HKSAR v. CHAN OI CHUN

HCMA 833/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 833 OF 2010

(ON APPEAL FROM ESS 25870/2010 and ESS 25871/2010)

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BETWEEN

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J U D G M E N T

Background

1.  The appellant faced two charges.  The particulars stated that for two periods of time respectively on 16 May and 5 June 2010 at her residence she kept a dog that made a noise which was a source of annoyance to male Wong Chi Hung.

2.  The appellant pleaded not guilty to both charges but was found guilty of both charges after trial.  She now appeals against her convictions.

Prosecution case

3.  The prosecution called 3 witnesses at the trial to give evidence.  The main witness was Wong Chi Hung (“PW1”).  His evidence was that his unit was about 30 feet away from the residence of the appellant and that he could clearly see the windows of the appellant’s unit, but he did not know and had not seen the appellant before.  He said starting from 1:30 p.m. on 16 May 2010 he heard non-stop barking of a dog.  He endured it up to 3:30 p.m. and then called the police. The barking went on until sometime between 5-6 p.m.  According to PW1, the windows of the appellant’s unit were open at that time, but he did not see any dog.  He complained that the barking annoyed him, making it difficult for him to concentrate.

4.  PW1 said he heard the non-stop barking again at about 11 a.m. on 5 June 2010.  He endured it until 1 p.m. and then called the police.  He said that the windows of the appellant’s unit were open and that the barking went on to sometime between 4-5 p.m. before they stopped.  The barking made it difficult for him to concentrate and annoyed him so much that he could not sit or stand in peace.

5.  PW2 was one of the police constables who carried out the investigation.  In response to PW1’s complaints, he arrived at the appellant’s unit at 3:45 p.m. on 16 May 2010.  He was 6 to 7 feet away from the unit.  He knocked the door but no one answered.  He stayed outside the door until 4:15 p.m. and then left.  During the 30 minutes of his presence there, he heard barking which went on continuously.  PW2 pointed out that he did not hear any barking coming from anywhere else except thatwhich came from the appellant’s unit.  He returned to the unit at 4:30 p.m. and stayed for 10 minutes.  During his stay this time, the dog barking was still non-stop.  At 9:30 p.m. of the same day, PW2 went there yet again.  On this occasion, the appellant answered the door and explained that when she went out, she would put the dog in the servant’s room.  The dog would bark when there was no one at home, but did not bark when there was someone at home.

6.  Another police constable, i.e. PW3, arrived at the appellant’s unit at 1:15 p.m. on 5 June 2010 to investigate.  He stayed outside the unit for 10 minutes, during which timethe dog barking went on without stopping.  At 1:25 p.m., the appellant and her servant returned to the unit.  When questioned by PW3, the appellant admitted that there was a dog in the unit, that the dog barked and that on this particular occasion she did not shut the windows to reduce the noise level.

Defence case

7.  The appellant chose to give evidence but did not call any other defence witness.  She said the distance between the two units was about 60 feet.  Her glass windows were just ordinary ones with no sound-insulating materials.  She left the unit at 12 noon on 16 May 2010 and left her dog at home by itself, without muzzling it or restraining it in any way to prevent it from barking.  However, the windows were shut on that day.  She said there was nobody in the unit from sometime between 12 and 1 p.m. up to 5 p.m.  She had no idea whether her dog had barked at all within these 5 hours.  She confirmed the content of the conversation between her and PW2.

8.  On the day of the second occurrence of this offence, she left the unit sometime between 12 and 1 p.m., leaving her dog at home under the same condition as the first occasion. She admitted that the windows were not shut.  She returned home about an hour later.  She did not know whether her dog had barked within this length of time.  She confirmed the conversation between she and PW3.

Findings made by the magistrate

9.  The magistrate found that PW1 was an honest and reliable witness and she accepted his evidence.  She also accepted the evidence given by the two police constables and on the basis of their evidence, she found that the barking noises came from the appellant’s unit.

10.  The magistrate considered that the principles laid down in HKSAR v Woo Carrie HCMA 1229/2004 were applicable to this case.  Her views were as follows:

(1)   The issue was whether the noise was made or caused by the appellant such as to cause annoyance to the witness;

(2)   The crux of the matter was whether the noise caused annoyance, whatever its level;

(3)   Evidence of decibel levels or of a scientific nature was not necessary;

(4)   The prosecution did not need to prove that besides PW1, other people were also annoyed nor did they need to explain why no other people made the same complaint or report.

Finally, the magistrate found the appellant guilty of both charges.

Grounds of Appeal

11.  Mr. Lam, counsel for the appellant, put forward 4 main grounds of appeal:

(1)   The magistrate behaved in such a way at the trial that there was an appearance of bias.  In addition, she asked the witnesses a lot of questions and had on many occasions led the witnesses to give certain answers.  Her behaviour exceeded the limits set in R v. Yeung Mau Lam [1991] 2 HKLR 468;

(2)   The magistrate did not deal with certain disputed evidence;

(3)   The magistrate drew erroneous conclusions from the evidence of the prosecution witnesses; and

(4)   The magistrate relied on an inapt authority.

12.  Mr. Lam submitted written submissions in which he explained in detail the basis of these grounds of appeal.  The respondent replied in writing to the appellant’s case point by point.

13.  In relation to the first ground, Mr. Lam complained that the magistrate repeatedly indicated to the appellant that she had no defence to the charges, therefore the chance of the appellant receiving a fair trial was prejudiced.  In this connection, I have gone through the transcript of the proceedings in its entirety.

14.  General speaking, a magistrate will not ask a defendant before the trial begins what her defence is.  However, in this case, it is clear that the magistrate, seeing that the appellant was unrepresented, was concerned that she might not even understand what was involved in the charges, so she asked her some questions and then explained to her her (the magistrate) understanding of the charges.

15.  The important thing is that the magistrate first told the appellant that she had the right not to disclose her defense.  The record shows that the appellant chose to disclose her case, and after she heard the magistrate’s explanation, she maintained her plea of not guilty.  Following that, the magistrate tried the case according to the procedures.  I do not detect anything which shows that the magistrate, because she disliked the appellant pleading not guilty, conducted the trial arbitrarily.  As to the question of whether the magistrate’s decision is correct, that is another matter.

16.  Mr. Lam’s next complaint was that in the course of the trial the magistrate repeatedly asked the witnesses questions, which were excessive, whether in terms of quantity or content, so that it gave the appearance that she had taken over the conduct of the case from the prosecution.

17.  According to the record, it is true that the magistrate had directly asked the witnesses a lot of questions.  However, there was a special circumstance in this case. The appellant told the magistrate in court about her case beforehand, so the magistrate was aware of these matters: The appellant admitted that she kept a dog, which barked from time to time, but no other people who lived there had complained; when she went out she would shut the windows to reduce the noise level; the appellant believed that PW1 deliberately caused her trouble.  Since the matters at issue had been made clear, the magistrate then adopted a more active attitude to focus the parties’ attention on these issues so that the unrepresented appellant could understand them better.  Her approach gives little cause for criticism; indeed, it can be said that it was necessary to do so.

18.  It is noteworthy that after PW1 finished giving evidence and when the magistrate asked the appellant to cross-examine him, the appellant said that she had not received any education and was illiterate, so she had not taken down his evidence.  She wanted to have a formal record of his evidence before conducting her cross-examination.  She also said that owing to her old age, she could not remember too many things.  I do not know whether the appellant really had no idea at all of what PW1 had just said in evidence and so she was not able to cross-examine him, or whether she wanted to take the record home in order that the people who helped her could study it to think out what questions should be asked.  Of course the court could hardly be expected to grant such a request. The magistrate could not possibly adjourn the case whenever a witness had finished giving evidence and allow the appellant to postpone her cross-examination of that witness until she had obtained the transcript of his evidence.  Such an arrangement would never be allowed even in the case of a much more serious criminal offence, let alone an offence which could be dealt with by way of summons.

