a mobile phone under the skirt of the girl and shots were taken.

4.Having seen that, PW1 caught hold of the appellant.  Later the police was summoned.  The girl left before police arrived.

5.PW2 and PW3 were police officers who cautioned the appellant at the scene and who took a cautioned statement from him back at the police station respectively.  Voluntariness of what was said under caution and in the cautioned statement was not challenged.  In essence, the appellant admitted to have taken photographs of what was under the skirt of a student at the escalator.  He claimed that he was just seeking fun and he did not know the girl.

6.PW4 was a police officer called to produce photographs of images he found in the appellant's mobile phone.

DEFENCE CASE

7.The defendant, who had a clear record, elected not to give or call evidence.

GROUNDS OF APPEAL

8.The grounds advanced by counsel Mr Percy on behalf of the appellant are as follows :

(1) The learned magistrate erred in finding that ‘a breach of the peace was likely to be caused' and in so doing, erred in finding that all elements of the charge were proved.

(2) The failure of the prosecution to inform the defence prior to conviction of the previous convictions of PW1 amounted to a material irregularity, rendering the conviction unsafe and unsatisfactory.

(3) Failure of the magistrate to give detailed oral reasons on convicting the appellant, especially when the submission of no case had been rejected, was in breach of natural justice and amounted to material irregularity.

RESPONDENT'S REPLY

9.(1)     Counsel for the respondent submitted that facts of the present case were similar to the case of HKSAR v. Yip Tak Ming [2004] 3 HKLRD 286, and the magistrate was correct in concluding that "the average Hong Kong citizen would be outraged by such conduct and it was inherently natural and probable that they would take the law into their own hands", and finding that "a breach of the peace was likely to be caused".

(2) It was also submitted that the non-disclosure of PW1's previous convictions during the course of the trial, although an irregularity was not material given that PW1's evidence as to what he observed the appellant did was substantially not challenged.  The defence ran at the trial was that an ingredient of the offence was not made out rather than a total denial of what had happened.

(3) It was further submitted that a magistrate is not required to give full oral reasons when convicting a defendant.

MY JUDGMENT

Ground 3

10.I shall first deal with Ground 3, which, in my view, can be disposed of shortly.  There is no obligation in law for a magistrate to give detailed oral reasons.

Section 19(2) of the Magistrates Ordinance, Cap.227, provides that :

"The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be."

Section 114(b) provides that :

"when a notice of appeal has been given to the magistrates' clerk the magistrate whose conviction, order or determination is the subject of the notice of appeal shall prepare a signed statement of his findings on the facts and other grounds of his decision and within 15 days after the day on which the notice of appeal was given cause a copy to be served upon the appellant and respondent and, if he is not the respondent, also upon the Secretary for Justice."  [Emphasis added]

11.An appellant would not be deprived of his right to know the basis of the conviction as that would be set out in the Statement of Findings.  In the case of HKSAR v. Fung Siu Chung, HCMA1159/1998, Deputy Judge Lugar-Mawson, as he then was, said :

"… Unlike the detailed provisions in s.80 of the District Court Ordinance, which deal with the duties of a District Court judge at the time he delivers his verdict, there is no requirement that a magistrate delivers full oral reasons for his decision at the time of conviction. …"

The rationale is succinctly set out by Deputy Judge Lugar-Mawson, he said this :

"… But, it must not be forgotten that magistrates work under considerable pressure, dealing with many cases in one day.  They do not have the luxury of time High Court and District Court judges have. …"

12.There is nothing in this ground and this ground fails.

Ground 2

13.Ground 2 complains of a material irregularity resulting from a failure of the prosecution to inform the defence of PW1's previous convictions.  It was common ground that it was only after conviction, when the case was adjourned for sentence pending reports that the court was drawn to the attention of this matter by a letter from the prosecution.

14.In the case of Ching Kwok Yin v. HKSAR [2001] 1 HKLRD 268, the appellant's ground of appeal was that the prosecution failed to disclose PW1's criminal record.  On appeal, the Court of First Instance held that whilst such failure was an error, it was immaterial in that the magistrate would inevitably have come to the same conclusion of PW1's credibility had he known of his previous convictions.  On appeal to the Court of Final Appeal, it was held that :

"There is in the Magistrates Ordinance no equivalent to s.83 of the Criminal Procedure Ordinance (Cap.221), which specifies the grounds upon which an appeal to the Court of Appeal may be allowed, and therefore there is no proviso which requires that the appeal shall be dismissed if no miscarriage of justice has actually occurred : the judge may make such order as he thinks fit.  It follows that he has to decide whether there has been in the Magistrates' Court an error which makes it just that the appeal would be allowed and the conviction set aside.

…

Here, Yeung J rightly held that there was a grave procedural error, but the effect of his judgment was that he did not regard that error as sufficiently serious of itself to require that the appeal be allowed: that is to say that he did not think it was material.  We think that was wrong.  The error would only have been immaterial if the Magistrate would undoubtedly have entered the same verdict had he known of Mr Wong's previous convictions.  In our views it cannot be put any higher than he might have entered the same verdict.  The conviction was therefore unsafe, and an unsafe conviction is a miscarriage of justice."  [Emphasis added]

15.That case, which concerns an allegation of an unprovoked attack by the appellant on the prosecution witness and the appellant denied any such attack, could not be said to be on all fours with the present case.  Credibility was clearly the crux of the matter in that case.

