HKSAR v. WONG CHUN YAM

[English Translation – 英譯本]

HCMA 494/2017

[2018] HKCFI 546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 494 OF 2017

(ON APPEAL FROM TMCC 552/2017)

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J U D G M E N T

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1.  The appellant was the second defendant at trial.  He was jointly charged with the first defendant, that is, his elder brother, and two other defendants for an offence of “loitering causing concern’, contrary to section 160(3) of the Crimes Ordinance, Cap 200.  The particulars of the charge were that on 4 September 2016, in Yuen Long district in the New Territories, the appellant and the other defendants loitered in that place, being a public place, and their presence there, either alone or with others, caused Chu Hoi Dick reasonably to be concerned for his own safety or well-being.

2.  The appellant and the other three defendants all pleaded not guilty but were found guilty by the magistrate after trial.  The appellant was sentenced to a Community Service Order of 160 hours.  He appealed against conviction.

The prosecution case

3.  The material day of 4 September 2016 was the polling day of the 2016 Legislative Council Election.  PW1, Mr Chu Hoi Dick (“Mr Chu”), was one of the candidates in the direct election in the New Territories West geographical constituency.  He was driven around by PW2 in a golden 7-seater car (“7-seater car”) to carry on with his election campaign in Yuen Long.

4.  At about 7:48 am on the material day, from the time Mr Chu left his residence in Yuen Kong San Tsuen in the 7-seater car, the first defendant and the third defendant, respectively driving a Toyota car (“Toyota car”) and a Honda car (“Honda car”), alternately or simultaneously tailed Mr Chu, who was in the 7-seater car, at multiple locations in Yuen Long. The appellant was the passenger in the Toyota car, while the fourth defendant rode in the Honda car.

5.  Their tailing operation caused Mr Chu to be concerned for his own safety and that of his election team, and fear that they might be attacked and injured.  Therefore, the incident was reported to the police.  The police intercepted the Toyota car in Fung Yau Street North, Yuen Long and made inquiries of the appellant and the first defendant, who were in the car.  The first defendant stated that they were on a joyride and looking for a breakfast venue.

6.  The evidence in the case also included the route along which Mr Chu was tailed, and CCTV footage from residential units and shops that were passed in the course of the tailing.  Such evidence was not in dispute.  According to some of the footage, at about 8:25 am and 9:10 am on the material day, when Mr Chu got out and walked on Fung Yau Street North, Yuen Long, the fourth defendant also left the Honda car and tailed Mr Chu and his companions on foot.

7.  The appellant was arrested on 21 September 2016.  Under caution, he stated, “I have no idea at all what happened.  In the morning of 4 September, I only followed my second elder brother Wong Kin Fai to Yuen Long for breakfast.”  In the video-recorded interview conducted later that day, he denied committing the offence and only admitted keeping his elder brother, that is, the first defendant, company in the Toyota car that day.

The appellant’s case

8.  The appellant and the other defendants all elected not to testify or call any defence witnesses.

Grounds of appeal

9.  The appellant’s grounds of appeal can be summarised as follows:

(1)   The other three defendants in the case did not engage in any conduct that was disturbing to Mr Chu; and

(2)   There was inadequate evidence to show the appellant’s participation in any such conduct.

Disturbing conduct

10.  The appellant stated that the other defendants had not engaged in any conduct that was disturbing to Mr Chu.  It is plainly wrong to say so.  They, driving two private cars, alternately at times and simultaneously at other times tailed the 7-seater car Mr Chu was in.  According to the CCTV footage, the Toyota car in which the appellant rode had already started tailing Mr Chu’s 7-seater car as early as 7:48 am when Mr Chu left his residence in the 7-seater car.  When Mr Chu and his companions got out and walked, the fourth defendant also followed on foot, and the appellant also got out and carried out surveillance.

11.  When the Toyota car was intercepted by the police at 10:33 am, the tailing operation had lasted almost three hours, and Mr Chu and PW2 had become aware of their being tailed for slightly over an hour. According to the evidence, PW2 had tried in vain to shake off those who tailed them.  It would be plainly absurd and in defiance of common sense to say that such conduct still did not cause any disturbance to Mr Chu.

Whether it is possible to loiter in a motor vehicle

12.  It was not in issue and the facts were also very clear that this tailing operation took place in a public place.  However, with the exception of certain periods when the appellant and some defendants had left the cars they were travelling in, they remained in the cars throughout. Therefore, the court must consider whether driving a motor vehicle in a public place or remaining in a vehicle parked in a public place can constitute loitering.

13.  As the respondent has pointed out, the circumstances of this case are similar to those in R v Mok Chi Ho [1979] HKLR 118 and the English case Bridge v Campbell (1947) 177 LT 444, both of which indicated that loitering can take place in a motor vehicle being driven around, and being seated in a motor vehicle parked in a public place can also constitute loitering.  Clearly, common sense and reason dictate this must be the case.  This also explains why this issue was not questioned by the defence at trial.

Issue

14.  The key issue in the case is whether the appellant and the other defendants were loitering, and whether their conduct caused Mr Chu reasonably to be concerned for his own safety or well-being.

Loitering

15.  A great number of cases have explained what loitering is.  In Mok Chi Ho, loitering was interpreted as “idling, lingering or hanging about”.  In R v Ng Chun Yip and Others [1985] HKLR 427, the offence concerned is exactly the same as that faced by the present appellant.     In that case, the court adopted the interpretation of the term “loitering” held in Mok Chi Ho.

16.  In R v Ng Chun Wing and Another CACC 959/1983, the court, adopting a dictionary explanation, interpreted the term “loitering” as “to idle, to linger indolently on one’s way and to hang idly about a place”.  In AG v Sham Chuen [1986] HKLR 365, the Court of Appeal pointed out unequivocally that the term “loitering” should be interpreted according to its meaning as an everyday expression, that is, “tarrying, standing about or lingering for no apparent purpose”.  When the case was taken on appeal to the Privy Council in the UK, all five judges on the Judicial Committee shared the view that the term “loitering” should be interpreted according to the statutory provision with which the term is involved: AG v Sham Chuen [1986] 3 WLR 245 at 249.  In Tong Yiu Wah v HKSAR FACC 7/2006, the Hong Kong Court of Final Appeal also agreed with such a view.

17.  Regarding the present offence, the relevant statutory provision is aimed at loitering that causes another person reasonably to be concerned for his own safety or well-being.  Under such a provision, even though the idling, lingering and hanging about is purposeful, such as tailing or surveying others by motor vehicle or on foot in the present case, it is still loitering within the scope of the Ordinance. Cases such as HKSAR v Chan Man Chun [2004] 1 HKLRD 641 and HKSAR v Matt James Pearce HCMA 635/2006 all lend support to this view.

18.  The tailing of the appellant and the other defendants is basically not much different from that of the defendants in Mok Chi Ho and Bridge v Campbell, particularly the latter, cited earlier.  In Mok Chi Ho, the defendant was seated in a motor vehicle parked on a street, and the police found three knives under the defendant’s seat.  In Bridge v Campbell, the defendant, driving a goods van, tailed another goods van; and this was then a common modus operandi by which thieves sought opportunities to steal the goods being transported by other goods vehicles.  In the two cases, the High Court of Hong Kong and the High Court of England both took the view that the conduct in question was loitering.

19.  The magistrate had considered the relevant cases and the circumstances of the present case before finding that the conduct of the appellant and the other defendants amounted to loitering.  I am of the view that the magistrate’s findings were entirely correct, and there are no reasons to interfere.

Reasonably be concerned for one’s own safety or well-being

20.  Regarding whether Mr Chu was reasonably concerned for his own safety or well-being, the magistrate found as follows:

“12. According to Chan Man Chun, objective criteria, and not subjective judgment, are used.

13. The particulars of the charge refer to PW1 being concerned for his own safety or well-being, not PW2. Therefore, evidence on the third element of the offence came mainly from PW1, but PW2 was also important in his own way. PW2 was the driver responsible for driving PW1 around and transporting supplies. The day of 4 September was the election day and PW1 was a candidate. PW2 notified PW1 once he discovered in Fung Yau Street North that they were being tailed (refer to P38, Route of Tailing).

14. PW1 was asked in examination-in-chief why he was concerned about being tailed, he said he was concerned that:

(i) he himself and

(ii) his election team would be injured if attacked.

