HKSAR v. LAW YAT TING

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Press Summary (Chinese)

FACC No. 3 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2015 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 359 OF 2014)

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JUDGMENT
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Mr Justice Fok PJ:

1. This uncontested appeal turns on the meaning of the word “tampers” in section 49 of the Road Traffic Ordinance[1]. It is an example, unfortunately, of how in an adversarial system, particularly where an individual is initially unrepresented at trial, there are cases in which a material point of law is not raised in the courts below.  Fortunately, however, with the assistance of pro bono legal representation[2], the appellant’s case has been pursued to this court and, for the reasons that follow, a wrongly convicted appellant has been able to overturn that conviction on a new point of law raised for the first time in this court.  That he had, in the meantime, to serve a sentence of six weeks’ imprisonment for the offence of which he was convicted is naturally most regrettable but this could have been mitigated by a more timely appeal coupled with an application for bail.

The Facts

2. The incident giving rise to the single charge preferred against the appellant occurred in the afternoon of 21 February 2014.  On that day, at about 4pm, a van driver (who gave evidence for the prosecution as PW1) was delivering goods from his light goods vehicle (bearing registration number SL3521) whilst he was parked in Tsuen Wan.  From a distance of about 10 feet behind the vehicle, PW1 saw through the open rear door of the vehicle and its left rear window a man, later identified as the appellant, closing the left front passenger door of the vehicle.  Being suspicious, PW1 immediately went to the vehicle and checked the front seat where he had left his mobile phone.  This, he discovered, was missing.  Suspecting the appellant of having stolen his mobile phone, he chased the appellant and intercepted him about 30 feet away from the vehicle.  The matter was reported to the police and the appellant was arrested for theft.  There was, however, no evidence to support a charge of theft.  The phone was not found on the appellant and there was no evidence that he had taken the phone.

The course of the proceedings

3. The appellant was charged with one count of tampering with a motor vehicle contrary to section 49 of the Ordinance (which is set out below).  The particulars of the offence charged that the appellant “did, without lawful authority or reasonable excuse, tamper with the nearside front passenger-side door of a vehicle, namely, a light goods vehicle displaying registration mark SL3521”.

4. The appellant was tried in Tsuen Wan Magistrates’ Court before Deputy Magistrate Jim Chun-ki[3] on 22 May 2014.  The point now forming the basis of this appeal was not advanced by the appellant, who was unrepresented at trial.  Instead, the Deputy Magistrate addressed the issues of whether PW1’s evidence was honest and reliable, whether PW1 really saw the appellant close the nearside front passenger door of the vehicle and whether the appellant, being the person intercepted by PW1, was the person who had closed the nearside front passenger door of the vehicle[4].  He found in favour of the prosecution and against the appellant on those issues and, satisfied of his guilt beyond reasonable doubt, convicted the appellant of the offence of tampering with the vehicle.  On 5 June 2014, the Deputy Magistrate sentenced the appellant to six weeks’ imprisonment but granted bail pending appeal.

5. The appellant appealed to the Court of First Instance[5]. He was represented by counsel assigned by the Director of Legal Aid for the appeal but none of the issues raised included the issue of law as to the meaning of “tampers” which is now raised on this appeal.  The Judge[6] dismissed the appellant’s appeal on 17 December 2014 and he then proceeded to serve his sentence of imprisonment.

6. On 22 April 2015, by this time assisted by the pro bono legal representation already referred to, the appellant applied to this Court for leave to appeal out of time.  The application was initially subject to a Rule 7 summons[7] issued by the Registrar of this Court for the appellant to show cause why the application should not be dismissed.  Prior to the Appeal Committee determining the application subject to the Rule 7 procedure, the prosecution indicated it was prepared to consent to the application for leave with a view to consenting to the appeal itself on the ground of appeal now advanced.  For the reasons set out more fully in its Determination dated 3 July 2015[8], the Appeal Committee granted leave to appeal on the ground that the mere act of the appellant’s closing the door of the vehicle could not support a charge of tampering with a motor vehicle but dismissed the balance of the application for leave to appeal.  Directions were given, pursuant to the procedure set out in HKSAR v Shum Wan Foon[9] for the filing by the parties of a Joint Case.

7. Having considered the Joint Case, the Court is prepared to dispose of the appeal on the papers and without an oral hearing.  This is the judgment of the Court on the appeal.

The meaning of “tampers” in section 49 of the Ordinance

8. Section 49 of the Ordinance provides:

“If a person otherwise than with lawful authority or reasonable excuse gets on to a vehicle or tampers with any part of the vehicle, he commits an offence and is liable to a fine of $5,000 and to imprisonment for 12 months.”

