HKSAR v. CHIU HIN CHUNG AND ANOTHER

[English Translation – 英譯本]
HCMA 163/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 163 OF 2012

(ON APPEAL FROM ESCC NO. 2132 OF 2011)

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J U D G M E N T

1.  The two respondents were each charged with one count of behaving in a disorderly manner in a public place, contrary to section 17B(2) of the Public Order Ordinance, Cap. 245 Laws of Hong Kong.  They were acquitted by the magistrate after trial.  The appellant nowappeals to the Court of First Instance by way of case stated under section 105 of the Magistrates Ordinance, Cap. 227 Laws of Hong Kong.

Charges

2.  The Particulars of Offence of the two charges were as follows:

Charge(1)

‘CHIU Hin-chung, you are charged that on 28^th day of December 2010, outside the Liaison Office of the Central People’s Government in HKSAR, at No. 160 Connaught Road West, Western, in Hong Kong, being a public place, you behaved in a disorderly manner, namely standing on a mills barrier and throwing a plastic bottle containing white powder into the forecourt of the said Liaison Office of the Central People’s Government in HKSAR, whereby a breach of the peace was likely to be caused.’

Charge(2)

‘KEUNG Ling-cheung, you are charged that on the 28^th day of December 2010, outside the Liaison Office of the Central People’s Government in HKSAR, at No. 160 Connaught Road West, Western, in Hong Kong, being a public place, you behaved in a disorderly manner, namely throwing a plastic bag containing white powder into the forecourt of the said Liaison Office of the Central People’s Government in HKSAR and the said plastic bag was torn causing the white powder to spread in the air, whereby a breach of the peace was likely to be caused.’

Findings of fact

3.  The magistrate made 13 findings of fact at trial:

‘(a) At the material time, a group of demonstrators congregated outside the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region (“Liaison Office”). Among them were the 1^st and 2^nd respondents.

(b) At the scene there were about 50 police officers.  Some of them were on guard behind the mills barriers set up outside the main gate of the Liaison Office, while the demonstrators assembled on the other side of the barriers.  PW1 Chief Inspector KWOK Wing-tak stood on the planter, monitoring the situation.  The other police officers were scattered around the place, some of them mingling with the demonstrators.

(c) Five security guards were in the forecourt of the Liaison Office, including PW5 (CHAN Kai-on, security manager of the security company).

(d) The demonstration, the theme of which was a demand for the release of the Mainland human rights activist ZHAO Lian-hai, lasted about 18 minutes.

(e) PW1 Chief Inspector KWOK Wing-tak agreed that leaving aside certain behaviour of the 1^st and 2^nd respondents, the demonstration was by and large peaceful.

(f) The demonstrators read out a statement demanding a representative of the Liaison Office to receive their letter and a bottle of white powder (which the demonstrators claimed was melamine), but they were ignored by the officers of the Liaison Office.

(g) The demonstrators became a bit agitated.

(h) The leader of the demonstrators TO Kwan-hang climbed up a barrier set up by the police and successfully stuck the letter on the main gate.

(i) The 1^st respondent stood on a barrier and threw a placard and a bottle of white powder (containing about 1.7 kg of cornstarch) into the forecourt of the Liaison Office.  A piece of paper, with Chinese characters meaning “toxic melamine” printed thereon, was stuck on the bottle.  The bottle landed in the forecourt of the Liaison Office.

(j) Subsequently, the 2^nd respondent threw a transparent plastic bag (containing cornstarch) into the forecourt of the Liaison Office.  The bag broke open when it was in the air and the powder flew about. Some of the powder landed on the bodies of police officers (including PW2 WPC4972 and PW3 PC8461) and PW5 CHAN Kai-on.

(k) Before the 1^st and 2^nd respondents respectively threw the plastic bag [sic] and the plastic bag containing cornstarch, the demonstrators claimed that the white powder was melamine.

