HKSAR v. CHAU FUNG

HCMA456/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 456 OF 1999

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J U D G M E N T

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1. The Appellant was charged with three offences, namely,

(1) Possession of offensive weapon, contrary to s.17 of the Summary Offences Ordinance, Cap.228, in that, he on 3 January 1999, at the hillside near Border Fence Zone 192, Pak Fu Shan, Ta Kwu Leng, New Territories in Hong Kong, had in his possession offensive weapons, namely, two pairs of handcuffs, with intent to use them for unlawful purposes;

(2) Possession of offensive weapon in a public place, contrary to s.33(1) of the Public Order Ordinance, Cap.245, in that he, on the same day, and at the same place, without lawful authority or reasonable excuse, had with him an offensive weapon, namely, one knife; and

(3) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to s.38(1)(b) of the Immigration Ordinance, Cap.115, in that he, on the same day, in the New Territories, having landed in Hong Kong unlawfully, did remain in Hong Kong without the authority of the Director of Immigration.

After trial, the Magistrate, Madam Yim Shun Yee, found him guilty of the three offences. In respect of the first offence, the Magistrate passed a sentence of three months' imprisonment, in respect of the second offence she passed a sentence of 12 months' imprisonment and in respect of the third offence she passed a sentence of 15 months' imprisonment. She ordered that the sentences in respect of the first two offences to run concurrently and six months of the sentence for the third offence to run concurrently with the sentences for the first and second offences, resulting in the Appellant having to serve 21 months of imprisonment.

2. Mr Charles Chan only represented the Appellant on his appeal against conviction whilst the Appellant represented himself on sentence. The trial was conducted in Chinese, but by agreement of counsel before me, the appeal on conviction was argued in English.

3. Mr Charles Chan described that the first ground of appeal was one that was applicable to all the three offences in that he challenged the Magistrate's finding that the location where the Appellant was arrested was within the territory of the Hong Kong Special Administrative Region. If Mr Charles Chan is correct, then the offences with which the Appellant was charged took place outside the territorial jurisdiction of Hong Kong and therefore not justiciable in the Hong Kong courts.

4. It is undisputed by the prosecution witnesses and the Appellant when they gave evidence before the Magistrate that when the Appellant was located and arrested by the prosecution witnesses, he was at a place to the north of and outside the main fence. Mr Charles Chan submitted that there could be no doubt that what was inside the main fence was Hong Kong. According to PW1, the arresting officer, the location of arrest was about 27 feet north of the main fence, whereas, according to PW2, another police officer, that location was about 60 feet north of the main fence. According to the Appellant, he came from Shenzhen and had crossed the Shenzhen River before he reached that location where he was eventually arrested. It was on a slope and was covered with tall grass. The location was depicted in Exhibit P1 which was a sketch drawn by PW1. The sketch was not to scale but the position where the Appellant was located was marked with an X which was closer to the main fence than to the Shenzhen River which was also depicted on the sketch. Although in her Statement of Findings, the Magistrate found the location to be within Hong Kong, Mr Charles Chan complained that there was no evidence to that effect. He submitted that despite the Magistrate mentioning to the prosecution that there was the necessity to prove the location to be within the territorial limits of Hong Kong, no evidence was adduced to that effect. He argued that the Magistrate's finding that the location was within Hong Kong was based on the presumption of regularity that the location was within the area subject to the daily patrol and surveillance of PW1; otherwise there would be no evidence upon which the Magistrate could have made the finding. He relied on the case of R. v Roy Dillon [1982] AC 484, where on an appeal from Jamaica, the Judicial Committee held that it was a necessary prerequisite of the offence of permitting a prisoner's escape from lawful custody that the prisoner's detention in custody should have been lawful, that the prosecution was not entitled to rely on a presumption to establish facts central to an offence, and that it was essential that it should prove the lawfulness of the prisoner's detention by affirmative evidence.

5. Mr Charles Chan argued that as the location where the Appellant was found was so close to the border, where it could be either within Hong Kong or within Mainland China, it was incumbent upon the prosecution to prove beyond a reasonable doubt that the location was within Hong Kong. Without such evidence, it was not open for the Magistrate to merely rely on the evidence of PW1 or on the presumption of regularity that PW1 would only operate within Hong Kong territory, to find that the location was within Hong Kong.

6. Although it is true that prosecution did not take up the invitation of the Magistrate to adduce evidence by way of a map showing the boundary line, or calling an expert to give evidence as to where the boundary between Hong Kong and the Mainland was, PW1 did give evidence that the location of the arrest was in fact in Hong Kong. When PW1 was cross-examined, he said he was very clear about whether the Shenzhen River that he drew on the sketch P1 was within Chinese territory or Hong Kong SAR territory because the Shenzhen River was the boundary between the two territories. He said that in other words if the Appellant had crossed the Shenzhen River and came towards the main fence at Ta Kwu Leng, he already stepped onto Hong Kong land. Therefore PW1 would arrest anyone who had already crossed the Shenzhen River.

7. In fact, what the officer described was quite precise. According to the Order of the State Council of the People's Republic of China No.221, published by Special Supplement No.5 to Gazette No.6/1997, as far as the relationship of the Shenzhen River and the boundary was concerned, it is stated in paragraph I (3) as follows :

" The boundary runs from Point 5 along the bottom line of the main valley west of Pak Kung Au as far as the source of the Shenzhen River at Pak Kung Au. It continues along the centre line of the Shenzhen River to the mouth of the river at Shenzhen Bay (otherwise known as Deep Bay).

After the realignment of the Shenzhen River, the boundary will follow the new centre line of the river."

8. Mr Charles Chan, however, argued that the "centre line" of the Shenzhen River was not clear, whether it meant the centre of the highest water mark of the river or the lowest water mark of the river. If it referred to the highest water mark, according to the evidence of the Appellant, the Shenzhen River which he crossed was not with very much water because he waded across it and the water only reached the height of his knee. The centre line might therefore lie somewhere between the southern bank of the Shenzhen River and the flood dyke as depicted in the sketch, which was quite close to the main fence, and as the Appellant was located at somewhere south of the southern bank and north of the flood dyke, he might not have been on Hong Kong soil. In the circumstances, he argued that there was insufficient proof, beyond a reasonable doubt, that the Appellant was within the jurisdictional limits of the Hong Kong courts. At the close of the argument on this point, I mentioned to counsel that I would check books on Public International Law for the purpose of ascertaining the meaning of "centre line" as far as boundaries are concerned. In Starke's International Law, 11th Ed., p.174, it is stated as follows :

"In the case of a non-navigable river, the boundary line is in the absence of contrary treaty provision runs down the middle of the river or down its principal arm if it has more than one, following all turnings of both banks. This line is known as the 'median line', and was adopted for non-navigable rivers by the Peace Treaties of 1919-1920. Where the river is navigable, the boundary line as a rule runs through the middle line of the deepest navigable channel, or as it is technically called - the thalweg. ..."

9. In Brownlie, Principles of Public International Law, 4th Ed., the learned editors state at pp.168-169 as follows :

"Boundary rivers. The principle of delimitation apparently established in the law is that of the thalweg, which may be presumed to mean the middle of the main navigable channel. However, the term may have another meaning in particular instruments and treaties, viz., the line of deepest soundings. The two definitions will no doubt often coincide."

10. Although there is no evidence, nor do I know whether the Shenzhen River is a navigable river or a non-navigable one, with reference to international law rules, the "centre line" of the Shenzhen River must have reference to its water, whether it is the "centre line" or "median line" of the water as it flows from time to time, or the line of the deepest point as a navigable channel. As the location where the Appellant was spotted and arrested was outside the reach of the water of the river, and he had admittedly crossed the Shenzhen River to the southern part of it, reaching and stepping on land, there is no doubt that he was in Hong Kong territory.

