THE QUEEN v. YIP KIN KWOK

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HEADNOTE

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CROWN LANDS ORDINANACE - INTERPRETATION OF "AUTHORISED PERSON"

SINGLE JUDGE SITTING ON AN APPEAL FROM A MAGISTRATE HAS NO POWER TO AMEND CHARGE AND ENTER CONVICTION.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 62 OF 1990

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JUDGMENT

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1. The appellant pleaded not guilty before Mr D.I. Thomas to two charges of common assault. The magistrate heard evidence from Mr B.E. Patching (PW1), and LAW Kam-pui (PW2) both employees of the Hong Kong Government in the District Land Office in Sai Kung. PW1 is an Estate Surveyor and PW2 is a Land Executive. The defendant is the son of YIP Chi-hoi, the proprietor of Hoi Tai Tourist Service Company which has its depot on the site held by the father, being part of a parcel of land known as DD214 Ho Chung, Sai Kung. The land was subject to a waiver for agricultural use. PW1 gave evidence of YIP Chi-hoi having applied for a waiver to enable him to operate a bus company from the site. There had been friendly discussions between the Land Office and YIP Chi-hoi concerning the leasing of an adjoining piece of land for the purpose of parking his buses. He had made an appointment with the District Land Office to further discuss the matter on the afternoon of the 19th July 1989.

2. On the morning of the 19th July 1989 PW1 was travelling to his office when he saw that a structure, large enough to hold a bus, had been erected on the land still designated for agricultural use. He was aware that this was not permitted without permission and that the permission had not been granted. He decided to visit the site to ascertain the position before the proposed meeting later that day. At his office he asked PW2 to join him and they went together to the site in PW2's car. The gate to the site was open and they drove through YIP Chi-hoi's land to the adjoining land. It was PW1's evidence that the structure was erected partly on Crown land and partly on private land. PW2 was carrying with him a warrant card which had been issued by the Buildings and Lands Department stating that he was authorised by the "Authority" to "enter and inspect lease land occupied under a licence and any structure thereon at any reasonable time for the purposes of section 13 of the Crown Land Ordinance, Cap. 28". The appellant who was at the site was shown this warrant card. The appellant demanded the return of two photographs which PW1 had taken of the site. When this request was denied, the appellant refused to let the two men leave and he locked the entrance gate. He had with him at the time four dogs, one being a great Dane. The appellant then returned to his office and PW1 and PW2 went into that office and asked to use the telephone. The appellant unplugged the telephone and used foul and abusive language. PW1 and PW2 returned to the car, followed by the appellant, who pushed the side mirrors out of alignment. Eventually the photographs were handed over and PW1 and PW2 were able to leave the site and return to the office. They had been detained against their will for 15 to 20 minutes. Later on the day the appellant's father returned the photographs to the Land. Office.

3. On a submission of no case to answer, the magistrate found that the dogs had not been used to intimidate the prosecution' witnesses, that the appellant was under no obligation to let them use his telephone and that the use of abusive language and the realignment of the mirrors did not constitute an assault. He ruled that the Crown had not made out a case to answer on a common assault charge. He was, however, of the view that there was a case to answer on a charge of obstruction of PW2 in the performance of his duty, contrary to section 16 of the Crown Land Ordinance. He therefore substituted the following charge for the two charges of common assault :- "That you YIP Kin-kwok on the 19th July 1989 at DD214 Ho Chung, Wor Hoi, Wor Mei, Sai Kung obstructed LAW Kam-pui, an authorised person of the Lands Department from performing his duty, contrary to section 16 of the Crown Land Ordinance, Cap. 28". The magistrate then followed the procedures laid down in section 27(4) of the Magistrates Ordinance, Cap. 227 relating to amended charges. He did not include reference to PW1 in the substituted charge as no evidence had been presented establishing PW1 as being a person authorised in writing by the authority to exercise the powers contained in section 13 of the Crown Land Ordinance on the 19th July 1989. The appellant was then granted an adjournment to consider the position. On the adjourned date the appellant did not give evidence or call witnesses. The magistrate found that the locking of the gate by the appellant was an act which made the performance by PW2, a public officer, of his duty more difficult and onerous and that the appellant was aware of this. He accordingly convicted him on the substituted charge.

4. The 1st ground of appeal is that the magistrate misdirected himself as to the meaning of the term "an authorised person" in the Crown Land Ordinance and that upon a true construction of the meaning of the term, the appellant committed no offence. Section 16 of the Ordinance states, "any person who obstructs an authorised person exercising any power, performing any duty, or carrying out any function under this Ordinance shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for six months".

5. Section 13 of the same Ordinance states, inter alia, that for the purposes of ascertaining whether there has been a breach of a Crown lease or licence for the purposes of section 12 (1) any public officer authorised in writing by the authority may, in pursuance of his authority, enter and inspect the land and any structure thereon at any reasonable time and may also carry out any interview or inspection. "The Authority." referred to in sections 12 and 13 as set out in the Schedule to the Ordinance is the Director of Buildings and Lands or the Director of Housing.

6. It is not disputed that PW2 was a public officer authorised in writing by the authority. However, Mr Hampton for the appellant argues that PW2 was not an authorised person under the provisions of section 16.

7. Authorised person is defined in section 2 of the Ordinance. as follows :-

"Authorised person means any public officer, or other person, acting on the direction of the authority given under section 6(2)(2a) or (4a) or section 12(2) and any public officer or other person assisting any such public officer or person."

8. Section 6(1) provides that where unleased land is occupied otherwise than under the licence or deed or memo of appropriation, "The authority" may give notice requiring such occupation to cease by a certain date. Where the notice is not complied with, any public officer, or other person, acting on the direction of the authority can, pursuant to section 6(2) or (2a) enter and remove persons or demolish structures. (4a) is a penal provision. Section 12(2) gives similar powers when a notice given under section 12 (1) is not complied with.

9. It is Mr Hampton's submission that the wording in the definition of authorised person in section 2 lends itself to only one interpretation; that is, a person, be he a public officer or other person, who was acting on the direction of the authority given under section 6(2)(2a), (4)(a) or section 12(2). As it is clear that PW2 was not, on the 19th July 1989,' acting pursant to any direction given under these sections, the appeal must succeed if Mr Hampton's submission is correct.

10. Mr Schapel for the Crown argues that authorised person refers to two separate groups of persons; first "any public officer" and secondly, "any other person acting on the direction of the authority given under section 6(2)(2a), (4a) or section 12 (2)". He argues that while the term "any public officer" does cover all persons in the employ of Hong Kong Government, the situation is controlled by the provision of section 16 of the Ordinance which restrict the offences of obstruction of any authorised person to those exercising any power, performing any duty or carrying out any function under the Ordinance. He concedes that to adopt this interpretation would allow in theory any public officer without a direction from the authority to enter land and remove people and demolish structures, once a notice under section 6(1) or 12(1) had expired, but argues that for practical purposes this would never happen. I do not agree that the definition section can be interpreted in this way. This is a penal provision which has to be interpreted strictly and if there is any ambiguity, then the definition must be interpreted in favour of a defendant. If the legislature had intended to include a public officer authorised in writing by the authority acting under section 13 to be included in the definition of "authorised person", it would have been a simple matter to achieve this by either removing the-comma after "or other persons", or by putting the words "or any public officer" after the reference to other persons acting on the direction of the authority given under section 16(2x) or (4a) or section 12(2), or simply by including reference to section 13 in the definition.

11. In my judgment, authorised person in section 2 refers only to those persons, be they public officers or other persons, who have been given a direction by the authority under the sections referred to and does not extend to public officers generally. As PW2 was not an authorised person within the definition of section 2, the appellant could not on the 19th July 1989 have committed the offence charged under section 16 of the Ordinance.

12. It cannot be said that such an interpretation leaves the Crown without remedy if an officer acting under the powers in section 13 is obstructed. Section 23 of the Summary Offences Ordinance provides :-

"Any person who resists or obstructs a public officer or other person lawfully engaged, authorised or employed in the performance of any public duty or any person lawfully assisting such public officer or person therein shall be liable to a fine of $1,000 and to imprisonment for six months."

13. It would therefore have been in order for the magistrate to substitute a charge under section 23 for the original common assault charges.

14. I was asked by the Crown, in the event of my finding that the appeal succeeds on the first ground, to enter a conviction for an offence contrary to section 23 of the Summary Offences Ordinance. This point was not fully argued and I agreed with a request from Mr Hampton, to allow full argument on it after my ruling on the first ground of the appeal. This, I will now proceeded to do.

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             The Crown concedes that I have no power to substitute a conviction on an amended charge laid under S.23 of the Summary Offences Ordinance. I do have a discretion to amend the charge and direct for it to be heard de novo before a magistrate or to send the case back to the Magistrate with my opinion as to the correct charge, in which event the Magistrate, can if he thinks fit amend under S.27 and hear the case de novo (see Fai Ma Trading Co Ltd v. L.S. Lai M.A. 516/87). However, having regard to the history of the matter and the minor nature of the case, I consider the interests of justice will best be served by simply allowing the appeal and quashing the conviction.