TONG YIU WAH v. HKSAR

FACC No. 7 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2006 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 811 OF 2005)

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J U D G M E N T

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Mr Justice Bokhary PJ:

1.  I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

2.  In this appeal, we are concerned with the offence of loitering in the Airport Bylaw Area without reasonable cause, contrary to s.20(1) of the Airport Authority Bylaw (“the Bylaw”) made under the Airport Authority Ordinance, Cap 483 (“the Ordinance”). Two issues are raised for determination. First, what, upon the true construction of s.20(1), are the ingredients of this offence; in particular whether “without reasonable cause” is an element which must be proved by the prosecution or an exception which has to be proved by an accused charged with such an offence. The second issue, which only arises if it is concluded that “without reasonable cause” is not an ingredient of the offence and that the burden is on an accused to prove that he has a reasonable cause, is whether s.20(1) is unconstitutional, being inconsistent with art. 11(1) of the Hong Kong Bill of Rights (“art. 11(1)”) and art. 87 of the Basic Law.  In this judgment, unless otherwise stated, references to section numbers are references to sections in the Bylaw.

The facts

3.  The appellant was a taxi driver. According to the prosecution, he was touting in the area designated as the Bylaw Area (“the Bylaw Area”) of the Hong Kong International Airport (“the Airport”). He was observed by two plainclothes police officers to be hanging around at the bus route notice board in the Airport Passenger Area which formed part of the Bylaw Area. He was seen to have approached several persons who had ignored him. He then approached two other persons and after a short conversation with them, went to the escalator near the shroff’s office while the two persons proceeded to the pick up and setting down area of the car park. One of the officers came up to the appellant and warned him that he was suspected of touting and would be arrested if he was seen doing that again. He was allowed to leave and he did. But about 35 minutes later, he returned to the same location and was seen again to have approached a few other persons who ignored him. He was then arrested and subsequently charged with the present offence.

Proceedings in the courts below

4.  When the appellant was tried before a magistrate (Mr John Glass), a preliminary issue was taken as to whether s.20(1) is incompatible with art. 11(1). The magistrate ruled that it was not, holding that “without reasonable cause” was not a negative averment which the appellant had to prove and that the burden was on the prosecution to prove there was no reasonable cause. Having heard all the witnesses from the prosecution and the appellant not giving or calling any evidence, the magistrate found that the charge was proved beyond reasonable doubt and convicted the appellant. He was sentenced to two months imprisonment.

5.  On appeal by the appellant, McMahon J upheld the conviction. However, he held that all that the prosecution needed to prove was that the appellant was loitering in the Bylaw Area, that s.20(1) imposed a persuasive (or legal) burden on the appellant to prove he had a reasonable cause for doing so and that this subsection was not inconsistent with art. 11(1). The appeal against sentence was allowed (for reasons which do not concern us) and the sentence was reduced from two months to three weeks.

6.  With leave of the Appeal Committee, the appellant now appeals to this Court on both the “points of law” and the “substantial and grave injustice” limbs under the Court’s statute. Although this is an appeal by the appellant, his counsel, Mr Chan Siu Ming, quite frankly and fairly concedes that if he is correct on the construction of s.20(1) which was the view taken by the magistrate but rejected by the judge, the appellant was rightly convicted and his appeal should be dismissed. The purpose of this appeal, Mr Chan says, is to clarify the law.  If, however, he is wrong and the judge is right in holding that there was an onus on the appellant, it is said that he has suffered substantial and grave injustice in that his choice not to give evidence was encouraged by the magistrate’s ruling to the contrary effect.

Offence created by s.20(1)

7.  The offence in question is one of two offences created by s.20. As part of the relevant context, it is worth setting out the whole section:

“(1) No person shall loiter in any part of the Bylaw Area without reasonable cause. An Authorized Officer or an Authorized Person may request a person to leave the Bylaw Area or any particular part thereof if that person is reasonably suspected of loitering in any part of the Bylaw Area without reasonable cause.

(2) No person shall continue to remain without lawful authority or reasonable excuse after having been requested by an Authorized Officer or an Authorized Person to leave the Bylaw Area or any particular part thereof pursuant to subsection (1).”

