HKSAR v. YEUNG KIN PING AND OTHERS

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.581 OF 1996

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J U D G M E N T

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1. This is an appeal against conviction and sentence by five appellants who were convicted by a magistrate of the offence of unlawful assembly.

2. The appellants were originally charged as follows :

D1- Claiming to be a member of a triad society, contrary to s.20(2) of the Societies Ordinance, Cap.151;

Criminal intimidation to alarm, contrary to s.24(a)(i) of the Crimes Ordinance, Cap.200;

Assault occasioning actual bodily harm, contrary to common law section and punishable under s.39 of the Offences Against the Person Ordinance, Cap.212; and

Unlawful assembly, contrary to ss.18(1) and (3) of the Public Order Ordinance, Cap.245.

D2- Claiming to be a member of a triad society, contrary to s.20(2) of the Societies Ordinance, Cap.151;

Assault occasioning actual bodily harm, contrary to common law section and punishable under s.39 of the Offences Against the Person Ordinance, Cap.212; and

Unlawful assembly, contrary to ss.18(1) and (3) of the Public Order Ordinance, Cap.245.

D3- Assault occasioning actual bodily harm, contrary to common law section and punishable under s.39 of the Offences Against the Person Ordinance, Cap.212; and

Unlawful assembly, contrary to ss.18(1) and (3) of the Public Order Ordinance, Cap.245.

D4- Assault occasioning actual bodily harm, contrary to common law section and punishable under s.39 of the Offences Against the Person Ordinance, Cap.212; and

Unlawful assembly, contrary to ss.18(1) and (3) of the Public Order Ordinance, Cap.245.

D5- Assault occasioning actual bodily harm, contrary to common law section and punishable under s.39 of the Offences Against the Person Ordinance, Cap.212; and

Unlawful assembly, contrary to ss.18(1) and (3) of the Public Order Ordinance, Cap.245.

3. This appeal came before me last year and after I retired to consider arguments, I gave counsel the opportunity to address me further as to the law, for my researches revealed matters upon which I had not been addressed. Counsel have today addressed me and I have decided that no further delay is warranted or indeed desirable before delivery of this judgment.

Background

4. The background to this matters is this. The 1^st appellant (D1) is the proprietor of a company called Chong Fu Label Knitting and Printing Company ("Chong Fu"). Mr Law, the prime complainant and his family run a garment factory, the Kam Wai Garment Factory ("Kam Wai"). It seems common ground that in 1995 there was a contract whereby Chong Fu was to supply labels to Kam Wai at a price in the region of $87,000. It is also common ground that the complainant did not pay or certainly withheld payment for some considerable time despite repeated requests by D1. In October, the complainant was persuaded to pay $50,000. He alleges that that was supposed to be in final payment of the debt, whereas D1 says not so; there was still over $30,000 to pay.

5. It was in relation to the suggested outstanding payment that D1 visited the flat of the complainant on the night of 31^st October 1995. He did so with D2 (the 2^nd appellant) and another who has been referred to as Ah Ching. Waiting downstairs and outside were the 3^rd, 4^th and 5^th appellants (D3, D4 and D5) and perhaps others. It is common ground that in the flat were present on the complainant's side Lo Shan-hoi (the complainant's son) and the complainant's wife, Madam Yam Wai-ling.

6. Things became unpleasant in the flat, although quite what happened is the subject of dispute; and it is common ground again that the time came when D3, D4 and D5 went upstairs and the door to the flat was opened and there was much aggravation amongst some of those present, with shouting and throwing of bottles.

7. It is arising from these events that night that the original charges were brought. It was alleged that D1 in the course of threatening behaviour that night in the flat claimed to be a member of a triad society; that D2 did the same; that D1 told the complainant that he would ensure that damage was occasioned to his property, and it was alleged that the son was beaten and that he was assaulted with a bottle. Hence the original charges to which I have made reference.

8. At trial, evidence was given by the complainant, his son and the wife. The magistrate found the complainant and his son to be unattractive witnesses. He formed a very unfavourable impression of them. He did not trust their evidence and he was not prepared to accept their evidence on any disputed matter.

9. He thought that the wife, however, tried to do her best to tell what had happened, but she was confused and he thought her evidence unreliable. So he decided that where a conviction on any charge relied solely on their evidence, it would be unsafe, so he acquitted all the appellants of the first three charges.

10. The 4^th charge, however, one alleging as against all appellants assault occasioning actual bodily harm, he amended pursuant to his powers to do so. This he did at the end of the prosecution case. The charge which was thereby laid is the charge upon which he in due course convicted the appellants and which is the subject of this appeal, and it runs as follows -

"Unlawful Assembly

Contrary to sections 18(1) and (3) of the Public Order Ordinance, Cap.245 of the Laws of Hong Kong.

State of offence

Yeung Kin-ping, Lau Tak-yin, Cheng Hung-wing, Lau Tak-Keung and Hon Fat, you are charged that on the 31^st day of October 1995 at Block 4, Hong Sing Garden, Tseung Kwan O, Kowloon in Hong Kong, together with other persons not in custody, you were an unlawful assembly.

Particulars of offence

Yeung Kin-ping, Lau Tak-yin, Cheng Hung-wing, Lau Tak-Keung and Hon Fat, on the 31^st day of October 1995 at Block 4, Hong Sing Garden, Tseung Kwan O, Kowloon in Hong Kong, together with other persons not in custody, you assembled together and did conduct yourselves in a disorderly, intimidating, insulting or provocative manner which was likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace."

The Evidence

11. Although the evidence of the complainant and his family was rejected where it conflicted with other evidence, it is nevertheless necessary to refer to its thrust.

12. The complainant said that D1 and D2 came into his home with another man and asked him to repay $30,000. He replied that that was already settled and D1 became enraged. The complainant was also very upset and furious. He said that D1 seemed as if he was going to hit him. The son became upset and scolded D1. It was alleged that triad affiliations were claimed by D1 and D2, and D1 threatened to burn his house and doom his family. His wife shouted out that the police should be called and one of the men used a mobile phone, and then the three men left, but at the door were the others from downstairs. The complainant and his son tried without success, it was said, to prevent D1 from leaving. He ran out of the flat. It appeared to the complainant that D1 was leaving because he had heard mention of the police being called. One of the three opened the door. The witness admitted that he was very upset, agitated and furious; that the door, he said, was not open in response to a knock or ring - though he told the police that someone rang the bell (this being one of several inconsistent accounts between the evidence and the statement of the complainant to the police) - there were several persons at the door, about five to seven of them. The complainant and his son, he said, were prevented from pursuing D1 because these men were there. Somebody grabbed the son by his hair and struck his head with a bottle and glass bottles were being thrown by them into the room. When the bottles were thrown in, D1 and D2 were already outside. The third person was the only one remaining in the flat because they had managed to take hold of him and prevent him from leaving the flat. The son was fending off the men at the door who had tried to come in; they were trying to rescue the third man. The complainant and his son were trying not to let them in. D1 had by now left and gone. He had told the police that the man had rushed into the flat.

13. The son gave evidence. He has previous convictions including offences of fighting and theft, though he said they were a long time ago. He worked in the family business, so he knew about the affair concerning the alleged debt. He was home on the night in question. D1 and the two others came at about midnight. He expected that there would be trouble. He supported his father's account generally about the insults and threats made by D1 and D2. Then his evidence departed somewhat in the sense that he said that the third man used a mobile phone saying into it "Brother in trouble, get the tools up", the suggestion being that this was the signal to the men downstairs to come up. Shortly thereafter the door bell rang. The three men went to the door and he tried to stop them opening the door. There was a large group outside and they came in.

14. Before the men had arrived, his mother had mentioned calling the police. He thought the three men wanted to open the door for the men outside. The door was not locked; it could be opened from the outside. The group from outside - about five or more men - came into the corridor that led from the front door to the sitting-room and he was beaten there. They were trying to take him out of the doorway. His father tried to prevent them doing that. He, the son, was beaten about the face and his head struck with a bottle. He cut his foot on some broken glass. He tried to prevent one of them leaving and D1 all the while was still inside the premises. He threw a bottle.

15. Madam Yam's evidence was that she let D1 and his friends in and then went to her bedroom. She heard a conversation between them when D1 started to become very aggressive; and made threats about burning their home, and mention was made of a triad society. When she heard the threat about burning the house she was very alarmed and called the police. After she had made the call, she waited a while and then came out of the bedroom into the sitting-room and announced that she had called the police. She had told the police that she called them when she heard the sound of fighting. In her testimony she said that when she came out to make the announcement, people were coming in and out of the flat. There were at least six or seven persons in the doorway; punches were being exchanged; her husband was trying to prevent people from leaving; the group of people was at the door; someone threw a glass in; that person was standing right at the door. The situation was very confused; the flat was in a mess. D1 had been standing at the doorway still inside the flat with a bottle in his hand and then the police arrived.

16. Then there was the evidence of a police officer. He had found a beer bottle outside the door of the premises with glass fragments about one foot inside the front door. A cabinet, which the wife said had been damaged, was about half a foot inside the door.

17. It is also common ground that in the course of the fracas, however it had happened, the son was injured. He had a laceration to his face and a wound to his foot which required stitches. There is also mentioned in the medical report of a head injury, the nature of which is not specified, and redness to the chest.

Defence evidence

18. D1 was the only one of the appellants to give evidence. He is aged 41 years and was a person of no previous convictions. His evidence is vitally important for his evidence is not rejected by the magistrate, certainly not expressly. He described the history of his dispute with the complainant about the debt; how often and for how long he had to chase him for it. There was an incident in September when he had gone to the complainant's office about it and a row developed, and the son came upon the scene and spoke to him in a threatening manner.

19. D1 employed D2 to collect the debt for him, and on about 8th October managed to collect $50,000 but no more. D1 contacted the complainant on 31^st October. He said that the complainant was furious and said he would not give him any further money but suggested D1 should come to his home if he wanted more money. He had suggested that he went round to the flat at about 10:30 p.m. So D1 went that night at about 11:30 p.m. to his flat. Why in the circumstances the complainant would suggest to meet him at all given the history of the matter and his insistence that he owed nothing to D1, is very difficult to understand and I would have thought plainly improbable. Be that as it may, D1 went with D2 and a third man. He did not want to go alone because of the son's previous behaviour. He took the third man because the third man knew the complainant's address.

20. They arrived shortly after 11:30 p.m., they were greeted by the son who was abusive, but the wife invited them in. The grille was locked behind them and the door closed. The son said that "Once you get into this house, you may not get out alive". The son went to the kitchen and fetched a chopper and waved it at him. D2 intervened and said he was there as the D1's bodyguard. Then the father came out to talk, but the son punched him - D1. Then there was talk of getting hold of someone's big brother and a threat by the son to hit D1 with a bottle. The son was surrounded by the other two. D1 said he was frightened and said he would not pursue the debt further. The doorbell then rang and the door was opened, and he, D1, intended to leave. But he was pulled back by the son and by his mother. Then two persons were able to subdue the son and he, D1, left. When he reached the ground floor, he was arrested by the police.

21. He was not asked in cross-examination why a large number of other men, in addition to the two he took with him to the flat, were at the scene at all. I can only comment that that was an extraordinary omission. It was perhaps the most important question of all. But we cannot speculate as to what the answer might have been. He did say in cross-examination that he did not go up alone to the flat, i.e. he went with the other two, because the son had, at their previous encounter, been so furious with him. He did, however, say that he had wanted to leave but had been unable to do so because the door was locked.

22. He told the court that his statement to the police was true. That is important because the magistrate has placed heavy reliance on it.

The statements

23. The statements made by the appellants were all before the magistrate. In his statement, D1 told the police that he went along with D2 who had another four males "unknown to me following him" (i.e. following D2). He had used D2 to collect part of the debt a while before, but he had made it clear in that exercise that "there must be no trouble". When they went up, the other males were asked to wait downstairs. He had told D2 that he did not want so many people going up there. He recounted to the police what happened at the flat; the son became angry; took a chopper, but put it down when D2 shouted an order; and then however the son came over and hit D1 on the chest. D2 pushed him away and the third man talked into the telephone and said "you all come up". Then shortly after the doorbell rang. The wife opened the door; the men rushed into the flat; the son was dragging him, D1, and then someone hit the son on the head. Seeing that things were so chaotic, he ran out into the corridor; D2 followed him and they went downstairs.

24. That was the long and short of D1's evidence and of his statement to the police. That statement was of course not evidence in the case against any of the other appellants.

25. D2 made two statements. They differ somewhat from the thrust of the evidence and statement of D1. D2 said that D1 had asked several clansmen and himself to accompany him to collect the debt. When they arrived, D1 demanded payment of the debt and a brawl ensued, and D1 said he was a member of the Sun Yee On. They fought; but he, D2, did not take part in the fight. He merely watched. He did not know who started the fight. His clansmen had hurled in some bottles through the iron grille. He, D2, had met the third man, Ah Ching, at 11 p.m. and asked him to go with him and help him to collect the debt. Ah Ching had brought the bottles with him to the place where they were going to collect the debt.

26. There is no reference by D2 to threats levelled at D1; to locking of the door; to unprovoked assaults by the son against D1; to men waiting downstairs, or to the circumstances in which the other men came up. There is no reference to D1 wanting to leave but being prevented from doing so. Nor is there any reference to D1 saying that he did not want so many people to go up to the complainant's flat. The whole tenor of his statement is that the retinue behind D1 was there or intended to be there to collect the debt. That has a ring quite different from that painted by D1, and the ring which it has is a threatening one : that they were there to impress the complainant by their numbers that he had better pay up. So too is there a clear inference to be drawn from the statement that the reason there were beer bottles in the possession of the men was not because they happened to have had drink that evening, but because the bottles were to be the props of their anticipated role.

27. D3, by contrast, in his statement emphasised the element of defence as the reason for their presence. He and D2, D3 and D4 had had dinner together that night and that D1 arrived and said he was owed debt. He asked them all to go with him because he was afraid he might be assaulted. When they arrived, they were told by D2 to wait downstairs. Ten minutes later D2 paged him. An arrangement had been made that once the pager sounded, they were to go upstairs to give assistance. They went upstairs and rang the bell. A woman answered; there was quarreling inside. D5 was pulled into the flat by the woman. Someone smashed a glass bottle against the side of the door; that was who lived in the flat. He, D3, had not entered the flat.

28. D4's statement was to the effect that D2 had paged him on the 31st and asked him to meet him. Later they met; some of the other appellants had dinner, drunk beer and later still were introduced to D1. D1 said he was owed money. They were told to go to the building concerned and wait for him. They went. Then they were paged by D2 and told to go upstairs which they did. The pounded on the door and after a long time, the door was opened, and he saw D1 and D2 and D2's friend having a row with people in the flat. D1 and the others ran out, and told them to go. That is what he did. He had never entered the flat.

29. D5 said that he too was asked to go to the address in question by D2 to dun for a debt - to help urge someone to repay a debt. He and others went. They waited outside until they heard it was very noisy inside, so they pressed the doorbell "to see what was the situation inside". He did not see anyone throw a glass bottle. He entered the flat at a very late stage of the proceedings.

The Magistrate's findings

30. Section 18 of the Public Order Ordinance runs thus :

"18.(1) When 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are any unlawful assembly.

(2) It is immaterial that the original assembly was lawful if being assembled, they conduct themselves in such a manner as aforesaid."

(3) Any person who takes part in an assembly which is an unlawful assembly by virtue of subsection (1) shall be guilty of the offence of unlawful assembly and shall be liable-

(a) on conviction on indictment, to imprisonment for 5 years; and

(b) on summary conviction, to a fine of $5,000 and to imprisonment for 3 years."

31. The magistrate explained in his Statement of Findings that where the case depended upon only the evidence of the Law family, a conviction was not warranted. Accordingly he acquitted the appellants of the 1^st, 2^nd and 3rd charges. As for the 4^th charge, however, he said that it was "clear that it was immaterial that the original assembly was lawful if being assembled the persons concerned conducted themselves in a disorderly intimidating insulting or provocative manner...." likely to cause the reaction which the section specifies.

32. It was lawful for D1 to collect his debt and he accepted that D1 honestly thought that the debt was due. But he said that he found it-

"... instructive ... that, in answer to a question in cross-examination, D1 said he did not think of going to the Law family home alone because PW2 [the complainant's son] was 'furious' the last time he gone to the factory of Kam Wai. It is clear that D1 wanted some support because he feared that his reception in the Law household would be less than cordial. It is clear that he feared that there would be trouble. He arranged with D2 that D2 would come along in support and he knew that D2 was bringing along D3, D4, D5 and 'Ah Ching' as added support. D2, D3, D4 and D5 told a common story, ... but it is clear that each of them individually was accepting that they were going to the building in Tseung Kwan O in order to lend support to D1. It is clear that they each individually knew that there was the possibility of trouble and that they were there to persuade others that the balance of force was on their side."

