DAVID MORTER v. HKSAR

FACC No. 3 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2004 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 928 OF 2002)

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J U D G M E N T

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Mr Justice Bokhary PJ:

1. The appellant stood trial in the Magistrate's Court on a charge of behaving in a disorderly manner in a public place whereby a breach of the peace was likely to be caused. Such behaviour is an offence contrary to s.17B(2) of the Public Order Ordinance, Cap. 245. The appellant was convicted. He was fined $2,000 and ordered to pay $1,000 costs. His appeal to the High Court was partially successful. It is reported at [2003] 2 HKLRD 510. The appeal judge (Beeson J) quashed the conviction and set aside the fine. But she indicated that she was minded to make a bind-over order whereby the appellant would be bound over in the sum of $2,000 to keep the peace and be of good behaviour for 18 months. After hearing the parties on the question of such a bind-over order, she made one in those terms. And she did not disturb the costs order against the appellant by the magistrate.

2. Since then, we decided the case of Lau Wai Wo v. HKSAR [2004] 1 HKLRD 372. We quashed the bind-over order in that case. Giving our reasons, Lord Scott of Foscote NPJ said this (at p.393A-D):

" Although the traditional form of bind-over order is an order requiring the person concerned to keep the peace and be of good behaviour, without any greater precision, we do not think that an order simply in that general form should any longer be regarded as satisfactory. Nor do we regard an implied limitation by reference to the facts that prompted the making of the order to be satisfactory. We think the principle of legal certainty requires that the order spell out with precision, in the same way as would be expected of an injunction, what it is that the person must not do. For example, in the present case, if a bind-over order was to be made against the appellant, it should have been an order requiring him to keep the peace and be of good behaviour by abstaining from assaulting or threatening to assault his brother or by doing anything to give rise to a reasonable apprehension that he intended to assault his brother, or in some such terms. A guide to an acceptable formulation of a bind-over order would, in our opinion, be whether an injunction in those terms would be acceptable."

Very properly in the light of that, Mr Cheung Wai-sun and Ms Rosaline Leung for the respondent supported this appeal. They invited us to set aside the bind-over and costs orders against the appellant.

3. The bind-over order in the present case was in the general form which we said in Lau's case should no longer be regarded as satisfactory. So it could not stand. We set it aside. Once it goes, there is no longer any basis for any costs order against the appellant. So we set aside the costs order too. The appeal is allowed accordingly.

4. We acknowledge Mr Cheung and Ms Leung's very proper attitude to the disposal of this appeal, and we thank them for their helpfulness in seeing to the preparation of the record. The appellant not being legally represented, leaving him to prepare the record might have led to difficulty and delay.

5. A caveat should be laid down about the disposal of future cases. Both in Lau's case and in this one, we remedied the situation by setting aside the insufficiently certain bind-over orders. Neither in that case nor in this one, did the prosecution propose to us any remedy short of setting-aside. Nor do we suggest that any such proposal ought to have been made to us in the circumstances of that case or of this one. But each case depends on its own circumstances. As to the disposal of future cases, we do not rule out the possibility of circumstances where an insufficiently certain or otherwise unsatisfactory bind-over order can be cured by an appropriate variation. Before a court makes any variation it should of course give the parties an adequate opportunity to address it on whether any, and if so what, variation ought to be made.