8.  On behalf of the appellant, Mr Chan submits that the offence under s.20(1) consists of three elements: (i) loitering; (ii) in any part of the Bylaw Area; and (iii) without reasonable cause, all of which must be proved by the prosecution beyond reasonable doubt. On the other hand, Mr Zervos SC leading Ms Margaret Lau for the prosecution, argues that the offence consists of only (i) and (ii) which the prosecution must prove to the requisite criminal standard, but that (iii) is an exception in respect of which the appellant has the burden of proof.

9.  The difference between these submissions lies in whether s.20(1) has created an offence or an offence with an exception. If it is the latter case, it falls within the exception to the general rule that the prosecution has to prove every element of the offence charged (see Lawton LJ in R v Edwards [1975] 1 QB 27, at p.35); alternatively, it is a negative averment governed by s.94A of the Criminal Procedure Ordinance (“s.94A of the CPO”). In either case, the burden of proving the exception is reversed and the accused has the onus of proving that he had a reasonable cause. It is this latter situation which gives rise to the challenge to the constitutionality of s.20(1) as mentioned in paragraph 2 above.

Ingredients of the offence

10.  In deciding the first issue, our first task is to construe s.20(1) in order to ascertain what are the ingredients of the offence which the prosecution must prove. In undertaking such task, one examines not only the form of the provision but also the substance and reality of its language. As Lord Woolf said in Attorney General of Hong Kong v Lee Kwong Kut and others [1993] 2 HKCLR 186 (a Privy Council decision on the compatibility of s.30 of the Summary Offences Ordinance, Cap 228 and s.25 of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405 with the Bill of Rights) at p.197:

“In deciding what are the essential ingredients, the language of the relevant statutory provision will be important. However, what will be decisive will be the substance and reality of the language creating the offence rather than its form.”

11.  As with the construction of any statutory provision, s.20(1) must be construed in its context. Amongst the relevant context are the object and purposes of the Ordinance and its subsidiary legislation. In order to facilitate the safe, secure and efficient operation and management of the Airport, the Ordinance empowers the Airport Authority to make bylaws for the purposes of regulating the use and operation of the Airport and the conduct of all persons present within certain areas designated as the Bylaw Area, securing the safety of persons using the Airport, preventing danger to the public arising from the use and operation of the Airport, and preventing obstruction and preserving order within the Bylaw Area (s.35(1) and (2)). Section 20 is one of many provisions specifically enacted to achieve such purposes.

12.  Bearing in mind the above object and purposes, it is important to ascertain the type of conduct or activity which the legislature intends to prohibit by s.20(1). This is most relevant in ascertaining the ingredients of the offence.

13.  It is common ground that this offence consists at least of loitering in the Bylaw Area as its ingredients. But the parties disagree on what “loitering” means in the context of this case. This word is not defined in the Ordinance or the Bylaw. Its ordinary dictionary meaning includes idling, lingering or hanging about in a place. We have been referred to a number of decisions which touched on the meaning of this word. However, these cases must be considered with caution as they dealt with the word “loitering” as it was used in different statutes: Ledwith v Roberts [1937] 1 KB 232 (s.4 of the Vagrancy Act 1824); Hagan v Ridley [1948] 50 WALR 112 (s.43 of the Police Act 1892); Mok Chi Ho v R [1979] HKLR 118(s.26(a) of the Summary Offences Ordinance, Cap 228); R v Ng Chun Yip and others [1985] HKLR 427 (s.160 of the Crimes Ordinance, Cap 200); and Attorney General of Hong Kong v Sham Chuen [1986] HKLR 1043 (s.160 of the Crimes Ordinance, Cap 200). These cases illustrate what Lord Keith of Kinkel said in Attorney General of Hong Kong v Sham Chuen, at p.1046 about the meaning of “loitering”, that is: “The word is to be construed in the light of the context in which it appears in this particular enactment.”

14.  The Bylaw Area is not a public place for the exercise of one’s freedom of movement (as submitted by Mr Chan). It is designated for use by members of the public for, but only for, the ordinary and legitimate purposes connected with the use of the Airport, such as waiting for planes to arrive or depart, meeting or picking up people arriving at the Airport, or seeing friends and relatives off. It is contemplated that people may have to idle, linger and hang about in the Bylaw Area for such purposes. As a matter of fact, it is very often necessary to do so. Clearly, the legislature does not intend to penalize people for this type of conduct and activity. It would be absurd to say that the subsection is aimed at prohibiting people from doing precisely what the Bylaw Area is intended to allow them to do.

15.  Given the nature of the Bylaw Area and the use for which it is intended, in my view, “loitering” in the context of s.20(1) means idling, lingering or hanging about in the Bylaw Area apparently not for the ordinary and legitimate purposes connected with the use of the Airport. This would also cover behavior which is inconsistent with such ordinary and legitimate purposes. If a person is loitering in the Bylaw Area in this sense, there is prima facie no reasonable cause for what he is doing there since that is not making proper use of the Bylaw Area for its ordinary and legitimate purposes. This, I believe, is the type of conduct and activity which s.20(1) is aimed at prohibiting. If this analysis is correct, it strongly points to the construction that loitering in the Bylaw Area and the lack of a reasonable cause for doing so are necessarily interrelated and form the integral parts of the offence under s.20(1).

16.  This conclusion is also supported by the language of the section when it is looked at in the round. The first sentence in s.20(1) which creates the offence is clear and simple: no person shall loiter in any part of the Bylaw Area without reasonable cause. In the second sentence, the same wording is used: any person reasonably suspected of “loitering in any part of the Bylaw Area without reasonable cause” may be requested to leave. The reasonable suspicion must not only be a suspicion of loitering in the Bylaw Area, but also of doing so without reasonable cause. Thus the wording used in the second sentence of s.20(1) is consonant with the construction that “without reasonable cause” is an element of the offence created by the first sentence.

17.  The main reason for submitting that “without reasonable cause” is not an ingredient of the s.20(1) offence but an exception to the offence is that it is unlikely (and contrary to common sense) that the legislature would intend to require the prosecution to prove there is no reasonable cause, since a person found loitering in the Bylaw Area is in the best position to tell whether he has any reasonable cause to be there. I do not think this submission can be accepted if the language of s.20(1) is clear, as I think it is. This argument also ignores the object and purposes of this provision.

18.  As mentioned earlier, the Bylaw Area is intended to accommodate genuine users of the Airport. Hence, any member of the public is permitted to go there for the ordinary and legitimate purposes connected with the use of the Airport. It is only when he is found to have been behaving in a manner (as the appellant had done in the present case) which has given rise to a reasonable suspicion that he is loitering in that area without a reasonable cause that his presence and what he is doing calls for interference. He may either be requested to leave or if it is a serious case, taken away for having committed an offence under s.20(1). And if he is requested to leave but he refuses to do so without lawful authority or excuse, he commits an offence under s.20(2). Whether he has any particular reason, legitimate or otherwise, to behave in such a way is naturally something peculiarly within his own knowledge and that may or may not negative liability. But this does not affect the conclusion that it is the loitering without an apparent reasonable cause in the Bylaw Area that constitutes the offence which is punishable by the law.

19.  The construction that “without reasonable cause” is an element of the s.20(1) offence better achieves the object and purposes of the Bylaw. This ensures that members of the public can enjoy a large degree of freedom in making proper use of the Bylaw Area for lawful and legitimate purposes while requiring a justification before the authority can interfere. In my view, this construction accords more with the true intention of the legislation.

Section 94A of CPO

20.  The judge took the view that s.20(1) creates an offence with an exception. In coming to that conclusion, he was apparently very much influenced by s.94A of the CPO. He said at paragraphs 13 to 15: 

“Section 20(1) must also be read in conjunction with any other legislation which bears upon its operation. In the present case that means the meaning and operation of section 20(1) must be considered in conjunction with section 94A of the CPO.”

