HKSAR v. Chan Pui Sang

HCMA205/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 205 OF 2009

(ON APPEAL FROM KTCC 6585 OF 2008)

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

BETWEEN

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

Before : Hon Saw J in Court

Date of Hearing : 5 May 2009

Date of Judgment : 5 May 2009

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

J U D G M E N T

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

1.The appellant was convicted after trial of behaving in a disorderly manner in a public place contrary to section 17B(2) of the Public Order Ordinance, Cap. 245 Laws of Hong Kong.  He was fined the sum of $3,000. 

2.This is his appeal against conviction only. 

3.The particulars of the charge alleged that the appellant had used the video-recording function of his mobile telephone to take photographs from beneath the skirt of the only prosecution witness, a young lady by the name of Miss Choi.  This took place on a public bus upon which he and Miss Choi were travelling. 

4.The appellant was represented by counsel in the course of the trial.  It was an admitted fact that he had placed his mobile telephone in a position where it recorded beneath the skirt of the young lady concerned.  The relevant part of the admitted facts reads as follow :

“On 2 August 2008 at 9:00 a.m., PC6290 arrived at the bus terminus at Mong Kok East, and arrested the Defendant.  Upon caution, the Defendant said ‘I was on a momentary impulse that I wanted to see what colour her panties are.’”

It was after this that he also said to the officer :

“Can (you) give me a chance (?)”

Given those admissions the only issue in the trial therefore was whether the prosecution had proved that the conduct of the appellant, in all of the circumstances, was disorderly and was likely to have caused a breach of the peace. 

5.Having heard the evidence of Miss Choi and having been referred by the appellant’s then counsel to the relevant authorities, the magistrate concluded that not only was the conduct of the appellant disorderly but that it was likely to cause a breach of the peace.  As a consequence of this the appellant was convicted of the charge. 

6.Today before me Mr Wong who appears on behalf of the appellant has filed a document which is headed “Perfected Grounds of Appeal Against Conviction”.  From this and his submissions I discern that the appellant has two primary complaints which, it is said, render this conviction unsafe and unsatisfactory.  I will deal with the second complaint first.  

7.On behalf of the appellant Mr Wong complains that the magistrate when delivering his oral reasons for verdict at the conclusion of the trial did not give particulars for his conclusion that the appellant’s conduct was likely to lead to a breach of the peace whereas in his reasons for decision, which are entitled “Statement of Findings” the magistrate sets out in some detail the basis for his conclusion.  This, it is said, amounts to ex post facto reasoning on the part of the magistrate.  It is accepted by Mr Wong that the reasons given in the Statement of Findings which were prepared subsequent to the appellant filing his notice of appeal adequately justify the conclusion he had reached that there was likely to be a breach of the peace, albeit that in those findings he does not refer to the fact that subsequent to the conduct of the appellant placing his telephone where he did, the parties remained on the bus until it had arrived at the terminus where the police were waiting to arrest the appellant. 

8.The appellant’s complaint stated succinctly is that by not providing those details in the oral reasons for verdict there has been a material irregularity in the trial.  In support of this submission Mr Wong seeks to pray in aid in the decision of Pang J in HKSAR v. Sin Chi Yin [1999] 2 HKC 403.  In Sin Chi Yin it was accepted by Pang J that the magistrate had fallen into error when he had failed to address in his oral reasons for verdict what Pang J described as “a vital question of law” namely the quality of the evidence of identification.  Pang J said at p. 407E :

“An accused person, if he is convicted, is entitled to know the reasons for his conviction.  There is no requirement that a Magistrate must give detailed oral reasons of his decision at the end of each trial but if he does, he is expected to inform the person in the dock the salient features of his mental process in reaching his decision and that in so doing he had addressed himself on the relevant law and evidence.”

9.I am satisfied that in the instant case the appellant’s complaint is without foundation.  This was a very short trial which was completed in one morning.  There was only one witness called, Miss Choi.  It was an admitted fact that the appellant had conducted himself in the way alleged by the prosecution.  The only live issues in the trial were manifest from the outset.  The evidence of Miss Choi as to what has transpired that morning was in the main part unchallenged.  The transcript of the concluding stages of the trial reveals that the appellant’s counsel addressed the magistrate with specific reference to the relevant authorities.  There is no doubt in my mind from a reading of these exchanges that the primary thrust of the appellant’s case at trial namely that the prosecution had not established that there was likely to be a breach of peace was paramount.  In his oral reasons for verdict delivered immediately after the exchanges between he and the appellant’s counsel the magistrate said this :

“I am not with defence counsel on his interpretation or application of the law to the facts of this case.  I consider that there was disorderly conduct.  It was very clear that this defendant was trying to take shots up the skirt of PW1, and I am satisfied that there was likely to be a breach of the peace.”

