HKSAR v. YANG YOU CHING

1997, NO. MA 307

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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REASONS FOR DECISION

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1. These are my reasons for dismissing the Appellant Madam Yang You Ching's appeal against her conviction of one count of Disorderly Conduct, contrary to section 17B(2) of the Public Order Ordinance, Cap. 245 and two counts of Assaulting a Police Officer in the execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 21.

2. The incident which gave rise to the charges took place on 16 November of last year. At about 5:30 p.m. the private car driven by the Appellant's husband stopped in the middle of the road in a no-stopping zone outside a restaurant in North Point. A police officer in the vicinity observed that a female alighted from the car. The officer then approached the vehicle with a view of booking the driver. The driver at first refused to produce his driving licence and started to swear at the police. A crowd began to gather. The Appellant joined her husband and swore at the police as well and was described as being in a state of madness and rudeness. Other officers came to offer assistance. The police asked the husband and wife to stop swearing at them but they refused. The crowd began shouting words of incitement and the scene was getting out of control. When the police tried to arrest the Appellant, she responded by kicking and biting two of the officers who were the respective victims named in the assault charges.

3. There is only one ground of Appeal which is of any substance was advanced on the basis that on the totality of the evidence, an essential element of the offence of Disorderly Conduct had not been made out. Mr Lok for the Appellant submitted that the evidence before the learned magistrate was that he could not have concluded that at the material time there was a threatened breach of the peace. It followed that if the decision to arrest the Appellant was not justified, then the police officers who were victims of assault charges could not have been acting in the execution of their duties.

4. The Appellant relied on the English cases of R v Howell [1981] 1 WLR 501 and Parkin v Norman, Valentine v Lilley [1982] 2 All ER 583. The principle of law in relation to the term 'a breach of the peace' is that : to constitute a breach of peace in a charge of Disorderly Conduct there had to be threatened or actual violence. The word 'disturbance' used in isolation cannot constitute breach of the peace. Mere insulting behaviour per se as in the case of the Appellant, is insufficient to constitute a breach of the peace.

5. This principle of law was subsequently applied in R v Kam Man Fai Magistracy Appeal No. 930 of 1983 where Garcia, J. in quashing a conviction of Disorderly Conduct observed:

" I think the Section under which the Appellant was charged makes it incumbent upon the Magistrate to make a specific finding as to whether the Appellant's actions at the time when he was seen by the police officer was likely to cause a breach of the peace...

In my view, each of the separate clauses of the Section (i.e. section 17(b)) must be qualified by the words 'with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused' and the offence against the Section is not made out on 'noisy or disorderly behaviour' simpliciter."

6. Kam Man Fai was applied in R v Chan Chun Ching [1989] 1 HKC 546 where O'Connor, J. held that the although the evidence before the trial magistrate was such that a crowd gathered in the street in circumstances not dissimilar to the present case, there was no evidence of any likelihood of injury or damage to property. The appeal against conviction in that case was allowed.

7. Turning now to the present appeal, the learned magistrate had reminded himself ofKam Man Fai and Chan Chun Ching in paragraph 7 of his Statement of Findings.

8. The issue remaining must be whether there was evidence before him to support his finding that by reason of the Appellant's disorderly conduct, there was a likelihood of causing a breach of the peace.

9. Mr Lok, in his usual fairness, had drawn my attention to the evidence of PW8 PC 16164, the victim of the 2nd charge. In the witness' examination in-chief he was asked to give a description of the scene when he arrived at 5:41 p.m. and his testimony was that a crowd of some 50 to 60 had gathered and they behaved noisily. Some of them were shouting that the Appellant and her husband should not scold the police while others were shouting that they should not simply just use words but should actually hit the police officers. At the same time the witness described that vehicles were stopped and blocking the traffic. A number of the drivers were sounding their horns. This was the only evidence of incitement coming from the crowd and if accepted, it is capable of being construed as there being a likelihood of a breach of the peace. The other prosecution witness did not give evidence to the incitement.

10. During cross-examination, Mr Kwok who appeared for the Appellant in the court below, suggested to the witness that at no time did anyone ever used the word incitement. The suggestion was denied. In his Statement of Findings the learned magistrate accepted the evidence of PW 8 and his account of the crowd :

"...shouting and fiering (sic) in words of violence and incitement"

On the issue that the other prosecution witnesses' account did not contain description of the crowd using words of incitement, the learned magistrate resolved the discrepancy by making the following observation at paragraph 5 :

" As far as the facts are concerned, I am well aware that all the police officers evidence did not exactly match up. However, I did not find that surprising as the incident happened over a brief period of time and the officers came into the incident at different stages. Also once all the officers have arrived they had to split up and attend to various different duties. Therefore, they were seeing the incident from different angles and different times. I would also not regard their evidence as inconsistent in any material way."

Later at paragraph 8 he went on to make an express finding that:

" In the instant case, the situation went much further than the 2 cases cited. A crowd was gathered and the road was blocked and emotions ran high with language of incitement and words with reflection of violence were used. I found that the situation was likely to develop into disturbance if not controlled."

Clearly in directing himself as he did, the learned magistrate had correctly applied the law to the facts as he found them to be. I cannot say that the conviction on the charge of Disorderly Conduct was in any way unsafe or unsatisfactory.

11. Once the learned magistrate found that the officers were justified in making the arrest, there is ample evidence to support his finding of guilt on the two charges of assaulting the police officers in the execution of their respective duties.

12. For the reasons given this appeal is dismissed.