THE QUEEN v. MOK DIP YAN

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H E A D N O T E

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BINDING OVER TO KEEP PEACE -- S.61 MTGISTRATES ORDINACE--Order should be made only if likelihood of future breach of peace.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 404 OF 1988

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J U D G M E N T

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1. This appeal arises out of an incident on 12th December, 1987, in a women's tailor shop in Mongkok. There was a dispute between two customers and three staff, which led to some pushing and shoving, and which was eventually resolved by the arrival of the police.

2. No charges were brought; bur the police laid an information under s. 6l of the Magistrates ordinance, Cap. 227, in which application was made that all five women be bound over to keep the peace.

3. The two customers agreed to be bound over, but the staff members did not. Evidence was given against them by the customers and by two independent witnesses who happened to be in the shop at the time. The staff members did not give evidence.

4. The magistrate was satisfied that all five participants acted in a manner giving rise to a breach of the peace and bound them over for six months to keep the peace,

5. Only one of the three girls has appealed. It is submitted by Mr Chung on her behalf that there was no evidence to suggest a likely future breach of the peace.

6. As de Basto J, pointed out in R. v. LI Wai-chu⁽¹⁾:-

" Magistrates have, under the Magistrates Ordinance and the statute of Edward 111 (34 Edward c. l) and at common law, wide general and inherent powers, as conservators of the peace, to bind over such persons whom they think might thereafter commit a breach of the peace,"

7. That was a case in which a prosecution witness was bound over, but the principle is the same. I respectfully agree with his comment that a person ought not, especially in the context of Hong Kong, to come to court to give evidence on behalf of the Crown as a complainant of as a witness and to leave court subject to a legal sanction unless there are facts on the face of the record form which it can properly be inferred that there is a danger of such complainant or witness committing, in the. future, a breach of the peace."

8. In R. v. Aubrey-Fletcher, Ex parte Thompson⁽²⁾ Parker L.C.J. said at p.873 :-

"At the same time, as it seems to me, there is no jurisdiction to make this order unless in the course of the proceedings it emerges that there might be a breach of the peace in the future."

9. The evidence in this case shows that the appellant played a very minor part in the disturbance. She was not one of those who used bad language. In fact it was she who dialled 999 and cold the others co stop fighting because the police were on their way.

10. There was no evidence that the opposing parties were likely to encounter each other in the future. There was nothing to suggest that the appellant was a belligerent sort of person, quite the reverse in fact.

11. Counsel for the Crown does not seek to justify the magistrate's order. I am satisfied for the reasons given above, that it cannot stand. The appeal is allowed and the order quashed.

(1) M.A. No. 157 of 1983

(2) [1969] 1 W.L.R. 872