9. The offence is based on section 29 of the UK Road Traffic Act 1972[10] and was originally introduced by the Road Traffic Bill 1982[11] which replaced the Road Traffic Ordinance 1957 (Cap.220) with the Ordinance.  The offence was then new to the law of Hong Kong[12]. 

10. The word “tampers” in section 49 is not defined in the Ordinance and, as will be seen, no court in Hong Kong has sought to provide a definition of it[13]. The word is not a technical term, nor is there any indication that it used as such in the Ordinance.  The dictionary definition of “tamper” includes the following meanings of the word:

“2.… Foll. by with: meddle or interfere with so as to cause alteration or harm; make unauthorized changes in. …

3. … Bias, influence, corrupt; meddle with, alter improperly.”[14]

11. Section 49 is in Part V of the Ordinance, which is headed “Traffic Offences” and includes a number of separate offences.  Section 49 is a discrete offence committed by the act of: (a) getting on to a vehicle (i.e. including entering into or climbing onto a vehicle), or (b) tampering with any part of it, otherwise than with (c) lawful authority (i.e. permission of the vehicle’s owner), or (d) reasonable excuse (e.g. some emergency or other necessity justifying the particular act).  The purpose of the section is self-evidently to deter persons from doing certain acts in relation to vehicles unless those acts are done with lawful authority or reasonable excuse.  The nature of the acts prohibited, namely getting on to a vehicle or tampering “with any part of the vehicle”, indicate that the statutory purpose is designed to afford broad protection to owners and users of vehicles or those who might be affected by their use (such as other road users or passengers).

12. The section does not use the words “interferes”[15], “meddles” or “touches” but instead uses “tampers”, which as indicated by its dictionary meaning, connotes something more than the mere interference or meddling with, or touching of, that part and implies that there is something improper in the act done.  The quality of that impropriety, again following the dictionary definition of the word “tamper”, should be such as to cause alteration or harm to, or to bring about unauthorised change in, the thing tampered with. Therefore, tampering within section 49 means an act constituting either interference or meddling with part of a vehicle so as to cause alteration or harm to it, or the making of an unauthorised change to it.  Beyond this broad definition, it is not necessary for the purposes of this appeal to seek to give a more specific definition of what acts may amount to tampering under the section. Since, (i) the word “tampers” is a word used in a general sense which may embrace a large range of different acts, (ii) those acts may be done in respect of any vehicle of which there are many different types, and (iii) the offence may be committed by tampering “with any part of the vehicle”, there will necessarily be many acts which could amount to improper meddling or interference with a particular part of a vehicle, or the making of an unauthorised change in it.

13. As already noted, no Hong Kong court has attempted to define what amounts to tampering with a vehicle.  In The Attorney-General v Choi Wah Hang & Anor.[16], the Court of Appeal addressed the question of whether the section 49 offence was one of specific intent such that the defence of self-induced intoxication was available as a defence.  The court held that the offence was not one of specific intent so that that defence was not available.  Cons V-P[17], delivering the judgment of the court, said (at p.106B-D):

“We do not propose to attempt an exhaustive definition of the word ‘tamper’, which is a common and well understood word of the English language. There may be occasions where it will not necessarily be easy to say whether particular conduct amounts to tampering or not. But we are satisfied that there is no reason whatsoever to add to its basic meaning the further requirement that [counsel for the 2^nd respondent] suggests [i.e. that the word ‘tamper’ connotes an intention to do something which is disadvantageous to the owner of the vehicle or alternatively has that effect].”

14. Unfortunately, the judgment in The Attorney-General v Choi Wah Hang & Anor. does not indicate the facts on which the magistrate had found that the two defendants had tampered with the vehicle in question and so the case does not materially assist in providing a definition of the word “tampers”.

15. The parties’ Joint Case has identified other Hong Kong cases involving convictions under section 49 for tampering with a vehicle.  These, however, do not offer any definition of the word “tampers” in that section, nor do they provide any analysis of what that word means.  They may be referred to in order to illustrate what other courts have previously considered constituted an act of tampering with a vehicle.  Thus, in HKSAR v Wong Fuk & Ors[18], the defendants were convicted of the offence where the evidence disclosed they had been seen to use a screwdriver to prise the lock off a light goods vehicle.  They had done this in order to replace the lock with another one, unbeknownst to the owner of the vehicle, and then to make a copy of the key of the stolen lock so that they could later return and, using that copied key, steal the vehicle.  In HKSAR v Ansir Mahmood[19], the defendant was convicted of the offence where he had acted as lookout for his employee who used a screwdriver to prise the door of a goods vehicle.  The Queen v Wong Wing Ching[20] was an appeal against sentence in which the appellant had been convicted of the offence where the evidence disclosed he had been seen squatting near the front of a goods vehicle, whilst another man tampered with the dash board of the vehicle.  The vehicle was found, on examination, to have had one of its windows smashed, the lock prised open and the electrical wiring under the dash board pulled out.