16.In the present case, the defence never challenged what PW1 said that he witnessed to have happened.  The appellant admitted to have done those acts under caution.  The main issue is, whether one important ingredient of the offence, namely, whether the conduct of the appellant was likely to cause a breach of the peace, was made out.

17.According to the transcript, after the court was made aware of PW1's previous convictions, the magistrate did enquire with counsel whether he had any view or application.  Mr Percy answered in the negative (Appeal Bundle p.51D).  The magistrate then said this :

"… I didn't think PW1's evidence on the facts material to this case was really challenged, so I don't think the failure to inform the court of PW1 having a criminal record is important material.  It would not have affected my decision in this case. …"

18.Mr Percy for the defendant at trial never asked to reopen the case for PW1 to be cross-examined on his previous convictions.  Neither did the magistrate feel any need to reopen the case or order trial de novo.  In my view, given the defence in this case not being a total denial, the non-disclosure was not a material irregularity.  Rather, this error was immaterial, and the magistrate had made it plain that such would not have affected his decision one way or another.  There is no merit in this ground.  I now move to Ground 1.

Ground 1

19.It is not disputed that the place where the incident occurred was a "public place"; and the conduct of photographing under the skirt of a female was a "disorderly conduct" (HKSAR v. Cheng Siu Wing [2003] 4 HKC 471).

20.In considering whether the defendant's behaviour wash such that "whereby a breach of the peace was likely to be caused", the magistrate referred to Cheng Siu Wing, HCMA619/2003,and Yip Tak Ming. In the latter case, Deputy Judge Fung echoed and applied the reasoning in Cheng's case.  Facts in Yip's case were similar to the present case, save that such disorderly conduct was witnessed by another citizen who alerted the victim.  None of the appellant, the citizen and the victim resorted to any violence in that case.  Deputy Judge Fung, in dismissing the appeal and upholding the conviction, said :

"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 the commuters are captive in close proximity along escalators until reaching the next level.

33.  HKSAR v. Cheng Siu Wing [2003] 4 HKC 471 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."

21.Counsel for the appellant sought to distinguish the present case from Yip's case.  It was submitted that the present case occurred in the afternoon in a shopping centre whilst Yip's case took place during rush hours at an MTR station.  It is also submitted by Mr Percy that a citizen in Yip's case reacted but in the present case no persons other than a ‘trained personnel', namely, the security guard, reacted.

22.In my view, counsel's submission is misconceived.  To draw a distinction between the time and place would lead to the absurd result of a licence to behave in disorderly manner at certain hours of the day and at certain places where passers-by are scarce in numbers.  This could not have been the intention of the legislature.  The fact that no persons other than the security guard reacted is neither here nor there.  The test is not whether any actual breach of the peace was caused but rather whether a breach of the peace was likely to be caused, i.e. whether an average Hong Kong citizen is likely to be outraged by such conduct.

23.I now turn to the ‘trained personnel' point.  The threatened or actual violence need not be perpetrated by the defendant but might proceed from some third party as seen in the dicta in Cheng Siu Wing's case.  It is clear that the word ‘third party' means persons other than the defendant or appellant.  Counsel for the appellant relied on the cases of R. v. Li Wai Kuen (1973-76) HKC 346 and HKSAR v. David Morter, HCMA928/2002, to submit that where the only active third party involved was "trained personnel" (e.g. police officers, security guards), the courts had been reluctant to conclude the likelihood of a breach of the peace.  This view is again misconceived.  In the former case the abuse was addressed to a police officer whilst in the latter, to both people entering the police station and to a WPC inside the police station.  In the present case, the disorderly conduct was made to an ordinary citizen.

24.Li Wai Kuen concerned an appellant who uttered abusive language to a police officer.  Huggins J found it unthinkable that the police officer to whom the abuse was addressed could be provoked to commit a breach of the peace, nor would any members of the public present be incited by such abuse to resort to violence, he said this :

"… abuse of police in the presence of third parties does not ipso facto constitute incitement of those third parties to violence, even in Hong Kong."

25.David Morter is also a case where the appellant shouted abuse to people entering the police station and then at a WPC inside the police station, scaring the WPC and some members of the public in the report room.  Beeson J allowed the appeal on the basis that apart from people being frightened, there was no evidence that anyone was likely to use violence or provoked into such as a result of the appellant's behaviour, nor the police officers likely to have been incited to violence.

26.The rationale can be seen in the judgment of Huggins J in Li Wai Kuen, who said that the police officers "conduct themselves with outstanding tolerance and good humour even in the face of provocation more grave than that in the present case.  It was just tolerance and good humour which earned the police force of this colony widespread acclaim during the riots of 1967."  It has also been said that when the abusive conduct was addressed to a trained personnel, it is not expected that third parties such as ordinary citizens would be incited to react.

27.Thus, this contention has no application to the present case where the disorderly conduct was addressed to a citizen and a security guard reacted.  The finding that the security guard was or was not a trained personnel is neither here nor there.

28.This ground fails as well.

29.I affirm the conviction and dismiss this appeal.

Ms Mary Sin, SADPP, of the Department of Justice, for the Respondent

Mr Duncan Percy leading Mr Eric Cheung, instructed by Messrs Leung & Lien, for the Appellant