THE ATTORNEY GENERAL v. CHIU MING

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JUDGMENT

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1. This is a Case Stated at the instance of the Attorney General.

2. At a Magistrates Court on the 7th July, 1986 an information was preferred by a police officer against the respondent, charging him with loitering, contrary to section 160(1) of the Crimes Ordinance, Cap. 200. The respondent pleaded not guilty and was represented by counsel.

3. The prosecution case depended on the evidence of two police officers, who observed the respondent carrying out suspicious activities in what was described by all the witnesses as a "lane" behind Po On Road in Cheung Sha Wan, Kowloon.

4. The magistrate sets out at paragraph 6 of his Case Stated the various facts which he found. They are as follows -

5. The magistrate concludes that the evidence had failed to prove the lane was a 'public place', and therefore dismissed the information.

6. The question of law which arises on the above statement for the opinion of this court, as set out by the magistrate, is as follows -

"Was my decision that the prosecution had failed to prove beyond reasonable doubt that the unnamed lane is a public place one at which I could have arrived after a proper consideration of the evidence and a correct application of the law to the evidence?"

7. Throughout the evidence, the two witnesses referred to the place in question as a 'lane', as indeed did the magistrate himself throughout his findings of fact. It is to be observed that he also found that there were a number of wooden structures in the lane, described by him as "about ten numbered huts". There were also many unattended stools.

8. Having found that the place constituted a 'lane', the magistrate should have then considered whether that finding was such as to bring the 'lane' within the definition of 'a public place' contained in section 2 of the Interpretation and General Clauses Ordinance, (Cap. 1). That definition has to be relied on in relation to this offence because the Crimes Ordinance itself contains no definition of the phrase.

9. The ordinary Oxford English Dictionary definition of a 'lane' is "a narrow way between hedges or banks, a narrow road or street between houses or walls, a by-way".

10. The definition of "a public place" in Cap.1 is as follows -

                "'public place' means -

                (a)    any public street or pier, or any public garden; and

(b)    any theatre, place of public entertainment of any kind, or other place or general resort, admission to which is obtained by payment or to which the public have or are permitted to have access;"

11. If the magistrate had directed his attention to that definition and there is nothing in the record to suggest that it was brought to his notice by counsel, I am sure that he would have come to the conclusion either that this lane was a "public street" or that it was a place to which the public were permitted to have access.

12. I was referred to The Queen v. NG Chun-yip and Others⁽¹⁾, in which Penlington, J., dealing with a loitering charge under the same section, ruled -

"'public place' must be given its ordinary meaning and that is a place that is accessible to the public, even if it is privately owned."

13. There is nothing in the findings to suggest that this lane was privately owned, but even if it had been, NG's Case would not have prevented it from being 'a public place' within the meaning of Cap. 1.

14. For these reasons, I think that the magistrate was wrong in finding that the 'lane' was not a public place within the meaning of that definition in Cap. 1, and that he should, therefore, have convicted the respondent.

15. The answer, therefore, to the question of law, posed by the magistrate, is that his decision was not correct.

(1)    [1985] H.K.L.R. 427