HKSAR v. CHOW WAI HUNG

[English translation – 英譯本]
HCMA 579/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 579 OF 2010

(ON APPEAL FROM TMS 9262 OF 2009)

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JUDGMENT

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1.  The Appellant was convicted after trial on one count of “nuisances committed in a public/private place”, contrary to section 4(1), Summary Offences Ordinance, Cap. 228, Laws of Hong Kong, and was fined $2,000 and ordered to pay costs in the sum of $3,000.   The Appellant appeals against conviction and sentence.

Prosecution Case

2.  At the time of the incident, both the first and second prosecution witnesses were residing in a flat adjacent to that of the Appellant. A camera with a pin-hole lens was installed at the corridor outside the two flats two days prior to the day of offence.  It could capture what happened outside the two flats.   In the afternoon on the day of offence, both prosecution witnesses, who returned home one after the other, found that there was some liquid which emanated an unpleasant smell on the main door, iron grille and floor of their flat.  They believed the liquid was urine.  Shortly afterwards police officers and security guards arrived.

3.  The video-recording footage recorded by the camera during the relevant period of time was subsequently copied to a compact disc.  The learned magistrate was satisfied that the compact disc had been kept in safe custody and that the footage stored in the disc had not been tampered with prior to its being produced in court.

4.  The learned magistrate described what was shown by the video recording as follows:

“At 14:59:16 hours a man came out from Flat H, holding in his hand a container which looked like a cup or a bottle. First, he walked to the lift on the left, but several 10 seconds later, he returned and splashed the object in his hand on the main door. Then he again walked to the lift on the left. After that he was nowhere to be seen on the screen.”

5.  When viewing the playback of the disc in court, PW1 positively identified the man who came out from Flat H as the Appellant.  In the same evening the Appellant was located by the police in Flat H.  At that time he denied having splashed any liquid at the wooden door of Flat J.

Defence Evidence

6.  The Appellant said in his testimony that he left home at some time after 6:00 a.m. on that day and was not present at the scene when the incident took place.  He averred that he was not the person who was seen coming out from Flat H as shown by the disc and that he had never splashed any liquid outside Flat J.  He further alleged that the video recording only showed that the man stretched out his arm and did not show that the man was splashing any liquid.  He also said that the copy of disc he obtained from the prosecution was a version different from the disc produced in court.

Grounds of Appeal

7.  The grounds of appeal are now summarized as follows:

(1) Section 4(1) of the Summary Offences Ordinance, Cap 228, does not apply to private places, with its heading being “Nuisances committed in public places”;

(2) The act of offence specified in the summons is “did throw noisome matter”, but there is lack of evidence in the present case to prove that the liquid was noisome matter;

(3) The magistrate did not fully consider the exaggerations and misrepresentations in the testimonies of PW1 and PW2 and wrongly accepted that they were honest and reliable witnesses;

(4) The magistrate wrongly refused to accept the Appellant’s testimony;

(5) There are different versions of discs, and the disc produced in court might have been tampered with;

(6) The conviction is neither safe nor satisfactory.

Respondent’s Response

8.  The Respondent submits that the learned magistrate, having heard the evidence of the witnesses and the Appellant and having viewed the playback of the disc containing the video recording which captured what happened at the time of the incident in the present case, was entitled to make a finding of fact, based on what was shown by the disc, that the person who turned round to face the camera was the Appellant and that the Appellant did splash liquid at PW1’s main door.  The basis on which the learned magistrate accepted the prosecution evidence and refused to accept the Appellant’s evidence is sufficient.  The conviction is not unsafe.

Verdict

9.  I will deal with grounds (1) and (2) first.  The heading of section4(1) is “Nuisances committed in public places, etc.”.  This provision sets out a variety of acts whereby this offence is committed, including:

“throws…… or any other filth, …… or noisome or offensive matter whatsoever, on any public place, ….. or on any private property unless with the consent of the owner and of the occupier (if any) of such private property; ……”

10.  In HKSAR v Li Hing Kuen (HCMA251/2010), Deputy Judge Patrick Li had this to say:

“11. The Summary Offences Ordinance is of a very wide scope. The acts restricted by section 4(1) to (33) include: spitting, obeying any call of nature, cleaning and repairing any vehicle and causing obstruction in a public place;keeping any dog accustomed to annoy others by barking; cycling and collection of money for charitable purposes on any foot-path, etc. Other sections range over “objects dropped from buildings”, “lion dances”, “street cries for selling”, to “falsely pretending to be a public officer”. This Ordinance is mainly to restrict any acts which might affect the peace and the public health. Its aim is very clear, that is to restrict any acts which might cause a nuisance to other persons and to protect the public health.