(l) PW6 Doctor LAM Hon-sin (stationed at the Accident and Emergency Department of Queen Mary Hospital) gave evidence that discomfort might be caused if cornstarch came into contact with certain parts of the human body, such as the eyes or the mucous membrane in the windpipe.  He did not detect any injury or redness on PW2 WPC4972, PW3 PC8461 or PW5 CHAN Kai-on.

(m) PW1 and PW3 complained of pain and itchiness in their eyes, while PW5 complained that his forehead itched.’

Issues at trial

4.  The magistrate was of the view that the offence in question comprised three elements, two of which were undoubtedly established in the present case.

5.  The first element is that the offence must be committed in a public place.  This was beyond dispute in the present case, because the place where the respondents were present was the designated demonstration area outside the wall of the forecourt of the Liaison Office.

6.  Nor was it difficult to make a finding on the second element, namely that the offender must behave in a disorderly manner.  In the case of the 1^st respondent, what he threw into the forecourt of the Liaison Office was a plastic bottle containing powder, which formed a hard object weighing as much as 1.7 kg.  He could not possibly control where this object would land, and there wasa certain degree of danger in that the security officers in the forecourt might be injured by the object.    Such was the magistrate’s finding.  As for the 2^nd respondent, his act of throwing a plastic bag containing powder was criticized by the magistrate as ‘very unreasonable and very irresponsible conduct’, ‘reckless behaviour with no regard for other people’s feeling and the situation they were in’ and ‘[was done] without considering whether other people might be affected by his conduct’.

7.  The third element is that the offender must do an act whereby a breach of the peace is likely to be caused.  Regarding this element, the magistrate, after referring to R v Howell [1982] 1 QB 416 and HKSAR v Lo Man Hong [transliteration of 勞文康] HCMA 874/2009, pointed out that a breach of the peace could occur in three instances.  I rephrase them as follows[1]:

(1) Harm is actually done or is likely to be done to a person;

(2) Harm is actually done or is likely to be done to a person’s property in the presence of that person; or

(3) A person is put in fear of himself or his property being harmed or likely to be harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.

8.  The magistrate went on to hold that a breach of the peace was not likely to be caused by the conduct of the two respondents and acquitted them accordingly.

9.  The magistrate’s reasons for decision are set out below:

‘(a) The focus of “a breach of the peace” is on the creation of “a situation involving violence”.

(b) According to Howell, the essence of a breach of the peace is to use force to arouse resentment and anger in the opposite party so that that party desires to take revenge by using violence.

(c) On this interpretation of the law, the following three circumstances can lead to a breach of the peace:

(i) The defendant attacked A, who then hit back at the defendant.

(ii) The defendant attacked A, and B hit back at the defendant.

(iii) The defendant attacked A, and B fought with C. 

In all the above scenarios, it was the defendant who instigated the use of violence.

(d) The defendant by himself would not be able to create a situation involving violence.  Only when he succeeded in provoking other people to join in would a scene involving violence emerge.

(e) The defendant must have maliciously intended to harm others before his conduct can be described as “violent”.

(f) Although I found that the 1^st and the 2^nd respondents were behaving in a disorderly manner when they threw the plastic bottle and the plastic bag into the Liaison Office under the given circumstances, their conduct involved no violence.  Neither of them had any malicious intent against any particular person, and so their conduct does not fall withinthe definition of “violence”.

(g) Apart from the demonstrators, only reporters, police officers and security guards were present in the demonstration area and the forecourt of the Liaison Office.  These were the specific circumstances at the material time.

(h) Even if the conduct of the two respondents did constitute “violence”, it was unlikely to cause a breach of the peace in the specific circumstances in that it would not lead to a situation involving violence.’

This appeal

10.  The appeal is directed at the two findings mentioned in paragraph 8 above.

11.  In response to the application made by the appellant, the magistrate agreed to seek the opinion of this court on the following questions of law:

‘(1) Was I correct in finding that a breach of the peace was not likely to be caused by the conduct of the 1^st and the 2^nd respondents in the specific circumstances at the material time, by applying the test expounded in R v Howell [1982] 1 QB 416 and applied in HKSAR v Lo Man Hong HCMA 874/2009 (unreported)?

