HKSAR v. Tsang Ka Chun

[English Translation – 英譯本]
HCMA 154/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 154 OF 2013

(ON APPEAL FROM TMCC NO. 3931 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

1.The appellant was convicted on one count of forcible entry[1] after trial before Deputy Magistrate Hui Chun-sing (the magistrate) and was fined $1,500. The appellant appealed the conviction. At the conclusion of the hearing, I dismissed the appeal for reasons which are set out below.

Brief facts

2.The incident happened in Kap Lung Village, Pat Heung, New Territories.  On the morning of 7 June 2012, the appellant and other fellow villagers were preparing for certain ‘fung shui’ rituals right outside the entrance of House No.5 in Kap Lung Village.  The registered owner of House No.5 was ‘Tsang Wang Shing Tong’. At the main entrance, there was a wooden door which was padlocked.  During that time, the appellant kicked the wooden door twice, and then pushed toward the wooden door with his hands.  The course of the events was captured on a mobile phone by a foreign domestic helper working in House No.9A.

3.The wooden door to House No.5 was locked by one Mr Lam, the owner of House No.4[2].  Mr Lam testified that, ever since his male elder cousin moved out of House No.5 more than 20 years ago, he had occupied House No.5 for storage purposes.  He was not at the scene on the day of the incident, and he returned there only after some neighbour(s) notified him that something had happened.

4.According to Mr Tsang (PW3), the manager of ‘Tsang Wang Shing Tong’, House No.5 was originally the ancestral hall of the village, but it had fallen into disuse and the ancestral tablets were not placed there.  On 7 June, they were performing ‘fung shui’ rituals in front of House No.5.  But before that day, the villagers had never performed any worshipping rituals at that location.  He had entered House No.5 more than 20 years ago, but even at that time it had already fallen into disuse, the ancestral tablets were no longer placed there, and the door was not locked. He had no idea who it was that locked House No.5 as at 7 June.  As far as he knew, House No.5 was supposed to be locked by the elders of the ‘tso tong’ from the previous generation.  However, he had never received the key(s) to House No.5. The appellant is a male descendent of ‘Tsang Wang Shing Tong’ and has been the village head of Kap Lung Village since about 8 years ago.

5.At trial, the appellant neither testified nor called any witness.

Grounds of appeal

6.The Perfected Grounds of Appeal Against Conviction prepared by Mr Wong, Counsel for the appellant read as follows:

“(1) The presiding deputy magistrate made the following errors in making findings of fact, as a result of which he erroneously found that the elements of the offence, namely ‘in a violent manner’ and ‘enter’, had been established against the appellant:-

(a) As pointed out by the appellant’s legal representative at trial, there was insufficient evidence at trial to prove that in kicking the door the appellant had ‘broken open any building’ so as to constitute the element of ‘in a violent manner’;

(b) Also as pointed out by the appellant’s legal representative at trial, there was insufficient evidence at trial which could directly prove or support the inference that the appellant had ‘entered’ House No.5 as specified in the charge so as to constitute the element of ‘enter’. If the latter was the case, the presiding deputy magistrate did not give the appellant’s legal representative any opportunity to put forward a rebuttal.

(2) On the basis of the following erroneous findings of fact, the presiding deputy magistrate erroneously found that PW1 was in possession of House No.5 as specified in the charge at the time of the offence, and also erroneously found that at the material time the appellant was not in possession of House No.5:-

(a) On the issue of whether House No.5 was possessed by PW1, PW2 clearly stated in his testimony that PW1 knew the person who possessed House No.5, and therefore PW1 was obviously not the person in possession of House No.5 as he claimed to be in his testimony. That PW1 locked House No.5, which was what PW2 pointed out in re-examination, did not amount to PW1 being in possession of House No.5 instead of playing the role of a custodian. Moreover, PW2’s evidence in this regard was not in accord with that of PW3, who testified that the locking was done by the people of the ‘tso tong’ and that the ‘tso tong’ also contributed money towards the maintenance and repair of House No.5. The presiding deputy magistrate failed to resolve this discrepancy, which also meant that he failed to consider the possibility that the ‘tso tong’ was at least one of those in possession of House No.5.

(b) As regards the acceptance of PW1’s evidence as truthful and reliable, the presiding magistrate failed to take into consideration that PW1’s evidence in cross-examination as to whether he paid the electricity expenses for House No.5 was contradictory and confusing, as a result of which the presiding magistrate erroneously accepted his evidence, including the point that he was in possession of House No.5.

(3) On the basis of his erroneous finding that the appellant was not in possession of House No.5, the presiding deputy magistrate went on to hold that the defence under section 23(2) of the Public Order Ordinance, Cap.245 of the Laws of Hong Kong was not available to the appellant. Nor did the presiding deputy magistrate consider that at the material time the appellant might have genuinely but mistakenly believed he was in possession of House No.5, in which case the defence under section 23(2) would have been engaged.

(4) In the circumstances, the conviction against the appellant is unsafe and unsatisfactory.”

Analysis

7.Section 23 of the Public Order Ordinance provides that:

“(1) Any person who enters on any premises in a violent manner, whether or not he is entitled to enter thereon and whether such violence consists in actual force applied to any other person or in threats or in breaking open any building or in collecting an unusual number of people, shall be guilty of an offence and shall be liable on summary conviction to a fine at level 2 and to imprisonment for 2 years.

