ATTORNEY GENERAL v. SHAM CHUEN

Criminal Law and Procedure - loitering - ingredients of offence - defendant asked for explanation not only of loitering but of acts which might be regarded as constituting attempted burglary - obligation of defendant to answer - S. 160(1) of Crimes Ordinance Cap. 200 - binding effect of previous decisions of the Court of Appeal - Appeal by way of Case Stated.

The questions of law stated for opinion were:

Held:- per Yang and Kempster, JJ.A.

                per Hunter, J. (dissenting)

                per Yang and Kempster, JJ.A. and Hunter, J.

                per Yang and Kempster, JJ.A.

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JUDGMENT

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Kempster, J.A.:

1. This is a Case stated by Mr. Hill, a magistrate, pursuant to section 105 of the Magistrates Ordinance on questions of law which Barnes, J. reserved for our consideration pursuant to section 118(1)(d) of the Ordinance.

Section 160(1) of the Crimes Ordinance reads as follows:

 

"Any person who loiters in a public place or in the common parts of any building shall, unless he gives a satisfactory account of himself and a satisfactory explanation for his presence there, be guilty of an offence - "

The use of the word "loiter'' in a criminal context ultimately derives from section 4 of the English Vagrancy Act 1824 as amended by section 7 of the Penal Servitude Act 1891 whereby every suspected person loitering about or in any street or highway with intent to commit felony was deemed a rogue and vagabond. By Ordinance No. 1 of 1845 a police constable in Hong Kong was authorized to take into custody without warrant " - any person whom he finds between sunset and 6 a.m. lying or loitering in any highway, yard, or other place, and who cannot give a satisfactory account of himself. Between 1933 and 1979 any person "being a suspected person or a reputed thief - found at any time loitering in - any public place or place of public resort - with intent to commit felony" was liable to a fine or imprisonment, whatever account he gave of himself, pursuant to section 26 of the Summary Offences Ordinance. Under the present legislation a person who loiters and whose account of himself and explanation for his presence are both satisfactory commits no offence. But, presumably on the principle that Satan finds work for idle hands to do, a person who loiters but fails to give such account and explanation generally does. Loitering by itself is no offence. It seems to me in the light of these considerations and of the legislative history that the word "loiters" is in itself equivocal as to the intent or state of mind of the loiterer and is not to be read as meaning "acts suspiciously". Loitering in a public place or in common parts of any building in itself calls for explanation. I so find despite a passage from the judgment of Greer L.J. in Ledwith v. Roberts ⁽¹⁾ at p. 247, being obiter dicta and referring to sections in a statute differing in their overall wording from section 160:

".... I do not think when we are dealing with a criminal matter we ought to interpret the word 'loitering' in the wide sense of standing or waiting in the street. I think it means loitering in such a way as to indicate that the person was idling in the street for some unlawful purpose. "

The word "loiters" is to be construed in its everyday meaning of tarrying, standing about or lingering for no apparent purpose. Evidence suggesting anything more serious would normally be irrelevant, prejudicial and inadmissible though it might be elicited by injudicious cross-examination. It would, however, have been material on a charge brought under section 4 of the Vagrancy Act 1824 or section 26 of the Summary Offences Ordinance.

2. The words "gives a satisfactory account of himself" comprise not only the provision of details of identity but also, subject to qualifications which I will describe, explanation of what the suspect was doing and why. Such account and explanation will be satisfactory if they would satisfy a reasonable inquirer that the loiterer was about his lawful if not very positive occasions and, in considering this second ingredient of the offence, the magistrate will look at the account and the explanation for presence in a public place or in common parts of a building as at the time and in the circumstances when the suspect was questioned.

3. It is implicit from the wording of the section that the suspect may be questioned in order to allow the second ingredient to be established. By the same token the suspect is entitled to give an account of himself and to make a satisfactory explanation for his presence. Again no loiterer can be convicted on the footing of his failure to give a satisfactory account or explanation unless he is both capable of so doing and has been requested so to do.

