Mok Chi-ho v. The Queen

CACC000125/1979

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Coram: Yang, J.

Date of Judgment: 20 February 1979

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JUDGMENT

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1. The Appellant was convicted of (1) a charge of possession of offensive weapons in a public place under section 33(1) of the Public Order Ordinance and (2) a charge of loitering at night and being unable to give a satisfactory account of himself under section 26(a) of the Summary Offences Ordinance.

2. The facts were that at 2:05 a.m. on 29th October 1978 a private car bearing registration number AE 5943 was seen by two police detectives being driven along Granville Road near Chatham Road. There were five persons in that car. At 2:50 a.m. the same private car was seen parked at Blenheim Road near Minden Avenue. There were then in the car the driver and the Appellant, who was seated next to him. There knives were found underneath the Appellant's seat. On being questioned by the detectives the Appellant said the knives were for self-defence.

3. On the first charge counsel for the Appellant submitted that a private car could not be a public place. On the second charge it was contended that (1) sitting in a stationary car was not loitering; (2) in any case there was no evidence that the Appellant was loitering for an unlawful purpose; and (3) according to section 26(a) of the Summary Offences Ordinance the loitering must be done in "a highway, yard or other place" and being in a private car did not amount to being in a "highway, yard or other place".

4. The trial magistrate in his oral decision stated that a person in a car in a public place is in a public place and "many of the reported cases on the possession of weapons in a public place relate to weapons found in vehicles". He cited no authorities. There are a number of Canadian and Australian cases which support the magistrate's dictum but I have not been able to find any English or Hong Kong authorities on the point. Beyond saying that the Appellant had been loitering and had failed to give a satisfactory account of himself, the magistrate did not discuss the issues as to whether a person might loiter in a stationary car and whether a private car on a public road comes within the terms of "a highway, yard or other place".

5. The Canadian authority of Rex v. Mcleod⁽¹⁾ is in point. There the question was whether a person found consuming liquor inside a motor vehicle parked in a public parking area was rightly convicted of drinking in a public place contrary to section 38 of the Government Liquor Act R.S.B.C. 1948 C. 192. O'Halloran J.A. noted that the defendant was not charged with drinking in a motor vehicle as in itself a "public place" but was charged with drinking in a public place. The learned judge concluded that since the motor vehicle was in a public place, then if drinking took place therein, there was most certainly evidence up to that point to justify a finding that drinking occurred in a public place. He also referred to the sort of circumstances which a court should consider in determing whether or not a car is a public place. He said (at p. 368):

"It is not disclosed whether the motor vehicle was being used for private or public purposes; it might have been a passenger bus or it might have been a motorcycle. We do not know how many people were in or around the vehicle at the time; whether the car was an open jeep, a truck, or enclosed family car; whether the drinking took place publicly in open view; whether the respondent was one of a party in several motor cars who had gathered at respondent's car for a drink, or other relevant circumstances in the absence of which a Court of review is unable to determine if the law has been correctly applied to the facts in the particular case."

6. In my view the case cited above is sufficient to dispose of the Appellant's appeal on the first charge. It would nevertheless be helpful to refer to two Australian authorities. In McKenzie v. Stratton⁽²⁾ it was held that being drunk and disorderly inside a taxicab in the car park of a police station was being drunk and disorderly in a public place within section 14 of the Summary Offences Act 1966. In Mansfield v. Kelly⁽³⁾ the defendants were found drunk in the front seat of a motor car on a public street. The Full Court held that as "the motor car was then in Inkerman Street, so that, in our opinion, the defendants themselves were then in Inkerman Street. Where the motor car was, there were the defendants also." (Vide Walker v. Crawshaw⁽⁶⁾)

7. On the facts of the present case the Appellant's appeal against his conviction of the first charge must fail.

8. Coming now to the second charge, in my judgment driving around in a motor car may be treated as loitering, (Williamson v. Wright⁽⁴⁾ , per Lord Anderson at p. 60.) Sitting in a stationary car may also be loitering. In yet another Australian case, Hogan v. Ridley⁽⁵⁾, "loitering" was held to mean remaining in or about or in the vicinity of a restricted area but not necessarily defined place without any apparent purpose or reason. As I understand it, loitering means idling, lingering or hanging about. The Shorter Oxford English Dictionary defines "loiter" as "to linger on one's way indolently, to hang idly about a place".

9. Counsel for the Appellant suggested that the prosecution must prove that the Appellant was loitering for an unlawful purpose. It should be noted that section 26(a) mentions nothing about an unlawful purpose. It is section 26(b) that makes it an offence to be found in or upon any dwelling-house, warehouse, stable, garage, outhouse, private enclosure or garden "for any unlawful purpose".

10. It was then argued that the defendant must be found to have loitered in "a public place". Again, section 26(a) says nothing about a public place. A highway is a public place but a yard is very often a private place. The "other place" in section 26(a) must of course be ejusdem generis with highway and yard. In my view the "other place" must be to some extent an open space, just as a highway and yard are open spaces. But this is really beside the point, for the real issue is that the Appellant was not convicted of loitering in a private car. The car was then on a highway, so since he was in the car, he was loitering on a highway.

11. For these reasons, the appeal against conviction on the second charge also fails.

Representation:

Ramesh Sojanani (P.H. Sin & Co.) for Appellant.

I.A. Evans, A.D.P.P., for Respondent.

(1) (1950) 97 Can. Crim. Cas. 366.

(2) (1971) V.R. 848.

(3) (1972) V.R. 744.

(4) (1924) S.C. (J.) 57.

(5) 50 W.A.L.R. 112.

(6) (1924) N.Z.L.R. 93.