HKSAR v. TSUI YAT HUNG AND OTHERS

HCMA95/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.95 OF 1999

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J U D G M E N T

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1. There are eight Appellants before me. They were, together with 14 other persons, charged with unlawful assembly, contrary to s.18(1) of the Public Order Ordinance, Cap.245.

2. The particulars of offence were that on 18th May 1998 at the Balasar Night Club, G/F, No.4 Stewart Road, Wanchai in Hong Kong ("the Club"), the accused persons assembled together and conducted in a disorderly manner likely to cause any person reasonably to fear that they so assembled would commit a breach of the peace.

3. After trial, these Appellants, together with the 14 people, were convicted by the Magistrate. The eight Appellants appeal against conviction and some of them also appeal against sentence.

4. At the beginning of this appeal, I asked Counsel to argue against conviction first and let the appeal against sentence be deferred, and that course was adopted.

5. The Magistrate did not believe the Defendants/Appellants who gave evidence before him. He rejected their evidence that they went into the Club by groups and not together. The Magistrate accepted the prosecution evidence that all the people went into the Club in one go, and they went in in hurry steps. They were seated at three sofas and they did not order drink or food. They were either quiet or they were talking in a low voice. The Magistrate concluded that their behaviour in such a manner was seriously extraordinary, and therefore he treated the Defendants' behaviour as disorderly conduct and that conduct would likely cause any person reasonably to fear that they so assembled would commit a breach of the peace.

6. Counsel for the Appellant has directed my attention to a number of authorities on the meaning of unlawful assembly as well as breach of the peace. In R v To Kwan Hang & Another [1994] 2 HKC 293, CA, demonstrators became agitated and began pushing the Mills barriers set up by the police, forcing their way through the barriers. In the case of HKSAR v Yeung Kin Ping & Others [1997] HKLR 1008, another case about unlawful assembly, the accused were shouting and throwing bottles and behaving in a threatening way. There are other cases of other jurisdictions referred to me which show that people convicted of unlawful assembly were involved in aggression or exhibition of aggression to people around.

7. On the question of a breach of the peace, Counsel has directed my attention to R v Howell [1982] 1 QB 421, where Watkins LJ had this to say :-

"... 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."

8. In this case, according to the prosecution evidence, the 22 people including the Appellants went into a night club and they sat there quietly. They did not hold anything in their hands. They did not shout, nor indeed did they even speak loudly. They did not say that they came to look for any person for revenge. They did not damage any property nor did they cause any loss of business. They did not cause any nuisance to other customers either.

9. Five prosecutions witnesses, who were all employees of the Club including the Manager, a waiter, two receptionists and a public relations girl, all said that they were scared. The ground for their fear was described as "so many people coming in". The people who came in were not doing anything and one witness even said that she was afraid because of her own character.

10. Looking at all the evidence, accepting that the Magistrate was entitled to reject the defence evidence, I just cannot see that the conduct of the 22 persons there, sitting in a club, keeping quiet, allegedly waiting for people, would amount to a disorderly conduct, let alone conduct likely to cause any person reasonably to fear that they so assembled would commit a breach of the peace. The employees of the Club might be suspicious of what these people were trying to do. They might be annoyed that these people would occupy so much space without ordering any drink or food, but these people were arrested within six minutes after their arrival by the policemen summoned by the Manager.

11. Up to that stage, according to their evidence, I do not see anything that would amount to a disorderly conduct. This view of mine I have come to after considering the authorities cited by Counsel. Had the employees, for example, approached the Defendants there and asked them to leave and they refused to leave or became agitated, there could be an offence of unlawful assembly. From the evidence, they were asked to produce their ID cards by the policemen summoned by the Manager and they complied, and upon the search of their persons nothing amounting to offensive weapon or suspicious was found. There is in all the circumstances of this case insufficient evidence for the Magistrate to have come to the conclusion that he did. There is insufficient evidence for a proper inference to be drawn that the offence had been committed.

12. In the circumstances, I would allow the appeal and quash all the convictions. The sentences are set aside.