"I found as a fact that all the appellants did assemble at the building in Tseung Kwan O. I found as a fact that they did behave in the manner described in the ordinance and that they contributed to the general melee. Whatever may have been the faults on the part of the Law family, it is clear that there came a time when that family feared reasonably that a breach of the peace would be committed. Indeed, PW3 so feared that possibility that she telephoned the police."

33. His judgment, he said, was based on the admission made by the appellants, admissions which each had accepted he had made.

34. The magistrate acknowledged that statements by the appellants to the police did not constitute evidence against anyone other than the statement maker. D1 and D3 were men of previous good character, and he directed himself accurately as to the relevance of that fact.

The grounds of appeal

35. Mr Halley who ably presented his arguments on behalf of all appellants advances a number of arguments :

(1) Shorn of the evidence of the prosecution witnesses, the prosecution case resting as it then had to on the evidence of the 1st appellant and the statements of all the appellants was insufficient to found a conviction.

(2) The magistrate failed to consider whether any individual act of any one appellant was and may have been a frolic of his own; going outside, therefore the boundaries of what was intended by their presence in the vicinity of the building, or in going up to the flat.

(3) That if indeed there was conduct by any of the appellants which constituted a breach of the peace, the magistrate failed to consider whether there was lawful excuse for such behaviour, for example, an attempt by one or more appellants to escape an assault by members of the Law family, or simply to leave the flat whilst members of the Law family were preventing them from doing so; or in an attempt by the support group to rescue their three colleagues in the flat from unlawful detention or from assault.

(4) That there was no reliable evidence that the disturbance took place other than inside the private premises of the Law family, or that any member of the public was or might have been affected by the disturbance which in fact took place. Even if, he says, an offence contrary to section 18 may be committed by conduct which is displayed in private premises, there is nevertheless a requirement that the breach of the peace be feared by members of the public, and the magistrate has specifically restricted his finding to fear by only the Law family members that a breach was likely. There was no finding, he says, that the behaviour of the appellant was likely to cause any person other than the Law family to apprehend a breach of the peace.

36. I do not agree the magistrate erred in his findings of fact in so far as they went to the intention of the eight or so members of D1's group, or in so far as they determined that each of the defendants behaved in the manner particularised by section 18 of the Ordinance. The magistrate relied, it is true, on the evidence of D1 and on the admission of all appellants in their statements to the police. But that is not to say that he was precluded from taking into account the prosecution evidence in so far as that evidence did not conflict with that of the appellants. He had clearly said as much in his Statement of Findings. His finding was that there was a melee to which members of the appellant group were active participants. That that is what happened is beyond doubt from the evidence emanating from the appellants themselves. It is clear from the statements of the various appellants and from the evidence of D1 that about eight men went to the block of flats knowing that trouble was likely or very possible.

37. That, in my judgment, was the only reasonable inference to draw from the circumstances and numbers in which they went late at night to a private dwelling about a dispute that had not been resolved. There was no other reason for them to be there.

38. Although the statements are evidence against the makers only, three of them talked of going to help D1 to collect a debt. Why one should go to help collect the debt with a phalanx of men unless it be to use or threaten to use strong arm tactics is difficult to guess. There were, after all, lawful ways to proceed. It was quite unnecessary to do so by force of numbers.

39. D1 and D3 on the other hand say that they went in numbers in case there was trouble. That, too, contemplates that the use of force or the force of numbers might be required at the scene of the meeting. So when the magistrate finds that "each individually was accepting that they were going to the building ... in order to lend support to D1 ... [and] that they each individually knew that there was a possibility of trouble and that they were there to persuade others that the balance of force was on their side," that it seems to me is again self-evident, and a conclusion which is unimpeachable.

40. Mr Halley says that the magistrate has not asked himself whether, if there was disruptive conduct by one or more appellants, whether each individually was party to it; or put another way, whether those who were being disruptive were on frolics of their own. D1's unchallenged evidence is that the men were all called upstairs at the same time after the Law family had set about him. Shortly thereafter the men rushed into the flat.

41. As against D2, D2's evidence was that the clansmen hurled bottles through the grille. D3's statement was to the effect that the men's job was to go up to give assistance, and that is what they went up to do. D4's statement was that the support group went up and pounded on the door. D5 said they went there to help "urge" the payment of the debt. There can be no room for doubt that if there was a melee into which some of the group threw themselves, that was part and parcel of the scheme to which all those who went to the building must have been party. It was obviously within the contemplation of each appellant that if there was trouble, he was there to join in the fray, with violence if necessary. None went outside the bounds of the contemplated exercise.

42. The magistrate has found that the men behaved in the way described by the section. If the men rushed in as D1 said they did; if there was pounding on the door; if as D1 said in his statement that the son was struck on his head; if as D2 said that clansmen hurled bottles through the grille; this is all evidence which does not conflict with the evidence of the Law family, and it is as clear as can possibly be that each appellant was party to conduct which was intimidating, as no doubt it was intended to be; that each was party to conduct that was disorderly. Whether it was insulting and provocative also is neither here nor there.

The Law

43. It is established that a breach of the peace may be occasioned in a private place or on private property (see McConnell v. Chief Constable of the Greater Manchester Police [1990]1 WLR 364). Furthermore a breach of the peace can take place on private premises even though the disturbance does not affect members of the public or at least one other person outside the private premises themselves (see McConnell (supra) at 371). Nor is there anything in section 18 which prescribes as a condition precedent of the offence that the offending conduct or the apprehended breach of the peace should occur in a public place. I note, for example, that section 5 of the Public Order Act 1986 of the U.K. makes it an offence to use abusive and insulting words or disorderly behaviour likely to cause harassment or alarm, but exempts from criminality conduct by a person inside a dwelling where the other person is also inside that or another dwelling. There is no such exemption to the scope of section 18.

44. Then it is said that the men were there for a lawful purpose and that when they acted or reacted, they did so for a lawful purpose, namely to effect a rescue or to go to the defence of persons under attack. That, so it is said, is a matter which the magistrate did not address. The answer is two fold : first, that in my judgment, he did; and second, that even if he did not, it matters not because in the circumstances of this case, that is not a defence.

45. The magistrate has at page 13 of his Statement of Findings made express reference to the fact that "it is immaterial that the original assembly was lawful, if, being assembled, the persons concerned conducted themselves in a disorderly, intimidating, insulting or provocative manner ..." with the consequences particularised by the section. It is, in other words, irrelevant that the purpose of the assembly is lawful. Section 18(2) of the Ordinance reads thus :

"(2) It is immaterial that the original assembly was lawful if being assembled, they conduct themselves in such a manner as aforesaid."

46. It would be erroneous to read into that subsection a suggestion that it is necessary for the offence to be constituted, that the purpose of the assembly must first become unlawful. A distinction is to be made between the character of the assembly and those who constituted it, on the one hand, and on the other, the purpose of the assembly. It matters not, in my judgment, whether the purpose of the assembly is lawful or unlawful. If those gathered for that lawful purpose nevertheless conduct themselves provocatively or in a disorderly fashion, causing apprehension or a breach of the peace, the offence is complete. This theme runs with the grain of old authority :

" 'An unlawful assembly is an assembly of persons with the intention of carrying out any common purpose' and mark, 'lawful or unlawful, in such manner as to give firm and courageous persons in the neighbourhood of such assemble ground to apprehend a breach of the peace in consequence of it.' [That is] the definition of ... unlawful assembly, and there can be no doubt that [the] offence is committed, whatever be the end which the persons who commit them have in view. ... 'For the law will not suffer persons to seek redress for their wrongs by a dangerous disturbance of the public peace.' ... You have no business to redress private grievances by a dangerous disturbance of the public peace."

per Charles J. in R. v. Cunningham Graham and Burns (1888) 16 Cox CC 420 at pp.427, 428.

47. But, Mr Halley would contend that the application of that principle if taken to its logical conclusion, would cut across circumstances of necessary self-defence; a result, he would say, that can never have been intended. The answer in the context of the facts of this case is that self-defence does not avail the appellants for "even the right of self-defence", in the context of unlawful assembly - and I would add in the context of section 18 of the Ordinance - "appears to be limited", (see Smith & Hogan, 5th Ed., page 734).

48. As was said in Goodall v. Te Kooti (1890)9 NZLR 26 by Richmond J. :

"... it is laid down by Fineux, C.J., that it is lawful for a man who is threatened with violence to assemble his friends in his own house for the defence of his person; but that 'if one be menaced - that if he come to such a market, or to such a place, he will be beaten - in this case he cannot assemble people to assist him to go there in safeguard of his person, because there is no necessity to go there, and he may have remedy by surety of the peace.' This dictum is recognised as law by the Court in Semayne's case 5 Rep.91b, and elsewhere. It thus appears that an assembly may be unlawful although its purpose is the merely passive and peaceful one of self-defence. This doctrine of the common law is surely grounded on common sense and a knowledge of human nature, for the display of force tends to provoke counter-demonstrations, and the public peace is endangered by the mutual jealousies of rival factions. This is well understood on one side of St. George's Channel, if not on the other."

49. According to Professors Smith and Hogan, (5th Ed., page 734) :

" The only concession made is that a man may assemble his friends to defend the possession of his house or the safety of his person against those who would break in and dispossess him or beat him. But even this has been held to be limited to the house itself and not to allow an armed assembly in defence of a man's close."

50. So the facts of this case, in my judgment, accord with the example put forward by Fineux C.J. in the sense that there was no necessity in the first place for D1 to go to the complainant's flat. Yet he went when there were other peaceable means by which to collect the debt, and when, on his own account, he knew full well that he might be attacked. He cannot then be heard to say that the fracas to which his men were a party was not of his making, and that the disorderly conduct displayed by his men ought in all reason to fall outwith the provisions of section 18.

51. The remaining question is whether the magistrate was right in convicting the appellants on the basis that the Law family was, by the appellant's conduct caused to apprehend a breach of the peace. Having decided, rightly in my view, that the appellants had behaved in a disorderly way and contributed to the melee, the magistrate then said this :

"... Whatever may have been the faults on the part of the Law family, it is clear that there came a time when that family feared reasonably that a breach of the peace would be committed. Indeed, PW3 so feared that possibility that she telephoned the police."

It will be recalled that the magistrate found that the evidence of the two Law men was unhelpful and unreliable. He said that they had been "prepared to bend their evidence to what they perceived to be in their interests of the moment ..." Although he thought that Madam Yam was trying her best to tell the truth about the incident, he was not satisfied about the reliability of her evidence. Finally it will be remembered that he commented in his Statement of Findings that his judgment was "based on the admissions made by the [appellants]".

52. If the evidence of D1 was accurate, and it seems that the magistrate was prepared to proceed on the assumption that it was, then it would seem that the complainant and his son had assaulted D1 and had prevented him from leaving the flat when he wanted to. There is also evidence from D1 that Madam Yam also took hold of D1 and stopped him from leaving. In those circumstances, if the only persons who feared the commission of a breach of the peace were the members of the Law family, a question arises whether the offence is committed where the only persons who, in the circumstances, are caused to apprehend a breach of the peace are themselves wrongdoers in connection with the very same episode. I must proceed on the assumption for present purposes that they were wrongdoers, for the magistrate has not made findings of fact as to the conduct of each member of the Law family. I am, I confess, not at ease with the assumption that Madam Yam acted wrongfully, but there is an allegation against her which remains unresolved.

53. There is, as a matter of law, of course no need to call third parties to say that they were in fact afraid that a breach of the peace might occur (see R. v. To Kwan Hang &Anor [1994]2 HKC 293), although that presupposes that there are or are likely to be third parties about. For an incident in a public place, "it is probably unnecessary to prove that any innocent person was present" (see Smith & Hogan 5^th Ed., page 733); that, no doubt, because the character of the place is such that the presence or likely presence of others is assumed. The magistrate did not, in the circumstances of this case, require any member of the Law family to testify that he or she apprehended a breach of the peace. That inference cried out from the other established facts.

54. However, the concept that there needs to be present or perhaps within earshot an innocent third party is drawn from the decision in Kamara and others v. Director of Public Prosecutions [1973]2 All ER 1242. One of the charges in that case was unlawful assembly, a common law offence, the definition of which was

"An assembly of three or more persons a) for purposes forbidden by law such as that of committing a crime by open force or b) with intent to carry out any common purpose lawful or unlawful in such a manner as to endanger the public peace or to give firm and courageous persons in the neighbourhood of such assembly reasonable grounds to apprehend a breach of the peace in consequence of it." (Archbold 37th Ed., page 1148).

Although there is imported to that offence the question of preservation of the public peace and there is no such phrase in section 18, the principles in my judgment are, for the purpose of the present point, the same. It was decided that in order to prove the offence, it was unnecessary to show that the assembly took place in a public place but

"...the essential requisite ... is the presence or likely presence of innocent third parties, members of the public not participating in the illegal activities in question. It is there presence or the likelihood of it and the danger to their security in each case which constitutes the threat to public peace and the public element necessary to the commission of the offence."

per Lord Hailsham in Kamara at page 1248.

55. The principle is also discussed in Button v. D.P.P. [1965]3 All ER 587. The House of Lords was in that case required to consider whether an affray could only be constituted if it occurred in a public place. Their Lordships' opinion was that such a restriction was unfounded. References to public place had erroneously crept into decisions and other texts. Lord Gardner, L.C., tracing those references, pointed to words used by Blackstone, when he defined affray as "the fighting of two or more persons in some public place to the terror of Her Majesty's subjects." Lord Gardner said :

"I think that he used the words 'public place' loosely (and unfortunately) in order to exclude as Hawkins had done, fighting in a private place where none but the contestants were present" [Emphasis added]

In other words, these offences are not intended to cover the situation where only the protagonists are present or are likely to be present or within earshot.

56. In my judgment, the same principle applies to a section 18 charge. If the only persons present or likely to be present to witness or to hear the insulting or disorderly conduct or to be within earshot or so placed as to be caused apprehension or fear are, apart from the disorderly group whose conduct is the subject of the charge, others who are themselves engaged upon unlawful conduct which occasions or contributes to the unruly conduct which is the subject matter of the charge, then, in my judgment, no offence under section 18 is committed. The magistrate's finding that the wife, Madam Yam, called the police suggests in its context that she called the police during and as a result of the general melee - in other words, after the support group arrived. That finding is not safe on the evidence which was adduced. The evidence of the complainant was that his wife called the police before the support group arrived and the son's evidence was to the same effect. And the evidence of the wife herself was at best unclear. In evidence in chief she was quite clear that she called the police in response to a threat made by D1 that the house would be burnt down, and that threat was clearly before the support group arrived. Later, she said that it was when she came into the sitting area to announce that she had called the police that she saw the other group entering.

57. There was much evidence which, if accepted for present purposes as accurate, suggested that all three members of the Law family, but particularly the father and son, were party to the melee and not merely in their own defence. There was evidence from the complainant and his wife that D1 wanted to leave after Madam Yam said she had called the police and that an attempt had been made by the complainant and his son to prevent D1 and the two others from leaving. It may very well be that they were trying to detain him so that the police could arrest him, but that is the evidence. D1's evidence was that he and the other two who had accompanied him in the first place were locked into the flat deliberately and with a view to intimidation; that the son threatened him with a chopper; that the son punched him; that there was talk, including talk by the wife of calling a "big brother"; a threat by the son to hit D1 with a bottle; that D1 was frightened and that he made to leave but was pulled back by the son and by the mother. And of course the general thrust of the defence case was that the support group came up to the flat to rescue D1 and his two colleagues.

58. If the core of that evidence is true, then it seems to me that the magistrate should, for reasons I have made plain, have looked elsewhere for those likely to fear a breach of the peace. This flat was on the 25^th floor of a block. There was no evidence about its position in the block, and where neighbours, if any, were. The magistrate made reference to the evidence of D1 that the door was open and that there was then a general melee in and around the doorway; but he has made no finding about the likelihood of others being placed in fear of a breach of the peace. And it is clear that he has concentrated on the three members of the Law family involved in the disturbances and not the son who was asleep. It would have taken but little evidence that there were occupants of flats nearby, and the magistrate could then have drawn an inference perhaps from the evidence he had heard, or relied on the presence of the younger son. But he did not and I cannot substitute a finding for his.

Result

59. In the circumstances and for the reasons I have given, the appellants succeed on this last limb of the appeal. Accordingly this appeal is allowed and the conviction in relation to each appellant is quashed and the sentences and penalties set aside.

Addendum

60. I conclude by saying this. None of this is to say that those who behaved as did the appellants should consider themselves immune from prosecution for the kind of behaviour upon which they embarked. The result of this case turns not only on principles of law, but on its particular facts and on a finding by the magistrate which concentrates only on the likely impact on the three other protagonists, if I may call them that. Conduct of the kind displayed by these appellants will almost certainly constitute conduct which would normally justly call upon them a prosecution. In particular, it should be noted that it is no defence to such a charge to take to a scene of possible trouble cohorts who are said to be there in case trouble arises. The answer is not to go in the first place.