HKSAR v. Li, Jacob

HCMA927/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 927 OF 2007

(ON APPEAL FROM KCCC 966 OF 2007)

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Before : Hon Nguyen J in Court

Date of Hearing : 26 February 2008

Date of Judgment : 22 April 2008

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J U D G M E N T

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1.The appellant was convicted of the offence of loitering causing concern and was fined $2,000.  He now appeals against the conviction.

2.According to the written submissions by Ms Bianca Cheng, Senior Government Counsel submitted on a review of the conviction applied for by the defence, the evidence adduced at the trial was that the victim was standing on the right hand side of an escalator near the entrance of an MTR station.  The escalator had 20 stairs.  When the victim had three more steps to reach the top of the escalator, she felt pressure on her rucksack and turned to see the appellant behind her on the next step below.  He held a mobile phone, one-third of which was inserted inside the victim’s skirt.  She was upset and asked the appellant what he was doing.  The appellant immediately withdrew his hand, became scared, and attempted to run away.  The victim managed to stop him.  In reply to her question he said it was just for fun.  No under skirt photograph of the victim was found in the appellant’s mobile phone.  At the scene under arrest and caution by the police the appellant said it was just for fun.

Grounds of appeal

3.Mr Yu, appearing for the appellant, submits that on the evidence as presented to the magistrate there was insufficient evidence to show that the appellant had loitered.  He submits that there was no evidence that the appellant ever followed the victim onto the escalator. 

4.Mr Yu relies on firstly, the case of HKSAR v. Cheng Siu Wing, HCMA619/2003 where in a similar situation the trial magistrate amended the original two charges of loitering causing concern to one single charge of disorderly conduct in a public place.  In that case Beeson J was satisfied that because the incident occurred in a public place, the appellant in using a digital camera in the manner described by the victim was guilty of disorderly conduct likely to cause a breach of the peace.  She held that the magistrate was correct in finding that if such disorderly conduct became known to passersby (as indeed occurred there) a breach of the peace was likely to result and did result.  Three men came to the aid of the victim and a citizen’s arrest involving violence was effected.  She said that it was easy to envisage other circumstances in which a general fracas might occur because citizens are enraged by some form of disorderly conduct and decide to seize or punish the perpetrator, without bothering to call the police.  She dismissed the appeal against conviction.

5.Mr Yu also relies on the case of HKSAR v. Ma Kei Wing, HCMA1260/2003 where Gall J mentioned the case of R. v. Ng Chun Yip [1985] HKLR 427 where Penlington J quoted from the case of R. v. Mok Chi Ho (1979) HKLR 118 where Yang J said :

“As I understand it, loitering means idling, lingering or hanging about.”

In Ma Kei Wing, Gall J found that loitering had not been made out by the evidence before the magistrate and he therefore allowed the appeal against the conviction for loitering in a public place causing concern.  

6.Mr Yu also relies on the case of HKSAR v. Wan Yim Yu, HCMA1163/2003 where in a similar situation the magistrate convicted of a charge of loitering causing concern.  Deputy Judge Toh quoted from the Oxford English Dictionary for the definition of “loiter” and found that it was “hang about” or “linger idly”, and she found that “linger” was “to be slow or reluctant to depart, stay about a place”.  Toh DJ also found that in the case before her there was insufficient evidence for the magistrate to find that the appellant had loitered.  She allowed the appeal against conviction.

The respondent’s reply

7.The response by Mr Leung, appearing for the respondent, was that the appellant had loitered on the escalator for 10 seconds.  

8.Mr Leung relies on the case of HKSAR v. Chau Cheuk Yin, HCMA641/2003 where Beeson J mentioned “time element”.  She said :

“  Implicit in the finding of loitering is a time element.  The Magistrate was satisfied that the touch was for an appreciable length of time and not an accidental touching, as might occur if the Appellant was rushing past PW1 on the escalator.  There was a direct conflict as to what had happened and the Magistrate believed the victim.  The loitering is consistent with the Appellant following the victim, positioning himself behind her, with his phone outstretched through the split of her skirt and in remaining there, for a sufficient length of time for PW1 to turn, notice what he was doing and take action by kicking the phone.”

9.Mr Leung submits that time element was also present in the instant appeal because he submits that the appellant admitted in his caution statement that he was half way up the escalator and was already holding the mobile phone in his hand.  He admitted he was still holding the phone when he was standing behind the victim.

10.In my judgment the evidence before the magistrate was insufficient to prove the element of loitering.  There was no evidence that the appellant ever loitered before he got onto the escalator or while he was on the escalator.  Whether he was holding the mobile phone as soon as he got onto the escalator or whether he took it out when he was half way up the escalator is neither here nor there.  The respondent concedes that the appellant was only on the escalator for 10 seconds.  The time element factor that Mr Leung relies on therefore does not assist the prosecution.  

11.The appeal against conviction must therefore be allowed. 

Amendment of the charge

12.Under section 119(d) of the Magistrates Ordinance, Cap. 227, I may confirm, reverse or vary the magistrate’s decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with my opinion thereon to a magistrate, or may make such other order in the matter as I think just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by me shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate.  

13.Under section 27(1) of the same Ordinance where it appears to the to the adjudicating magistrate that there is :

(a)  a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and the evidence adduced in support of it,

he shall, subject to subsection (2), amend the complaint, information or summons if he is satisfied that no injustice would be caused by that amendment.

14.Under subsection (2), the adjudicating magistrate shall amend the complaint, information or summons where :

(a)  the defect or variance mentioned in subsection (1) is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses.

15.In the case of R. v. Chen Ta-hoi and others [1986] HKLR 1189, Jones J on appeal amended the charge and ordered that there be a re-hearing of the charge as amended before the same magistrate.  In the case of R. v. Wong Man-shun [1980] HKLR 266, the Court of Appeal was of the view that save in exceptional cases they regarded it as undesirable to amend a charge on an appeal, except in minor particulars, since this would deprive an accused person of the protection of section 27 of the Magistrates Ordinance, unless the matter were referred back to the magistrate for re-hearing.

16.The appellant was fined $2,000 by the magistrate and that reflected the view the magistrate took of the seriousness of the offence.  If the charge is to be properly amended to accord with the evidence given at the trial, then it has to be amended from loitering causing concern to a charge of disorderly conduct in a public place whereby a breach of the peace is likely to be caused, contrary to section 17(B)(2) of the Public Order Ordinance, Cap. 245.  That would be a major amendment and unless the matter were to be referred back to the same magistrate for hearing, would be unjust for the appellant since it would deprive him of the protection of section 27 of the Magistrates Ordinance.  I therefore do not propose to amend the charge.

17.Mr Leung informs me that this charge against this defendant was laid by the police without first obtaining legal advice from the Department of Justice.  Mr Leung also informs me that the present practice is when people are arrested for similar offences, they are invariably charged with the offence of disorderly conduct in a public place.

18.The appeal against conviction is allowed and the conviction is quashed.  The fine of $2,000, if it has been paid, will have to be refunded to the appellant.

Mr David Leung, SGC of Department of Justice, for HKSAR

Mr Raymond C.C. Yu, instructed by Messrs B. Mak & Co., for the Appellant