“... it seems plain to me that the legislature intended section 20(1) to carry with it a negative averment of the sort set out in section 94A(4) of the CPO. …”

“That means on a proper construction of section 20(1) in the light of section 94A of the CPO that it was not for the prosecution in the present case to prove the appellant had no reasonable cause for loitering in the Bylaw area of the Airport, rather it was for the appellant to prove on the balance of probabilities, as a legal or persuasive burden in the event his loitering in that area was established, that he had a reasonable cause for doing so.”

21.  With respect, the judge’s reliance on s.94A of the CPO in construing the meaning of s.20(1) is misplaced. Section 94A of the CPO provides as follows:

“(1) It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

(2) For the avoidance of doubt it is hereby declared that in criminal proceedings – (a) it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and (b) the burden of proving the same lies on the person seeking to avail himself thereof.

(3) This section applies to criminal proceedings in the District Court or a magistrate’s court.

(4) The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter.”

22.  The effect of s.94A of the CPO is this: Where a statutory provision creating an offence contains an exception, exemption or qualification, it is not necessary for the prosecution to negative this in the indictment or charge laid against the defendant; it is for the defendant to prove such an exception, exemption or qualification; and this applies to the sort of exception, exemption or qualification set out in subsection (4).

23.  In my view, s.94A of the CPO is not relevant in the construction of a statutory provision for the purpose of ascertaining the ingredients of the offence created by the statutory provision in question; s.94A is invoked only after it has been ascertained that the statutory provision has created not only an offence but also an exception, exemption or qualification to the offence. The presence in a statutory provision of a phrase similar to those set out in s.94A(4) (such as “without reasonable cause” in the present case) does not necessarily make it a true exception falling within s.94A of the CPO or the type of exception anticipated in R v Edwards. The reverse onus provided for in s.94A(2) does not apply unless it is a s.94A(1) situation. See Lam Yuk Fai v HKSAR  (2006) 9 HKCFAR 281, where Lord Woolf said at para. 32:

“Although reasonable excuse is referred to in s.94A(4), that subsection is only relevant if the offence is one to which s.94A(1) applies. Many, if not most offences, that create an offence and then provide that there will be no offence if the defendant has a reasonable excuse for his offending conduct no doubt place at least an evidential burden on the defendant to raise the defendant if not a persuasive or legal burden (see for example Tse Mui Chun v HKSAR (2003) 6 HKCFAR 601). The offence with which we are concerned is unusual in that the reference to without reasonable excuse is part of the particulars of a count of conspiracy.” 

24.  It is suggested that even if “without reasonable cause” is an element of the s.20(1) offence, somehow an evidential burden is cast on an accused charged with such an offence to raise the issue of reasonable cause. There is no basis for such a suggestion. If “without reasonable cause” is part and parcel of the offence and not an exception, neither Edwards nor s.94A of the CPO applies. It is an element of the offence in respect of which the burden of proof lies with the prosecution from start to finish. There is no room for shifting any burden, whether evidential or persuasive, on the accused.

25.  The judge, in coming to the conclusion which he did, had, I think, attached too much weight to the form (that is, the presence of the phrase “without reasonable cause”) in s.20(1) and overlooked the substance and reality of its language and the importance of construing the subsection in its proper context.

26.  On a true construction of s.20(1), it is clearly the intention of the legislature that both the loitering in the Bylaw Area as well as without reasonable cause form the essential ingredients of the offence, all of which must be proved beyond reasonable doubt by the prosecution.

Constitutionality of s.20(1)

27.  In view of the conclusion reached on the first issue, no burden of proof has been shifted to the appellant. There is no question of s.20(1) being unconstitutional. The second issue does not arise for determination.

Conclusion

28.  For the reasons discussed in this judgment, the magistrate had come to the correct conclusion on the construction of s.20(1) and the appellant was rightly convicted. The appeal is dismissed.

Mr Justice Ribeiro PJ:

29.  I agree with the judgment of Mr Justice Chan PJ.

Sir Noel Power NPJ:

30.  I agree with the judgment of Mr Justice Chan PJ.

Sir Anthony Mason NPJ:

31.  I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

32.  The Court unanimously (i) holds that the absence of reasonable cause is an element of this offence for the prosecution to prove beyond reasonable doubt, and (ii) dismisses the appeal.