THE QUEEN v. MA KUI

Headnote

Loitering - need for strict proof - what is a "satisfactory explanation" - should request for an explanation be coupled with accusation of committing another offence.

(Appellate Jurisdiction)

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JUDGMENT

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Preliminary

1. The appellant was convicted on the 28th February 1985 of an offence under Section 160(1) of the Crimes Ordinance Cap. 200 in that on the 14th January 1985 he loitered in Un Chau Street, Kowloon, and did not give a satisfactory account of himself and of his presence there. The appellant was represented by Miss Ada Chan, the duty lawyer under the Law Society's Legal Advice and Duty Lawyers Scheme. He pleaded not guilty. He now appeals against that conviction. He was unrepresented.

The prosecution evidence

2. The only evidence for the prosecution was that given by Constable 20422, TAI Ka-ming, of the Sham Shui Po Action Squad.

3. He said that on the 14th January at about 8.50 p. m. he was outside No. 35 Un Chau Street in plain clothes. He saw the appellant who "was looking round and into the building" and became suspicious. He watched the appellant and after a minute saw him "tamper with letter boxes on the grille of the 4th floor, 35 Un Chau Street with his right hand". While the appellant was doing this somebody came to the gate and opened it, the appellant "withdrew his hand" and walked on towards Nam Cheong Street. The constable said that he saw an envelope in the letter box "tampered with” by the defendant. He then stood outside the staircase of 17 Un Chau Street and again looked round. After about 3 minutes he turned and again "tampered with letter box on the grille of the 2nd floor, 17 Un Chau Street with his right hand". Again the constable said he could see a white envelope in the box.

4. The constable then went up to the appellant, revealed his identity and searched him. Nothing was found, but he asked the defendant his name and address which he gave as Ma Kui, living at 3rd floor, 21 North Point Road and he said he was a cook in the Fai Ling Wah Restaurant in Chai Wan, Hong Kong. When asked what he was doing, he said that he was trying to find a prostitute and he thought he could find one in the vicinity. He was then asked why he tampered with the letter box on the 4th floor, 35 Un Chau Street with his right hand and the reply was, "No, it is so late at night, you will be mistaken". He was then asked why he tampered with the letter box on the 2nd floor of 17 Un Chau Street and he again denied doing so. The constable said that he then "warned the defendant to rive a satisfactory explanation as to why he tampered with the two letter boxes or he would arrest him for loitering". He received the answer, "Ah Sir, give me a chance". The appellant was then arrested and cautioned. He said nothing in reply.

The defence evidence

5. The appellant has a clear record and is aged 41. He gave evidence and said that he was a cook earning $3,000.00 a month. On the day in question after finishing work at 5.30 p. m., he went home, had a bath and a rest and at 7.30 p.m. he went to the Lai Yuen Recreation Park in Kowloon to see a Chinese opera. He could not get in and so eventually he decided to go to Un Chau Street for a walk. He also said, "He thought he could call for a prostitute if there was any', but he did not do so and is recorded as saying in court, "Did not call for one, not suitable". He said that constable Tai, who was in company with two other officers, came up to him and accused him of tampering with people's letter boxes. This he said he denied. A second constable then asked for his identity card which he gave to him. He was asked where he lived and he gave his address in North Point and was then asked why he did not get a prostitute in North Point. He denied asking for a chance when asked for an explanation as to why he interfered with letter boxes and said that in fact he did not do so.

6. That was the evidence and it would seem that, whatever the appellant's reasons were for being in Un Chau Street on the 14th of January, he was a very different figure from Keats "Knight-at-arms, alone and palely loitering".

Findings

7. The magistrate found the charge proved and bound the appellant over in the sum of $300.00 for 12 months and ordered him to pay costs of $300.00. He ordered that no convietion be recorded.

8. The magistrate said in his statement of findings simply that he accepted the evidence of the prosecution witness and rejected that of the appellant. He found that the appellant did tamper with the letter boxes and that when asked why he did so he denied it and when asked why he was in Un Chau Street he said that he was lookirg for a prostitute. The magistrate said in his statement of findings:

"The denial was an unsatisfactory account of himself and in the circumstances the  explanation regarding the prostitute was unsatisfactory. Accordingly, I found the appellant guilty as charged."

 

Background of this offence

9. The difficulty of dealing with personp who, while there was no sufficient evidence that they had committed any particular crime, were loitering in a public place possibly with the intention of doing so, has a long history. The Vagrancy Acts 1824-1935 provided that certain persons could be deemed idle and disorderly and on conviction became rogues and vagabonds. After a second conviction he became an "incorrigible rogue" and could be detained in prison for up to one year. Such persons were pedlars, common prostitutes, beggars and "reputed thieves". This came known as the "sus law" and it was considered in the U.K. by a Select Committee on Home Affairs in a report published in 1980. The report recommened that:-

"We are satisfied that it is not in the public interest to make behaviour interpreted as revealing criminal intent, but equally open to innocent interpretation, subject to criminal penalties.".

Similar views had been expressed by the courts regarding the use of the Vagrancy Acts where there was suspicious conduct but not a specific offence committed or attempted. In R. v. Dean (1924) 18 C. A. R. 133 Hewart, L. C. J. said:

"It would be in the highest degree unfortunate if in any part of the country those who are responsible for setting in motion the criminal law should entertain, connive at or coquette with the idea that in a case where there is not enough evidence to change the prisoner with an attempt to commit a crime, the prosecution may, nevertheless, on such insufficient evidence, succeed in obtaining and upholding a conviction under the Vagrancy Act 1824.".

That view was supported in R. v. Cadwell (1928) 20 C. A. R. 60. These cases were considered by Huggins, J. (as he then was) in R. v. Yan Ying Kuen (1963) H. K. L. R. 286 where he said that the facts of R. v. Dean were not stated, it being an appeal against sentence (as was R. v. Cadwell) and Hewart L. J. C. did not say it was wrong to bring the alternative charge if the facts properly supported it. However in R. v. Yan Ying Kuen dicta of Greer L. J. in Ledwith v. Roberts (1937) 1 K. B. 232 was followed in holding that "loitering" in a criminal matter should be given the restricted meaning of "idling for some unlawful purpose". The law in Hong Kong does not now support that view. Huggins, J. said, in dismissing the appeal:-

"This offence was created as a measure of preventive justice and it would be unfortunate if in a case like the present a man who was obviously intent on committing a felony were to escape punishment on the grounds that no attempt of the felony had been completed though the facts do justify a charge of loitering with intent.".

He was however considering a charge under Section 25(a) of the Summary Offences Ordinance, now repealed and replaced by Section 160(1) of the Crimes Ordinance. No such intent is now required.

10. Section 8 of the Vagrancy Acts was repealed by the Criminal Attempts Act 1981. There is a re-definition of what constitutes an attempt and there was a specific provision in Section 9 relating to persons interfering with motor vehicles, which was a particular problem. An attempt was defined, in Section l(1), as "an act which is more than merely preparatory to the commission of the offence". The Section also overcame the decision in Haughton v. Smith (1975) A.C. 476 that an attempt could not be an offence if the crime itself was in fact impossible to commit, i.e. the pickpocket putting his hand into an empty pocket - or an empty letter box.

11. The position in England therefore is that, with the exception of interference with motor vehicles, the prosecution must generally show an attempt to commit a particular offence which has been made easier to do. There are some acts which have local application which do empower a constable to require a satisfactory explanation for loitering at night (Liverpool Corporation Act, Section 531 and the Metropolitan Police Act 1839 Section 18). I don't know if they are now much used but, with the repeal of the Sus Act, I doubt it. The position in Hong Kong is that offence created by Section 160(1) is simply loitering in a public place and not giving a satisfactory explanation to a police officer for doing so. It is only in sub-sections 2 and 3 that a further ingredient must be present, either an obstruction or a menace to safety or well-being. It is for that reason that when the section was introduced in 1979 there was considerable disquiet expressed and assurances were given that each case would be carefully examined by a senior police officer before a decision was taken to prosecute. It is, however, clearly a section which places great power in the hands of police officers. The responsibility on them has been emphasised in the decision of the Court of Appeal in A. G. v. Chan Chin-hung (1980) H. K. L. R. 737. There the Crown argued that the explanation should be given to the magistrate, not to the arresting police officer who was not therefore obliged to call for one. The court did not agree and took the view which they considered most favourable to the citizen, at p. 739 Roberts C. J. said:-

"Furthermore in the absence of clear words, it is surely desirable to adopt that interpretation which best safeguards members of the public. If an offence is complete solely on the basis that a person is seen "loitering" he could therefore be arrested and brought before the court, without move. This would put innocent people at hazard and would be an unnecessarily wide power in the hands of the police.”.

That view would attract wide support but it does have a consequence which, it seems to me, is unfortunate. Roberts C. J. goes on to say at p. 740:-

"It may sometimes happen that a suspect gives to a police officer an explanation which is palpably unsatisfactory. Thereafter, when he is tried, he may give an entirely different explanation which the magistrate may find credible. In this event the defendant would nevertheless be guilty of the offence charged, though the magistrate might well take the view that no more than a nominal penalty, if any, should be imposed on the defendant.".

If therefore the defendant for some reasons gives the police officer an explanation which both the officer and the magistrate consider unsatisfactory even if the magistrate finds that in fact he did have a good reason for being in the area, the defendant is nevertheless guilty and must be convicted. A person may well, in a moment of panic when confronted by a police officer, blurt out a statement which is false or remain silent. However, even if he later convinces a magistrate that in fact he had a perfectly good reason for his presence he has still committed an offence. Such is the law and I cite the passage if only to show the extracrdinary powers it gives to police officers and the great care which must be exercised by all concerned to see it is not abused. A nominal penalty is still a conviction and even if that conviction is ''not recorded" it may still surface if the defendant, for instance, applies for a Crown job or wishes to emigrate (in my view wrongly; I consider that "not to be recorded" means exactly what it says). It is doubtful if evidence of an explanation, apart from the one given to the police officer, is even admissible. It would seem such evidence is not relevant.

12. Here the magistrate has found that the appellant did behave in the manner allegdd by the police constable, i. e. that he ''tampered" with the letter boxes. That is a finding of fact though it does seem somewhat strange that the constable on both occasions could actually see there was a letter in each of the boxes. He gave no evidence as to what sort of box it was, or whether there was any possibility of the appellant being able to extract the envelope from the box. What the magistrate has also found is that when the appellant was asked for an explanation as to why he tampered with letter boxes, coupled with a warning that unless he gave a satisfactory explanation for doing so he would be arrested for loitering, he denied doing so. The constable considered that was an unsatisfactory account of himself and he arrested him. The constable did not give any reasons why he came to that conclusion, but it does seem to me that if he is right a person who is under those circumstances asked for an explanation of such an act is very much on the horns of dilemma. If he says that he did not do what is alleged that is unsatisfactory, but presumably if he agrees that he did do the act, one would have thought, that would be even more unsatisfactory. The magistrate found that his explanation that he was in Un Chau Street at about 9 o'clock at night looking for a prostitute was also unsatisfactory. .Such an explanation may not show the  highest moral standards, but it does display a degree of candor, is not in itself unlawful and the constable did not specifically say he found it unsatisfactory.

13. What the prosecution were alleging was that on two occasions the appellant had attempted to steal letters from letter boxes. They did not consider they had enough evidence to prove an attempt, but brought the charge of loitering as an alternative. The magistrate has taken the perfectly commonsense view that the appellant was in Un Chau Street to try to steal from letter boxes, not to look for a prostitute, his explanation was untrue and therefore was unsatisfactory.

The Law

Loitering

14. To loiter means to "hang about" or to "linger on one's way" see Mok Chi-ho v. R. (1979) H. K. L. R. 118 per Yang, J. and Samuel v. Stokes (1973) A. L. J. R. 766 per Barwick, C. J. It is not an offence to loiter in a public place. Thousands of people in Hong Kong do that everyday perfectly innocently. The essential element before such loitering becomes an offence under Section 160(1) is failure to give a satisfactory explanation for presence in the particular public place when one is demanded by a police officer. In A. G. v. Tse Kam-pui (1980) H. K. L. R. 338 the facts were not dissimilar to those here. There the appellant was seen to touch a handbag and a pocket on a crowded tram-stop. when asked for an explanation he said he was waiting to board a Wanchia tram. There was evidence that he had in fact made no effort to board trams which were going to Wanchai. His explanation. was therefore not believed and was unsatisfactory. When the appellant here was told that notwithstanding his denials he would be arrested if he did not give a satisfactory explanation for tampering with letter boxes, perhaps not surprisingly, he just asked for a chance. The constable did say that when he first approached the appellant having asked him his name and occupation and receiving answers to that, he asked him what he was doing and the appellant replied he was looking for a prostitute. He was then asked about the letter boxes and he denied tampering with them.

15. In R. v. Tse Kam-pui the Court of Appeal held that, an explanation for a person's presence being called for, a warning need not always be given of the consequences if the explanation is not considered satisfactory. Here there was such a warning but it was as for an explanation as to the alleged tampering, which had been denied, not as to the appellant's presence in Un Chau Street. It was an accusation of attempted theft and, on the constable's evidence, which was accepted, the basis for a charge of attempted theft seemed to be present. If he had been so charged more evidence would no doubt have been called relative to the letter boxes and their contents and as to exactly what the appellant did in relation to them. In A. G. v. Tse Kam-pui it was not the touching of bags and pockets which was not satisfactory. That aroused suspicion but it was the explanation of waiting for a tram which was untrue therefore unsatisfactory and gave rise to the charge.

Satisfactory explanation

16. The question of what is a "satisfactory" explanation was considered by Hogarth, J. in the South Australian case of Mills v. Brebner (1962) S. A. S. R. 209 when considering similar legislation contained in Section 18 of the Police Offences Act 1953-61 S. A. He said:-

"I have come to the conclusion that the section is satisfied if a person in the position of the appellant gives a reason which is in fact true and lawful even though it does not convince a constable who puts the question and even if that constable is acting reasonably in remaining unconvinced.".

I think that is correct. It means firstly that the explanation might be true, the purpose stated is lawful. Also that even if it did not convince the constable the defendant is entitled to an acquittal if the magistrate is not satisfied it was untrue. As theses are criminal matters he must be so satisfied beyond reasonable doubt.

17. At first sight this seems to conflict with dicta of Jones J. in R. v. Ng Chun Wing and Ors. Cr. Appl. 959/1983 where he said:-

"The learned magistrate is bound by the explanation which he finds was given by the suspect to the police officer and not by his own interpretation as to whether he considers that the explanation given at the time was unsatisfactory.".

I can't agree with the second part of that statement, however he goes on to say:-

"Having made a finding upon the explanation given by the suspect the learned magistrate should then proceed to consider whether the police officer acted reasonably or unreasonably in rejecting that explanation.".

I am not sure what was meant by ''having made a finding on the explanation". If he finds it is, or might have been, true and lawful surely the police officer must have acted unreasonably in rejecting it. However I am sure the magistrate does have power, and indeed the duty, to look at the explanation given at the time and to decide if it might have been both true and the purpose was lawful. Tam Hong-sum v. R. Crim. App. 864/78 O'Connor J. said:-

"Whether he was at the time of his arrest unable to give a satisfactory account of his behaviour falls to be decided by the court and on taking plea the defendant should be asked did he or could he give a satisfactory account and his reply should be recorded in his own words.".

18. In practice I don't think there is any real conflict between these decisions. It must be for the magistrate to decide if the explanation given to the officer was satisfactory otherwise the court would be purely a rubber-stamp.

19. What makes this sub-section even more difficult to enforce and interpret is that the suspect, it would seem, is required to give two explanations, though of course they will usually be the same. He must "give a satisfactory account of himself" - and I can find no authority as to what that means -and also give an explanation for his presence. Failure to give either one is presumably enough to found a charge. A person could be convicted who gave a satisfactory account of himself but an unsatisfactory explanation of his presence and vice versa. It is perhaps not easy to envisage such circumstances but that is what the sub-section says and clearly the Legislature considered that a satisfactory account of oneself or a satisfactory explanation for one's presence was not enough - it must be both. One can only wonder how the ordinary police constable on the beat applies his mind to such considerations, and what words are in fact used when an explanation is called for.

Combination of loitering with another offence

20. The question of the propriety of combining what is in fact an accusation of a criminal offence with a demand for explanations under Section 160(1), which arises here, was considered by Corcoran, D. J. in Crim. App. 747 of 1984. There the alleged offence was possession of an article for use in the course of theft, a screwdriver, and the evidence was that the police officer said to the suspect:-

"if you can't offer an explanation why you are here at such a late hour and why in possession of a screwdriver I'll arrest you for loitering and going equipped.".

Corcoran, D. J. ruled that the combination of the warnings were not fatal to a prosecution under either section. He held that the test was simply whether the suspect is afforded an opportunity to give an explanation. The appeal was by way of case stated and it seems to me that a fundamental objection was not raised and therefore not dealt with. If a suspect is in effect told he is suspected of committing an offence he should be cautioned and has the right to remain silent. If, however, he is at the same time asked for an explanation for his presence and told that failure to give one will result in his arrest for loitering that right is taken away. If he remains silent he automatically commits the loitering offence even if he has a satisfactory explanation for his presence which he gives to the magistrate, if allowed, and he is believed. This point does not seem to have been raised in R. v. Ma King Tim and I am not at all sure the decision would have been the same if it had been. In my opinion where a police officer has evidence of the commission of an offence or of an attempt to commit an offence, as here, the suspect should not be asked for an explanation for his presence with a view to a charge under Section 160(1). In Ma King Tim having cited the relevant decisions such as R. v. Ng Yuk-sin Cr. App. 997/1979, R. v. Ng Kwan-cheung and Ors. Cr. App. 69/1980,R. v. Tse Kam-pui and R. v. Ng Chun-wing, Corcoran, D. J. said:-

"Section 160(1) does not expressly require a police officer who approaches a suspect with the section in mind, to inform the suspect of the basis of his suspicion when asking for an explanation .......... if such a requirement was to be implied I would have expected a reference thereto in one or other of the judgments delivered in the cases above cited.”.

I agree. But what if the officer does, in effect charge the suspect with an offence or attempt to commit an offence.

Corcoran, D. J. went on to say:-

"There was nothing wrong in the constable referring to the lateness of the hour and the screwdriver in asking the defendant for an explanation.".

Each case must be treated on its own facts but it seems to me that if the officer does refer to the acts which have made him suspicious in such a way as to cause the suspect to believe he is being accused of an offence, he is quite justified in remaining silent and such silence should not then be put forward in support of a Section 160(1) charge. Here I consider "Give me a chance" as tantamount to silence. In my view when a police officer sees a person acting suspiciously he should decide either there has been an offence committed or an attempt. There is then no need to resort to Section 160(1) as it is so easy to do. If the acts are not sufficient for a specific charge the suspect should be simply told he has been under observation and he is required to give an account of himself and of his presence - plus normally a warning of the consequences of failure to give a satisfactory account.

Decision

21. This is a controversial and difficult section for both the police and the courts. It places enormous responsibility on police officers because their evidence will normally be believed and the charge is proved by their evidence alone. Here the evidence was that the appellant tampered with letter boxes by putting his hand inside them. There were letters in the boxes. If he had been charged with attempted theft. Better evidence would no doubt have been called as to exactly what he aid in relation to the letter boxes. The evidence was vague because the charge was loitering, not attempted theft. The sub-section, as drafted and interpreted, is draconian. It should, in my view, be therefore given a strict interpretation. Here, having given his correct name, address and occupation, the appellant was first of all asked for an explanation as to his presence in Un Chau Street. He said he was looking for a prostitute. The constable did not say he found that unsatisfactory, even if it could be inferred he did. He was then asked for an explanation for his tampering with letter boxes, which he had already denied, and was warned that an unsatisfactory explanation would result in his arrest for loitering. He then simply asked for a chance which was not in my view under the circumstances an admission of anything - and was arrested for loitering. That was not enough to constitute being called on to account for himself. It was an accusation of committing the offence of attempted theft. The appellant was entitled to remain silent or to simply deny it.

22. For the reasons given I consider charges under this section should be strictly proved and that was not done here. I allowed the appeal and ordered that the costs, if paid, should be remitted.