10.In his written Statement of Findings the magistrate elaborated further on this matter.  He said as follow :

“4.   It suffices to state as below the facts of the case found by me :

At about 8 a.m. Miss Choi was taking an omnibus to work.  She sat somewhere behind the driver on a bench-seat set along the length of the bus.  The bus was quite full. 

There came a time when many passengers alighted.  Only the Defendant and Miss Choi remained in the front part of the omnibus.  The Defendant sat on the opposite bench facing Miss Choi.  Several other passengers were at the rear of the vehicle. 

The Defendant used his mobile telephone (Exhibit P1) to try video-record Miss Choi up her skirt (see Exhibit P2).  When challenged by Miss Choi, the Defendant denied any such attempt.  Miss Choi complained to the bus driver who merely told her to forget it and to give the Defendant a chance.  Miss Choi refused.  She was furious over the Defendant’s conduct. 

The bus had stopped because of this incident.  Passengers at the back became very noisy.  They queried why the bus had stopped and asked what had happened.  Some passengers went over to where Miss Choi and the Defendant were. 

The bus eventually continued its journey to the terminus.  Police officers later arrived to investigate.  The Defendant admitted that he was trying to video-record up the skirt of Miss Choi because he wanted to know the colour of her underpants.”

At paragraph 10 the magistrate said this :

“10. In the present case, Miss Choi was furious.  It was clear that some passengers were peeved by the delay in their journey because of the Defendant and Miss Choi.  It was a volatile situation.  There was the real likelihood that Miss Choi or some of the other passengers (or both) would take the law into their hands and use force on the Defendant.  The fact that this did not happen is neither here nor there.  The behaviour of the Defendant had spawned a situation ‘whereby a breach of the peace was likely to be caused.’”

11.As I have said this evidence was not challenged in any major way and as such the determination that there was likely to be a breach of the peace was to be made by the magistrate within a narrow confine.  There is to my mind no doubt that the appellant and his counsel at the time were aware of the basis of the magistrate’s conclusion when he delivered his oral reasons for verdict.  This was not a situation in any way comparable with that which existed in Sin Chi Yin.  It is not in any way suggested that the magistrate did not fully appreciate the very narrow confines of the point that had to be determined.  It is apparent, unlike the situation that prevailed in Sin Chi Yin, that the magistrate was fully focused on the submission of the appellant’s counsel.  Whilst it may have been open to the magistrate to elaborate further at the time of the delivery of his oral reasons for verdict on these matters, the fact that he did not, in the circumstances of this case, is not a matter of any cause for concern. 

12.The next ground of appeal which is the first in order of the Perfected Grounds of Appeal that I have earlier referred to is to the effect that the magistrate was in error when in his written Statement of Findings he observed :

“There was a real likelihood that Miss Choi or some of the passengers (or both) would take the law into their hands and use force on the Defendant.  The fact that this did not happen is neither here nor there.”

13.The complaint made being that the expression used by the magistrate in effect suggests that he had ignored the fact that as it transpired there was no actual breach of the peace.  I do not agree.  The magistrate quite properly found that there was the likelihood of a breach of the peace.  The expression used by the magistrate was, in the circumstances I am satisfied, one which properly reflected the fact that there does not have to be actual violence for the offence to be established.  The magistrate was saying no more than that the fact that there was no actual violence was not determinative of the matter.  He rightly concluded, in my opinion, that there was a very real risk of a breach of the peace and this had been established to the requisite standard.  The fact that commonsense ultimately prevailed and that there was no breach of the peace does not alter the fact that there was a very real risk of violence at the time the appellant conducted himself in the way that he did. 

14.There was one further ground of appeal in the appellant’s written submission which was to the effect that the magistrate was in error in failing to distinguish the case of HKSAR v. Cheng Siu Wing [2003] 4 HKC 471.  Mr Wong has quite sensibly not sought to pursue that ground of appeal. 

15.I am satisfied that, in all the circumstances, the grounds of appeal advanced are without any merit and that the conviction is neither unsafe nor unsatisfactory and the appeal is dismissed. 

Ms Lily Ho, SPP of the Department of Justice, for the Respondent

Mr Philip Wong, instructed by Messrs Kelvin Cheung & Co, for the Appellant