12. Based on this major premise, in my opinion the intention of the relevant Ordinance is quite obvious, that is to prohibit the acts specified in the Ordinance.  Having considered the expressions used in the Ordinance and its overall structure, I take the view that the act of throwing any filth in a public place should have constituted an offence.  Therefore, the elements of section 4(1) should be: (a) to throw any filth, and (b) in a public place.”

11.  The Appellant endeavours to argue that the relevant Ordinance does not apply to private places and that in the present case there is lack of evidence to prove that the liquid was noisome matter.  This is a misunderstanding of the Ordinance.  According to the interpretation in section2 of the Ordinance:

“public place (公衆地方) includes all piers, thoroughfares, streets, (roads,) lanes, alleys, (courts,) squares, archways, waterways, passages, paths, ways and places to which the public have access either continuously or periodically, whether the same are the property of the Government or of private persons.”

12.  As stated above, to throw noisome or offensive matter or any other filth is a variety of acts whereby this offence is committed.

13.  The learned magistrate has rightly pointed out that:

“The word “Noisome” used in the English version of the charge in the present case is defined in dictionaries as “disgusting, extremely objectionable, offensive”.  Although it is slightly different from the expression used in the Chinese version, i.e.“發出惡臭”(foul-smelling), it is in my opinion not necessary to amend the expression used in the Chinese version because “其他髒物” (“any other filth”) and “令人厭惡的物品” (“offensive matter”) are also included in the said section.”

14.  In the present case, there is no evidence to show that the compact disc produced in court might have been tampered with. That is purely aone-sided story of the Appellant.  The learned magistrate, as the final adjudicator of fact, was entitled to make a finding of fact that, based on the video recording contained in the disc and on the testimonies of the prosecution witnesses, the person who splashed liquid to PW1’s main door was the Appellant.  I will not interfere with the finding of fact by the learned magistrate.  The appeal against conviction is dismissed and the conviction affirmed.

Appeal Against Sentence

15.  The Appellant says that in view of the maximum penalty for the section being $500 or imprisonment for 3 months, the fine of $2,000 imposed by the magistrate has exceeded the maximum penalty, and it is unreasonable for the court to order him to pay costs in the sum of $3,000 without taking into account his ability to pay large sums of money.

16.  The Respondent, on the other hand, submits that although it can be seen from previous cases that there is no unanimous view in the Court of First Instance on the question of whether a court may, pursuant to section 113C of the Criminal Procedure Ordinance, make an upward adjustment to the maximum amounts prescribed for other provisions, nevertheless, the Respondent, by relying on HKSAR v Tang Ka Nin (HCMA98/2010) and the representation made by the Attorney General to the President of the Legislative Council when he moved the Second Reading of the Criminal Procedure (Amendment) Bill 1994 inthe Legislative Council, takes the view that the interpretation of the learned magistrate was consistent with the legislative intent, and that by virtue of section 113C of the Criminal Procedure Ordinance, the learned magistrate may, so far as the section in question is concerned, impose a fine of Level 1 (i.e. from $1 to $2,000) and shall not be subject to the maximum penalty for section 4(33) of the Summary Offences Ordinance.

17.  The Respondent further submits that the act of the Appellant was repulsive, his defence defied reasons, and the costs order could not be faulted.

18.  According to section113C(2) of the Criminal Procedure Ordinance:

“Where an Ordinance provides for a fine, other than an excluded fine, for an offence expressed as an amount of money, the fine shall be deemed to be a fine at the level relevant to the amount of the fine in the following table.”