(2) Was I correct in acquitting the 1^st respondent on the charge of behaving in a disorderly manner in a public place?

(3) Was I correct in acquitting the 2^nd respondent on the charge of behaving in a disorderly manner in a public place?’

Analysis

i) Appellant’s submissions

12.  The appellant submitted that the magistrate erred in unnecessarily incorporating certain elements to the concept of breach of the peace.  For example, some of the reasons (a) to (h) set out in paragraph 9 above had been overstated.  Had the magistrate simply adhered to the three conditions specified in Howell (paragraph 7 above), he would have naturally come to the conclusion that the conduct of the two respondents had actually breached the peace — the throwing of the bottle was likely to injure others and the throwing of the bag resulted in the powder flying about in the air, causing several people at the scene actual discomfort — and would have convicted the two respondents accordingly.

ii) Magistrate’s misstatement of the law

13.  At least the first half of the appellant’s criticism is correct.  With respect, the magistrate’s views that a breach of the peace cannot be caused by a person alone and that the offender must maliciously intend to harm others by using force, so as to provoke others to fight back or to fight among themselves, are grossly incorrect.

14.  I will first deal with provocation by using force. This view is at variance with what had been expressed in a number of decided cases, including the classic case of Percy v Director of Public Prosecutions [1995] 1 WLR 1382.  In that case the defendant P on five occasions entered the U.S. Air Force Base in England by climbing over the perimeter fence, for the purpose of making protests.  She behaved in a peaceful manner and did not damage any property.  The court held that her conduct did not constitute a breach of the peace.  However, the court then pointed out that conduct which was even more peaceful in itself might, if persistently pursued, provoke others to violence, and that if a violent response could be considered the natural consequence of such persistent conduct, the person who pursued such conductcould be regarded as having committed a breach of the peace.

15.  In other words, peaceful (or non-violent) conduct can, though not necessarily will, constitute a breach of the peace.  Commenting on Percy, the distinguished professor of criminal law Sir J.C. Smith said (in [1995] Crim LR 715) that the person responsible for a breach of the peace, and who may be arrested and bound over to keep the peace, is not necessarily, or usually, the actual breaker of the peace, but the person who has provoked, or is likely to provoke, the violent response of others by his improper, though not necessarily unlawful, conduct (this, it will be noted, refers to the position in England).

16.  I now turn to the point about other people fighting back or fighting among themselves, which the magistrate said was an indispensable element of a breach of the peace.  Such a view also goes against a number of decided cases.  This is best illustrated by domestic violence cases.  A recent case is Chief Constable of Cleveland Police v McGrogan [2002] EWCA Civ 86, in which a man M did violence to his cohabitant girlfriend.  In the presence of police officers he still behaved in a violent manner.  As a result he was lawfully arrested and detained (as the court subsequently held) in order to prevent him from committing a further breach of the peace by attacking the woman again.  In this kind of domestic violence cases, usually there is only one victim and the incident(s) took place in the absence of any third party.  Whether the victim would hit back at her spouse or partner who attacked her has never been at issue.

17.  Finally, the magistrate remarked that, besides the use of force, there must be malice in order to constitute a breach of the peace.  Such a view is also highly questionable because no such view was expressed in any of the relevant literature and decided cases to which I have referred.  In any event, it is not clear whether the magistrate intended to use the term ‘malice’ as a legal term.  The most widely used definition of ‘malice’ as acriminal law concept is intention or recklessness as to the consequence brought about[2].  Applied (assuming it is applicable) to the context of breach of the peace, the concept probably means an actual intention to do harm to a person or his property, or recklessness as to whether such harm would be done, or an actual intention to put a person in fear of harm being done to him or his property through an assault, an affray, a riot, unlawful assembly or other disturbance, or recklessness as to whether a person would be put in such fear.  The point is, if the magistrate’s view were correct, i.e. a breach of the peace could not be committed unless force was used, then his remark about malice would simply be otiose, because any conduct capable of constituting an assault or criminal damage should be able to satisfy the requirement of malice.  On the other hand, as pointed out above, an act may cause a breach of the peace even if no violence is involved and the requirement of malice should not be superimposed on this kind of conduct.

