THE QUEEN v. FUNG CHI WOOD

Magistracy Appeal No.1123 of 1990

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HEADNOTE

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POLITICAL PROCESSIONS - PERMIT REQUIRED FOR COLLECTION OF DONATIONS - PROOF OF IDENTITY MAY BE DEMANDED BY POLICE OFFICER NOT ENQUIRING INTO IMMIGRATION OFFENCE - NO DUPLICITY WHERE EVIDENCE OF OBSTRUCTING A POLICE OFFICER COMPREHENDS SEVERAL ACTS FORMING SINGLE ENTERPRISE AMOUNTING TO OBSTRUCTION

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1123 OF 1990

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JUDGMENT

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1. Three informations were laid against the appellant in the following terms:-

2. NKS 7301 of 1990

"that you on the 6th day of January, 1990, in a public place, namely along Nathan Road from junction with Nelson Street to junction with Dundas Street in Hong Kong, did without lawful authority or excuse, participate in the collection of money without a permit in writing issued by Director of Social Welfare Department contrary to Section 4(17) of the Summary Offences Ordinance, Cap. 228, Laws of Hong Kong."

NKS 7302 of 1990

"that you on the 6th day of January, 1990, at 618, Nathan Road, 9th floor, Professional Teachers Union in Hong Kong, being a person who was required to have with you proof of your identity, you did fail to produce such proof of your identity for inspection on demand by SIP HON Wung-lunk, a police officer in uniform, contrary to Section 17C(3) of the Immigration Ordinance, Cap. 115, Laws of Hong Kong."

NKS 7303 of 1990

"that you On the 6th day of January, 1990, at Outside 596, Nathan Road in Hong Kong, did obstruct a public officer, namely, P.C. 1091 lawfully engaged, authorised or employed in the performance of his public duty contrary to Section 23 of the Summary Offences Ordinance, Cap. 228, Laws of Hong Kong."

3. The appellant was convicted on all three summonses by Mr Edwards at North Kowloon Magistrates Court and fined a total of $750.00. He now appeals against both conviction and sentence.

4. The appellant is an ordained priest in the Sing Kung Wui Church, which is a religious community subject, in certain matters, to the Anglican Bishop of Hong Kong. He also plays a significant role in local political affairs. In particular he is a member of a group called the Joint Committee On the Promotion of Democratic Government, which is concerned that the political structure proposed for Hong Kong by the Basic Law Drafting Committee is insufficiently democratic. He is also a member of the Shatin District Board.

5. It was the appellant's intention to organise and lead a demonstration and procession on 6th January, 1990, the object of which was to protest against the proposed Basic Law.

6. To this end he wrote to Mongkok Police Station on 30th December, 1989, advising that, under the aegis of the Committee, 19 persons would be distributing leaflets and seeking donations in Kowloon on 6th January and asking permission to use loudhailers.  The significance of that number is that processions involving less than 20 people do not require a permit.

7. On the same date the appellant also wrote to the Director of Social Welfare, seeking permission to request donations from pedestrians in the course of the procession to help meet the expenses of the Committee. The letter also said that 19 "workers" would be wearing the organisation's printed T-shirt on that day.

8. On 4th January the appellant had a conversation with Superintendent Verralls, who told him that no permit to use loudhailers would be issued, on the grounds that they would be likely to cause a nuisance. This was confirmed in a letter received after 6th January.

9. A faxed letter from the Director of Social Welfare was received by the appellant on the morning of 6th January, which refused permission for a public subscription permit.

10. The Director's reasons are contained in a letter dated 22nd January, in which he Says that, when considering such applications, the following matters are taken into consideration:

11. He added that, to allow sufficient. time to process the application, it should reach the department three weeks before the proposed activity.

12. The evidence so far is not in dispute. There is divergence in the evidence of prosecution and defence witnesses about some aspects of subsequent events. The magistrate generally believed the evidence of the prosecution witnesses and, where it was in conflict, rejected that of the defence witnesses. He was, in my judgment, perfectly to take that view but, for reasons that will become apparent it has no bearing on the outcome of this appeal. The magistrate found the following facts.

13. The police in Mongkok, being aware of the impending procession, took precautionary measures. At about 2 p.m. on 6th January Senior Inspector Hon Wung-lurk, who was responsible for crowd control in the area, went with Inspector Cheung Kin-kwok to 9/F, 618, Nathan Road - the address of the Professional Teachers' Union - to find out from the appellant the particulars of those who were about to participate in the procession. Both officers were in uniform.

14. Senior Inspector Hon met the appellant with a group of persons in the 9/F lift lobby and asked him for his identity Card. He had not met him before and wished to establish his identity. He also wished to take down the identity card numbers of those intending to take part in the procession to establish how many people were participating. He thought it better to do this off the street to avoid causing obstruction on a busy Saturday afternoon.