4. On almost all occasions the questioner will be a police constable who has already some evidence of the first ingredient of the offence; namely that of his own eyes. It is he who will have observed the suspect loitering. But such caution as is normally required if the English Judges' Rules are to be complied with would be wholly inappropriate. To be realistic any caution would have to be to the effect that the suspect was not obliged to say anything but that if he did not do so that fact might be taken down in writing and given in evidence. In R. v. Tse Kam Pui ⁽²⁾ at p. 340 this Court held that such a warning was not generally required though in some circumstances, for example where the suspect declines to answer the questions put to him, it might be. That decision was affirmed by another division of this Court in Attorney General v. Chan Chin-hung & Ors.⁽³⁾.

5. Different considerations may well arise when a suspect is questioned on the footing that he has committed some offence other than or in addition to that specified in section 160(1). It is trite law that each case must always be considered in the light of its own peculiar facts. The Case before us sets out the findings of fact by the magistrate as follows:

6. Upon that evidence, much of which was irrelevant for reasons already explained and albeit loitering was admitted, the magistrate dismissed a complaint preferred by the Attorney-General under section 160 of the Crimes Ordinance charging Sham Chuen "for that he, on the 27th day of May 1985 at 0520 hours did loiter in a public place, to wit the staircase near the ground floor of No. 151-153, Temple Street, Kowloon, in Hong Kong, and did not give a satisfactory account of himself and a satisfactory explanation for his presence there." In my opinion he came to the right conclusion in relation to the second limb of the offence and properly relied on the research and reasoning of Penlington, J. in R. v.Ma Kui ⁽⁴⁾.

7. Having regard to the thrust of the questions, put by a person in authority, particularly as related in sub-paragraphs (h), (i) and (j) and even though no caution had been given, Sham Chuen, the respondent, could not be expected or required to answer them. "A person is entitled to refrain from answering a question put to him for the purpose of discovering whether he has committed a criminal offence. " Different considerations might well obtain with regard to the demeanour of a person when question: Hall v. R. ⁽⁵⁾ at p. 301; Parkes v. R. ⁽⁶⁾, both per Lord Diplock in the Privy Council. His refusal or failure to answer could not, accordingly, have been regarded by the magistrate as a failure to give either a satisfactory account of himself or a satisfactory explanation for his presence where seen within the meaning of the section. The suspect's common law privilege is removed for the purposes of section 160(1) but for those purposes only. An ordinance which purports to deprive a suspect of such privilege is subject to strict interpretation. The decisions in R. v. Tse Kam Pui ⁽²⁾ and Attorney-General v. Chan Chin-hung & Ors.⁽³⁾ were not in conflict with and in no way preclude this conclusion. It may be that for the purposes of disposing of the questions raised by the respective Cases it was assumed that evidence relevant to other offences was admissible but in neither instance did the Court purport to construe section 160(1) in the context of common law privilege. Nat Enterprises v. Racal Communications ⁽⁷⁾; Baker v. The Queen ⁽⁸⁾ ; Barrs v. Bethell ⁽⁹⁾. It was no part of the rationes decidendi, by which alone this Court is bound, either that evidence relevant to other offences was admissible on a charge under this section or that a suspect was required to answer questions apparently put to establish his guilt in respect of some other criminal activity.

8. Before questioning a suspect a constable would be wise to make what will often be a difficult decision, in circumstances which allow little time for reflection, as to whether his questions are to be asked in the context of section 160(1) when, as already explained, no form of caution is normally required or of some other offence, including an attempt, when it may well be. If the constable elects for section 160(1) his appropriate course would be to limit his questions to the suspect's identity and the way in which he was standing about or lingering and why and to his reasons for being in the place or places where he was observed. The constable would be unwise to ask questions germane to other offences however relevant to the suspicions about the suspect's intentions which probably gave rise to his preemptive action. Criminal or other intent and conduct preparatory to the commission of a criminal offence are, as I have already observed, irrelevant to this offence. For example, the questions appearing in paragraphs (h), (i) and (j) of the Case would suggest to any person to whom they were addressed that they were asked with a view to discovering, whether or not he was guilty of attempting to burgle the premises described. Nothing that I have said detracts from a constable's powers under section 54 of the Police Force Ordinance.