18.  It has to be noted that the principles discussed above are all derived from cases in England in which offenders were arrested by the police precisely for breach of the peace under the common law and, as such, have nothing to do with offences similar to that under section 17B(2) of our Public Order Ordinance. However, these principles serve to completely correct the magistrate’s mistaken views.  What baffles me instead is why the magistrate made such mistakes in the first place.  After all, these legal principles are not abstruse, nor is it difficult to locate the relevant decided cases.  It can be seen from the bundle that Percy (the case about non-violent conduct) was in fact an authority submitted to the magistrate by the defence at trial.

iii) Behind the mistakes

19.  The case stated per se offers little assistance in answering this question. The disjunctive sentences which make up the case stated may appear concise at first glance, but such means of expression is hardly conducive to the understanding of the magistrate’s reasoning process.  For this reason, I had to ask the appellant in court to provide me with the transcript of the magistrate’s oral judgment (this document was not included in the bundle).  Only then could I have a better grasp of what actually happened at trial.

20.  I notice that, both at trial and on appeal, the government counsel insisted that a certain act can both constitute behaviour in a disorderly manner and amount to a breach of the peace.  Let me call this the ‘monistic approach’.

21.  For example, in throwing the bottle, the 1^st respondent was behaving in a disorderly manner and at the same time rendering it likely for harm to be done to other people, and therefore such conduct fell within the first category of breach of the peace as envisaged in Howell. Similarly, the throwing of the bag by the 2^nd respondent was disorderly conduct and also resulted in the powder getting into the eyes of some police officers, i.e. actual harm being done to other people, and therefore such conduct also fell within the first category of breach of the peace as envisaged in Howell [3].

22.  On the other hand, the defence took the view, with which the magistrate agreed, that the disorderly behaviour came before the breach of the peace and the two should not be mixed up.  Put another way, the same conduct could not be regarded as both the cause and the consequence, otherwise it would be contrary to the legislative intent behind section 17B(2).  Let me call this the ‘dualistic approach’.

23.  I will discuss the correctness or otherwise of the monistic approach and the dualistic approach later.  Once we are aware of the dichotomy between these two approaches, some of the seemingly curious statements made by the magistrate about the law may become easier to comprehend.

24.  For instance, the magistrate said that one person could not by himself commit a breach of the peace, and that the person musthave provoked others to fight back or to fight among themselves.  To a certain extent, this statement was made within the framework of the dualistic approach, with specific reference to what actually happened at the material time (in other words, he applied the legal principles which he mistakenly regarded as correct to the facts of the case within the framework of the dualistic approach, and arrived at the same conclusion).  What he meant was that, while the respondents were certainly behaving in a disorderly manner when they threw the bottle and the bag, was their conduct likely to have caused a breach of the peace?  The answer was in the negative, because at the scene there were only reporters, police officers and security guards, and the respondents’ conduct would not bring about a situation involving violence (see paragraph 9 above, the magistrate’s reasons (g) and (h) for acquitting the two respondents).

25.  It has to be pointed out that the magistrate’s finding that the reporters, police officers and security guards would not respond in a violent manner was made after he had analyzed the situation, and some of the reasons for the finding could be traced back to the evidence of the witnesses, details of which were contained in his oral judgment.  For example, the reporters’ aim was to report on the demonstration, the police officers were professional law enforcers who exercised great restraint, and the security guards only concerned themselves in maintaining the orderly condition in the forecourt and would not rush out to the demonstration area.  The magistrate also said that the demonstration, which was by and large peaceful, proceeded under close monitoring by the police and lasted only 18 minutes. One minute after the 2^nd respondent threw the plastic bag, it was declared that the demonstration came to an end.  Then the people left the scene without other mishaps.  What the magistrate suggested was that the demonstrators were not aroused emotionally.