15. The appellant ignored Senior Inspector Hon, but Mr Hon explained that, according to the immigration laws, the appellant was required to show proof of his identity. The appellant still ignored him and entered the lift. Inspector Cheung said "Why don't we ask him in the street?" Senior Inspector Hon did not pursue the matter for the time being, but reminded the appellant in the lift that he could not collect money or use loudhailers without a permit.

16. Ten minutes later, in the street, he again asked the appellant for his identity card and this time the appellant produced it. He also gave his address and telephone number.

17. The procession then set off along Nathan Road towards Argyle Street. About ten people in the procession wore white T-shirts, on which the Chinese characters for "Democratic Political System" were printed. Others wore ordinary clothes and some carried cameras. The press and television were also well represented.

18. The police party, consisting of ten officers in uniform, plus several detectives, followed the procession and, when it reached Wing Lung Bank at 2:15 p.m., a loudhailer was used by the appellant to broadcast messages and to solicit donations. During the next 30 minutes or so money was deposited in a collection box by people in the vicinity. Senior Inspector Hon asked the appellant if he had a permit to collect money and he said "no". Senior Inspector Hon warned him to stop raising money and using the loudhailer but, as he wished to avoid a confrontation, made no attempt to effect seizures or arrests.

19. At about 2:45 p.m., at Argyle Street, Senior Inspector Hon told PC 1091 to take down the particulars of the people wearing white T-shirts, who, in his view, may have been aiding and abetting the appellant.

20. As they were walking along Sai Yeung Choi Street, PC 1091 examined their identity cards and recorded the particulars of two persons, who were cooperative. In Soy Street, as he was about to ask a third person for his identity card, the appellant approached, stood in his way and asked him why he was asking for identity cards. He then pulled that person away from the police constable.

21. PC 1091 asked Senior Inspector Hon what he should do and was told to continue checking identity cards. He caught up with the procession again outside 596 Nathan Road and stopped a third person with a request to see his identity card. The appellant again came up and pushed away the person that PC 1091 was about to question. He took a loudhailer from someone in a white T-shirt and made an announcement in the following terms:-

"I request the police not to check my friends' identity cards. I don't want them to run any political risks. There are so many people in the street, why do the police only check my friends' identity cards? I now appeal to my friends, if the police officers ask you for your identity cards again, I request you to take off your T-shirts immediately and to stop your work. I am willing to bear all legal responsibilities. The purpose of the police checking identity cards is to pick on weapons and illegal immigrants. The police powers in respect of searching people are too extensive. This matter is worth reviewing."

22. Senior Inspector Hon then told PC 1091 that he should cease trying to record particulars of identity cards but should continue to follow the procession.

23. At Dundas Street Senior Inspector Au Chi-kwong took over the task of escorting the procession from Senior Inspector Hon. He saw and heard the appellant broadcasting political messages through the loudhailer. He also saw a woman putting money into a collection box carried by another member of the procession.

24. Senior Inspector Au asked the appellant if he had a permit to collect money. The appellant said that the police should protect the goldsmith shops and not bother him.Senior Inspector Au repeated the question but the appellant walked away.

25. That was the evidence.

26. NKS 7301

27. Section 4 (17) of the Summary Offences Ordinance, Cap. 228, provides:

28. Any person who without lawful authority or excuse ...

... shall be liable to a fine & $500 or to imprisonment for 3 months.

29. Mr Lee, who appears for the appellant and also appeared below, submits that the purpose of this subsection is to regulate collections for charitable and welfare purposes and that it does not apply to political donations. This, he says, is because there was a time when only beggars and charities solicited money in the streets. Beggars can be dealt with under section 26 A and B of the ordinance. The mischief at which subsection 17 is aimed, according to Mr Lee, is too frequent collections by charitable organisations and he asks the court to apply to it a purposive interpretation.

30. It may be helpful to look at the history of this provision. It came into being as a 1936 amendment to the 1932 Summary Offences Ordinance in these terms:

31. It was replaced in 1949 by the following:

32. That in turn was replaced in 1975 by the present subsection.

33. Mr Lee suggests that the power to issue permits was transferred from the Commissioner of Police to the Director of Social Welfare because those who collected money outside the jurisdiction of the Social Welfare Department could be disciplined by the obstruction laws. I fail to see the distinction; all those who collect money in the street are liable to cause obstruction. Proper control of all such activity can be achieved only by means of permits.

34. The reason why control has passed to the Director of Social Welfare is that, in practice, permits are granted only in respect of collections for charitable purposes.There is nothing strange about that. Were it not so the department would be swamped by applications to collect for every imaginable project.

