HKSAR v. CHRISTIAN ANTHONY BULLEN

HCMA 321/2018

[2019] HKCFI 2342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 321 OF 2018

(ON APPEAL FROM EASTERN MAGISTRACY

CASE NO ESS 37428-9 OF 2017)

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J U D G M E N T

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INTRODUCTION

1.  This case concerns the interference with a government water meter installed at a house by its owner.

2.  The appellant owned two houses in Lo Tik Wan, Lamma Island (House No. 43 and 33), House 43 has a government water meter[1] properly installed to serve the house itself and the registered consumer is the appellant, while House 33 has not. At the material times, the appellant had moved the water meter first from House 43 to House 33 and then sometime later back to House 43.

3.  The prosecution case was that on 2 March 2017, officers from the investigation unit of the Water Supplies Department went to House 33 and found that there was no water meter fitted with the house but one installed at House 43.

4.  About 3 weeks later on 24 March 2017, the officers visited House 33 and discovered the water meter belonged to House 43 had been relocated to House 33.

5.  A number of visits had been made by the officers for the period from 19 May to 7 August 2017 and the situation concerning the Houses in respect of water meter remained the same as before.

6.  On 28 August 2017, however, the officers went to House 43 and found that the water meter was restored back to House 43.

7.  The appellant subsequently received two summonses alleging that he interfered with the waterworks, i.e., the water meter of House 43, without the permission in writing of the Water Authority[2]. The first summons is concerned with the period between 2 March and 24 March 2017 in respect of House 43, while the second concerning the period between 24 July and 28 August 2017 in respect of House 33.

8.  The case was heard before Magistrate, Merinda Chow, sitting in Eastern Magistracy. The appellant defending himself pleaded not guilty to the summonses and elected to give evidence at trial. Following a trial, the appellant was convicted of both summonses and fined $2,500 for each summons. He now appeals against the conviction.

Grounds of Appeal

9.  Acting again in person, the appellant put forward four grounds of appeal, namely,

(1)  The learned magistrate was biased against him throughout the trial, in particular by engaging in secret communications with the prosecution and thus deprived him of a fair trial;

(2)  The learned magistrate erred in law in concluding that the alleged offences were not time-barred;

(3)  The learned magistrate erred in law in concluding that when the appellant had moved a water meter to his second residence (House 33) and back (House 43), he had interfered with the waterworks within the meaning of section 31 of the waterworks ordinance;

(4)  The learned magistrate erred in not properly applying/ interpreting the principles laid down in Hin Lin Yee and another v. HKSAR[3] and Kulemesin and another v. HKSAR[4] alternatives.

FACTUAL ISSUES

10.  Basically, there is no factual dispute in the case and undisputed in particular is the fact that it is the appellant who removed the water meter from House 43 to House 33 and then back, and indeed the appellant in his own evidence testified to that fact too, and in so doing he had no written permission from the Authority.

DISCUSSION

Ground 1- Bias

11.  The appellant submitted that the learned magistrate had exhibited bias against him right from the commencement of the trial when she asked him to disclose his defence which he refused on the first day of trial.

12.  The following are the excerpts from the relevant transcripts:

Court	:	Would you like to tell me about your defence?
Appellant	:	I would rather not ma’am with the greatest respect. I would like to hear their case first.
Court	:	Now. You know their case yes?
Appellant	:	Information but no…
Court	:	As I have said there are two (indecipherable) that they need to prove, first, interference with those meters, house 33 and house 43 meters and second, they need to prove also without permission in writing from the Water Department Authority.
Appellant	:	Yes, ma’am. I understand.
Court	:	And unless you have a defence to tell me that in fact you have received written permission from the water authority and you did not interfere with the two meters in question.
Appellant	:	I did not, ma’am.
Court	:	And you know the penalty section?
Appellant	:	Yes, I do, yes.
Court	:	Tell me what do you know about it?
Appellant	:	Well, obviously, at the discretion of the court but, if I am found guilty, the penalties could be quite steep, including up to under, section 35, if it’s applicable, up to $25,000.

13.  There are a few more similar exchanges between the court and the appellant in relation to his defence in the course of the proceedings. I do not intend to list them all, but suffice it to say they are of similar nature.

14.  Mr Martin Hui SC, for the respondent, set out the applicable principles in assessing these allegations[5]:

“The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial”

15.  Mr Hui went on to say that the various allegations made by the appellant under this ground must be viewed in context and against the background that the magistrate was conducting a trial involving a litigant in person. It was incumbent upon the magistrate to make her best endeavour to assist a litigant in person to present his case fully and effectively, with proper focus on the relevant issues at trial; and at the same time to manage the proceedings as efficiently as possible.

