Li Wai Kuen v. The Queen
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CACC000595/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.595 OF 1975 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 8th September 1975. ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction. The Appellant was charged under s.13(2) of the Public Order Ordinance, which reads
The particulars of the offence alleged were:
2. I will deal with the second ground of appeal first because it concerns the propriety of the findings to which the first ground relates. It is said that the magistrate was not entitled to reject the evidence of the Appellant without making an express finding on the evidence given by his witness. No authority was cited for that proposition and I do not think it can be supported. The duty of a magistrate is to give "a statement of his findings on the facts and other grounds of his decision". He is not obliged to refer to all the evidence or even to all the witnesses, although it goes without saying that he is bound to consider all the evidence of all the witnesses. If he receives the evidence for the prosecution he will, of course, be wise to mention any evidence which is from the in favour of the defence, otherwise an appellate court may be more likely to hold a conviction to be unsafe or unsatisfactory. Here the magistrate did expressly refer to the evidence of the defence witness, and the findings which he made necessarily showed that he did not accept her evidence as being the entire truth. Whether he thought she was an honest witness was not really material, because he was satisfied that things might have happened which she did not see or hear. It is complained that he was not entitled to hold that view. I think he was. The witness was sitting throughout in the public light bus whilst the Appellant, who was the driver of that bus, alighted from it before the words upon which the prosecution is based were uttered. It was never established that the Appellant remained so close to her that if she heard part of the conversation between the Appellant and the constable she must have been able to hear everything which was said. 3. The substantial ground of appeal is that, assuming the Appellant to have said what is alleged against him (and it could not reasonably be suggested that it did not amount to abuse), the use of such language was not conduct which was likely to cause a breach of the peace. The burden of the argument was that the abuse was directed to a police officer, who was unlikely to be provoked into committing a breach of the peace, and that there was no evidence from which it could be inferred that anyone else was likely to be so provoked: it is said that the evidence there was about the reaction of the spectators showed that they supported what the Appellant was saying, but there was no indication that what he said was likely to provoke them to attack the officer or to contend among themselves. It is true that the constable said he thought there might be a riot, but even if it were true that a riot was a real possibility it was more likely to be caused by the crowd's disapproval of the constable's action (proper though it was) in enforcing the road traffic regulations than by the words spoken by the Appellant. 4. Counsel for the Crown replies that the Appellant must have known that the confrontation would arouse public interest and curiosity and that it might lead to a breach of the peace. Counsel submits that that brought the Appellant within the language of Lord Alverstone, C.J. in Wise v. Dunning 1902 1 K.B. 167, 175 "that there must be an act of the defendant, the natural consequences of which, if his act be not unlawful in itself, would be to produce an unlawful act by other persons". The answer to this argument is, of course, that it was not enough to show that the confrontation was likely to cause a breach of the peace: it had to be proved that the conduct of the Appellant might do so. A confrontation involves the conduct of two sides. 5. There is a Canadian case which is in many respects similar to the present, where it was held to be unbelievable that the officer to whom the abuse was addressed could be provoked to commit a breach of the peace: R. v. Zwicker 1938 1 D.L.R. 461. I myself had occasion to say something similar in this Court in an unreported case some years ago. I would not suggest that there could never be a case where the abuse was so gross that even a police officer might be likely to be provoked into violent retaliation, particalarly if the language used were also threatening, but it is to the credit of the police forces in most countries where the Common Law pravails that they 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 such tolerance and good humour which earned the police force of this Colony ...(illegible) acclaim during the riots of 1967. 6. Would the conduct of the Appellant have been likely to provoke anyone else to commit a breach of the peace? In the Canadian case some of what was alleged to have been said was not within the hearing of other persons, and what was within their hearing was not likely to provoke them. If my memory serves me aright, there were no third parties present in the case which previously came before me. Here there were members of the public present but I am 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 to violence, even in Hong Kong. Accordingly I think this appeal must be allowed. 7. However, that is not the end of the matter. Conduct of the sort displayed on this occasion by the Appellant is to be discourage. Having spoken "words of contempt of ... a constable ... being in the actual execution of his office" he rendered himself liable to proceedings under the statuet 34 Edward III Cap. 1, in which he could have been required to enter into a recognizance to be of good behaviour: see 1 Hawkins's Pleas of the Crown, Cap. 28 p.485. Subject to anything counsel may have to say I intend to make an order under that statue. 8th September 1975. Representation: |