11. Although the Magistrate was not referred to the Gazette Notice nor did she expressly mention that her finding that the Appellant was arrested in Hong Kong was based on her taking judicial notice, I am of the view that her finding was correct. If need be, I will take judicial notice of the fact that the spot depicting the location of the Appellant and where he was arrested as shown on the sketch P1 was within Hong Kong territory, according to my interpretation of the cited passage in the Gazette. The first ground of appeal therefore fails.

12. In connection with this first ground, the third ground of appeal is that the prosecution failed to prove the mens rea of the Appellant in the third offence, namely, that the Appellant had the mens rea of unlawfully landing in Hong Kong and remaining in Hong Kong which are the essential elements of the offence. However, according to s.38(1)(b) of the Immigration Ordinance, the offence was that the Appellant having landed in Hong Kong unlawfully remained in Hong Kong without the authority of the Director of Immigration. There was no challenge that his remaining in Hong Kong was without the authority of the Director of Immigration.

13. Facing with the Appellant's admission in evidence that he intended to come to Hong Kong illegally, Mr Charles Chan argued that the mens rea necessary for establishing the offence was not the intention to enter Hong Kong illegally, but the knowledge of having landed in Hong Kong. He argued that according to the evidence, the Appellant was under the belief, which turned out to be a mistaken belief if I held against him on the first ground of appeal, that he was still on the Mainland when he was arrested, he therefore did not have the necessary mens rea to commit the third offence. Mr Charles Chan also argued that the Appellant must know that he had entered Hong Kong before he could have an intention to remain in Hong Kong, which was also necessary for finding him guilty of the third offence.

14. On the other hand, Mr Johnny Chan, for the Prosecution/ Respondent argued that the required mens rea is the intention to illegally land in Hong Kong, which includes the intention to remain, no matter for how short a time. Mr Johnny Chan further submitted that the necessary mens rea was not affected by the mistaken belief of the Appellant that he was still in China because that mistaken belief was a mistaken belief in respect of the actus reus. I am of the opinion that whatever belief that the Appellant held, including the one that he alleged to hold, i.e., that he was still on the Mainland, did not affect his mens rea that he intended to enter Hong Kong illegally. The actus reus was constituted by his already having entered Hong Kong and on Hong Kong soil, and the offence was complete when he remained on Hong Kong soil, for however short a time, even accepting that he was hesitant whether to climb the main fence. The fact that he had entered Hong Kong and was hiding himself inside the tall grass and in the course of smoking a cigarette before he was spotted by the police, was sufficient evidence to prove beyond a reasonable doubt that having entered Hong Kong illegally, he remained in Hong Kong and had the intention of doing so. In the circumstances, the third ground of appeal fails.

15. The remaining ground of appeal, the second ground, is in relation to the second offence, which is possession of an offensive weapon in a public place. The only argument relates to the meaning of public place. It is common ground that the location where the Appellant was arrested and found to possess a knife was the spot described above when I dealt with the first ground of appeal, and that was within a closed area under the Public Order Ordinance, Cap. 245. The crux is whether that location within the closed area, and outside the main fence, was a public place. "Public place" is defined in s.2(1) of the Ordinance as meaning "any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise, ..." I was referred to R v Lam Shing Chow [1985] HKC 162 and R v Chan Chu Shi [1990] 1 HKC 341. In Lam Shing Chow, which concerned fighting in a common corridor of a private residential building, Deputy Judge Cruden held that the location of the fighting was not within the ambit of a public place under s.25 of the Public Order Ordinance. He said at p 165F :

"Access to the building is not, of course, limited to the occupiers but lawful access would also be available to their licensees and invitees. However, persons other than the occupiers who may lawfully enter the premises are neither members of the public or any section of the public. Their legal right to access does not arise from being members of the public but solely by virtue of their status as licensees or invitees of the occupiers."

