HKSAR v. DAVID MORTER

HCMA 928/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 928 OF 2002

(ON APPEAL FROM ESCC 1453 OF 2002)

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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 Magistracy, of one count of Behaving in a Disorderly Manner in a Public Place whereby a Breach of the Peace was likely to be Caused, contrary to section 17B(2) of the Public Order Ordinance, Cap. 245. He was fined HK$2,000 and ordered to pay costs of HK$1,000. He now appeals against conviction. He appears in person today.

2. The facts of the offence showed that the Duty Officer (PW1) at Wanchai Police Station heard a screaming noise at the rear gate of Wanchai Police Station and went to see what happened. He saw there the Appellant screaming and swearing at people going into the station. The Sergeant observed the Appellant for about ten minutes, but did not take any action against him and returned to the reception area.

3. At about 1900 hours, the WPC (PW2) working at the customer counter of the report room saw the Appellant suddenly dash into the police station. He swore and shouted at her abusively and it is alleged that his behaviour scared some members of the public who were in the report room. The Appellant was asked whether PW2 could help him, but he continued to swear at her.

4. A video-tape from the CCTV system of the report room was put in evidence. The Magistrate, from that tape and from the evidence of the witnesses, concluded that the Appellant began to stride about erratically in front of the reception desk, that he walked up and down apparently attempting to make a report to the police officer on duty at the desk and that he was swearing and shouting abusively, in both Chinese and English. The WPC considered the volume of the Appellant's voice was loud enough to be heard in the lobby where seven members of the public were waiting, including women and a child. PW2 suggested that this behaviour went on for approximately 10 minutes, but the Magistrate found that it was less than that time.

5. PW2 said that she felt threatened and frightened by the Appellant's behaviour even though she was a police officer. The Magistrate found that it was she who was the actual target of the verbal abuse and the implied physical threats of the Appellant. The Appellant had banged on a table in front of the reception counter and continued swearing.

6. The Sergeant (PW1), who had seen Appellant some fifteen minutes earlier, came into the lobby as a result of the noise. He asked him how he could help and the Appellant said he wanted to make a report. The Appellant swore at the Sergeant who told him not to use foul language in the report room. The Appellant continued to do so. The Sergeant warned the Appellant not to speak in this manner, telling him that he had to keep the peace in the report room. The Appellant ignored him and continued to curse and swear. He was doing this while about two to three feet from members of the public seated in the lobby. The Sergeant said they were looking "a bit frightened". The Sergeant then gave Appellant a final warning to desist, otherwise he would arrest him for disorderly conduct. When the Appellant continued to swear and curse, the Sergeant ordered his arrest. Three officers entered the lobby to effect the arrest.

7. The Magistrate concluded that the Appellant had been properly arrested, cautioned and detained for the offence. He considered the police had acted in a proper, measured and restrained manner and that there was no justifiable criticism of the police handling of the matter.

8. When giving evidence the Appellant claimed that he had been walking near the rear of the police station when an unidentified male purposely bumped into him twice so he went immediately to the Wanchai Police Station report room to make a report. He denied he had ever cursed or sworn.

9. It was his evidence that the incident in the report room arose from a misunderstanding on the part of the police, which started when they thought he was smoking, when, in fact, he was attempting to use an asthma inhaler. The Appellant alleged the police had misinterpreted his acts and intentions, and had treated him with unnecessary force, assaults and abusive language. He had been detained unnecessarily and taken to the station cells, where he was verbally and physically abused whilst suffering severe respiratory distress. At least one officer had repeated the words "Die foreigner" in Chinese. His request for a doctor was refused. The police had used handcuffs unnecessarily and tightened them painfully. Eventually he was taken, handcuffed and waist-chained, to hospital where he was further mistreated.

10. The Appellant called a Mr Forsyth as his witness at trial, but the witness could testify only to his physical condition and injuries which he observed the following day at hospital. He had not been present at the police station during the incident.

11. The Magistrate did not believe the Appellant's evidence stating he found it to be "a transparent tapestry of fiction, woven to explain away the prosecution evidence". However, he reminded himself the burden of proof remained on the prosecution.