26.  All the above were conclusions which the magistrate was entitled to make.

27.  In fact, in the context of a charge under section 17B(2), from time to time there are cases in which defendants were acquitted for the reason that the opposite parties or other bystanders would not have responded in a violent manner.  At trial, the defence drew the magistrate’s attention to two cases: R v Kam Man Fai [1983] 614 and HKSAR v Pearce [2006] 3 HKC 105.  In the former case, K stood in the middle of the road at midnight, moving his hands and feet about so that several taxis were unable to proceed. In the latter case, P put on a horse costume and ran about on the race track, causing delay of a Jockey Club horse race.  Both of them succeeded in their respective appeals against conviction.  As for police officers, they have been described time and again as being able to conduct themselves in a professional and unruffled manner and to refrain from reacting too quickly or too strongly: R v Li Wai Kuen [1973-1976] HKC 346; HKSAR v David Morter [2003] 2 HKLRD 510.

28.  These cases are not inconsistent with HKSAR v Wong Wing Hong HCMA 307/2006, which the appellant cited before me.  In that case the Court of First Instance reaffirmed that a breach of the peace was likely to be caused by the act of taking photographs up the skirt of a female stranger, because in Hong Kong the general public would be outraged by such conduct and it was natural and probable that they would take the law into their own hands.  In other words, a defendant could be convicted even where there was no evidence of actual breach of the peace.  However, broadly speaking, this line of cases was decided upon common sense (to borrow the term used by the appellant in court), but a close reading shows that those decisions were based on the characteristics of the Hong Kong general public and the general conditions of city life in Hong Kong, and therefore they cannot be hastily applied to other specific circumstances (to borrow the term used by the magistrate in his oral judgment andstated case).  In respect of specific circumstances, for example, a closely monitored demonstration, a magistrate cannot make a determination until he has carefully considered the possible reactions of the various parties involved, and this has nothing to do with common sense or lack thereof.  Also worth noting is that in the present case, there is no evidence — not even a shred of it — that the emotions of any bystanders were aroused.

iv) Brief summary

29.  At this stage, the present case can be looked at in the following way.

30.  First, the magistrate did have serious misconceptions about the meaning of a breach of the peace.  Had the question simply been whether the respondents’ conduct per se constituted a breach of the peace, the answer should have been in the affirmative.  Even if their conduct was not directed against any person and the acts in question not regarded as acts of violence, it is very difficult to say that the act of throwing the bottle was unlikely to do harm to the security guards in the forecourt.  Still less for the act of throwing the bag, which in fact resulted in the intrusion of powder into the eyes of the police officers.  In other words, both acts satisfied the first test set out in Howell.  It is irrelevant whether others would respond by using violence.  This is my judgment.

31.  However, this answer, although in favour of the appellant, may not be sufficient to reverse the verdict of not guilty passed by the magistrate.  This is because the magistrate adopted the dualistic approach (as opposed to the monistic approach advocated by the prosecution at trial), and within the framework of the dualistic approach, he concluded that none of the demonstrators, reporters, police officers or the security guards would stir things up and cause a breach of the peace.  This conclusion was based on evidence.  In an appeal by way of case stated, I have no power to reverse this conclusion; even if I had such power, I would not exercise it to reverse the conclusion which is in my view reasonable and correct.  This is also my judgment.

32.  In the final analysis, the outcome of this appeal turns on whether the monistic approach or the dualistic approach is correct.  If the former is correct, the appellant will succeed; otherwise, it will lose.  The other errors committed by the magistrate are immaterial.

v) Procedural issue

33.  Before I go into this question, I should reiterate that, for some unknown reason, the stated case was completely silent about the issue concerning the monistic and dualistic approaches[4]. For this reason, I had considered whether I should order that proper amendments be made to the stated case before I heard the appeal.  In the end, I decided that it was not necessary to spend time on this, because the dispute over the monistic and dualistic approaches already featured at trial, and on appeal the respondents still adhered to their views.  The appellant cannot be said to have no knowledge of the issue.  Furthermore, the questions of law raised in the stated case are framed in broad terms, which make enough room for me to resolve the issue at the same time.  Therefore, I do not consider it necessary to make any amendment.