16. Chan Chu Shi concerned the same charge of fighting in a public place. Ryan J agreed with Deputy Judge Cruden's above cited passage, and referred to a couple of English authorities, including R v Edwards [1978] 67 Cr App R 228, where the English Court of Appeal held that the front garden of a private house was not a public place. In that case, Bridge LJ stated at p.231:

"...it is quite impossible to hold that the expression 'public place' can be construed as extending to the front gardens of private premises, simply on the footing on which the learned judge relied that members of the public have an implied licence to pass through those private gardens in order to obtain access to the front doors of private premises if they have some lawful occasion to do so. It is not qua members of the public that they thus enjoy access. It is qua lawful visitors. Indeed, it is certainly only by permission of the owner, occupier or lessee of the premises that persons obtaining access to front doors in the manner referred to are entitled to access."

17. The important point to note from these cases is that whether the persons who are entitled or permitted to have access to the particular location or area are so entitled or permitted qua their being members of the public or members of a section of the public. If they have access as a particular class of persons, though they may be considered also part of the public, that alone will not suffice. For example, persons pay for tickets to get into a cinema to watch a film, and despite the requirement of payment, the inside of the cinema that such persons are able to have access is a public place, because the persons are members of the public and have access qua that status. On the other hand, if contractors go into a private residential building to perform repair works, they are granted the licence by the occupiers or owners to do so, but the building cannot be considered a public place because although the contractors are members of the public, they do not have access to the building qua their being members of the public, but by their being invited in by the occupiers or owners.

18. While counsel for both parties agreed that the location where the Appellant was found to possess the knife was within a closed area under s.36 of the Public Order Ordinance, I was informed by Mr Johnny Chan that over 5,000 permits had been granted by the Commissioner of Police pursuant to s.37 of the Ordinance to that number of persons who were adult residents of the closed area to access and exit that area. Although this was mentioned to me without any objection from Mr Charles Chan, I do not think it proper for me to accept this without it having been formally proved before the trial Magistrate. However, under s.38A of the Ordinance, the Commissioner of Police may "by a notice published in the Gazette grant permission to persons of any class or category specified in the notice to enter or leave the closed area during such times and subject to such exceptions, conditions or restrictions as are specified in the notice." Such a notice is contained on pp H1 and H2 of the Ordinance, and includes permission granted to "residents of the closed area under the age of 18 years, at any time" under Part II of the notice. Mr Johnny Chan submitted that as the closed area was accessible to this section of the public, and where the Appellant was found to possess the offensive weapon was within the closed area, the second offence was sufficiently proved. On the other hand, Mr Charles Chan argued that residents of the area were not a section of the public, and they were entitled or permitted to enter the closed area not qua their status as a section of the public, but qua their residential status, likened to the case of the occupiers or their licensees or invitees in Lam Shing Chow.

19. I am of the view, though not without hesitation, that the closed area is and was at the time of the second offence a public place. My reasons are that as distinguished from all the cases cited, the closed area is not owned by any private owner whereas all the places in the cases cited were within private buildings. It is closed because it is near the boundary between Hong Kong and the Mainland, for the purpose of better border and immigration control. The residents who are not yet adults are granted a general permission to enter and leave the closed area at any time. Although it might be argued that such residents are a specific class of persons and they have the permission to access because of their status as residents, they are a section of the public permitted to enter an area which is not privately owned. The permission is general in nature, and does not depend on the purposes for their access or kinds of activities they perform inside the area. They have the permission to enter and leave as members of the public living in that area. If the offences of fighting in a public place and possession of offensive weapon in a public place under the Public Order Ordinance do not apply to the area, it would make a difference of the law that is applicable in the area and that operational in other parts of Hong Kong not close to the border. In the circumstances, I also reject the second ground of appeal.

20. The appeal against conviction is therefore dismissed. I will now hear the Appellant on his appeal against sentence.