HKSAR v. WONG PO HO

HCMA 1016/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1016 OF 2008

(ON APPEAL FROM KCR 52/2008)

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

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

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

J U D G M E N T

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

1.  The Appellant was charged with “Depositing Litter in a Public Place”, contrary to sections 4(1)(a) and 23(1A) of the Public Cleansing and Prevention of Nuisances Regulation, made under the Public Health and Municipal Services Ordinance, Cap. 132.

2.  After trial before Deputy Magistrate,  W. Y. Ho, the Appellant was found guilty and sentenced to pay a fine of HK$3,000 and HK$500 costs; HK$1,500 of this was for the fixed penalty and the further HK$1,500 was the additional penalty, pursuant to an unsuccessful plea of not guilty.

3.  The Appellant believed he had been fined a total of HK$3,000 only.  He said the Deputy Magistrate had not imposed an order for costs against him.  That was not substantiated by the court file.  Under the fixed penalty system, he was liable for HK$500 costs in any event.  At the date of the appeal hearing, none of the fine or costs had been paid.  The Appellant appealed against his conviction only.

4.  The prosecution evidence was simple.  An Assistant Hawker Control Officer (PW1) was patrolling in uniform.  He reached the vicinity of a shop and saw a man, later known as the Appellant, sitting on the stairway smoking a cigarette.  He gave a description of the Appellant.  At the time, he was 6 metres away from him.

5.  The Appellant finished smoking, and immediately threw the cigarette butt 0.5 metres away from him on to the pavement and proceeded to leave the scene.  PW1 approached him, revealed his identity and told him that he had contravened the Public Cleansing and Prevention of Nuisances Regulation.

6.  PW1 pointed to the place where the butt had been discarded.  He asked the Appellant to produce his identity card and asked for some personal details in order to complete the summons.  PW1 stated that the cigarette butt was 3.5 centimetres long and yellow in colour.

7.  PW1 cautioned the Appellant, at which point the Appellant said, “Sorry I have no money to pay the fine.”  He asked for a chance and said he would pick up the cigarette butt immediately.  His request was rejected.

8.  When he had completed the summons, PW1 gave the original to the Appellant and reminded him that it was an offence to furnish false information.  He informed the Appellant of his rights, the mode of payment, and the time for payment of the fine.

9.  The Appellant said that he understood, but immediately threw the original summons to the ground.  PW1 gave him a warning and asked him to pick it up.  The Appellant did so.

10.  The Appellant, who acted in person, said he had been sitting on the curb at the exit of the Shek Kip Mei Market and not at the shopping centre.  When he finished smoking, he threw the cigarette butt into the round container on top of the rubbish bin behind him.  He claimed that PW1 approached saying that it was “cleaning week” and asked for his identity card.  The Appellant gave his identity card and PW1 wrote out the summons.  The Appellant asked what was going on and when he discovered that the white paper was a summons, he did not accept it when PW1 tried to give it to him.  The summons ended up on the ground.

11.  At trial, the Appellant, who was not represented, gave 3 versions of how the summons ended up on the ground: –

(1) PW1 tried to “stuff” the summons into his pocket but he brushed his hand away, at which point the summons fell to the ground.

(2) PW1 threw the summons onto the ground himself, with the Appellant’s identity card.

(3) PW1 held out the summons and it fell to the ground.

12.  The Appellant said he had asked PW1 whether he was a “litter bug”, but PW1 ignored him and left the scene.

13.  The Appellant grabbed hold of PW1 and said, “I walk faster than you and I’ll win a fight between us.”  He grabbed PW1 and told him to summon a police officer.  However PW1, allegedly, told him that police officers would be too busy to attend and left.

14.  The Appellant returned to the market to see if the cigarette butt was where PW1 alleged it was.  He could see only rubbish and was unable to see any cigarette butts.  His second version of this search was that he saw a lot of cigarette butts, but did not see his own.  He denied having been cautioned, or that he made any admission.

15.  In light of the Appellant’s complaints about what happened, the Deputy Magistrate considered the admissibility of his verbal statement by the alternative procedure.  He found that the statement was admissible.  The Deputy Magistrate also took into account the Appellant’s clear record.

16.  The Appellant filed the standard grounds of appeal.  He denied the offence and appeared to expect the court to recall the witnesses and hear the case afresh.  When told that was not possible, he put forward his oral grounds.  He was concerned in particular about the distance between the witness and himself at the time of the alleged discarding of the cigarette butt.  He had brought a tape measure and photographs to court intending to show that the distance between him and PW1 was about 50 to 60 feet, not, as the officer had said, 6 metres away.  The Appellant, with leave of the court, also produced 2 photographs to show the area mentioned in the particulars.  The Deputy Magistrate had accepted PW1’s evidence about the distance.  The photos did not advance the Appellant’s submission.

17.  The Appellant repeated his allegation that it was PW1 who had discarded litter.  He claimed to be able to prove that the officer threw paper away.  He said he could not put the paper in his pocket, so PW1 threw the items on the ground.  He had asked the officer to pick up the items, but he did not do so.  He picked up the discarded items himself.

18.  He thought that PW1 may have picked on him because 2 years earlier, in 2006, he had made a complaint to the FEHD which required him to go to the police station to give details.  Whilst there, he had been photographed by press photographers and he produced a newspaper printed in 2006 to support his account.  He did not say what that complaint was about.

19.  On enquiry by the court, he confirmed that PW1 was not an officer connected with his complaint in 2006.  However, he thought that because his photograph had been in the newspaper, it was possible PW1 had recognized him; the implication being that this was a possible reason for the officer to frame him.  It appears that was not mentioned to the Deputy Magistrate at the trial.  Nor was it suggested to PW1.  Apart from raising the possibility of his having been framed, the Appellant did not make any further submissions on that point.

20.  It is not uncommon that a person who has been convicted of a minor offence resents bitterly the imposition of a summons and so it appeared with this particular appellant.  Having considered the transcript, the submissions that he made, and having seen his photographs and heard his allegation about PW1, it appears that most of what was said on appeal had been canvassed at the trial and considered by the Deputy Magistrate.

21.  Unfortunately for the Appellant, I cannot see that the Deputy Magistrate erred in handling the trial and having perused her lengthy Statement of Findings I am satisfied that the Appellant was properly convicted.

22.  Accordingly, I dismiss the appeal against conviction.

ADDENDUM

23.  Mr. Goodman, who appeared for the Respondent, advised that the Appellant had been served with the Respondent’s submissions on 2 January 2009 at the FEHD Department Offices.  At that time, the Appellant signed the receipt for the papers but refused to take them with him.  He wrote on the papers “I don’t know English so I refuse to accept it.”  He signed “Wong Po Ho” and dated it 2 January 2009.

24.  At the conclusion of this hearing, I informed the Appellant that judgment would be reserved.  He asked whether the judgment could be written in Chinese.  I advised that although the trial and the appeal had been conducted in English, I would arrange for a written translation of the salient points of the judgment to be provided for him on an informal basis.

25.  The Appellant also advised the court that he had made a complaint in 2006 to FEHD, although he did not specify and I did not enquire about the subject of that complaint, other than to confirm it did not involve PW1.  He asked whether he could continue with that complaint.  I confirmed that he was able to continue with that complaint through the FEHD complaints department if he wished and, if appropriate, he could make a complaint about the officer involved in this particular case, through the same department.

26.  I enquired of the Appellant whether he wished the photographs he had produced at the appeal to be returned to him, or be placed on the court file.  He asked that they be placed on the court file and the 2 photographs, which made a composite view, were marked Exhibit 1.