HKSAR v. LEUNG KA CHING

1997, NO. MA 279

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted by a magistrate under s.99 of the Magistrates Ordinance of behaving in an insulting manner before a magistrate. Section 99 provides as follows :

"If any person behaves in an insulting manner or uses any threatening or insulting expression to or concerning or in the presence of a magistrate when acting in the discharges of any magisterial duty, the magistrate may summarily sentence the offender to a fine of $2,000 or to imprisonment for 2 months."

2. The magistrate in her findings stated that the appellant was seen by her chewing gum in Court after the appellant pleaded not guilty to a USD summons. The magistrate considered that the appellant was behaving in an insulting manner in her presence. She therefore convicted the appellant under s.99 and ordered him to pay a fine of $500.

3. The appellant complained that he never intended to be insulting to the magistrate. He had made sure that he dressed properly, switched off his mobile phone and did not wear sunglasses. But he never knew nor was he warned that chewing gum was not allowed and there was no notice to this effect in the vicinity of the court. His main complaint was that the magistrate simply said to him that he was in contempt of court and ordered him to pay the fine. Thus, he was never given an opportunity to plead to the offence or to consider seeking legal advice or to explain.

4. Mr Liu for the Government submitted that the appellant's appeal was against conviction and what the appellant had submitted was on sentence. In any case, Mr Liu agreed that there was nothing on record that the appellant was given an opportunity to be heard. He conceded that even in a case of contempt in face of court, a defendant should be afforded an opportunity to be heard.

5. There is nothing on record that the appellant was told of the particulars of the charge against him and why the magistrate considered him chewing gum was behaving in an insulting manner towards her and therefore constituted an offence under s.99. The appellant appeared in person before the magistrate and there is nothing on record that the appellant was given an opportunity to defend, or to explain or to seek legal advice concerning the charge. The exercise of the power under s.99 by a magistrate to summarily convict a person of insulting behaviour is similar to the exercise of the common law power of the court to punish for contempt. In Maharaj v. AG for Trindad and Tobago (PC) [1977] 1 AER 411 , the Privy Council held that where a person was charged with contempt of court particulars of the specific nature of the contempt had usually to be made plain to the alleged contemnor by the judge before he could be properly convicted and punished. Failure to do so would vitiate the conviction since the contemnor had not been afforded the opportunity to explain.

6. In the present case, had the magistrate explained the particulars of the charge to the appellant, the appellant would have explained that what he did was not in any way intended to be insulting in the presence of the magistrate. Whether the magistrate accepted his explanation was a matter for the magistrate. But as a defendant in court, the appellant should have been given the opportunity to be heard before he was convicted.

7. In the circumstances, the conviction could not be regarded as proper and the appeal is therefore allowed. The conviction is quashed and the fine paid is to be refunded to the appellant.