16. The fact that the acts in those other cases have previously been held to be within section 49 of the Ordinance does not assist in providing a definition of what is meant by tampering but the acts in question would clearly fall within the broad definition set out in paragraph 12 above.

17. The broad definition of “tampers” set out in paragraph 12 above is supported by a decision of the Supreme Court of Victoria in Harris v Sumner[21], a case concerning a charge of tampering with a motor vehicle under section 82A of the Motor Car Act 1958[22]. The evidence in that case was that the defendant walked around the car in question, paying close attention to the panels; he opened the front near side door, looked inside the car and then closed the door; he then rocked the car by holding it by the body above one of the rear wheels.  On appeal after conviction by the magistrates, Menhennitt J held[23]:

“ As a matter of ordinary language it appears to me that the word ‘tampers’ involves the concepts [sic] that a person interferes in some way with an object so as to change it. This appears to me to accord with the fourth definition in the Shorter Oxford English Dictionary which is: ‘To meddle or interfere with (a thing) so as to misuse, alter, corrupt or pervert it.’

Underlying those latter words is, I think, a concept of change or alteration.  The word ‘interferes’, in my view, does not involve necessarily the same concepts, and it is unnecessary and undesirable for me to attempt to define the word ‘interferes’ in the context.  But I reiterate, in my view the word ‘tampers’ means interference which produces some change.”

Since the evidence did not indicate that the defendant did anything to change the vehicle, the judge quashed the conviction.

18. The parties’ Joint Case referred to two other Australian decisions[24] in which Harris v Sumner was considered but, since those decisions concern the meaning of the word “interferes” in the particular statutory provisions, they do not assist in the determination of the issue raised in this appeal.

19. The parties’ Joint Case also referred to the English Crown Court decision in Reynolds and Warren v Metropolitan Police[25] concerning section 9 of the Criminal Attempts Act 1981 under which a person commits an offence if he interferes with a motor vehicle or trailer or with anything carried in or on a motor vehicle or trailer with the intention to commit certain specified offences (namely theft of the vehicle or trailer, or anything carried in or on either, or the offence of taking and driving away without consent).  The case (and the academic commentary on it[26]) is therefore of some relevance in relation to the words “interferes with” but, as we have seen, the offence in section 49 of the Ordinance is constituted by tampering, which connotes something more than mere interference.

The submissions in support of the appeal

20. In support of this appeal, the parties jointly submit that, on the evidence before him, it was not open to the Deputy Magistrate to convict the appellant of the offence under section 49 of the Ordinance and, by consent, invite the Court to allow the appeal and quash the conviction.  It is submitted that it would have been stretching the meaning of the word “tampers” and the mischief of section 49 of the Ordinance beyond permissible limits to cover the mere act of closing the door of a vehicle parked on a road.  The appellant’s conviction on this basis, it is submitted, constituted a departure from an accepted norm.

21. This must be correct.  Applying the broad definition of “tampers” set out above, the evidence does not disclose any act by the appellant that would constitute interference or meddling with part of a vehicle so as to cause alteration or harm to it, or the making of an unauthorised change in it.  All that the evidence discloses is that the appellant closed the door of the vehicle.  That was a mere act of touching the vehicle and did not result in any alteration or harm to it or change in it.  His act of closing the door could simply have been an act of helpfulness towards the vehicle owner.  In any event, there is no evidence of any alteration or harm to the door or any other part of the vehicle, or any change in it, as a result of the appellant’s interaction with the vehicle.  In the circumstances, therefore, the evidence could not support the offence charged and the appellant’s conviction was wrongful and should be quashed.

22. This submission that the facts disclosed by the evidence did not, in law, amount to an act of tampering within section 49 of the Ordinance is, as already mentioned, not one which was advanced in either court below.  It is a new point pursued for the first time in this Court.  However, it is a pure point of law and no facts need be investigated in order to resolve the point on appeal.  Accordingly, albeit that the Court will only do so rarely, this is an appropriate case in which to entertain the fresh point of law on appeal[27].

Disposition

23. For the above reasons, the Court:

(1) Allows the appeal and quashes the appellant’s conviction;

(2) Orders, in accordance with the parties’ agreement, that the respondent pay the appellant the sum of HK$10,000 for the costs incurred in the courts below and the sum of HK$4,235 for disbursements incurred by the appellant for the leave application and appeal before this Court.

 

 

Joint Written Submissions by: