HKSAR v. YEUNG KEUNG WAH

HCMA 888/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 888 OF 2001

(ON APPEAL FROM TMCC 1430/2001)

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J U D G M E N T

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1. The Appellant was charged with one charge of criminal damage, contrary to section 60(1) of the Crime Ordinance Cap. 200 Laws of Hong Kong. The Appellant pleaded not guilty in the magistrate's court but he was convicted after trial of the charge. The Appellant today appeals against his conviction in respect of that charge.

2. The prosecution evidence was that the Defendant was the licencee of two kiosks in the Tin Shiu Wai Central Park. On 26 April, the Appellant was seen painting large Chinese characters on the external wall of the kiosks in red paint. The Defendant, when he was told to stop by one of the prosecution witnesses, said that he had the right to paint the walls because it was within his area of control.

3. The 3rd prosecution witness who was from the LCSD said that the licence agreement was signed between the Defendant and the Government and she said that the Appellant had never applied for permission to paint the external walls and in fact such permission would not have been granted. It was also her evidence that the ownership of the wall belongs to the Government.

4. The Defendant gave evidence and he agreed that he did paint the walls and he said he was sure that at the time when he painted the walls he had the right to because the walls were the resources of his business. The Appellant also in his evidence said that from the Chinese point of view the word kiosk meant that there were no external walls and therefore he never regarded the walls that he painted as external walls.

5. The learned magistrate, having gone through the evidence, was correct to say that the real issue in the case turned on whether the external walls belonged to the licencee, that is the Appellant. If he had the honest, but, mistaken belief that the property was his own, he would have committed no offence. He also correctly directed himself that as far as lawful excuse under the Ordinance was concerned the Defendant only has to prove it on the balance of probabilities and then it would be up to the prosecution to disprove such defence beyond a reasonable doubt. The learned magistrate has a complete discretion as the judge of the facts in the trial to make his findings of facts in the case. It is only in very rare circumstances that an appeal court would upset the magistrate's findings on the facts. The reason is the learned magistrate had an opportunity to observe all the witnesses so he would be in a better position to judge what the facts are in the case.

6. The learned magistrate decided that the external walls on which the Appellant had admitted painting the characters, in fact, was owned by the Government. He also found that the Appellant knew perfectly well that he had no right to paint the external walls as he found that the Appellant was very conversant with the terms and conditions of the licence contract and this was because prior to this incident the Appellant had put up small posters on the external walls and he had been admonished by the representative of the LCSD. The learned magistrate concluded that the Appellant was reckless by creating an obvious risk that the external walls of the kiosk would be temporarily physically harmed by his painting. So in view of all that the learned magistrate then convicted the Appellant.

7. The main thrust of the Appellant's appeal, as far as I can gather, is that the magistrate was, first of all, wrong to have cancelled certain witness summonses which he had signed, particularly one issued to a Mr Leung Sai Wah. It can be seen from the transcript at page 292, the magistrate had reviewed his decision in relation to that particular summons and decided that this Mr Leung could not give relevant evidence in the trial of the accused because the accused had told the magistrate that he wanted him to talk about the Playground Ordinance.

8. The Appellant, who represented himself on the appeal, appears to be fully conversant with the legal issues involved in this case, and, I must add he appears to be highly intelligent. The Appellant argues that he has the ownership of the kiosk as he was in possession of the property. But it was made clear in the evidence of the prosecution witness that he was only a licencee of the kiosk and that the ownership resides with the Government. The learned magistrate had considered this point and had decided against him. As for his other ground of appeal, the Appellant asserts that he had a lawful excuse because his lawful excuse was that he was dissatisfied with the people, whose names he had painted, had done so he came under the lawful excuse defence as set out in the Ordinance. I must say that he is wrong because the lawful excuse under this Ordinance is when you have a lawful excuse in order to protect one's own property or the property of another, or one's own or another's right or interest in property.

9. The Appellant also made many allegations about the transcript and perhaps what he considers to be unfair dealings or unlawful dealings of certain personnel. I am not in a position to deal with that and also there is no evidence before me of that. As I have informed the Appellant there is nothing wrong with the Civil Section of the Department of Justice representing Mr Leung because he is a Government servant.

10. Coming back to this appeal I have read thoroughly the statement of findings of the learned magistrate and his oral reasons the learned magistrate made no error procedurally or in law in convicting the Appellant. So the appeal is dismissed.