THE QUEEN v. CHEUNG KAU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 732 OF 1988

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J U D G M E N T

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1. The appellant was convicted after trial in the Magistrates Court on a charge alleging an offence contrary to Section 6A of the Summary Offences Ordinance.

2. The particulars of the charge were that she, in a public place to the annoyance of an unidentified driving test applicant, importuned him to take part in a driving instruction course organized by a certain driving school.

3. The evidence was that the appellant had been observed in the reception hall of the driving licence office at Shatin at around 9.30 or so in the morning of 29th December, 1987. Two ICAC officers were on duty there making observation, and they saw the appellant handing out documents to people assembled in the reception hall, some of whom accepted the document, some of whom refused. The officers saw her approach one man who was filling out an application form for a driving test. The officers then approached the appellant and they saw the appellant hand the man some "materials" and they heard the man say to the appellant that he already had an instructor and told her not to interfere with him. They said that she still stood by him, continued to talk to him about how to fill in the form. One of the officers in his evidence then went on to say that the man "appeared to be annoyed by this approach" of the appellant, and he walked away and moved to the next table where he continued to fill out his application form.

4. The man who was allegedly approached was not called to give evidence. The only evidence was that given by the two ICAC officers, as no evidence was given by or on behalf of the appellant,

5. On this appeal, Mr. Kwok, who also appeared for the appellant below, relies on three main submissions for the purpose of arguing that the conviction is unsafe and unsatisfactory. He points out that the two important elements in the charge are importuning and importuning to the annoyance of someone. As regards the element of annoyance, he submits that the Magistrate should not have accepted the inference which an ICAC officer drew about the reaction of the applicant, but that the Magistrate should have drawn his own inference from facts related by the witnesses as to the reaction of the applicant.

6. In his Statement of Findings, the Magistrate did say that "the evidence given by the prosecution witnesses that he appeared to be annoyed was sufficient proof of that." The Magistrate, however, in saying that went on to say "and it was not necessary to call the unidentified man to give further evidence.'' The Magistrate is not saying that it was merely because of what the officer said that that he made the finding that the person was annoyed. He is saying that he can make a finding about annoyance in the absence of evidence from the person who is alleged to have been annoyed.

7. He did, however, make the finding that the handing out of materials and the subsequent approach to the unidentified person annoyed that person. That is a finding which, I think, he was quite entitled to make on the evidence It is unfortunate that he allowed the ICAC officer to give evidence that the unidentified person ''appeared to be annoyed" without requiring the officer to go on and describe the reaction of the person which created that impression. On the evidence of what the unidentified person allegedly said and did there could hardly be any inference other than that that person was annoyed by the conduct of the appellant. I do not, therefore, think that there is any substance in that particular ground.

8. As regards the element of importuning, Mr. Kowk submits that importuning involves an element of persistence in a course of conduct. He says that the Magistrate had to be satisfied in order to find this element proved that the appellant persisted in trying to promote the driving school about which he was employed. He points to the evidence that that is what she initially did, but on being rebuked by the unidentified man she then, according to the evidence, merely endeavoured to assist him in filling out the application form. There is, as Mr. Kwok contends, no evidence that they heard anything which she said to the unidentified man during the form filling assistance.

9. The learned Magistrate, however, says that he was satisfied from the circumstances, and in the absence of any alternative explanation from the appellant, that the second approach would only have been for the purpose of soliciting his custom for the driving school. Again, I think he was entitled to come to that conclusion and I see no substance in that criticism.

10. In the finding to which objection was taken the Magistrate used the phrase "in the absence of any alternative explanation from the appellant''. Mr. Kwok submits that the Magistrate has, by using that expression, shown that he was casting a burden of proof upon the appellant. To my mind, what the learned Magistrate meant by that sentence was this: that the only reasonable inference to be drawn objectively from her conduct was the one which he did draw, and that if there was some other explanation for her conduct, it had to be so peculiarly within the appellant's own knowledge that unless she disclosed it, nobody could ever know what that explanation was. I do not think that the Magistrate cast any burden on the appellant at all.

11. I find no merit in the appeal and it is dismissed.