19.  During the cross-examination, the appellant stated that she “don’t know what to say and cannot remember so many things”.  She requested the court to play the audio recording of the evidence for her, and the magistrate granted her request. Under these circumstances, if the magistrate had not actively asked questions to prevent complications from cropping up, the trial would have become hard to control and the parties’ time would have been wasted.

20.  In my judgment, under the special circumstances of this case, the magistrate’s seemingly excessive questions and the guidance she gave to the police constables when they were giving evidence are understandable and acceptable.  On the whole, the questions asked by the magistrate were neither aggressive nor biased, I do not think that a reasonable observer would consider that the appellant was not given a fair trial.  This ground of appeal is not substantiated.

21.  Mr. Lam provided 5 items of particulars under the second ground of appeal.  The main point is that the magistrate did not take into account the cause and effect relationship between the appearance of PW2 and PW3, who were strangers to the dog, outside the door and the barking of the dog, which might be a result of their appearance.  I am of the view that: Firstly, the focus of the offence is the making by any animal of any noise which is a source of annoyance to any person.  This is a different matter from why the animal makes such noise.  Secondly, the evidence of this case shows that first there was disturbing noise, then PW1 decided to call the police for help; and the police constable went to the unit to investigate only because of his complaint. Furthermore, according to the appellant, the dog barked because there was nobody at home.  This argument advanced by the appellant seems to be taking effect for cause.

22.  Another item of the particulars is that the magistrate did not deal with the question of whether the distance between the two units was 30 feet or 60 feet.  My view is that this kind of evidence about distance is usually the estimate made by each individual witness and is hard to be verified by “actual measurement” as suggested by Mr. Lam.  Moreover, in the circumstances of this case, I do not think that a difference of about 30 feet would affect the decision made in this case in any significant way.

23.  As far as other matters raised by the appellant under this ground are concerned, they are minor details.  To give one example: PW1 alleged that his daughter’s review of her lessons was disturbed by the noise.  Certainly, the magistrate was not required to say specifically whether she accepted this point.  Since PW1’s daughter did not give evidence, what was important was whether PW1 himself was annoyed.  As for the point that PW1 needed to take anti-depression medicine, so that he might be more prone to be affected by noises, I consider that the magistrate had no need to deal with it specifically either.  The crux of the matter was whether he had suffered any annoyance.

24.  The main points which Mr. Lam raised under the third ground of appeal were:

(i)   The barking about which PW1 complained and the barking which PW2 and PW3 heard might come from different dogs.

(ii)   Neither PW2 nor PW3 had been to PW1’s unit, so neither of them could objectively assess whether such noise could annoy PW1.

(iii)   Each of the descriptions given by PW2 and PW3 about the volume of the barking was different from those given by PW1, therefore the convictionswere unsafe.

25.  The conclusions I made from my analysis of these complaints are: (i) only concerns a finding of fact about what had really happened; while (ii) and (iii) have inherent contradictions.  The logic of Mr. Lam’s argument is that whether a certain level of noise constitutes annoyance must be established by “objective” evidence (see paragraph 14 of the appellant’s written submissions).  If only one police constable went to PW1’s home to hear how loud the noise was, could this be determined by the evidence of just one police witness?  PW1’s description and feeling about the dog barking were different from those of the two police constables; does this mean that other policemen or citizens had to be present to hear and compare?

26.  Actually, issues in this area relate to the question of in what way the offences are to be understood, and are therefore connected with the fourth ground of appeal.

27.  The offences were framed according to sections 5(3) and 5(5) of the Noise Control Ordinance, Cap. 400 Laws of Hong Kong, which provide that:

(3)  Any person who at any time in any domestic premises or public place keeps any animal or bird that makes any noise which is a source of annoyance to any person commits an offence.

