HKSAR v. CHIU MUI FONG

HCMA303/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 303 OF 1998

----------------------

-----------------------

-----------------------

J U D G M E N T

-----------------------

1. The Appellant was convicted of two charges of making a false report of the commission of an offence. The convictions were on 17th March 1998 by Mr Eddie Yip, sitting at Western Magistracy. As a result the Appellant was fined $800 on each charge. She now appeals against those convictions.

2. Mr Eric Kwok, on her behalf, has advanced two grounds of appeal. The first ground of appeal is that there is no case for the Appellant to answer on both charges as there was no report of unlawful detention, and secondly, there was no falsity in the reports.

3. The Appellant was in the throes of a divorce from her husband. On 19th August 1997, she was in Western Police Station in relation to another matter. For some reason, a Chief Inspector attached to that police station attempted a reconciliation between her and her husband which proved to be unsuccessful. When the Appellant was in the report room of the Western Police Station, she telephoned 999 and told the person on the other end of the line that her son was detained at No.84, Ko Shing Street, Ground Floor, by her husband who was separated from her.

4. Mr Kwok's first ground of appeal is that there was no report by her of a criminal offence, and secondly, that she was not aware the report was false or, as far as she was concerned, the report was not false.

5. When the Appellant made her telephone report, she was speaking in Cantonese and she had used the words "禁錮", "禁錮" has been translated by the court translator as "detained" in English. Whether the report by her was actually a report that a criminal offence had been committed, to my mind, it matters not. The fact is the use of the 999 service in Hong Kong is confined to emergency cases. To the officer answering that call, once the words "禁錮" were used by the Appellant, to his mind, and ex facie, a criminal offence had been committed. That was precisely the reason why he sent a colleague, another police officer, to the scene to make investigations. When the second police officer arrived at the scene, he found the Appellant's son, who was aged 5, playing on the premises.

6. The Appellant was obviously very concerned about the safety of her son, but as the learned Magistrate found she was aware of the arrangement whereby her separated husband would keep or allow to be kept their son in the shop premises of his brother. That was apparently the arrangement which had been come to on a long term basis and was an arrangement that the Appellant was, or should have been, aware of. Whether the Appellant approved of that arrangement, in my judgment, she must have been aware of it. It follows, therefore, that when she telephoned 999 and said that her son was being detained, she must have been aware that that report was false.

7. Domestic problems of citizens of Hong Kong should not be attempted to be solved by the parties ringing 999 every time they feel concerned about a particular arrangement. If everybody did that, the Hong Kong police would have to employ many many more people to answer the 999 calls.

8. Mr Kwok's point is a fine one, but to my mind it is too subtle a distinction to be made when one is dealing with a police officer who is not a lawyer answering an emergency service telephone and having to decide on the spot whether a report has been made of a criminal offence which necessitates investigations by the police. I, therefore, find that the conviction on the first charge is not flawed.

9. The conviction on the second charge is somewhat different. Apparently, as a result of the false report - the subject matter of the first charge - the Appellant was arrested and brought to Western Police Station later on that day. After she had been dealt with in relation to the first charge of making a false report and after all the bail procedures were complied with, she approached a station sergeant who was the duty officer in the report room and said that she wanted to make a report. That officer asked her what the report was and she said that the report was one of a person being detained. That officer was aware of the allegation that the Appellant had committed the first offence of making a false report. When he asked the Appellant to provide more details of the report that she was making, she said that she had already supplied all the information earlier on and that if the Western Police Station was not prepared to assist her, she would go to another police station. For some unknown reason, the station sergeant then gave the Appellant a report number in respect of the "report" that she was making to him.

10. It may have been that fact which influenced the learned Magistrate to come to the conclusion that the second false report was, or had been, made to the police. This conversation with the station sergeant, in my view, should not have been treated as a formal report to the police of the commission of an offence. The police by that stage was aware that the Appellant, for whatever reason, had made the first allegedly false report to the police. The police should have been aware that, rightly or wrongly, she was very concerned about the welfare of her son. Just because she said to the station sergeant that she had a report to make, he should have looked at all the surrounding circumstances to decide whether he should have considered what she said to him as a formal report.

11. In view of what I have said, my judgment is that the conviction on the second charge should be quashed. The appeal is allowed to that extent.