THE QUEEN v. CHAN KIN SAN AND ANOTHER

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HEADNOTE

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Public Place - Public Order Ordinance - premises under the control and management of the Housing Authority are by virtue of s.32 of Cap, 253, a public place for purposes of Public Order Ordinance Evidence - judicial notice - a magistrate may take judicial notice that a particular premises is under the control and management of the Housing Authority.

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J U D G M E N T

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1. The appellants were tried and convicted on a charge of disorderly conduct in a public place contrary to section 17(B) (2) of the Public Order Ordinance Cap. 245. The appellant had gone, with a coaccused, to the home of the coaccused's girl friend on the 27th floor of Hing Tai House, Tai Hing Estate, Tuen Mun. In order to get her attention, and admission to the premises, they kicked on the door of her flat and created a disturbance by their disorderly behaviour. The only real issue in the case was whether or not the corridor outside the flat was a "public place".

2. Before the magistrate, the appellants were legally represented, and submissions were made as to whether or not the corridor was a "public place", as defined in section 2 of the Public Order Ordinance. The learned magistrate took judicial notice of the fact that Tai Hing Estate was residential public housing, administered by the Housing Authority, and that the public had access to it "either by right or arising from a general permission". He therefore held it to be a "public place".

3. Unfortunately neither counsel nor the learned magistrate were familiar with section 32 of the Housing Ordinance Cap. 283. It is as follows:

"Any land in an estate [other than land leased under section 16 or land which has been sole or otherwise disposed of under section (7A)] vested in or under the control and management of the Authority shall be deemed to be a public place for the purposes of the Summary Offences Ordinance and the Public Order Ordinance."

4. "Land" is defined in section 2 as meaning unmovable property.

5. So the position is that, unknown to those at the hearing in the lower court, the definition of "public place" in the Public Order Ordinance was immaterial, if the corridor in question came within section 32 of the Housing Ordinance. Counsel agreed, and so did I, that the convenient course would be for me to first decide whether the magistrate was entitled to cake judicial notice that the premises were residential public housing administered by the Housing Authority, and whether, if he were so entitled, that fact established that the corridor was a public place by virtue of section 32. If my answer on both those matters is "yes", it is unnecessary for me to consider whether the magistrate was correct in finding that the corridor was a "public place" as defined in section 2 of the Public Order Ordinance.

6. Magistrates may take judicial notice of matters within their area, that are notorious. That is which are known to the ordinary, informed person within that area. That does not mean that a matter of which judicial notice is taken, is conclusively proved. It may be disputed by calling evidence to the contrary, see Wigmore, para 2567, 3rd Edition. I am of the opinion that a magistrate of Tuen Mun Magistrates' Court is entitled to take judicial notice of the fact that the premises in question were residential public housing administered by the Housing Authority. It follows that by virtue of section 32 of the Housing Ordinance, the premises, which included the corridor, were deemed to be a public place for the purposes of the Public Order Ordinance, unless they fell within the exception set out in section 32.

7. It is provided, as follows, by section 94A of the Criminal Procedure Ordinance:

"94A. (1) It shall not be necessary in an indictment, charge, complaint, or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

    (2) For the avoidance of doubt it is hereby declared that in criminal proceedings -

(a)    it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and

(b)    the burden of proving the same lies or the person seeking to avail himself thereof".

8. The section applies to proceedings in a Magistrates' Court. There was no evidence before the magistrate that the premises fell within section 16 or section 17A of the Housing Ordinance, and therefore it was established that section 32 applied, and that the premises, including the corridor, were a public place for the purposes of tie Public Order Ordinance. I dismiss the appeal.