The Queen v. Kam Man-fai

CACC000930/1983

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

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Criminal Appeal No.930 of 1983

BETWEEN

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Coram: Garcia J. in Court.

Date: 20th August 1983

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JUDGMENT

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1. The Appellant was convicted of the following two offences after a trial before the Magistrate on the 9th of May 1983:

2. He was fined $500 on each charge and he now appeals against these convictions.

3. On the 3rd day of April 1983 police constable 23196 was returning to the Police Station at about 3.25 a.m. in the morning when at the junction of Sai Yeung Choi Street near Bute Street he saw the Appellant in the centre of the road moving his hands and feet about, and several taxis had stopped there to wait for him because their paths were blocked by the Appellant.  Seeing this the police officer approached the Appellant and noting that he smelled of wine, asked him what the matter was. In reply, the Appellant used foul language towards the police officer and added that the matter had nothing to do with the police.

4. The police officer told the Appellant to get off the road but the latter remained and continued to move his hands about. He was then warned by the police officer that if he did not behave himself he would be arrested and charged with disorderly behaviour.

5. The Appellant again refused to move and according to the police constable a struggle took place, whereupon the police officer was forced to the ground and hit in the chest. Eventually with the assistance of another police officer who had arrived at the scene the Appellant was subdued, handcuffed and arrested, and eventually charged with the offences of which he had been convicted.

6. Apart from the taxi-drivers whose paths were blocked by the actions of the Appellant, there were no other persons about at that time and place. In his statement of findings which is a repetition of the evidence given by both police constables and the cross-examination of these police constables, the Magistrate stated:

"I held that the defendant had acted in a disorderly manner in a public place by drunkenly holding up taxis and shouting abuse at a police officer in the middle of the road and had assaulted the police officer in the execution of his duty when he was asked to move to the pavement."

7. With respect to the Magistrate there is nothing to indicate that the Appellant had "drunkenly held up taxis" nor is there any indication from any of the evidence given by either of the police officers that the Appellant had shouted at them.

8. The police officer who went up to the Appellant, that is, P.C. WONG Kar-keung stated in his evidence and this appears in the record: "He spoke in foul language and said that it had nothing to do with us." Here again there is nothing to indicate that the Appellant was at that time drunk although both police officers stated that the Appellant smelled of wine when they approached him nor is it correct r to say as the Magistrate says in his statement of findings:

"The defendant then hit the policeman in his chest and forced him to the ground and a struggle took place."

This differs from the sequence of the events related by police constable 1449 CHAN Chi-shing who had come up to the scene, and he states in his evidence as follows:

"Paid no head to police constable. Attempt to take him to roadside but went on struggling by waving his arms about his head:- When we were trying our best to get him to roadside he pushed other policeman to the ground. I then helped to a subdue. Attempted to arrest him. Hit chest of PW1. Struggle about 1¹/2 minutes."

Here follows a sentence which is in the context of this case unintelligible: "The defendant were insulted."

9. In another part of the record and this refers to the cross-examination of police constable Chan, a question is asked "Charged that on street defendant of being assaulted?" The answer given, a surprising one, is that ''He must be assaulted he went to doctor and I saw it." It was submitted at the trial, the Appellant not having given any evidence, that disorderly conduct in the context of the section included an intent to provoke a breach of the peace, or that such conduct was likely to cause a breach of the peace. The Magistrate dealt with this submission as follows:

"I did not rule on the question of the intent to provoke a breach of the peace or on the question whether a breach of the peace was likely to be caused. I am of the view that the Section makes it an offence to behave in a disorderly manner in a public place and that the words 'with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused' relate to the words 'uses, or distributes or this plays (sic) any writing containing (there should be no comma, I think) threatening, abusive or insulting words...'

In any event I would have found that the behaviour and actions of the Defendant were done 'with intent to provoke a breach of the peace' or 'likely to cause a breach of the peace' even though it were only affecting the taxi drivers who were waiting to get past the Defendant and they were not themselves likely to join the Defendant in his actions."

10. Section 17(B) (2) of the Public Order Ordinance Cap. 245 under which the first charge was framed provides:

"Any person who in any public place behaves in a noisy or disorderly manner, or uses or distributes or displays any writing containing threatening, abusive or insulting words, with an intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for 12 months."

11. I think the Section under which the Appellant was charged makes it incumbent upon the Magistrate to make a specific finding as to whether the Appellant's actions at the time when he was seen by the police officer were likely to cause a breach of the peace. It has been submitted on behalf of the Appellant that his actions at that time, at their highest, showed that the Appellant had only resisted arrest and that the convictions were not justified by the evidence because firstly, the behaviour of the Appellant, that is, moving his hands about, could not constitute a breach of the peace, and the Appellant had not intended to assault the police constable.

12. In my view, each of the separate clauses of the Section must be qualified by the words "with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused" and the offence against the Section is not made out on "noisy or disorderly behaviour" simpliciter. In any event the charge is framed in the manner I have construed the Section, that is with the addition of the words "whereby a breach of the peace was likely to be caused" and if the Magistrate found as he had that the offence could be committed without the added element of "whereby a breach of the peace is likely to be caused", he should have amended the charge accordingly. He did not do so nor would he have been justified in doing so. As to what constitutes a breach of the peace appears in Reg. v. Howell ⁽¹⁾ in a judgment of the Court of Appeal read by Watkins, L.J.:

"A-comprehensive definition of the term 'breach of the peace' has very rarely been formulated so far as, with considerable help from counsel, we have been able to discover from cases which go as far back as the 18th century. The older cases are of considerable interest but they are not a sure guide to what the term is understood to mean today, since keeping the peace in this country in the latter half of the 20th century presents formidable problems which bear upon the evolving process of the development of this breach of the common law. Nevertheless, even in these days when affrays, riotous behaviour and other disturbances happen all too frequently, we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person's body or property.

In Halsbury's Laws of England, 4th Ed. Vol. 11 (1976), para.108, it is stated:

'For the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a person's wrongful act.  Mere annoyance and disturbance or insult to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient.'

That is an amalgam of opinions expressed in various old cases which is principally criticised by Mr. Engels for its failure to attach the actual commission of violence to all acts which are said to be capable of causing a breach of the peace.

He makes a similar criticism of the crisp definition provided by the Attorney-General Sir Reginald Manningham-Buller, referred to in Gelberg v. Miller ⁽²⁾ with reference to the word 'disturbance'. Lord Parker C.J. said, at p.158:

'The Attorney-General, to whom the court is grateful for his assistance, has appeared and has told the court that he feels unable to contend that a constable is entitled to arrest somebody for obstructing him in the course of his duty which, of course, is a misdemeanour under the Prevention of Crimes Amendment Act 1885, unless the circumstances show that a breach of the peace or an apprehended breach of the peace is involved, meaning by that some affray or violence or possibly disturbance.'

The statement in Halsbury is in parts, we think, inaccurate because of its failure to relate all the kinds of behaviour there mentioned to violence. Furthermore, we think, the word 'disturbance' when used in isolation cannot constitute a breach of the peace.

We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant."

13. This case was followed by Parkin v. Norman, Valentine v. Lilley ⁽³⁾ where McCullough J. in dealing with the term "breach of the peace" stated:

"As counsel for the respondents concedes, the justices were in error in thinking that a mere disturbance not involving violence or a threat of violence could amount to a breach of the peace. The matter is put beyond doubt by the remarks of Watkins L.J. reading the judgment of the court in Reg. v. Howell^.(1)"

14. In the instant case, when police constable Wong came upon the Appellant, no violence was apprehended nor was, according to the evidence and the findings of the Magistrate, it likely to occur. There was no doubt that the Appellant resisted arrest and had assaulted a police constable in doing so but these actions occurred only after the latter had attempted to remove the Appellant from the road. The essential elements of the offence in the first charge have not been proved and accordingly the conviction on that charge is quashed and the fine if paid is to be returned to the Appellant.

15. As to the 2nd charge, the intention to assault the police officer acting in execution of his duty is discernible from the evidence, and the Appellant was found by the Magistrate to have hit the police officer. I think no clearer intention to assault exists than for a person who in trying to avoid capture or arrest uses violence against his intending captor to effect that escape. There is no complaint that the arrest of the Appellant was unlawful and in fact it has been submitted by Counsel before the Magistrate that the evidence indicates that the Appellant had resisted arrest. In the result, the appeal against conviction on the 2nd charge is accordingly dismissed.

16. Generally, the accuracy of the typewritten transcript of the Magistrate's notes of the depositions in this case leaves much to be desired. I have drawn attention to some of the more glaring errors which appears in the transcript and whilst I am fully aware that the case load upon Magistrates in Hong Kong is quite heavy, nevertheless the certificate of a Magistrate testifying to the accuracy of a transcript should carry with it the implication that the transcript has been faithfully compared with the original.

(1)    (1982) 1 Q.B.421

(3)    (1982) 2 All E.R.

Representation:

Mr. Bruce for Crown.

Mr. Leo Remedios (Y.K. Poon & Co.) for Appellant.