15. That is, apart from himself, he was also concerned for the safety of the members of his supporting team. The case took place in the morning and his election campaign would last until 10 pm. From the perspective of a bystander, it is understandable that PW1 felt concerned as his election campaign would go on for another 10-odd hours.

16. Before D4 was found to be tailing them, he took photographs of him at a booth on the street. D4 was not a member of the press, a member of the supporting team or a civilian supporter. PW1 suspected it was for “facial recognition” purposes. PW1 asked his supporting team to gain an understanding from D4 as to what the photo-taking was for. I noticed that PW1 did not say he felt concerned in the period when the photos were taken.

17. Besides, one of the tailing vehicles was RX299, driven by D1, who was PW1’s neighbour. When PW1 left home at 7:00 am, D1 already drove past PW1, saying, “Leaving home so early.” PW1 was of the view that the incident had been carefully planned. It is, therefore, understandable for him to be concerned.

18. When the police stopped RX299, PW1 was even more concerned when he knew it was D1. At least, he would not regard D1 as a friend. Let me mention in passing that PW1 mentioned at some stage that D1 had a “background”. I give no weight to this point. PW1 did not spell out in concrete terms what “background” meant.

19. PW1 stated that “displeasure/discontent” was not his main emotion. Instead, his main emotion was concern.

20. According to Dai Chiu Ming (2013) 3 HKLRD 772, apart from considering the subjective judgment of the witness, the court also needs to consider the overall situation. When PW1 found out he was being tailed, he already asked:

(i) PW2 to drive the car in circles to shake off the tailing cars; and

(ii) His supporting team to make a report to the police out of concern for his own safety and that of his team.

21. The first consideration is that PW1 and PW2 already knew two cars had been tailing PK6213 for an hour, not just a short span of time as suggested by the defence. There were three U-turns along the tailing route, and the tailing continued even on reaching a cul-de-sac. In more colloquial terms, the tailing operation was “boldly noticeable”. It is reasonable and sensible for PW1 to have safety concerns. Objectively, anyone would have been concerned. In addition, the two tailing cars could not be shaken off. PW1 was in the open, and they were in the dark, and it was not known what they had come for. Anyone would have been alarmed and concerned.

22. On the other hand, the defence suggested that the 4 defendants did not display any “disturbing” or “threatening” attitude or conduct. This does not mean that they could tail PW1 so flagrantly in a busy area without causing him safety concerns.

23. In Ng Chun Yip provided by the prosecution, the 7 defendants in the case remained and were noisy in a convenience store with no violent conduct involved.  Feeling scared and alarmed, the victim made a police report.  On appeal, the court pointed out that when the defendants’ conduct caused the victim to feel his safety was under threat, it was already adequate to support a conviction of “loitering causing concern”

24. The defence put to PW1 that he had exaggerated his “concern” because after the police arrived, PW1 requested the police to make inquiries as to why RX299 was tailing him and he left before the result was known. In fact, it was election day on 4 September. Before becoming aware of the tailing, PW1’s destination was Tsuen Wan. As a candidate, he had a very hectic itinerary, having to tour around, canvass for votes and make the final sprint. The tailing incident, already under police investigation, should have come to an end. Moreover, PW1 was already picked up and taken away by another vehicle. PW1 had already informed the police that he needed to take part in his election campaign. PW left the scene early as a contingency response to the developing situation. There is no basis or justification for the defence to suggest that PW1 had exaggerated the degree of his concern.

25. I find that PW1 was reasonably concerned for his own safety due to the tailing by RX299 and RY9972.

21.  In the extract, PW1 is Mr Chu, PW2 the second prosecution witness, D1 the first defendant, D4 the fourth defendant and P38 the prosecution exhibit P38.  I agree in full with the findings made by the magistrate.  Of course, on the issue of “disturbing” or “threatening” attitude or conduct mentioned by the magistrate in paragraph 22, I have already conducted an analysis above and found that the appellant and the other defendants did engage in conduct that was “disturbing” to Mr Chu.

22.  Section 160(3) of the Crimes Ordinance, Cap 200, with which this case is concerned, reads:

“If any person loiters in a public place or in the common parts of any building and his presence there, either alone or with others, causes any person reasonably to be concerned for his safety or well-being, he shall be guilty of an offence and shall be liable on conviction to imprisonment for 2 years.”

23.  It can be seen from the provision that mere loitering is not against the law. However, if the loitering causes someone reasonably to be concerned for his own safety or well-being, the offence in the provision is committed.  According to the wording of the Ordinance and the relevant cases above, on the element of “reasonably to be concerned for his safety or well-being”, the correct approach is comprised of two steps.  Firstly, the prosecution must prove beyond all reasonable doubt that the person in question did become concerned for his safety or well-being because of the defendant’s loitering.  This is a subjective standard.  If this person was simply not concerned for his safety or well-being, the prosecution would fail to prove the offence.

24.  If the prosecution succeeds in proving this point, the second step is to consider whether the prosecution can prove beyond all reasonable doubt that this person was reasonably concerned for his safety or well-being.  This is an objective standard, that is, an ordinary person with a sound and resolute mind would be concerned for his safety or well-being because of the defendant’s loitering.

25.  I am of the view that the magistrate had adopted the correct approach on this issue.  Her verdict was appropriate and consistent with the facts of the case.  Therefore, there are no reasons whatsoever to interfere.

Joint enterprise

26.  It was not in dispute that during the time the Toyota car and the Honda car were tailing Mr Chu’s 7-seater car, the appellant was in the Toyota car almost the entire time.  When Mr Chu left the car and walked, the appellant also lingered in the streets nearby at times.  Of course, mere presence cannot prove the appellant’s participation in the tailing operation.  The prosecution must prove beyond all reasonable doubt that the appellant, in a joint enterprise with the other defendants, committed a crime, that is, tailing Mr Chu, causing Mr Chu reasonably to be concerned for his own safety or well-being.

27.  According to CCTV footage, these two cars were already waiting on the road leading to and from Mr Chu’s residence shortly after 4 am that day.  The first defendant left the Toyota car at some stage and talked to those in the Honda car.  According to the undisputed evidence in the case, the first and third defendants had multiple telephone contact during that period.  This shows communication between the two cars.

28.  Shortly after 7 am, the Toyota car left the scene for 10-odd minutes. On its return, the appellant got out of the car and passed a white bag of things to those in the Honda car.  This shows that the people, including the appellant, in the two cars were connected.

29.  When Mr Chu’s 7-seater car left his residence, the Toyota car started tailing it.  As stated above, according to the CCTV footage gathered from various places in the case, the Toyota car and the Honda car tailed the 7-seater car alternately at times and simultaneously at other times.  This shows that the two cars tailed Mr Chu’s 7-seater car in tacit coordination.

30.  When Mr Chu and his companions got out of the car and walked, the fourth defendant followed them, and the appellant also got out to carry out surveillance.  CCTV footage clearly shows that from shortly after 9 am to 10 am, when Mr Chu and his group were walking on the pavement, the appellant lingered outside an OK Convenience Store and looked in Mr Chu’s direction from time to time.  Once Mr Chu got into the 7-seater car, the appellant ran from the OK Convenience Store towards and got into the Toyota car, which then immediately took off in the direction of Fung Kam Street.  Other CCTV footage shows a white private car following a golden 7-seater car.

31.  It can be seen from these pieces of evidence that the appellant was not merely present at the scene and in the course of the tailing operation.  He, as the magistrate put it, had a mission.  Without a shadow of doubt, the appellant was fully aware that he, together with the other defendants, was tailing Mr Chu and his companions.  The appellant, in a joint enterprise with the other defendants, went about this criminal activity of tailing Mr Chu, causing Mr Chu reasonably to be concerned for his own safety or well-being.

32.  Neither of the appellant’s grounds of appeal is valid. 

Conclusion

33.  The appeal against conviction is dismissed.

Afterword

34.  In the case, it took the police a substantial period of time to gather evidence, particularly the CCTV footage at various locations.  Apparently, it also took them considerable time and effort to scrutinise such CCTV footage to reconstruct the entire process of how the appellants and the other defendants tailed Mr Chu.  Such evidence provided great assistance to the court and was a manifestation of the high degree of professionalism and impartiality with which the police investigated the case.  The appellant and his accomplices, whether for political or other reasons, tailed Mr Chu.  Because of their foolish conduct, the police had to mobilise substantial manpower and material resources to carry out an investigation at the expense of considerable public funds, and the appellant now has a conviction at a young age.  The appellant and the public should learn a lesson from this case.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.