THE QUEEN v. CHAN CHU SHI

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HEADNOTE

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Fighting in a Public Place - need for Crown to establish that place where fight took place was "a public place".

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1596 Of 1989

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JUDGMENT

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1. The appellant was convicted by Mr W. Banks of fighting in a public place. The summons alleged that the offence took place "outside World Trade Centre, Jaffe Road, Wanchai".

2. The evidence of PW1 was to the effect that the fight took place in the Windsor Palace Car Park while that of PW2 was that it took place in the World Trade Centre Carpark. There was no evidence that the fight took place outside the World Trade Centre. The first ground of appeal is that the Crown had not proved a necessary element to the charge, that is, that the fight took place in a public place.

3. Section 2 of the public Order ordinance defines a public place :

"Public place means any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise, and, in relation to any meeting, includes any place which is or will be, on the occasion and for the purposes of such meeting, a public place."

4. The question of what is a public place was considered by Deputy Judge Cruden in Lam Shing Chow v. R., Magistracy Appeal No. 183 of 1985. In that case, the Deputy Judge had to decide whether a corridor in a private residential building was a public place for the purposes of section 25 of the Public Order Ordinance. The Deputy Judge had this to say at p.4 :-

"Access to the building is not, of course, limited to the occupiers but lawful access would also be available to their licensees and invitees. However, persons, other than the occupiers, who may lawfully enter the premises are neither members of the public or any section of the public. Their legal right to access does not arise from being members of the public but solely by virtue of their status as licensees or invitees of the occupiers."

5. With respect I agree with the Deputy Judge's statement as to the law.

6. The judgment made reference to Edwards (1978) Cr. App. R. 228 where the English Court of Appeal found that the front garden of a private house was not a public place. Bridge L.J. at p.231 stated:

"Approaching the matter quite independently of any authority and looking simply at the contrasting definitions of public place and private premises in the statue, it seems to this Court that it is quite impossible to hold that the expression public place can be construed as extending to the front gardens of private premises, simply on the footing on which the learned judge relied that members of the public have an implied licence to pass through those private gardens in order to obtain access to the front doors of private premises if they have some lawful occassion to do so. It is not qua members of the public that they thus enjoy access. It is qua lawful visitors. Indeed it is certainly only by permission of the owner, occupier or leasee of the premises that persons obtaining access to front doors in the manner referred to are entitled to access."

7. In Pugh v. Knipe (1972) Crim. LR. 247 the Divisional Court held that the carpark of a private club was not a public place for the purposes of the Road safety Act 1967. The fact that members of the club, their guests and visitors were permitted to use the carpark to gain access to the club buildings did not turn the carpark into a public place.

8. In the case before me there was no evidence adduced by the Crown sufficient to establish the status of the carpark in which the fight took place. This is an essential element of the offence and the burden was on the Crown to prove it. This, as Mr Pang for the Crown concedes, the Crown did not do. The appeal must therefore be allowed and the conviction quashed.