12. After considering the evidence, the Magistrate found the lobby in the reception area of the report room was a public place, for the purposes of section 17B(2), Cap. 245 and found that all the acts and statements of the Appellant which had been alleged by the prosecution, had taken place.

13. He examined the acts and statements together in the context of the circumstances and environment and found that the Appellant's threatening gestures, abuse and foul language loudly directed at PW2 by the Appellant constituted behaving in a disorderly manner.

14. Lastly he examined whether a breach of the peace was likely to be caused in this way and finding that it was, convicted the Appellant.

15. The Appellant relied on the standard grounds of appeal and prior to the hearing applied for the video-tape that had been shown at trial (Exhibit P3) to be played again in court; this application was refused. The Appellant had a large part of the transcript, which had been ordered after the Appellant's request on an earlier appeal date (22.10.2002). It was clear from the transcript that the CCTV tape had been produced in court, first as part of the prosecution case and a second time when the Magistrate played the tape, and had asked the Appellant specifically to comment on it, as the tape was played, and to make any points he wished in respect of the contents. The Appellant, who was represented at the trial, did comment on the taped material.

16. On appeal, the Appellant argued on a factual basis that the Magistrate was wrong on numerous points in his Statement of Findings, in particular his description of the Appellant's physical conduct and appearance at trial. He also stated that a large amount of material referred to by the Magistrate as being in the video was not there. Overall, he denied that he banged on the table, or that anyone looked frightened as the Sergeant said in court. He denied ever being cautioned or properly arrested. He had never resisted the police. He said there was no evidence, from the tape, that the child had looked at him, or was in any way frightened. However, I note that this evidence was given by the Sergeant, as the Magistrate was aware.

17. The Appellant alleged that the Magistrate made no attempt to deal with obvious discrepancies between the tape and the evidence of the police witnesses; an allegation which was not borne out by the Statement of Findings. He complained that no witness was called from the members of public in the lobby to say how they felt about his behaviour at the time.

18. I have no doubt, having considered the transcript and the Magistrate's Statement of Findings that the Appellant did behave in the manner described; that this behaviour was in a public place, the report room and that it did amount to disorderly conduct. However, on reviewing the circumstances and the authorities on the question of whether such disorderly conduct was likely to cause a breach of the peace, I was not convinced that the Magistrate had treated the matter correctly. He stated at paragraphs 23 and 24 of the Statement of Findings:

"23. I considered whether or not in the confines of a report room, where members of the public attending in varying degrees of distress or otherwise are to be expected and whether such behaviour in a disorderly manner in this public place constituted conduct that was likely to cause a breach of the peace.

24. I found that such a breach of the peace under these circumstances was likely to be caused. Having considered all the facts that I had found as aforesaid, I found that the prosecution had proven each element of the offence beyond any reasonable doubt. I convicted the defendant as charged."

19. In the case of R v. Howell [1982] 1 QB 416, it was held, inter alia:

" (2) That the behaviour that caused a constable to believe that a breach of the peace had or would occur had to be related to violence and such a breach occurred whenever harm was actually done or was likely to be done to a person, or in his presence to his property, or a person was put in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance."

20. In R v. Kam Man Fai [1983] 1 HKC 614, Garcia J, in considering an appeal on facts similar to the present case, said:

@617G "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 ...

H 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."

21. He referred to Howell in considering the definition of the term 'breach of the peace'. In that case Watkins LJ said:

"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."

Garcia J then referred to Halsbury's Laws of England (4th Ed.) Vol. 11 (1976) para. 108 which stated:

"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 acts. Mere annoyance and disturbance or insult to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient."

22. In Kam Man Fai, a police officer found the appellant standing at a road junction, moving his hands and feet about and blocking several taxis. When the police officer approached him, trying to find out what was happening, the appellant shouted at him with foul language and when the police officer asked him to leave, the appellant assaulted him. He faced two charges at trial, one of disorderly conduct in a public place and the second of resisting arrest. Garcia J, having considered the authorities, concluded that although it was clear the appellant had been resisting arrest, there was insufficient evidence to establish disorderly conduct such that a breach of the peace was likely to have been caused.

23. In R v. Li Wai-kuen [1973-1976] HKC 346, the appellant was a public light bus driver who used abusive language to a police officer at a pedestrian crossing. His appeal was based on the ground that the use of such language was not conduct likely to cause a breach of the peace. He argued that the abuse was directed to a police officer, who was unlikely to be provoked into committing a breach of the peace and there was no evidence from which it could be inferred that anyone else was likely to be so provoked. His argument succeeded, the judge on appeal holding there was no evidence to show the appellant's conduct might cause a breach of the peace. Comment was made that police officers were trained to conduct themselves with outstanding tolerance and good humour, even in the face of provocation. As such, it was agreed that the police officer was not likely to be provoked to commit a breach of the peace in such a situation.

24. At 348E-G, Huggins J said:

"I would not suggest that there could never be a case where the abuse was so gross that even a police officer might be likely to be provoked into violent retaliation, particularly if the language used were also threatening, but it is to the credit of the police forces in most countries where the common law prevails that they conduct themselves with outstanding tolerance and good humour even in the face of provocation more grave than that in the present case."

and at 348H,

"Here there were members of the public present but I am not persuaded that there was evidence justifying the conclusion that there was a real possibility that what the appellant said would provoke them to violence: abuse of the police in the presence of third parties does not ipso facto constitute incitement of those third parties to violence, even in Hong Kong."

On that basis, the judge allowed the appeal, but required the appellant to enter into a recognizance to be of good behaviour.

25. The facts of the present case approximate those of Li Wai-kuen. I note that the Sergeant (PW1) had refrained from dealing with the Appellant who had been swearing outside the police station. The evidence showed that the Appellant behaved extremely badly inside the police station. The Magistrate found he had been pacing up and down, behaving in a threatening manner and swearing at the police officers, particularly the WPC. I accept that members of the public in the lobby were likely to find the whole scene distasteful and, perhaps, frightening. But I do not see that the Magistrate could have been sure a breach of the peace was likely to be caused if that behaviour continued.

26. There was no evidence, apart from the fact that people were frightened, or appeared frightened, that any one of them was likely to use violence, or be provoked into causing a scene, as a result of the Appellant's behaviour. Nor were the police officers present likely to have been incited to violence, or put in fear of harm being caused to their persons, or property, by one elderly, foul-mouthed male in a police report room. The situation might have been different if the members of the public had been, say, the triad brothers of persons arrested and being investigated for a gang fight. A disturbance such as that caused by the Appellant might well have provided an opportunity for a general brawl. There was no suggestion that was the position.

27. Accordingly, I am not satisfied that this element of the charge was established in the way it is required to be and on that ground I allow the appeal against conviction. It is quite clear, however, that the Appellant's behaviour was disgraceful and unprovoked. He appears to bear a grudge against the officers of Wanchai Police Station. In addressing this court he made numerous complaints about those officers and what he perceives as their lack of interest in the many complaints he has made about traffic offences allegedly perpetrated against him as a slow-moving pedestrian, by Wanchai vehicle drivers.

28. I note too that this was not the first time that the Appellant appeared before the Court. His record shows that he had one conviction for Criminal Damage in 1992 for which he was bound over for twelve months, in the sum of HK$1,000. In October 2001, he was found guilty of Disorderly Conduct and fined HK$2,000. I note that there was an unsuccessful appeal against that conviction and on reading the judgment of McMahon DJ it appears that the facts were distressingly similar to those of the present case. For these reasons, I consider that the Appellant should be required to enter into a recognizance in the sum of $2,000 to be of good behaviour and to keep the peace for a period of 18 months from today in terms of section 61(1) of the Magistrates Ordinance, Cap. 227. I shall hear representations, if any, from the Appellant.

29. The conviction is quashed and any fine paid is to be returned to the Appellant.

30. The costs order remains in force as such an order can be imposed under section 61(1) Magistrates Ordinance and it is appropriate that such an order is made in light of the Appellant's behaviour.

Remarks: