HKSAR v. CHAN KA CHUEN RAYMOND

HCMA816/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.816 OF 2008

(ON APPEAL FROM ESCC NO.5629 OF 2007)

_______________

_______________

_________________

J U D G M E N T

  _________________

1.  This is an appeal against conviction, the Appellant having been found guilty of behaving in a disorderly manner in a public place with intent to provoke a breach of the peace, contrary to section 17B(2) of the Public Order Ordinance.

2.  An ugly incident occurred at a 7-Eleven at 4.40 am on 14 June 2007.  The Appellant was with a group of other youths, one of whom was accused of stealing something from a shelf.  The evidence in this trial did not deal with whether or not he had, in fact, done so.  The evidence in this trial concentrated on the reaction of the group to the allegation, which was a hostile one to the lady serving in the shop, who made the allegation. 

3.  The whole incident lasted 10 minutes and it is all caught on CCTV.  I have watched it, as did the magistrate.  No proper transcript was ever prepared.  During adjournments today at this hearing, counsel have produced for me translations of the relevant parts of what was said.  There is no doubt the group behaved very unpleasantly, used foul language and were very aggressive in their demeanour.  Whether this was an over-reaction to being affronted by an untruthful allegation of theft, or a device to cover up the putting back of what had been taken, the evidence in the trial could not establish one way or the other and questions were never directed to it. 

4.  Unpleasant behaviour, even using swear words, in a situation like this is not going to constitute a crime unless something further occurs, and something further did occur here, namely, that towards the end of the incident, one of the youths in the group, or even two of them, swept some goods off a stand by the counter at the 7-Eleven.  One can see this happening on the CCTV.  It was not the hand of the Defendant that did so.

5.  In effect, this appeal today has been conducted before me on - and I believe the right basis - on whether or not the prosecution can prove that the Appellant was a party to a joint enterprise which included that behaviour. 

6.  It is common ground that one could infer from the evidence that he was a party to such an enterprise because he had the same hostile animus to the shopkeeper and the like, and that they were all seeking, in effect, to vent their anger upon the person who had made what they claimed was a false allegation.  So the question is, on the available evidence, can one infer that he was party to such a joint enterprise?

7.  Looking at the CCTV, it is clear that the Appellant, at the beginning, made a call to the police, that he was expecting the arrival of the police and that they did duly arrive after 10 minutes.  It is also clear that when the man sweeps the goods off the rack by the till, he was not looking at him when that occurred, and there is nothing in his line of sight or his body language which in any way indicates that he was expecting it to happen.  The Appellant was a law clerk and, at this time, he was displaying a little learning, or a little purported learning, to the shopkeeper and he carried on talking to the shopkeeper through that event. 

8.  This is where the transcript created today, for me, becomes so important because, as one of the men sweeps the property from the shelf, the Appellant said, “In law, if you’ve not walked out of the doorway, it is not a crime”.  The man who had done the sweeping of the property from the shelf then moved nearer toward the conversation between Appellant and shopkeeper and said, “Today there are few people.  Do you want people to come in two minutes and sweep your shop?” to which the Appellant then said, “Don’t speak these things.  These are intimidatory in nature”.  A line or two later, the man who had done the sweeping, in effect, says he will blow the whistle and suggests calling 10-odd followers to cause trouble, to which the reaction of the Appellant was, “Not to blow.  You want to cause trouble?  Talk.  Now wait for police”. 

9.  Neither of those two remarks I have quoted verbatim from the Appellant appear in any of the papers before me and it appears that they were not drawn to the attention of the magistrate below.  But of course, be that as it may, I am not judging the magistrate.  I am judging the evidence, and what that evidence does to me is to demonstrate that the Appellant had not made himself a party to the really bad behaviour that was occurring.  Even though he was behaving unpleasantly to the shopkeeper, his was in fact a voice of restraint towards those of his fellows who were committing crime and who, incidentally, were convicted.

10.  In those circumstances, I have a reasonable doubt.  I am not sure that the inference will run, to the effect that the whole conduct was part of a joint enterprise and he has to bear the criminal responsibility for it all.  Accordingly, on the evidence as it is now presented in this case, there is reasonable doubt and the verdict is ‘not guilty’.  The appeal is allowed.

11.  A very experienced magistrate had dealt with this case, Ms Chainrai, and what explains the difference between her decision and mine is that it is clearly based on different evidence.  Those important matters were not drawn to her attention.  If they had been, I doubt whether she would have come to the same conclusion.  I might add that those important words I have referred to were only teased out of the tape in the course of this hearing.  They did not appear in any of the many written submissions I received before the hearing.  

12.  It had occurred to me to bind over the Appellant in view of the conduct I saw on the CCTV tape but the sentence passed upon him was one of probation and he has had the undoubted benefit of that probation since these are quite old matters now.  In those circumstances, I will not bind him over.

13.  The appeal is allowed, the conviction and sentence quashed. 

Representations: