LAM SHING CHOW v. THE QUEEN

Criminal Law - fighting in a public place - whether common corridor on 12th floor of a private building a "public place" - Held: 1. Neither public nor a section of the public were permitted access to the common areas of the private building; 2. Persons other than owners and occupiers who lawfully entered the building do so not as members of the public or as a section of the public but as invitees or licensees of the owners or occupiers; 3. Appeal upheld; conviction quashed - Sections 2, 25 Public Order Ordinance, Cap. 245, Section 2 Summary Offences Ordinance, Cap.228.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 183 of 1985

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JUDGMENT

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1. Is the common corridor of the 12th floor of a private residential building a "public place" for the purposes of Section 25 of the Public Order Ordinance, Cap. 245? If the common corridor is not a public place the appellant's conviction imposed on18th January 1985, for fighting in a public place, must be quashed. If it is a public place the appeal must be dismissed.

2. The appellant and the alleged victim, Mr. Au Shui-man, are neighbours who live in adjoining premises on the 12th Floor of Block E, 37 Belcher's Street, Hong Kong. Both are apparently religious persons. The appellant in accordance with his religious principles had for some years placed spiritual tablets above his front door. One was called Blessing from God of heaven and the other God of Earth. At his front door' there were also some joss stick pots. The appellant's neighbour was a practising Christian. On the morning of Guy Fawkes Day 1984, the neighbour was leaving his home to go to work when he saw the appellant is near the spiritual tablets. The neighbour told the appellant that while he recognised the appellant's right to display the spiritual tablets they were not good to look at and the joss sticks might cause a fire.

3. A dispute then developed between the two men culminating in force being used. The appellant then went down to the caretaker's office to phone the police. But the caretaker stated that he was unable to do so and eventually the caretaker made the call and the police arrived. As a result the appellant was charged with assault causing actual bodily harm contrary to the common law and Section 39 of the Offences Against the Person Ordinance, Cap.212. Later the particulars of the charge were amended to fighting in a public place. Unfortunately the statement of the offence was not altered but it was common ground that the amended charge was brought pursuant to Section 25 of the Public Order Ordinance and the appeal proceeded on that basis. At the trial in the Court below the appellant was convicted and fined $500.

4. On appeal it was submitted that the offence had not been established because where the fighting occurred was not a public place. "Public place" is exclusively defined in Section 2 of the Public Order Ordinance as:

"'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."

5. The latter part of the definition reflects the long title of the Ordinance which relates to the maintenance of public order, the control of organisations, meetings, places, unlawful assemblies and riots.

6. Counsel for the appellant submitted that the common corridor formed part of a private building supervised by a caretaker. The public were not entitled to admission to the building. I was referred in contrast to R. v. Mok Chi-ho (1979) HKLR 118, the most recent reported decision on the meaning, of "public place" in the Ordinance in that decision Yang, J., in the absence of English and Hong Kong decisions, comprehensively considered Canadian, Australian and New Zealand authorities in holding that if a person in a private car driven on a public road, was in possession of offensive weapons, he was in possession of those weapons in a public place. That decision is of no direct assistance in the present appeal except to emphasise that the common corridor being within private premises was factually very different to a passenger in a car driven on a public road.

7. I was also referred to R. v. Chan Yuk-chun (1965) HKLR 693 where the following more detailed definition of "public place" in Section 2 of the Summary Offences. Ordinance, Cap.228 visa considered:

"public place" includes all piers, through fares, streets, roads, lanes, alleys, courts, squares, archways, waferways, passages paths, ways and places to which the public have access either continuously or periodically, whether the same are the property of the Crown or of private persons.'

That is a very much wider definition than the public Order Ordinance definition. However, even in respect of that wider definition Huggins J., as he then was, held that it was not sufficiently wide to include a department store.

8. I was finally referred by Counsel for the appellant to Pugh v. Knipe (1972) Cram LR. 247 where the Queen's Berch Divisional Court held that the car park of a private club was not a "public place" for the purposes of the Road Safety Act 1967. The fact that member's of the club, their guests and visitors were permitted to use the car park did not turn the car park into a public place, for a those classes of persons did not constitute the public.

9. Crown Counsel also very properly and helpfully referred me to Edwards (1978) Cr.App.R 228 where the English Court of Appeal held that under the Public Order Act 1936 th4 front garden of a private house was not a public place. In upholding the appeal Bridge L.J. declared

"... 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 the private premises if they have some lawful occasion for so doing."

Applying that authority, it was later held in R. v. Heffery (1981) Crim.L.R.111 that a common landing in an apartment building was not a "public place" in respect of a charge in relation to the possession of a weapon in a public place. The Court observed that it was offensive to the common sense interpretation of the English language to hold that such a landing was a public place.

10. I now turn to consider the definition of "public place" in the Public Order Ordinance, in the light of those authorities. The undisputed evidence is that No. 37 Belcher's Street is a private building. The individual private premises of the appellant and his neighbour are situate on the 12th floor of that building. I infer that the other floors are similarly occupied. The building is supplied with a caretaker. I also infer that as commonly occurs in Hong Kong in the case of multi-occupied private buildings access to the individual premises of the occupiers is obtained by corridors, staircases and lifts within the building which are shared in common with the occupiers.

11. 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.

12. 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.

13. In these circumstances I am satisfied that the common corridor on the 12th floor of these private premises was not a public place within the meaning of Section 2 of the public Order Ordinance. Accordingly, the offence of fighting in a public place contrary to Section 25 could not; as a matter of law; have been committed in that corridor. The appeal must therefore be upheld and the conviction quashed.