R. v. WONG KIN SHU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 299 OF 1996

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J U D G M E N T

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1. The Appellant was convicted after a trial on four charges of Harassment of Tenants contrary to s.119V(2)(b) of the Landlord and Tenant (Consolidation) Ordinance Cap.7, Laws of Hong Kong (the Ordinance).

2. The particulars in all four charges are similar except the name of the tenant victim in each charge is different. The charges alleged that the Appellant on 20th July 1995 with intent to cause the tenant to refrain from exercising his right in respect of premises situated on 3/F, 63 Fuk Lo Tsun Road, Kowloon persistently withheld the toilet facility of the premises, a service reasonably required for the occupation of the premises as a dwelling.

3. The four tenants in the charges had occupied the premises in question for some years. There were two operating toilets of squat down type on the premises for use by the tenants. In March 1995, one of the two toilets was sealed up leaving only one toilet for use by the tenants. There was no evidence as to who was responsible for the sealing up of this toilet. Some time in May 1995, the remaining toilet was also sealed up by persons unknown. The tenants did not have a toilet for their use on the premises. The Appellant was informed of this and for a month nothing was done about it. One of the tenants, by breaking open part of the toilet, made it useable again. On 20th July 1995, the Appellant demolished this toilet completely. The tenants were provided by the Appellant with spittoons for their use. The Appellant also by posting up a notice informed the tenants that what he did was following instructions of the Community Relations Bureau of the Police. Three months later, the toilet was replaced with a western type toilet. The tenants were informed that the business of operating the premises providing lodging to the tenants was to cease on 1st June 1995. As a result, the parties went to the Lands Tribunal in an attempt to solve the matter.

4. The prosecution case was that the breaking up of the toilet was done with intent to deprive the tenants of a service reasonably required for occupation of the premises as a dwelling and therefore constituted harassment within the section in the Ordinance.

5. The defence was that the destruction of the toilet was in accordance with the instruction of the police and the four tenants in the charges were not in fact tenants.

6. The magistrate found the persons named in the four charges were tenants within the Ordinance and the act of destruction of the toilet amounted to harassment. He convicted the Appellant on all four charges.

7. The Appellant now appealed against the convictions on all four charges.

8. The main ground of appeal is that the magistrate failed to direct himself to the issue of the specific intent necessary to be proved beyond reasonable doubt before a conviction could be founded. There was no evidence that the Appellant had at the material time an ulterior motive accompanying his withdrawal of the toilet facility.

9. Section 119V of the Ordinance provides as follows :

"(1) Any person who unlawfully deprives a tenant of occupation of any premises commits an offence .....

(2) Any person who, with intent to cause a tenant -

(a) to give up occupation of any premises or part of premises; or

(b) to refrain from exercising any right or pursuing any remedy in respect of any premises or part of premises,

does any act calculated to interfere with the peace or comfort of the tenant or members of his household or persistently withdraws or withholds services reasonably required for occupation of the premises as a dwelling commits an offence ....."

10. The magistrate in his judgment on whether the charge was proved said :

" The second issue to be determined is, did the actions of the landlord in destroying the only toilet in operation on the 20th July 1995 amount to the restraining of the tenants' rights in respect of the premises i.e. the right to use the toilet."

He found in the circumstances of the case :

"where the evidence established that when the tenants entered into the agreements, they entered into, two toilets were provided for the premises and both were in working order, to then deprive those tenants of those facilities, was to deprive them of exercising a right."

He then went on to decide and conclude that the toilet facilities were persistently withheld from the tenants. At the end, he said :

"The final point to be determined is, were the actions of the defendant done with intent, that is with the intent of persistently depriving the tenants of their rights to use the premises toilet facilities. Can the defendant rely upon the defence that he was acting on the directions of the police when he demolished the toilet."

He concluded that the Appellant had the necessary intent and convicted the Appellant accordingly.

11. Mr Mullick for the Appellant relied on McCall v. Abelesz and Anor [1976] 1 QB 597 where Ormrod LJ in considering the provision in s.1 of the Protection from Eviction Act 1977 which is similar in wording to s.119V of the Ordinance said :

"Subsection (2) is even more clearly a penal provision. First, a specific intent or mens rea must be proved before the offence is complete; that is, the intent to cause a residential occupier either to give up the premises or to refrain from exercising some right in respect of the premises. Secondly, the actus reus of the subsection is the doing of acts calculated to interfere with the peace or comfort of the occupier or the persistent withholding or withdrawal of services reasonably required for the occupation of the premises."

Mr Mullick submitted that there must be proof of the specific intent in the subsection accompanying the act of persistent withdrawal of a service such specific intent may be to cause the tenant to give possession or to refrain from exercising any right or pursuing any remedy in respect of the premises.

12. It was submitted the magistrate had not considered and made no finding as to whether or not there was such specific intent and the convictions could not stand.

13. Mr Pang for the Crown agreed that to convict there must be proof of the specific intent provided in the section. The destruction of the toilet and persistent withholding of the toilet facilities by itself could not be proof of the specific intent required under the section. He did not seek to uphold the conviction.

14. To support a conviction under s.119V(2) of the Ordinance, it is necessary that there be proof beyond reasonable doubt of the element of specific intent required under subsections 2(a) or (b). Destruction of the toilet may be persistent withdrawal of service but not proof of the specific intent required. The magistrate did not make any finding as to such intent. The appeal is allowed. The convictions are quashed and the sentence set aside. The case is remitted to the Magistracy for a retrial before another magistrate.