HKSAR v. MORTER DAVID

HCMA1319/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1319 OF 2001

(ON APPEAL FROM ESCC 1041 OF 2001)

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J U D G M E N T

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1. This is an appeal against conviction only. The appellant was convicted of an offence of behaving in a disorderly manner in a public place, contrary to section 17B(2) of the Public Order Ordinance, Cap. 245. The appellant's ground of appeal is that his conviction was against the weight of the evidence.

2. The facts of the case as found by the magistrate were that the appellant, while walking along Hennessy Road, had in some way had a confrontation with another pedestrian, PW1. The appellant had threatened and sworn at PW1 and otherwise verbally abused him. PW1 eventually retreated into a nearby building lobby and the appellant followed him. PW1 then left the building and eventually saw two patrolling PTU officers and reported the matter to them. Subsequently they intercepted the appellant and, later, other police arrived and arrested the appellant.

3. The appellant's case was that as he was walking in Hennessy Road, PW1 had left a building, walked a couple of steps, and then turned and elbowed the appellant in the mouth. The appellant's evidence was he told PW1 "he should not just hit people like that" and then he, the appellant, walked away. Later in Queen's Road East, he saw PW1 with two PTU police officers. He said he then went up to the two PTU officers and PW1, and explained to the two officers what had happened. One of the officers then later said they would warn PW1 not to do such a thing again. However other officers then arrived and spoke to the two PTU officers. Then one of these newly arrived officers, a sergeant, PW4, came over to the appellant and accused him of always making trouble and then subsequently had him arrested.

4. The appellant's case was that PW1 bore a grudge against him and gave false evidence against him because, at some time in the previous year, the appellant had been trying to get off a MTR train when at the same time PW1 had come on board obstructing the appellant's exit. There had been a brief confrontation between them then. He remembered PW1 from that occasion as PW1 had "smiled all the time". The appellant said the newly arrived police sergeant, PW4, who accused him of making trouble, knew him from previous traffic incidents the appellant had reported. The appellant denied ever having made trouble in respect of those incidents.

5. Before me the appellant argued effectively what he had submitted before the magistrate, that is, that PW1 was motivated to attack him and falsely incriminate him because of the earlier brief confrontation between them on the MTR, and that PW3, a police constable, was under the instructions of PW4, the police sergeant, to give false evidence to the effect that when he had first seen the appellant with the two PTU officers and PW1, the appellant was agitated and using foul language and racial invectives. The appellant suggested that PW4 had directed PW3 to give such false evidence because PW4, a sergeant stationed in the area in which the appellant lived, regarded the appellant as a trouble maker.

6. In my judgment, there was good reason for the magistrate to have rejected the appellant as a witness of credibility. The magistrate said :

"... The Defence's case was one of complete denial, and that PW1 bore a grudge against the appellant.

...

Insofar as the appellant was concerned, I found it incredible that the appellant could identify PW1 as the man whom he saw at MTR last year. It is a common occurrence in Hong Kong that many passengers would try boarding a train before the passengers in the train could leave. I found it difficult to see why that particular occasion made such a lasting impression on him; and how he could come to notice that man had a smile on him all the time considering the encounter must have been brief; and how he could identify that man as PW1 after such a long time, even if that man did have a smile on him. I disbelieved the appellant's evidence that he simply told PW1 that he could not hit people like that and then walked away, which was in direct contradiction with the independent evidence of PW2. I also did not believe the appellant was arrested simply because PW4 considered him a troublemaker. ..."

7. The magistrate's reasons for rejecting the evidence of the appellant were concise, to the point and well founded. Quite simply those aspects of the appellant's evidence he found incredible were precisely that. The appellant's evidence required, for any weight to be attached to it, the acceptance of a number of coincidences. Not the least of those was, as the magistrate said, PW1, and indeed also the appellant, both recognising one another some considerable time after their brief and typical confrontation with each other as each tried to get past one another on the MTR, and that those circumstances prompted PW1 to fabricate a case and evidence against the appellant and also to successfully convince his building caretaker, PW2, to lie as to seeing part of the confrontation between PW1 and the appellant. More coincidental was that the police sergeant, PW4, who arrived at the scene also bore a grudge against the appellant, so much so that he had successfully ordered and convinced a person, that is, his constable PW3, to lie in his evidence in a way which further implicated the appellant. The magistrate was entitled to place no weight on the appellant's case in this regard. That left the prosecution case.

8. PW1's version of the events when he had dealings with the appellant in Hennessy Road was diametrically opposed to that of the appellant. But the magistrate had reservations as to whether PW1 had told the court the whole truth and, justifiably, at the end of the day, decided to place no weight upon his evidence. In other words, the magistrate rejected, as witnesses of truth both the appellant and PW1, the two major protagonists in this sequence of events. That left the evidence of PW2.

9. PW2 was a caretaker of the building into which PW1 had retreated and in which PW1 apparently resided. PW2 gave evidence to the effect that while he was on duty as a watchman in that building in Hennessy Road on the day of the incident, he saw the appellant and a Chinese male outside the building. The appellant was abusing the Chinese male and threatening him with his fist. The Chinese male came into the building and the appellant followed. The Chinese male then left and the appellant followed him out.

10. PW2 was apparently a wholly reliable witness. Even though the magistrate thought it possible that PW1 may not have told the whole truth and that the course of events initiating the confrontation between PW1 and the appellant may not have been entirely as PW1 said, the magistrate was convinced that PW2 was a witness of truth and that the events as he described them had in fact occurred. On the basis of PW2's evidence alone, if accepted, there was sufficient to found the charge.

11. Further, PW3 was one of the two police officers who took custody of the appellant from the two PTU officers who had originally dealt with him. PW3 gave evidence that the appellant was very agitated when he arrived at the scene and abused him as well as PW1 and the two PTU officers with foul language and other abuse. So he then called his sergeant PW4 who for that reason then arrived at the scene. In other words, PW3 particularly also gave independent evidence of the aggressive state of mind of the appellant continuing still when he, PW3, had arrived at the scene. His evidence was after the charged event and the magistrate appreciated that his evidence did not directly concern the charged offence. But again, this evidence was at least in some degree capable of supporting PW2's evidence of the aggressive state of mind of the appellant.

12. In short, on the basis of PW2's evidence alone, there was sufficient evidence to found the offence. That evidence was wholly accepted by the magistrate, it was consistent and coherent. There was no undermining of PW2's evidence during the course of the trial. PW2's evidence was in some degree supported by the evidence of PW3. The appellant cannot succeed in his complaint that there was insufficient evidence to properly convict him. There was sufficient evidence.

13. One further matter I wish to deal with however is that in the course of his findings the magistrate did not directly refer to, or deal with, an important element of this offence. That is the required element so far as the present case was concerned that the disorderly conduct cause a likelihood of a breach of the peace. It would have been better for him to do so, at least to the extent of incorporating into his findings sufficient to show he had addressed this aspect of the case. As O'Connor J said in R.v. Lam Kam Ming, MA 601/79, the findings provided by a magistrate should be such as to deal with the salient points of a case and demonstrate how the verdict was arrived at. In my view that would include, in the normal course, brief and express reference at least to the proof of the elements of the offence which are in any degree of dispute : See also HKSAR v. Kwok Chi Wah (1999) 1 HKLRD 481.

14. Nevertheless, the magistrate, in the present case, in accepting the evidence of PW2 thereby accepted that the appellant had threatened PW1 with his fist and was using foul language. In R.v. Howell [1982] QB 421, the leading case as to what is meant by the phrase "breach of the peace", it was said :

" We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest on offender without warrant."

And elsewhere in that case, the court said so far as the likelihood of the threat of violence causing a breach of the peace is concerned :

"... 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."

15. The magistrate, in his Statement of Findings, was aware that the likelihood of a breach of the peace being occasioned was a requirement of the offence. He referred to the prosecution's case being that the appellant's disorderly conduct was likely to cause a breach of the peace at the commencement of his reasoning relating to his verdict, and concluded that analysis by stating his satisfaction that the prosecution had proven all the elements of the offence. In this regard, he said :

" The Prosecution's case was that the appellant behaved in a disorderly manner outside 192 Hennessy Road whereby a breach of peace was likely to be caused."

And later continued :

" I found the events were as described by PW2. In particular, appellant had held his right hand in a fist and, at the same time, he was abusing PW1 with foul language and acted in a way as if he was going to hit PW1. I was satisfied that Prosecution had proved all the elements of the offence, and I convicted him accordingly."

16. In short, the magistrate's reasoning and finding in relation to this aspect of the prosecution's case was, to say the least, sparse, but in my view, having regard to the issues in the case, was sufficient to show he had addressed the matter and arrived at his conclusion in a way which accorded with the law.

17. For these reasons, the appeal against conviction is dismissed.