THE QUEEN v. LO LAI YI

BETWEEN

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JUDGMENT

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Macdougall, J.A. (sitting as an additional High Court Judge):

1. The appellant, who was unrepresented, pleaded guilty before Mr. Z.E. Li at North Kowloon Magistracy on 17 April to a charge of loitering in a public place so as to obstruct the same contrary to section 4(23) of the Summary Offences Ordinance Cap. 228. She was granted bail pending a probation report. On the 1st May she reappeared before the magistrate and was remanded in custody pending a Training Centre report. Then, on 15 May, she was ordered to be detained in a Training Centre. She gave notice of her intention to appeal against the order of detention within the prescribed time, but it was not until after the time for giving notice of intention to appeal against conviction had elapsed that she received legal advice that she had. reasonable grounds for appealing against her conviction.

2. In accordance with this advice she lodged a notice of application for an extension of time for giving notice of appeal and, on 21 September, her application was granted by order of the Chief Justice. Notice of appeal was given in accordance with that order and the appeal conviction together with that against sentence now come before me for hearing.

3. Mr. Tim Kwok, who appears for the appellant, submits that the magistrate, having accepted her plea of guilty, wrongly convicted the appellant on the basis of a statement of facts which disclosed no offence.

4. Section 4(23) states:

"4     Any person who without lawful authority or excuse -

        (23) plays at any game or pastime to the annoyance of the inhabitants or passers-by; or plays at any game or loiters in any public place, so as to obstruct the same or create a noisy assembly therein; shall be liable to a fine of $500 or to imprisonment for 3 months."

 

The statement of facts reads as follows:

"PW: PC 10423 of PSU I SSPO.

At 2155 hours on 15.4.1990, whilst PW were on beat patrol at no. 98 Yen Chow Street, Kowloon, where PW saw the deft. mutter with unknown males at the above location, but the unknown males ignored her and walked away. PW then revealed the police identity and pointed out warrant card to the deft. and warned the deft. not to loitering (sic) at the said place and then PW left.

 

At 2230 hours the same day, PW returned to the same location and found the deft. was still muttering with the (sic) male, but the male ignored her and walked away. PW then approached the deft., revealed warrant card, pointed out the offence, cautioned and arrested the deft. and brought the deft to Shamshuipo Police Station where the deft was later charged with the above offence."

 

5. It is not clear whether the use of the definite article in the expression "the male" in that part of the facts relating to the second incident is meant to indicate that he was one of the group of unknown males referred to in the first incident or whether he was another person altogether. From the general context it seems that the latter interpretation is correct, in which case the indefinite article would have been appropriate.

6. Mr. Kwok referred to the Attorney General of Hong Kong v. Sham Chuen [1986] HKLR 1043 where the Privy Council considered the meaning of 'loitering' in the context of section 160(1) of the Crimes Ordinance Cap. 200. I do not think that any real assistance can be gained from this case. As their Lordships pointed out the word 'loitering' must be construed in the light of the context in which it appears in the enactment under consideration.

7. It seems clear to me from the wording of section 4(23) that the loitering there contemplated must be a lingering for which there is no lawful authority or excuse. Innocent activities such as sightseeing, waiting for a friend or looking for a lost article are but a few of many possible examples of activity that do not fall within the scope of the subsection.

8. However, Mr. Kwok readily concedes that by virtue of section 94A of the Criminal Procedure Ordinance it was not necessary for the prosecution to negative by evidence any possible contention that the appellant had lawful authority or excuse to loiter in the public place alleged in the charge. That being so, it was equally unnecessary for the prosecution to set out in the statement of facts any particulars which negatived lawful authority or excuse.

9. But that does not dispose of the matter. In order to succeed in convicting the appellant the prosecution were required to prove that the appellant loitered so as to obstruct the public place named in the charge.

10. There is nothing in the statement of facts that indicates the relative positions of the appellant and the males in the public place on either occasion. All that is alleged is that she "muttered with" them and that they "ignored her and walked away". No reasonable inference can be drawn from these facts that she obstructed them or in any way impeded their progress along the street.

11. In the circumstances it was incumbent on the magistrate to inform the appellant, notwithstanding her plea of guilty, that on the statement of facts before him she could not be convicted of the offence charged and that she should change her plea to one of not guilty.

12. Moreover, there appear in the record of proceedings the words "charge read and explained to Defendant and understood by her". However, the magistrate's Statement of Findings, which occupy four pages and which specifically address the issue with which this appeal is concerned, surprisingly do not give any indication as to whether the charge was in fact explained to her. Had this been done I would have expected the magistrate to have said so in that Statement, particularly so in the light of his explanation that an entry in the record that the charge was read and explained to the appellant on the second occasion on which she came before him, namely 1st May, is incorrect. This error in the record arose because, accordingly to the magistrate, it is the practice in his court for these words to appear on a stencilled pro forma minute sheet which, it seems, is used not only on plea day but also when a defendant appears at hearings subsequent to that on which a plea is taken. In the light of this error in the record and the magistrate's failure to indicate in his Statement of Findings that the charge was read and explained to the appellant, I am left in considerable doubt that this procedure was carried out.

13. I am satisfied that this conviction cannot stand. The appeal is allowed, the conviction is quashed and the sentence set aside.