16.  A magistrate sitting in judgment of a case has, on the one hand, to make sure a defendant to have a fair trial, and, on the other, has the duty to manage the case properly. It is therefore essential for the court to ascertain the essence of the case so as to get the parties to focus on the real issues, which has the advantages of avoiding obscurity and confusion arising perhaps from misconceived line of argument.

17.  As in the present case, since there was no factual dispute, the only issues left to be considered at the end of the day are legal arguments such as those put forward under grounds 2 to 4. Being a litigant in person, it would only be to the appellant’s benefit if the magistrate was in a position to grasp the issues beforehand so that she could assist him to present his case in a proper manner.

18.  The appellant also complained that it was at the prompting of the learned magistrate, the prosecution then decided to call PW6 as a witness to cover the other element of the offence - “without the written permission of the Authority”. Worse still, PW6, being the case officer assisting the prosecuting counsel, remained in court most of the time during the proceedings.

19.  The following are the excerpts from the relevant transcripts:

Court	:	Mr Hotten… I have a little study of the evidence of the defendant. Prosecution case…
Prosecutor	:	Yeah.
Court	:	It seems so far there is seems there is no witness to tell me that in relation to…. the point without the permission in writing of the water authority.
Prosecutor	:	Yes…The officer in the case is going to deal with that this morning.
Court	:	Alright thank you… so which one?
Prosecutor	:	We simply asked him to check the record…

20.  After that, PW6 was called to cover the absence of record of any written permission ever given to the appellant. The trial then proceeded to the defence case where the appellant chose to testify and, in his testimony, he admitted that he had moved the water meter without the requisite permission. As the evidence shows “the lack of written permission” has never been a bone of contention in the case, so the matter complained of was a non-issue, I cannot see how it could be taken as an indication of bias on the part of the magistrate.

21.  There is no rule prohibiting a witness from being present in court before testifying, the better practice is for them to remain outside, but if it is otherwise, it will go to his credibility or reliability when the court comes to assess his testimony as a witness.

22.  Now, I turn to another complaint, this one centers on two incidents where the learned magistrate was being accused of indirectly contacting the prosecuting counsel, Mr Keith Hotten, through her clerk and the case officer-in-charge as the conduit by way of memo communication.

23.  The first incident occurred on 11 April 2018 on the eve-of-“Final submissions” hearing, her clerk in her memo to the prosecution stated that:

“Please inform prosecuting counsel on Fiat Mr Hotten to: -

(a)  elaborate on the point that ‘prosecution does not need to prove mens rea’;

(b)  to address on the issue of ‘notice’ as raised by the defendant in his closing submission.”

24.  The second incident occurred on 23 May 2018 on the day before the verdict, her clerk stated in the memo to the prosecution:

“Please make enquiry from the prosecution counsel which exhibit he refers to in paragraph 6 of his written submission”

It is worth noting that on the second occasion a copy of the memo was also ‘cc’ to the appellant but not in the first.

25.  Insofar as the first incident was concerned, Mr Hui SC for the respondent said that it’s clear from the transcript that the prosecutor did not respond to the memo in private, but rather read out the memo and dealt with it in open court in the presence of the appellant on 12 April 2018 (the day when the court resumed hearing for final submissions). As such, the memo was in effect “put on record”, and the appellant was fully apprised of the two issues set out in the memo. As a matter of fact, the appellant was able to make a substantive response to the issues and no unfairness arose as a result.

26.  If the learned magistrate had waited until the next resumed hearing (12 April 2018) to raise those matters of her concerns with Mr Hotten, I think the appellant would have had nothing to complain about because those were legitimate questions she was entitled as a trier of fact to ask in order to arrive at a conclusion one way or another.

27.  The second incident concerned something mentioned in Mr Hotten’s written submission in paragraph 6 thereof referring to an email sent by the appellant to the Water Supplies Department the contents of which were not part of the evidence before the court. As Mr Hotten set out its contents in his submission, the learned magistrate had to make enquiries with the prosecutor to make sure she was only considering those evidence which had been adduced at trial.

28.  This time a carbon copy of the memo to the prosecutor was also sent to the appellant and in the end, the court made clear that she would ignore such evidence (the contents of the email) for it was not part of the evidence before the court. I do not think there was anything wrong in the way the learned magistrate handled the matter.

29.  There is no merit in this complaint.

Ground 2 - Offence Time-barred

30.  The point the appellant was making was very simple. He said the first summons was laid[6] outside 6 months from the time when the matter of such complaint arose[7], given his unchallenged testimony that he had moved the water meter from House 43 to 33 on 6 March 2017.