vii) Dispute over the two approaches

34.  As stated above, at trial the defence already relied on the dualistic approach as part of its defence.

35.  Some decided cases in respect of that approach were cited to the magistrate.  Of these cases, Chambers & Edwards v DPP [1995] Crim LR 897 is more to the point and more important.  In that case the defendants C and E persistently blocked a surveyor’s infra-red surveying instrument with their bodies during a demonstration.  They were found guilty of contravening section 5(1) of the Public Order Act 1986.  Their appeals against convictions were dismissed.  For present purposes, we need not be concerned with the reasons for the dismissal of their appeals.  What is important is that the appellate court analyzed the offence in question, namely using disorderly behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby, and came to the conclusion that using disorderly behaviour and the likelihood of harassment being caused were two separate elements of the offence, and that equating them would defeat the legislative intent of Parliament.  It was to be assumed that when a legal provision was expressed in two distinct and separate sets of words and phrases, it intended to express two distinct and separate elements.  Accordingly, if no one was likely to be caused harassment, then the accused was not guilty of the offence[5].

36.  The above observations do not apply only to any particular provision; instead, they are of general application and can be used to interpret any legal rule expressed in a similar manner.  Besides, a careful reading of the text of section 17B(2) will show that, compared with the abovementioned provision in England, it may be even more difficult for section 17B(2) to escape the application of the dualistic approach.

37.  Section 17B(2) of the Public Order Ordinance reads as follows:

‘Any person who in any public place behave in a noisy or disorderly manner, or uses, or distributes or displays any writing containing threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence.’

38.  In short, the doing of the relevant act does not by itself support a conviction. The offender must have intended to provoke a breach of the peace; alternatively, a breach of the peace must have been likely caused by the offender’s conduct.

39. On this interpretation, it seems very obvious as to who ultimately committed a breach of the peace for the purpose of the offence.  Where the offender had the ‘intent’ to ‘provoke’, the answer to the question would of course be the bystanders. This is expressly stated in the provision.  However, even in relation to the other limb ‘whereby … is likely to be caused’, the answer should be the same, otherwise logical difficulties would arise.  For instance, if I distributed leaflets in the street, with contents which insult foreigners, how could I cause myself to commit a breach of the peace, that is to say, cause myself to act in violence?  Does it mean that the more leaflets I distributed, the more prejudice would be aroused within myself and the more impulsive I would become so that I would attack other people? This cannot possibly be the legislative intent.

40. Adoption of the dualistic approach will help clarify the objective of section 17B(2), which is to stop the offender before an incident of violence occurs.  On the other hand, if the prosecution’s suggestion that ‘the person who behaved in the prohibited manner can at the same time be the person who ultimately committed a breach of the peace’ is correct, i.e. if the monistic approach is adopted, then at least one of the limbs of the provision (namely, ‘whereby … is likely to be caused’) will go beyond the preventive purpose and will overlap with other provisions of the criminal law which aim to punish offenders for their violent conduct.  I do not think this is the legislative intent of section 17B(2).  In addition, in light of the principle that a criminal provision should be given a restrictive interpretation, I do not think I should endorse the monistic approach.

41. The magistrate should have asked the prosecution similar but much simpler questions.  The result was that, in his oral judgment, the magistrate indicated that the prosecution had never been able to explain why the decided cases in support of the dualistic approach were not applicable to the present case.

42. Now I discuss what happened at the appeal hearing.

43. Before me, the defence cited another case in support of the dualistic approach: Marsh v Arscott (1982) 75 Cr App R 211.  In that case, a man A was found slumped over the body of a private car in late night, and he was drunk and appeared suspicious.  Since the car park and the adjoining public house were owned by him and the car belonged to his wife, A behaved extremely aggressively to the police officers who attended the scene in response to a report and who, at least initially, were unaware of the situation.  In the end, he even pushed one of the officers in the chest, as a result of which he was arrested and charged with contravening section 5 of the Public Order Act 1936, namely ‘using threatening, abusive or insulting words or behaviour in a public place, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be occasioned’.  However, the justices acquitted A for the reason that a breach of the peace could not be occasioned where no member of the public, except the police officers, saw A’s act.

44. The outcome of the prosecution’s appeal can be outlined as follows: The car park ceased to be a public place after the public house was closed, and A’s act of pushing the police officer was merely a lawful attempt to evict the officers from his property.  A’s acquittal should therefore be upheld.  However, the Divisional Court, including Donaldson LJ (as he then was) also pointed out that, even assuming the car park to be a public place and A to have been acting unlawfully in behaving in a violent manner, the person who broke the peace was still A and not someone else, and hence the charge brought under section 5 was not made out.  It was because the phrase beginning with the word ‘whereby’ indicated that the legislature was concerned with cause and effect, i.e. the person who used improper words or behaviour could not also be the person who broke the peace.  This should be the only valid interpretation of section 5, otherwise every common assault would become an offence against that provision.  Moreover, as the justices pointed out, on the night in question, apart from A stirring up trouble by himself, no other person could possibly break the peace by reason of A’s conduct.  On that basis also, A should have been acquitted[6].

45. Given that the wording of our section 17B(2) is almost identical to that of section 5 in England, Marsh v Arscott is undoubtedly an authority of high referential value.  The facts of that case can also be quite usefully compared with those of the present case.

46. The appellant had little to say in response to the above.  All it tried to do was invite me to seek guidance from some local cases which, however, are not pertinent to the issue regarding the monistic and dualistic approaches, for example, HKSAR v Leung Chiu Ming [transliteration of 梁超明] [2004] 4 HKC 308 (throwing eggs at the reception area of the Law Society), HKSAR v Yeung Ka Wa [transliteration of 楊家華] HCMA 110/2008 (behaving nastily to police officers who were conducting licence check in a videogame centre) and HKSAR v Kwok Chi Heng [transliteration of 郭志恆] HCMA 714/2010 (smashing a photograph frame in a magistracy, causing the glass fragments to scatter in all directions).  It is precisely for this reason (i.e. the lack of discussion of the issue in question) that these cases are of no assistance to me.

47. Finally, the appellant has submitted that the rejection of the monistic approach may lead to a legal vacuum.  Using the present case as an example, it is contended that if section 17B(2) cannot cover the acts of throwing the bottle and throwing the bag, which were at least found by the magistrate to be disorderly conduct, no other law may be available to deal with those acts.

48.              I believe that there must be legal provisions to deal with situations involving actual violence, whether such violence be directed against the person or property.  Where the nature of violence is not obvious, or where the conduct in question is not directed against any particular person or object, then the offence of committing nuisance in a public place under section 4 of the Summary Offences Ordinance, Cap. 228 Laws of Hong Kong, may be applicable.  If not, the law enforcement authority should consider whether there is a real legal vacuum which needs to be remedied by legislation, or whether there is no consensus in society on criminalizing the act in question, so that the person who does the act should not be prosecuted.

49. Moreover, I believe, although I am not sure, that police officers in Hong Kong still possess the power under the common law to arrest those who break the peace.  If this is correct, then under the existing law the magistrate is empowered, subsequent to such arrest, to bind over the offender to keep the peace.  That could be a possible way of dealing with the problem[7].

50. In any event, it is not for the court to improperly enlarge the scope of an offence solely by reason of the possible existence of a legal vacuum.

Answers to the questions

51. On the basis of the foregoing analysis, the magistrate erred in having a number of misconceptions about what constituted a breach of the peace.  However, he correctly adopted the dualistic approach and, on the evidence available, correctly held that the respondents were not guilty because other people were not likely to resort to violence in response to their disorderly conduct.  Accordingly, the answers to all three questions posed in the case stated by the magistrate are “Yes” [8].

52. The appeal is dismissed and the acquittal of the two respondents is upheld.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.