9. For these reasons the answer which I would give to the first question posed by the magistrate, namely:

"Was I correct in law in holding that PC 19181 in questioning the respondent about his observed conduct, did not thereby give him an opportunity to give an account of himself and an explanation of his presence, within the meaning of section 160(1) of the Crimes Ordinance, Chapter 200. "

is "Yes".

The answer which I would give to the second question, namely:

 

"Was I correct in law in holding that PC 19181 must, in any event, when seeking to comply with section 160(1) of the Crimes Ordinance in order to make a requirement thereunder, have said to the respondent, 'I require you to give a satisfactory explanation of yourself and a satisfactory explanation of your presence here'. "

is "No".

10. Insofar as it was immediately intelligible to the person to whom it was addressed the form of question posed would be unexceptionable but I do not think it would be helpful to lay down a strict formula for questioning a person seen loitering.

(1)  [1937] 1 K.B. 232

(2) [1980] H.K.L.R.338

(3) [1980] H.K.L.R. 737

(4)  Mag. App. No. 244 of 1985

(5) [1971] 1 W.L.R. 298

(6) [1977] 64 C.A.R. 25

(7) [1975] Ch. 397 at p. 406

(8) [1975] A.C. 774 at P. 789

(9) [1981] 3 W.L.R. 874 at p. 887

Yang, J.A.:

11. I agree.

Hunter J.:

12. I regret I find myself unable to agree with the judgment of the majority. First and fundamentally I cannot accept its view of the construction, ambit and purpose of S. 160(1). The offence, commonly known as Loitering, created by this sub-section has two ingredients, namely:-

13. It seems to me almost inevitably to follow that the word 'loitering' is used in this section to describe two different types of conduct or two different results. The first is conduct for which a satisfactory account and explanation is given. But such conduct is still “loitering”. In the result such conduct amounts to no more than innocent lingering. But this is the product of two stages of inquiry, not one. So even here it seems to me difficult to conclude that loitering simply means lingering, as this ignores the second stage. It must, I think, mean something more than lingering: either lingering which is coupled with further conduct reasonably giving rise to suspicion: or which no longer can be said to be so coupled in the face of some satisfactory account and explanation.

14. In the second case, the word must in my view carry the criminal connotation it has carried for 140 years, and which was conveniently summarized by Greer LJ., in the passage cited from Ledwith v. Roberts ⁽¹⁾ as 'unlawful purpose'. The same word, 'Loitering' (the distinguishing capital letter is mine) is also used to describe conduct for which no satisfactory account or explanation is given. 'loitering' here cannot in my view simply mean 'lingering'. It must mean lingering in such a way or at such a place that a satisfactory account and explanation is called for. I respectfully agree with Greer LJ. in thinking that a satisfactory account relates to 'what he was doing and why he was doing it', ibid p. 247. I also accept the view of Scott LJ. that the phrase 'satisfactory account' should be construed as requiring 'the existence of good cause for the suspicion' p. 269. This concept was, I think, felicitously expressed by Huggins J. in relation to S. 26(a) in Reg. v. Yan Ying Kuen ⁽¹⁰⁾ when he referred to conduct sufficient 'to arouse a reasonable suspicion that he is there for an unlawful purpose'. To me this construction of the word 'loiter' is the only one which is consistent with both the results envisaged by this section.

15. The majority opinion which confines the meaning of the word 'loitering' to 'lingering for no apparent purpose' looks to me, with the greatest respect to them, more like an exercise in demolition than construction. The section becomes an empty shell. Nothing more than lingering can be revealed or spoken of. I cannot readily think of anything which would give grounds for suspicion or which might call for an explanation which is not potentially unlawful; which is not 'more serious' than lingering; and which is not 'germane to other offences'. No evidence can be given of the facts which aroused the police officer's suspicion, e.g. those which produced findings (c) and (d) in this case. The officers cannot give in evidence the conduct which they thought called for an explanation. Nor can they say anything specific, anything beyond generalities, to the suspect. They only have to say something which the suspect might think suggestive of criminal conduct beyond lingering to abort the whole enquiry. If they find the answers unsatisfactory, they cannot on this hypothesis start to explain how or why. If no evidence can be given as to 'what he was doing', the 'why' cannot even be considered. The phrase 'satisfactory account of himself' is thus deprived of all content and the section of all its teeth.

16. The legislative intent and purpose behind section 160(1) seems to me to be tolerably clear. First the legislature must have concluded that in the crowded conditions of Hong Kong, it was in the public interest for the police to retain the additional powers given by this type of preventative legislation. Secondly, it must, I think, have been intending to bring about what it regarded as an improvement in it by comparison with section 26(a) by simplifying and extending it. The extensions in time and place are clear. Further I think the legislature was seeking to avoid the pit-falls of imputed intent by specifying what had to be explained and by whom. I cannot start to attribute to the legislature an intention to achieve the result reached by the majority.

17. I am unable to agree with the view expressed in MA Kui ⁽⁴⁾ that a police officer has to elect on the spot between proceeding in relation to a substantive offence or an attempt, or proceeding under this section, and particularly of requiring him in effect to proceed on the major and not on the minor basis if he has any grounds for suspicion of the commission of a major offence. In almost every case the conduct observes by the P.C. and which in his view gives rise to suspicion will be conduct apparently 'preparatory' to some criminal offence. The difficulty is notorious of deciding whether an offender has 'crossed the Rubicon' and of distinguishing between conduct which is 'merely preparatory' and conduct which 'indicates a fixed irrevocable intent to go on to commit the complete offence unless involuntarily prevented from doing so' in the words of Lord Diplock in DPP v. Storehouse.⁽¹¹⁾ To my mind it is quite unreal to expect a P.C. at the outset of his investigation to make this difficult choice, except possibly where the conduct observed points unequivocally beyond loitering. So read, this section would not add to the police armoury but place impossible burdens upon them. Further this suggestion seemed to me to be self-defeating and positively harmful to the suspect. The P.C. could avoid the problem by confining his questions to generalities, then reject any explanation on the basis of his unrevealed and unspoken suspicions.

18. The majority now go substantially further than did Penlington J. in MA Kui.⁽⁴⁾ The officer now has to elect not between loitering and any attempt, but between loitering and anything 'more serious'; anything 'merely preparatory' to crime. He must not say anything which might enable the suspect thereafter to say : "Please Sir, I thought I was being asked whether I had committed a criminal offence". The best advice to a P.C. now would in my view be to forget this section.

19. I am comforted in my construction of this section by the fact that the majority view has not apparently commended itself to a single Judge in the life time of the section. I include Penlington J., because this point goes beyond MA Kui⁽⁴⁾ and is contrary to YAU Siu-pang. It was not advanced or canvassed in argument, and in my view is not open to this Court on that account alone. It is arguably irreconcilable with the reported decisions of this Court in R. v. TSE Kam-pui ⁽²⁾ and A-G v. CHAN Chin-hun. ⁽³⁾ The same may be true of other unreported decisions of this Court which might have emerged had the matter been raised in argument. My own unassisted researches suggest that these decisions cannot be set aside by any application of the 'per incuriam' principle. The rules governing the binding effect of precedents in the Court of Appeal were emphatically restated in Davis v. Johnson ⁽¹²⁾ especially by Lord Diplock pps 323-328. It seems to me very arguable that in its earlier decisions this Court construed this section, and in the majority view, reached the wrong conclusion because the 'best arguments' were not directed to it : Morelle v. Wakeline. ⁽¹³⁾ Likewise it does not seem easy to me to 'demonstrate that the words of the section are capable of only one meaning and that the meaning attributed to them by the previous decision is an impossibilty' Farrell v. Alexander. ⁽¹⁴⁾ I accept that the majority rely not upon the 'per incuriam' principle but upon the different principle formulated particularly by Lord Diplock in Baker v. Reg. ⁽⁸⁾ I personally find the dividing line between these two principles as being very difficult to draw and unassisted by argument I am not prepared to attempt it.

20. With this preamble, I turn to consider the two questions which seem to me to arise on this appeal namely: -

                 (i)     Was P.C. 19181 entitled to ask questions (h); (i) and (j)?;

 

                 (ii)     If so, was the respondent entitled to refuse to answer them?

 

I.                 It follows from my construction of this section that I regard these questions as perfectly proper if not essential. The investigating officer is required then and there, on the street, to form a view as to the sufficiency of the suspect's explanation. I doubt whether he, or later the Court, can start to do this fairly in the majority of cases without specifically directing the suspect's mind to what the P.C. thinks calls for an explanation. Conversely, it is, I think positively unfair to the suspect to be denied the information given him by such questions. They tell him what the P.C. thinks he saw and enable him to direct his explanation to where it is most needed. For example, if in this case, the respondent wished to allege mistake or to advance an innocent explanation for trying to gain access to either of these premises e.g. to beg a bed of a friend, it would have been made clear to him that the time had come to advance it. These questions were necessary to a proper enquiry into the 'what' and the 'why'.

 

II.              The sole charge was 'loitering'. The questions go to the existence of a satisfactory account or explanation and thus to the heart of this charge. They were put in the context of 'loitering' and given in evidence only in this context. Questions (h) and (1) were in fact answered. I know of no basis, discretionary or otherwise, upon which either P.C. 19181 or the Court can be expected or required to disregard such answers.

21. Question (j) was not answered. It expressly warned the respondent that he might be 'arrested for loitering'. In the phraseology of Lord Reid in R. v. Hartz,⁽¹⁵⁾ the 'obvious purpose' of this section is to put a positive obligation on the suspect to explain himself. There is neither a right to be cautioned nor a right to silence. A P.C. spelling out the position would not be warning a suspect of his right to remain silent; but of the consequences of failing to speak and of failing to explain himself. I am unable to see why this failure to answer cannot be relied upon both by the P.C. and by the Court, together with the earlier positive answers, as constituting a failure to give a satisfactory explanation.

22. I desire to emphasize that the only charge, and the only relevant context here, was 'loitering'. The respondent was not charged with an attempt. At the time he put these questions the P.C. did not in my view have the beginnings of a case of an attempt because he could not then negative an innocent explanation. I also desire to reserve my opinion upon the point of time at which, and the circumstances in which, any right to silence may be said to arise at common law. But if in the light of these answers and/or further evidence, a substantive offence or an attempt had additionally been charged, then I think a serious question might have arisen as to the admissibility of these answers on that charge. It may well be that the compulsion of this section does not go beyond 'loitering'; so that answers given in that context would not be regarded as voluntary in another context.

23. I do not regard section 160(1) as imposing more than a modest limitation upon the maxim "'nemo debet prodere se ipsum', no one can be required to be his own betrayer, or in its popular English mistranslation 'the right to silence"' in the words of Lord Diplock in R. v. Sang. ⁽¹⁶⁾ It is a limitation which in my view necessarily follows from the plain words of the section. It produces a simple workable piece of preventative legislation without any serious impairment of civil liberty. I do not see this as a situation which the Court is either entitled or required to 'remedy' by resort to destructively narrow construction.

24. For my part therefore, I would answer my first question 'yes' and my second question 'no'. I would conclude that MA Kui⁽⁴⁾ was wrongly decided, and that had he been able to put this authority to one side the magistrate could and should have convicted.

(1)   [1937] 1 KB 232 at p. 247

(2)   [1980] HKLR 338

(3)   [1980] HKLR 737

(4)   Mag. App. No. 244 of 1985

(8)   [1975] AC 774 at p. 789-9

(10) [1963] HKLR 286, 291

(11) [1977] 2 All ER 909 at p. 917

(12) [1979] AC 264

(13) [1955] 2 QB 379 per Evershed MR. p. 406

(14) [1976] QB 345 per Scarman LJ. p. 369

(15) [1967] AC 760 at p. 816

(16) [1979] 2 All ER 1222 at p. 1230