(2) Nothing in this section shall make it an offence for a person to enter upon his own premises if they are in his possession or in the custody of his servant or agent.”

8.Regarding Ground of Appeal (1)(a), Mr Wong stressed that there was no evidence at trial to prove that the appellant had‘broken open’ any building, nor did the magistrate make any finding to that effect.

9.Regarding Ground (1)(b), Mr Wong pointed out that the video footage taken by the witness did not show that the appellant had entered House No.5. The magistrate’s claim and finding that he was able to ‘see’ in the footage that the appellant had entered House No.5 did not tally with the facts because, put at the highest, it could only be said that he ‘inferred’ that the appellant had entered House No.5.

10.As Ms Parwani for the respondent pointed out, ‘breaking open any building’ is not an element of the offence under section 23 of the Public Order Ordinance.  Rather, the section makes it clear that the offender’s violence does not have to include ‘breaking open any building’.  It was not necessary for the magistrate to decide that the appellant had broken open the wooden door to House No.5; once the appellant was found to have entered House No.5 in any violent manner, he could be convicted of the offence.  The appellant kicked the wooden door forcibly, and this was obviously a form of violence.

11.In fact, according to the agreed facts, at the time of the offence the appellant twice kicked the wooden door to House No.5, which was padlocked, and then pushed it with his hands.  At the appeal hearing, I watched the video footage taken by the witness and was able to see clearly that the appellant kicked the wooden door forcibly.  It is true that from where the video was taken only a very limited view of the wooden door could be had, and the footage could not directly show the wooden door or the appellant entering House No.5 since the house did not form a straight line with the adjacent house(s) so that the view of the entrance at the wooden door was blocked by a wall which protruded slightly from the adjacent house. These notwithstanding, it could be seen from the footage that the appellant first kicked the wooden door and then pushed it with his hands, after which he walked toward the wooden door and disappeared behind the slightly protruding wall.  It is clear that he kicked open the wooden door and then pushed it and went into the house.

12.From the sequence of acts done by the appellant as shown in the video, it can be seen that he did enter House No.5.  The magistrate was correct both in saying that he saw the appellant enter the house and in finding that the appellant did so in a violent manner.

13.Regarding Grounds (2) and (3), the magistrate made the following analysis in his Statement of Findings:

“21. Section 23(1) of the Public Order Ordinance, Cap.245 of the Laws of Hong Kong provides that ‘[a]ny person who enters on any premises in a violent manner, whether or not he is entitled to enter thereon, shall be guilty of an offence.’ Therefore, by virtue of the express provision in section 23(1), even if the defendant was entitled to enter these premises, it would not be a defence to the present charge.

22. PW3 pointed out that House No.5 had been in disuse for 20-odd years and that he did not possess the key(s) to it. Moreover, there is no evidence to show that the defendant was in possession of House No.5. Therefore, the circumstances set out in section 23(2) of the Public Order Ordinance do not apply to the present case.

23. The defence submits that there are discrepancies between PW1’s testimony and PW2’s testimony. Although PW2 pointed out that the neighbour(s) living in House No.4 knew the person who occupied House No.5, in re-examination PW2 also pointed out clearly that the door to House No.5 was locked by PW1. There is no substantial discrepancy between PW1’s testimony and PW2’s testimony.

24. PW3 pointed out that he had entered House No.5 more than 20 years ago, and at that time it had already fallen into disuse. There is no substantial discrepancy between PW3’s testimony and PW1’s testimony. Moreover, the defence has never challenged PW1 on the issue of putting up a metal gate at House No.5 subsequent to the offence.

25. Having observed PW1 as he gave evidence, I am satisfied that he is a veracious witness and that his evidence is reliable.

26. On the basis of PW1’s evidence, I find as a fact that House No.5 was in PW1’s possession on the day of the offence.”

14.In paragraphs 23 to 26 of his Statement of Findings, as quoted above, the magistrate had clearly dealt with the matters covered by Ground (2)(a), and at the appeal hearing Mr Wong did not make any submissions in relation to that ground.  In my view, there was ample evidence to support the magistrate’s finding that Mr Lam was in possession of House No.5.

15.Furthermore, as the magistrate stated in paragraph 21 of his Statement of Findings, whether the appellant was entitled to enter House No.5 or not, he had already committed the offence by entering the house in a violent manner.  Therefore, the issue of who was in possession of House No.5 went only to the question of whether the appellant could rely on section 23(2) as his defence. However, at trial no one had made the suggestion that the appellant was in possession of House No.5 — a suggestion which in any event was not supported by any evidence.

16.Regarding Ground (3), Mr Wong submitted that as the appellant was a member of ‘Tsang Wang Shing Tong’, he could have been an agent of the owner of House No.5 and hence could avail himself of the defence under section 23(2).  With respect, Mr Wong has in my view misunderstood section 23(2).  That defence only applies in cases where one enters one’s own premises which are in his possession or in the possession of his servant or agent, and it does not cover the situation where the owner’s agent enters those premises.

17.As for the appellant’s genuine belief, at trial no one had put forward the suggestion that the appellant “genuinely but mistakenly believed that he was in possession of House No.5” — a suggestion which again was not supported by any evidence.

18.For the above reasons, I have dismissed the appeal.

Ms Audrey Marie Parwani, Public Prosecutor of the Department of Justice, for the HKSAR.

Mr Philip Wong, instructed by Messrs. Chan Raymond, Kenneth Yuen & Co., for the Appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.