…

(5)  Any person who commits an offence under this section shall be liable to a fine of $10,000.

28.  The definition of “annoyance” provided in the Noise Control Ordinance is: “annoyance that would not be tolerated by a reasonable person.”  The magistrate relied on HKSAR v Woo Carrie, HCMA 1229/2004 in her hearing of this case, but the appellant argued that this authority was inappropriate.

29.  I note that both sections 4 and 5 of the Ordinance deal with the concept of “annoyance” and prescribe the same level of maximum fine.  The main difference is that section 5 is targeted at the sources of the noises, namely musical instrument, ventilating system, animal, bird or crying out for attracting attention to one’s goods; whereas section 4 covers all kinds of noises and the focus is on the relevant times.  I find that although Woo Carrie is about section 4, the magistrate was not wrong to seek guidance from that case.

30.  Judging from the charges and the evidence in this case, the magistrate should direct her attention to the following main topics:

(1)   Did any animal which was kept by anyone make any disturbing noise?

(2)   Did such noise emanate from the appellant’s residence?

(3)   Did PW1 suffer any annoyance?

(4)   Was the disturbing noise the source of annoyance to PW1?

(5)   Was the annoyance of such nature and extent that it would not be tolerated by a reasonable person?

31.  The magistrate made her findings in respect of (1) and (2) after she saw and heard the witnesses.  I do not find anything unsafe in such findings.  (3) can be regarded as a subjective factor, which turns on whether PW1 really felt annoyed.  In this respect, the magistrate accepted PW1’s evidence.  The magistrate had seen and heard PW1 give evidence.  It is hard for me to make any contrary finding just by reading the documentary record.  (4) is also a finding of fact.

32.  As regards (5), the magistrate had to make assessment by employing her common sense on the basis of the evidence in this case.  If the magistrate found that PW1’s complaints were unfair criticisms, she certainly ought to acquit the appellant.  However, in the circumstances of this case, PW1 had on two occasions felt annoyed as a result of hearing non-stop barking noises.  The first occasion began on 1:30 p.m..  He called the police at 3:30 p.m..  The barking noises went on until 5-6 p.m..  The second occasion started off at 11 a.m..  He called the police at 1 p.m. but the barking noises did not stop until 4-5 p.m..  I consider that this kind of noise constitutes a source of annoyance because of its being non-stop, while the volume may be less important; therefore, the actual distance between the two units is not crucial.  In my judgment, a reasonable person will find such non-stop barking noises intolerable.  The absence of complaints from other people cannot militate from the fact that PW1 was annoyed by the noises.

33.  On the other hand, as pointed out by the magistrate, the two charges were founded on the lengths of time during which the police constables heard the noises, i.e. 3:45 p.m. to 4:15 p.m. and 1:15 p.m. to 1:25 p.m..  The victim of these charges was PW1, so his evidence should be the basis of the accusations.  The trial hinged on whether the magistrate believed his evidence.  The evidence of the police constables only ascertained the source of the noises and was only supporting evidence.

34.  However, when the court makes its decision, its decision should be based on the particulars of the charges as drawn up by the prosecution.  Perhaps the prosecution wanted to proceed in a fair manner by laying charges on the basis of what the police constables heard at the scene, but by so doing the lengths of time during which PW1 suffered annoyance were restricted to only half an hour and 10 minutes respectively.

35.  Judging this case in the light of the lengths of the time and taking into account the concept of reasonable tolerance in relation to annoyance, then half an hour of continuous barking noises could constitute annoyance, but I do have reservations about whether, objectively speaking, 10 minutes’ duration of such noises could also be regarded as annoyance.

36.  Based on the above analysis, I find that the grounds of appeal in respect of ESS 25870 are not substantiated; however, the conviction in respect of ESS 25871 is unsafe.  The benefit of the doubt should go to the defence.

Conclusion

37.  I dismiss the appeal concerning ESS 25870; but in the case of ESS 25871, I allow the appeal, quash the conviction and set aside the sentence.