35. The fact that the Director of Social Welfare has drawn up guidelines confining applications to charitable purposes, and that he has indicated that non-charitable organisations need not trouble to apply, is consistent with that approach. They are not, as Mr Lee suggests, a fatal straitjacket. If the Director decides to so restrict his discretion, he is entitled to do so.

36. Counsel have spent much time debating whether a church is a public place and, if so, by what authority, if any, are collections taken. The right of a District officer to authorise collections by Mutual Aid Committees in Housing Estate corridors has also been canvassed. But whether or not such collections are lawful does not affect the question whether or not the appellant has committed an offence.

37. Nor can it assist the appellant that the Director's refusal of a permit was received by him only an hour before the procession and that the reasons for the refusal were not communicated to him until 22nd January.

38. That does not amount to an "excuse" for collecting without a permit. It would have been open to the appellant to postpone the precession if he wished to challenge the Director's decision in the High Court on the basis that he had not acted reasonably and in good faith.

39. Mr. Lee's final point was that a narrower and more restrictive meaning should be given to the subsection by construing "or" conjunctively. That, with respect, would defeat its purpose; a money collector without a permit would only have to make sure he did not sell any badges in order to avoid prosecution. That cannot be right.

40. The wording of this provision is clear and explicit and the appellant was in flagrant breach thereof.

41. NKS 7302

42. Section 17C provides:

(1)         Every person who -

shall have with him at all times proof of his identity.

 

(2)        A person who is required by subsection (1) to have with him proof of his identity shall on demand produce it for inspection by -

(a)		any police officer;
(b)		any immigration officer or immigration assistant; or
(c)		any person or member of a class of persons authorized for the purpose by the Governor by order published in the Gazette,

 

(3)       Any person who fails to produce proof of his identity for inspection as required by subsection (2) commits an offence and is liable on conviction to a fine of $1,000:

 

            Provided that it shall be a defence in proceedings for an offence under this subsection for the person charged to prove that he had reasonable excuse for failing to produce proof of identity.

43. Mr Lee submits that it cannot be intended that this section should apply in a situation such as this, where a police officer does not suspect that the person in question has committed an immigration offence. He says that the police have ample powers to obtain particulars of identity under the Police Force Ordinance and the Public Order ordinance. The ordinance being "to consolidate and amend the law relating to immigration and deportation" and Part IV A being capable of being discontinued by an order in the Gazette, he argues that it is wrong that the police should receive additional powers, unconnected with an investigation into immigration offences, by a side wind. Mr lee prays in aid Section 19 of the Interpretation ordinance, which provides:

44. Mr Lee admits that there is no patent ambiguity in Section 17, but submits that, when the consequences of applying the literal meaning are examined, it is apparent that they are not in accordance with the objects of the ordinance, in the sense that the ordinance is concerned solely with immigration matters and is not meant to assist the police in their ordinary police work.

45. On the contrary, Mr Lee argues, Part IV A was brought into operation only because of the influx of illegal immigrants from China. That is certainly correct, but the question is whether, now that it is in place, it can be used by the police for purposes unconnected with investigations into immigration offences.

46. In support of a strict and narrow interpretation Mr Lee prays in aid several authorities dealing with statutory ambiguity, including David v. de Silva [1934] AC 106, East Coast Amusement v. British Transport Board [1965) AC 58 and R v. Clarke [1985] A.C. 1037.

47. I see no ambiguity in this section and I do not think that these cases assist. It is probably true that, if illegal immigrants ceased to come to Hong Kong, the section would be discontinued. That does not seem to me to be a sufficient reason for not giving the words their ordinary meaning.

48. The only authority that, at first blush, seems to assist the appellant is Willcock v. Muckle [1951]2 K.B. 844. In that case a specially constituted Divisional Court of seven judges held that the National Registration Act, 1939, which was passed for security purposes and which empowered the police to require a person to produce his identity card on demand, had not been repealed by an order in Council declaring the "emergency" to be at an end. The court, per totam curiam, criticised the practice of police officers using the powers for purposes for which they were never intended. At p.851 Lord Goddard C.J. said this :

"Secondly, the court wishes to express its emphatic approval of the way in which they acted in granting the defendant an absolute discharge. Because the police may have powers, it does not follow that they ought to exercise them on all occasions or as a matter of routine. From what Mr Gattie has told the court it is obvious that the police now, as a matter of routine, demand the production of national registration cards whenever they stop or interrogate a motorist for whatever cause. Of course if they are looking for a stolen car or have reason to believe that a particular motorist is engaged in committing crime, that is one thing : but to demand production of the card from all and sundry, for instance, from a woman who has left her car outside a shop longer than she should, or on some trivial occasion of that sort, is wholly unreasonable. This Act was passed for security purposes; it was never passed for the purposes for which it is now apparently being used.  To use Acts of Parliament passed for particular purposes in wartime when the war is a thing of the past - except for the technicality that a state of war exists - tends to turn law-abiding subjects into lawbreakers, which is a most undersirable state of affairs."

49. But that criticism related to the manner in which the police exercised their power to demand identity cards it did not query the existence of the power.

50. It may be that Senior Inspector Hon had power to require production of  proof of the appellant's identity without recourse to the Immigration Ordinance. That has not been fully argued. It would not be proper for me to criticise Mr Hon for not having waited until the appellant and his party had descended to street level before making his initial approach. I am concerned only with the meaning of this section.

51. To quote Maxwell on The Interpretation of Statutes, "Where the language is plain and admits of but one meaning, the test of interpretation can hardly be said to arise".  Here the language is plain; the emphatic wording of the section, particularly the use of the word "shall", leaves me in no doubt that the power exists.

52. It is not the meaning of the words that Mr Lee calls into question; it is rather the consequences of the words that he finds objectionable. His only remedy, as I see it, is to seek an amendment to the ordinance.

53. Alternatively, Mr Lee submits that, even if Senior Inspector Hon had the power to require production of proof of identity, his request to the appellant did not constitute a demand and, if it did, it was suspended or withdrawn until the party reached the street.

54. When it became apparent that the appellant was not going to comply with Senior inspector Hon's request, Inspector Cheung suggested that the matter not be pressed on 9/F, in order perhaps to avoid an acrimonious confrontation.

55. I see no merit in Mr Lee's suggestion that the appellant was entitled to defer production of his identity card on the basis that the reason for Senior Inspector Hon's request was to identify those about to participate in the procession. Section 17C does not qualify the duty of a person who is required to have with him proof of identity :  he must produce it on demand. If he does not have it with him, he should be given a reasonable opportunity to produce it. If, on the other hand, it is in his pocket, he has no excuse for not producing it.

56. I am satisfied that Senior Inspector Hon made a lawful demand for proof of the appellant's identity and that he failed to produce it. The fact that he complied with a subsequent demand downstairs, 10 minutes later, is irrelevant.

57. NKS 7303

58. At the commencement of the trial Mr Lee asked for particulars of the public duty in which PC 1091 was alleged to be engaged. Mr Coghlan, representing the Crown at trial and on appeal, said "It would be a matter of evidence, the duties of the police officer were to preserve the public peace and to prevent and detect crimes amongst others.". Mr Lee was not satisfied with those particulars, but the magistrate ruled that they were sufficient.

59. In his address to the magistrate Mr Lee complained that it was unclear which acts the prosecution was relying upon as obstruction and submitted that "to require the defendant to answer two aspects is tantamount to duplicity.".  He added later that "the only way to overcome this difficulty is to say that they are so closely connected to each other that they in fact amounted to one transaction.".

60. On appeal Mr Lee submitted the information was duplicitous, not on the face of the charge, but because it supported more than one offence, namely different acts of obstruction.

61. In R. v. Merriman [1972] 56 C.A.R. 766 Lord Morris of Borth-y-gest said at p.776:-

"It will often be legitimate to bring a single charge in respect of what might be called one activity even though   that activity may involve more than one act. It must, of course, depend upon the circumstances."

62. It was not alleged that Senior Inspector Hon was obstructed, only PC 1091, whose duty it was to take down the particulars of the people in white T-shirts. The evidential basis for this allegation lay in the two pushing and pulling incidents and the subsequent loudhailer appeal to take off the T-shirts. The appellant cannot have been under a wrong impression as to the charge against him.

63. All these acts may be considered a single enterprise amounting to obstruction. In my view the magistrate had it absolutely right when he said in his Statement of Findings:-

64. It is said next that the appellant did not possess the necessary mens rea and in particular that, while the announcement may have had the effect of making it more difficult to identify those in the procession, that was not the appellant's intention; he was merely giving them the opportunity of stopping work and going home.

65. The magistrate however found as a fact that it was the appellant's intention to confuse PC 1091, to make it more difficult for him to distinguish the members of the procession without their T-shirts.

66. But, whether or not the magistrate was entitled to come to that conclusion, the pushing and pulling was done plainly in order to prevent the police constable examining identity cards. That brings his conduct within the meaning of obstruction stated by Lord Goddard C.J. in Hinchliffe v. Sheldon [1955]1 WLR 1207, namely making it more difficult for the police to carry out their duties. I am satisfied the appellant was also properly convicted on this summons.

67. The appeal against conviction on all three summonses is dismissed.