19.  A fine between $1 and $2,000 falls within Level 1.  Nonetheless, on the question of whether a court may, pursuant to section 113C of the Criminal Procedure Ordinance, make an upward adjustment to the maximum amounts prescribed for other provisions, there have been different views in the Court of First Instance.  I now set out below the cases in chronological order:

(1) In HKSAR v Chan Hok Kwan (HCMA61/2002), Deputy Judge Michael Wong pointed out that it was inappropriate for the magistrate to invoke section 113C of the Criminal Procedure Ordinance without sufficient ground and impose a fine of $1,000. in view of the maximum fine prescribed in section 46(1) of the Road Traffic Ordinance, Cap 374, Laws of Hong Kong, being $500;

(2) In HKSAR v Chu Siu Wai Jovie (HCMA481/2004), Nguyen J allowed the appeal against sentence to the extent that the fine of $1,000 imposed by the magistrate was set aside and reduced to$250 which was the maximum fine provided for in section 28(2) of the Summary Offences Ordinance, Cap 228, Laws of Hong Kong;

(3) In HKSAR v Yu Kwok Wah Jimmy (HCMA56/2005), Deputy  Judge To (as he then was) pointed out that according to section 57(1) of the Road Traffic (Public Service Vehicles) Regulations the maximum penalty was a fine of $3,000 and imprisonment for 6 months, the special magistrate at the trial was wrong in invoking section 113C of the Criminal Procedure Ordinance, based on which he adopted a fine of $5,000 as the maximum penalty and imposed a fine of $2,000 on the Appellant. The sentence was varied to a fine of $300;

(4) In HKSAR v Tang Ka Nin (HCMA98/2010), Deputy Judge Patrick Li pointed out in Footnote (2) that although the maximum fine for section 41 of the Road Traffic Ordinance was $4,000., it has been adjusted upward to $5,000 by virtue of the fines of Level 2 under section 113C of the Criminal Procedure Ordinance.

20.  In fact, as regards sections 113B and 113C, Sentencing in Hong Kong (Cross and Cheung, 5^th Edition), at page 241, reads :

“Where a provision in an Ordinance specifies a level of fine that may be prescribed under subsidiary legislation, the level specified is a reference to the level as set out in schedule 8. The amounts in that schedule may be amended by regulation by the Chief Executive in Council to take account of inflation. This neat expedient enables revision to occur at one stroke, and avoids the need to amend each and every pecuniary penalty. s.113C explains that where an Ordinance provides for a fine, other than an excluded fine, for an offence expressed as an amount of money, the fine shall be deemed to be a fine at the level relevant to the amount of fine in this table…”

21.  When the Attorney General moved the Second Reading of the Criminal Procedure (Amendment) Bill 1994 in the Legislative Council, he made the following representation to the President of the Legislative Council:

“The purpose of this Bill is to introduce a Standard Scale for fines not exceeding $100,000. This will enable the maximum amount of these fines to be increased from time to time by a single order of the Governor in Council in order to reflect the effect of inflation.

At present the process of increasing the fines in our legislation is complicated, time-consuming and wasteful of resources, since the increases are done on a fine by fine basis. Each provision that needs to be revised has to be identified; the date of the last adjustment to the fine has to be ascertained; the extent of inflation since that date has to be determined; and an appropriate increase in the fine decided upon. A legislative instrument specifying the amendment to that particular fine then has to be prepared and formally approved.

The Standard Scale proposed will greatly simplify this process. It will consist of six levels, ranging from $2,000 at Level 1 to $100,000 at Level 6. All fines not exceeding $100,000 will be converted into the appropriate levels in accordance with the provisions in the Bill and the values of the levels will become the maximum amounts of these fines. These maximum amounts can be increased from time to time to reflect the effect of inflation simply by an order of the Governor in Council. I must emphasize, however, that adjustment by this method is only possible to cater for inflation. Other adjustments will continue to be done by means of specific amending legislation and will have to be justified on a case-by-case basis…”

22.  It can be seen from the above passages that while the maximum fines for quite a number of provisions were not adjusted in tune withthe times, legislation procedures would be complicated if adjustments were to be made on a case-by-case basis.  It was in such circumstances that section 113C came into existence, by which the complicated legislation procedures for making adjustments to individual provisions on a case-by-case basis could be avoided.  Such legislative intent should not be overlooked.  The learned magistrate’s interpretation in respect of the maximum penalty being a fine of Level 1 (i.e. from $1 to $2,000) is correct.

23.  In my opinion, however, a fine of $1,200 is sufficient to reflect the seriousness of the facts in the present case, despite the fact that the learned magistrate was entitled to impose the maximum fine of $2,000 and that based on the overall circumstances of the present case, the Appellant’s act was undoubtedly repulsive and unhygienic.  The Appellant’s savings account passbook has been obtained by this court.  I am satisfied that a fine of $1,200 falls within his financial capacity for making payment.  I order that the fine of $2,000 be set aside and vary the sentence to a fine of $1,200.

24.  In relation to costs, the learned magistrate said:

“The Appellant not only ignored utterly the fact that from the video recording in the compact disc (Exhibit P1), it can be clearly seen that after he had splashed liquid at PW1’s main door, he turned round and faced the camera, but also made irresponsible remarks and deliberate misrepresentations, with a view to misleading and hiding the truth from the court when giving evidence in the witness box. Therefore, I think a heavy sentence must be imposed for deterring purposes. In my opinion, to impose a fine of $2,000 on the Appellant cannot adequately reflect the seriousness of the incident in the present case. I am of the view that the court must order the Appellant to pay costs pursuant to section 11 of the Costs in Criminal Cases Ordinance, Cap 492.”

25.  In HKSAR v Chan Kwok Wah [1999] 1 HKC 697, P Chan CJHC (as he then was) set out the principle for making costs orders:

“……it has not been the court’s intention to require each and every convicted defendant to pay costs of the prosecution…… it is an indirect deprivation of a defendant’s fundamental constitutional right to penalize him in costs merely because his plea of not guilty has rendered it necessary for the prosecution to adduce evidence against him or because his defence has not been accepted by the court…… In my view, in applying the Costs in Criminal Cases Ordinance, the magistrate must consider whether there have been special circumstances as a result of which the prosecution incurred additional costs. These circumstances may include the defendant’s conduct throughout the trial, for example, by deliberately making difficulties about the prosecution witnesses, intentionally lengthening the trial, or putting the prosecution to proof of insignificant matters or undeniable facts. The magistrate also has to consider the defendant’s financial condition before deciding whether to order the defendant to pay costs of the prosecution.”

26.  The defence put forward by the Appellant in the present case was not only a total denial to the accusation, but also a challenge to credibility of the prosecution witnesses.  Even though the video recording footage shown by the disc was undeniable, he still alleged that it was a false accusation brought up indiscriminately by other people against him.  I am of the view that the learnt magistrate was right in making a costs order against him.

27.  By invoking section 12 of the Fixed Penalty (Public Cleanliness Offences) Ordinance, Cap 570, Laws of Hong Kong, the learned magistrate ordered the Appellant to pay costs of $3,000., stating that the defence advanced by him was frivolous or vexatious.  Nevertheless, the offence that the Appellant was facing in the present case is not included in Schedule 1 which sets out the scheduled offences to which the said Ordinance applies.

28.  In HKSAR v Wong King Kwong (HCMA13/2006), Deputy Judge Judianna Barnes (as she then was) pointed out that:

“The legislation on fixed penalties basically aims to provide an administrative measure to speedily deal with offenders and to obviate the need for the relevant persons to appear in court proceedings. If proceedings are held and the offender puts forward no defence or a defence which is frivolous or vexatious, the magistrate shall, in addition to any other penalty and costs, impose an additional penalty equal to the amount of the fixed penalty for the relevant offence (section 12).

The law does not stipulate that the court must impose the fixed penalty for the relevant offence. Where an offender is convicted after trial, the magistrate may impose a penalty by applying general sentencing principles, including exercising a discretion as appropriate. However, where the circumstances fall within section 12, the penalty must be imposed in accordance with that section.”

29.  In my opinion, as the Appellant was not charged with an offence under a fixed penalty provision, there is not much value in making reference to the operating mechanism and the penalties of that category of provisions for the purpose of deciding the amount of costs in the present case.  Further, the costs order in the sum of $3,000 made by the learned magistrate is not proportionate to the maximum fine for the offence.  Having regard to the financial capacity of the Appellant, I take the view that a sum of $500 for costs is appropriate.  The costs order in the sum of $3,000 is set aside and varied to $500.

Mr. Tsang Ting Hang, Michael, Public Prosecutor, for the HKSAR.

The Defendant in person, present.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.