HKSAR v. Shek Chu Kong

HCMA193/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 193 OF 2008

(On Appeal From KCCC 7370 OF 2007)

-----------------------------

BETWEEN

----------------------------

Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 24 July 2008

Date of Judgment : 24 July 2008

------------------------

J U D G M E N T

------------------------

1.The appellant faced a total of four charges, one of which was “loitering causing concern”, against section 160(3) of the Crimes Ordinance, Cap. 200.  He now only appeals against his conviction in relation to this charge alone. 

The prosecution case

2.The case against the appellant was simply this : the appellant was seen by PW1 inside a building standing in front of the letter boxes looking around.  She questioned him why he was there but felt uncomfortable with his answers.  The appellant asked PW1 to “give him a way to go”.  He tried to leave by pushing the door open but was unsuccessful.  Police was called.  PW2, a police officer, arrived some 20 minutes later.  He questioned the appellant as to the reason for his being there again but again to no avail.  The appellant was also unable to provide his proof of identity. 

The defence case

3.The appellant elected not to give evidence.  He called a defence witness who testified to the effect that he sublet a room to the appellant in a building nearby, the door to which was similar to the building where the appellant was found in.  He said on the day in question he had seen the appellant lying unconscious in his room and reported the matter to the police.  

Grounds of appeal

4.The grounds advanced can be conveniently summarized as follows :

(1)     the learned magistrate erred in finding that that the appellant was “perfectly conscious and was aware of what was going on” and intentionally or knowingly lingered” there.  The finding that the appellant had the requisite mens rea was against the weight of the evidence;

(2)     the learned magistrate erred in finding that the evidence constituted “lingering”;

(3)     in assessing whether PW1’s concern for her safety or well-being was reasonable, the magistrate erred in applying a subjective rather than objective test; and

(4)     the conviction is, therefore, unsafe and unsatisfactory. 

Respondent’s reply

5.The respondent submitted that the magistrate, having seen and heard the witnesses, was entitled to find that the appellant was capable of coming up with a series of concocted explanation in order to wriggle out, and thus had the requisite mens rea. 

6.It was further submitted that the magistrate has considered and rightly rejected defence submission that PW1’s observation was too short to satisfy the time element sufficient to constitute “lingering”.  The magistrate was well aware that in assessing whether PW1 was reasonably concerned for her safety or well being an objective test ought to be applied,  (appeal bundle page 42M) and the evidence could not possibly support any inference otherwise. 

My judgment

7.Section 160(3) of the Crimes Ordinance states that :

“If any person loiters in a public place or in the common parts of any building and his presence there, either alone or with others, causes any person reasonably to be concerned for his safety or well-being, he shall be guilty of an offence and shall be liable on conviction to imprisonment for two years.”

8.“Loitering” has been described to mean “idling, lingering or hanging about” or “tarrying, standing about or lingering” and according to the case of AG v. Sham Chuen [1986] HKLR 365 “the word is to be construed in the light of the context in which it appears in this particular enactment : Sub-sections (2) and (3) of section 160 are each concerned with loitering of a particular character, the first being loitering which causes an obstruction and the second being loitering which causes reasonable concern to a person for his safety or well-being”. 

9.The case of HKSAR v. Li Jacob, HCMA927/2007 relied on by Mr Bedford to advance the argument that a time element is required, and indeed the case of HKSAR v. Chau Cheuk Yin, HCMA641/2003, both deal with scenarios on escalators which are quite different from the facts of the present case.  Whilst there was no direct evidence here as to how long the appellant had been a trespasser in that building before he was seen by PW1, the circumstances that he entered a building with a locked door and was seen standing in front of, looking around at the letter-boxes, were sufficient to infer “loitering”.  Whether looking around at the letter-box is the same as peeping into letter-box is merely a matter of semantics which does not take the matter any further. 

10.In considering whether the appellant was in a fit state, the magistrate weighed and analyzed the evidence and had this to say :

“While there was some evidence that the defendant could not answer the questions put to him by PW1 or the police officers, there was positive evidence from PW1 and PW2 that the time the defendant’s was, at least from the observation of a by-stander, perfectly conscious and was aware of what was going on.  There was nothing I could infer that the defendant was in such confused state that he had either mistaken as to his whereabouts or was totally unaware of where he was at the time he was accosted by PW1.  The fact that he came up with an excuse of construction work in the building led me to the inevitable conclusion that he knew he was caught in the wrong place and had tried unsuccessfully trying to wriggle out of the situation.”

11.Mr Bedford in his written submission submitted that :

“… an irresistible inference that could be drawn from all this that D might have gone into PW1’s building by mistake.  The Magistrate was wrong to shut his mind to this possibility which was plainly consistent with D’s innocence …

… He failed to appreciate and take into account that D started to try to leave only after the conversation with PW1 making it quite likely that D only realized that he was in the wrong place during and because of the conversation with PW1 …”

12.In making these submissions, Mr Bedford seems to have lost sight of the fact that there was no evidence from the appellant to these effect.  In this regard, I refer to what I said in the case of HKSAR v. Chan Hung Kwan, HCMA667/2006 :

“Despite the fact that counsel had taken nearly every point, he did not do the most sensible thing our adversarial system calls for : to call his client into the witness box to rebut the prima facie case which undoubtedly existed.  Of course in some cases, the Prosecution case alone may contain the seeds of their own destruction.  But common sense and experience tells one that those are extremely rare and the present case is certainly not one of those.”

13.The magistrate was entitled, as he did, in the circumstances, to find the evidence of the defence witness did not assist him to form a view in either way in relation to the appellant’s acts or mens rea at the time in question.  The issue of mistake be it drug-adduced or not was never a live issue which fell to be considered by the magistrate.  With the benefit of receiving the evidence from witnesses at first-hand, the magistrate was entitled to make the findings as he did.  In fact, once the magistrate found that PW1 give an accurate and fair account of what she saw, it is difficult to see how the act and presence of the appellant in that building could in any way be consistent with a person who had innocently and mistakenly entered that building. 

14.The submission that the magistrate was wrong to conclude that the presence of the appellant reasonably caused concern to PW1 for her safety or well being could be disposed of shortly.  For the appellant to succeed on this argument, he has the burden to persuade the court what he did would not have caused the lady in question concern and that, even if it did, it was unreasonable to do so.  The reality was that, against the background the appellant “somehow managed to go through a locked gate; enter into the building in question; acting in a such manner as standing at the lobby area; looking around at the mail boxes or standing at the mail box looking around”, this would and was bound to cause her concern for her well being.  The magistrate was entitled to act on PW1’s evidence that he appeared to her to have taken drugs, she was scared and shocked at his presence, and that she was afraid that he would take further actions.  At no time did the magistrate confuse the objective and subjective standards to be applied. 

15.This appeal lacks merit and is dismissed.  I affirm the decision of the magistrate.

Ms Teresa Kam, SPP of the Department of Justice, for HKSAR

Mr Nigel Bedford, instructed by Messrs Peter K.H. Wong & Co., for the Appellant