HKSAR v. WOO CARRIE

HCMA 1229/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1229 OF 2004

(ON APPEAL FROM FLS 9237/2004)

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J U D G M E N T

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1.  The Appellant was convicted, after a trial during which she represented herself, as she does in these proceedings, of a single offence contrary to section 4(1) of the Noise Control Ordinance,  Cap. 400.  That section provides:

“	(1)	Any person who between the hours of 11 p.m. and 7 a.m., or at any time on a general holiday in any domestic premises or public place makes or causes to be made any noise which is a source of annoyance to any person commits an offence.
		whilst subsection (3) provides for a penalty of a fine up to $10,000.  For the purposes of this Ordinance an annoyance is such if the noise would not be tolerated by a reasonable person.”

2.  The offence occurred in the early hours of the morning of 13 July 2004.  The evidence which the Magistrate heard has all the hallmarks of a dispute between neighbours.

3.  The first witness, the complainant and occupant of a residence situated some 12 feet away from the Appellant's residence, testified how she had been disturbed by loud music emanating from the Appellant's premises at around 9 p.m. on the evening of the 12 July 2004.  After midnight, therefore into the morning of 13 July 2004, she still heard the music which was being played very loudly and which prevented her from sleeping.  At this stage she made a report to the police.  The police arrived and went to the Appellant's house.  There was then a period of quiet.

4.  Her evidence in this regard was supported by that of the fourth prosecution witness a police officer who confirmed that he had responded to the first complaint a little after midnight; that he had heard “a little bit” of loud music from the Appellant's residence; that he had seen and spoken to the Appellant telling her of the complaint about the music; that he warned her that if she did not moderate the volume she may be summonsed; and that, although the Appellant had not replied to him, she had turned down the volume of the music.

5.  The period of quiet, however, was short lived.  The first witness testified that between 2 and 3 a.m. she had seen the Appellant encourage her dogs to bark and then to stand on her own balcony shouting loudly about the fact of the earlier complaint to the police.  Thereafter the Appellant went back inside her house and increased the volume of the music.  As the first witness was disturbed by all of this noise she made a further report to the police at about 3 a.m..

6.  The second prosecution witness, another police officer, arrived shortly afterwards to investigate the complaint.  His evidence was that at a distance of some 20 metres from the Appellant's residence he had seen her standing on the balcony and heard her shouting about the police being called.  He described the music emanating from the Appellant's premises at that time as very loud.  He kept observation for some 20 minutes during which the loud music and the Appellant's shouting continued.

7.  He gained admission to the Appellant's house.  He found her to be very emotional.  He requested her to reduce the volume of the music, which she did.  Because of the Appellant's emotional state a woman police officer, who gave evidence as the third prosecution witness, was called to the scene.  She confirmed the Appellant's apparent emotional state and noted also that she was talking to herself.  Because of this an ambulance was summoned.  The Appellant refused to go to the hospital and also refused to produce any form of identification.  Because of the latter refusal she was arrested.  In due course she was summonsed for the present offence.

8.  The Magistrate accepted the evidence of the prosecution witnesses. 

9.  The Appellant gave evidence in her own defence.  She made complaint about the fact that the police had contacted her on numerous occasions in the past about noise emanating from the house: the Magistrate recorded that she disregarded the potential prejudicial effect of this complaint.

10.  The Appellant said that she had tried to go to sleep at about 9 p.m. on 12 July 2004 but had been unable to do so.  She had decided to do some work and listen to music as well as to drink some wine.  She had fallen asleep but awoke later to find police in her room.  This would have been the fourth prosecution witness who responded to the first complaint.  She claimed that she "did not know what was going on" and "could not hear" what the police officer said, yet the police officer’s evidence that she had turned down the volume of the music at his request was unchallenged.

11.  After his departure she drank more wine.  She was distressed as result of the events, could not sleep and felt unable to breathe.  At about 3 a.m. she went out on to her balcony and started talking to herself.  The police thereafter arrived.  She testified that she had refused to provide proof of her identity intentionally so that she would be arrested and charged: she told the Magistrate that she had followed this course of conduct so that she would be able to come to court to state her case. 

12.  The Appellant specifically denied having yelled out loud or having played music loudly.  The Magistrate rejected the Appellant's evidence.

13.  The Magistrate identified the fact that the issue was whether the noise, in the form of music and shouting by the Appellant, was made or caused by the Appellant such as to cause annoyance to the first witness.  She did not need evidence of decibel levels or of a scientific nature:  the issue is whether the noise caused annoyance, whatever its level.  She was satisfied by the evidence of the first two prosecution witnesses, as she should have been, that the loud music and shouting were both caused by the Appellant. 

14.  Such conduct at 3 a.m., was audible over a distance some five times further away from the Appellant's house and was sufficiently loud as to prevent the first prosecution witness from sleeping.  There had been an earlier request by the police to moderate the noise which she was causing.  The Magistrate was fully justified in finding the noise to be an annoyance in the sense contemplated by the Ordinance.

15.  The Magistrate had the benefit of seeing and hearing the prosecution witnesses as well as the Appellant.  She was entitled to find, as she did, that the prosecution witnesses were truthful and reliable.  She was entitled to reject the Appellant's evidence.  Having followed this course, she was entitled to make the factual findings upon which she based the conviction of the Appellant.

16.  The Appellant was rightly convicted.  There is no merit in this appeal which is dismissed.