31.  As the first summons was time-barred, the appellant argued, the second summons must also be time-barred since it flowed from the same matter which arose from 6 March 2017.

32.  The learned magistrate took a different view in that she opined that the time should be counted from the time when the officers came to have knowledge of the relocation of the water meter from House 43 to House 33, that was 24 March 2017 when the officers came to visit the houses and discovered the situation.

33.  Mr Hui SC pointed out that the dates of the two summonses in fact preceded the Waterworks (Amendment) Ordinance which came into effect on 15 February 2018, the newly enacted section 36A(1) of Cap 102, which provided for a time-limit of “within 6 months beginning on the date immediately after the date on which the contravention is discovered by, or comes to the notice of, the Water Authority”, is inapplicable.

34.  However, Mr Hui SC argued that the first summons was not time-barred because the appellant’s wrongful interference with the location of the meter was continuing.

35.  He submitted that it is plain from the language of section 31 of Cap 102 that all the prohibited acts (i.e. “alter”, “interfere”, “damage” and “destroy”) are capable of covering a continuing act, depending on the factual scenario. By way of example, a water pipe can be altered or damaged by a period of intervening acts such as constant dripping of corrosive liquid thereon. And underground water fitting can be destroyed by the application of persistent pressure exerted on it over a period of time and a meter can be interfered with continuously by placing a device next to it or by diverting water away from it. The same goes for dismantling and reversing the meter so that the reading may drop for a period of time, introducing foreign materials into the pipes thereby clogging the meter over time, etc.

36.  He went on to say that the circumstances of the present case were another instance where the interference with the meter, by its nature, can be regarded as a continuing offence. Each meter is designated to serve a particular service address with the corresponding registered consumer account, so that the Water Supplies Department can make accurate measurement of consumption, issue the bill and charge the consumer accordingly. The applicant’s act of removing the meter marked the start of the improper interference with the location of the meter, thereby hampering its function to accurately measure the water consumption in respect of a particular registered household at a designated service address.For as long as the meter remained removed, that crucial function remained impaired and the meter continued to be interfered with as such. 

37.  Section 31 of the Waterworks Ordinance reads:

31. Damage, etc., to waterworks

“Any person who, without the permission in writing of the Water Authority, alters, interferes with, damages or destroys any part of the waterworks shall be guilty of an offence.”

38.  “Waterworks” is defined in the Ordinance which means any property occupied, used or maintained by the Water Authority for the purposes of this Ordinance and any gathering ground.

39.  The Final Court in Li Li-mua (2001) 4 HKCFAR 123 stated that a court will conclude that an offence is a continuing one, if such a conclusion is plain from express words, compelling implication or the nature of the offence concerned.

40.  The use of the word “waterworks” clearly covers a wider meaning and scope than that of a water meter. When one interferes with a water meter like in the present case where it was dismantled and installed at another service address, it is not just the water meter itself being interfered with, there are also problems flowing from such an interference, for example, its function of accurately measuring the consumption of water at a designated address would be stopped. The situation will remain unchanged as long as the interference persists.

41.  I would therefore agree with the submission of Mr Hui SC and come to the conclusion that Section 31 is indeed a continuing offence. That being the case, the summonses in question are not time-barred.

42.  Ground 2 fails.

INTERFERENCE

43.  In relation to what constituted an interference, the learned magistrate had this to say[8]:

“The water meter forms part of the waterworks. The act of a physical move constituted an improper interference with the water meter. That is to say, interfere with the location of the water meter.”

She went on to find that the act done by the appellant amounted to “interference”.

44.  The appellant, however, argued that:

“When one looks for a common thread in the authorities and dictionary meanings on ‘interference’ it becomes clear that interference may take place if there was a permanent (detrimental) changed to the object interfered with. There was no evidence that the meters moved by the appellant were permanently moved and not capable of being moved back to their original location without damage. In fact, the appellant had first moved from his house 43 to his house 33 and then back to House 43 the meter was not damaged.”

45.  Mr Hui SC submitted that from the plain language of section 31, it could not have been intended by the legislature to apply a restrictive and narrow meaning to “interfere with” as suggested by the appellant to only cover acts which cause “a permanent (detrimental) change”. The words used in the section are “interfere with”, not “temper”. To adopt the appellant’s construction, that phrase “interfere with” would substantially, if not completely, overlap with the other limbs under the same section of “alter”, “damage” and “destroyed”. It would be indistinguishable from, say, “alter” or “damage”, thereby rendering itself or these other limbs redundant. Hence, the appellant’s contention that interference can only take place if there has to be “a permanent (detrimental) change” to the object being interfered with is unsound and cannot be correct.

46.  The respondent’s argument is very telling and makes perfect sense, which is also consistent with the learned magistrate’s interpretation of the word “interference”, and the word “interference”, in my view, does not require the prosecution to prove any permanent (detrimental) change to the object being interfered with, but proof of any handling or adjustment of something without permission will suffice.

47.  Ground 3 fails.

THE AVAILABILITY OF COMMON LAW DEFENCE

48.  It is common ground between the parties that the common law defence of honest and reasonable belief is available to a section 31 offence, but the only difference lies in whether it is the second (the accused only bears an evidential burden) or third “Hin Lin Yee” alternative (the accused bears the persuasive burden). The appellant argues that he need only bear an evidential burden.

49.  The learned magistrate ruled that the persuasive burden remains on the prosecution to prove its case beyond all reasonable doubts, i.e., the second alternative.

50.  Neither the learned magistrate nor the appellant have given any reasons why they adopt the second alternative. Perhaps, as it is the most beneficial to the accused among the five alternatives, the learned magistrate chose the one most favourable to the appellant.

51.  In arguing for the third alternative, Mr Hui first submitted that since the section 31 offence does not employ words like “knowingly” or “negligently” and the word “interfere” and the other limbs of “alter”, “damage” or “destroy” do not carry their own connotation of mens rea, the presumption of mens rea for this offence is therefore displaced.

52.  He said there are many provisions which are similarly concerned with interfering with, etc., devices or installations expressly provide for the mental element, and cited in support the following as examples:

Section 56(4) of the Electricity Ordinance Cap 406 reads:

“A person who intentionally interferes with an electricity supplier’s electrical installation without the supplier’s consent, commits an offence”

Section 7(1)(a) of the Shipping and Port Control Ordinance Cap 313 reads:

“Any person who wilfully or negligently removes, alters, damages, destroys, or interferes with, any aid to navigation or mooring commits an offence and …”

53.  He then goes on to argue his case for the third alternative but I need not go into detail of his reasons because to my mind the section 31 offence requires the proof of mens rea, i.e., the first alternative – the prosecution must prove knowledge, intention or recklessness as to every element of the offence.

54.  It is true to say the section 31 offence uses no words usually associated with mens rea element like “knowingly” or “wilfully” but the lack of it does not mean that mens rea is displaced[9]. Everything turns on the wording of the section under consideration.  

55.  In dealing with a case[10] of object falling from height, Saw J ruled that the two offences,(1)- dropping an object from a building and (2)- allowing an object to fall from a building, created by Section 4B(1) of the Summary Offences Ordinance, Cap 228 are different in nature, the latter is a strict liability offence but the former isn’t.

56.  Section 4B reads:

“If anything is dropped or allowed to fall from any building to the danger or injury of any person in or near a public place, the person who drops or allows it to fall commits an offence and is liable to a fine of $10,000 and imprisonment for six months.”

57.  In paragraph 12 of the judgment, Saw J said:

“The elements of each offence are different. The act of dropping an object from a building requires the prosecution to establish not only the fact that an object fell to the danger of the public, the prosecution must prove it was dropped by a defendant in the sense of making a conscious decision to do just that. This is to be distinguished from allowing an object to fall. The first part of the section does not create an offence of strict liability…”

58.  To me, the words “alter”, “interfere with”, “damage” and “destroy” that are employed in the definition of the offence providing for the various ways the offence can be committed are all volitional acts on the part of the accused. Each act involves the use of one’s will in making a conscious decision to do it.

59.  The incontrovertible fact of the case is that it was the appellant who removed the water meter in question first from one of his houses (House 43) to fix it to another (House 33), and then back to House 43. Undoubtedly, these were conscious acts on the part of the appellant and that being the case, the prosecution has proved the requisite mental element of the offence.

60.  Suppose the appellant was right, the common law defence was available, but to my mind, it was not going to assist him because the honest and reasonable, albeit erroneous, thought must relate to the written permission.

61.  All that he was saying in the instant case was that there was no challenge to his evidence – “he had been informed by authority staff that the meter he had moved from House 43 on 6 March 2017 to House 33 actually properly belonged at House 43”, or his past dealings with the authority in respect of the moving of water meter, which had given him the impression that it was okay for him to do so. As can be seen from the above, there was nothing about written permission.

62.  This ground also fails.

CONCLUSION

63.  There is no merit in any of the complaints put forward by the appellant. The appeal is therefore dismissed.