HKSAR v. CHENG SIU WING

HCMA 619/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 619 OF 2003

(ON APPEAL FROM KTCC 1811/2003)

____________

____________

_______________

J U D G M E N T

_______________

1. The Appellant originally faced 2 charges of Loitering Causing Concern, contrary to section 160(3) of the Crimes Ordinance, Cap. 200.

2. The gravamen of each charge was that on 9 November 2002, at the footbridge linking the first floor of Kai Tin Shopping Centre, Kai Tin Road, Kwun Tong, Kowloon, the Appellant loitered in the said place, being a public place, and that his presence there caused each of Chow Wing-chi and Cheung Yee-mui, reasonably to be concerned for her safety or well-being.

3. After the two alleged victims had given evidence, the magistrate amended the charges to a single charge using his power under section 27 of the Magistrates Ordinance, Cap. 227. The reason for the amendment was that there was no evidence to support the allegation of loitering. The new charge alleged disorderly conduct in a public place, whereby a breach of the peace was likely to be caused, contrary to section 17(B)(2) of the Public Order Ordinance, Cap. 245. Defence counsel objected to the amendment, but his argument was rejected.

4. The amended particulars alleged that in a public place, being the footbridge linking Kai Tin Shopping Centre, the Appellant behaved in a disorderly manner, whereby a breach of the peace was likely to be caused. The Appellant, who was represented had pleaded not guilty to the original charges and maintained a plea of not guilty to the fresh charge. At the conclusion of the trial, the Appellant was convicted of disorderly conduct. He was fined $5,000. The Appellant appeals against conviction only.

The Facts

5. The facts, as they appeared from the evidence, were that the Appellant had followed a mother (PW1) and her daughter (PW2) up the public staircase leading to a footbridge. He had a digital camera in his possession and, holding it on his palm, reached under the skirt of the daughter with the hand on which he held the camera. The mother saw what he was doing and stopped him. The Appellant tried to leave the scene but was physically restrained by PW1 and 3 men who had been alerted by PW1 calling for help. He was arrested soon afterwards.

6. The Appellant admitted that he did have a camera in his possession, but said he was going to use it to photograph buses. He denied that he had attempted to photograph underneath PW2's skirt.

Prosecution Evidence

7. PW1 said that her daughter was walking to her left, abreast of her, up the stairs. She noticed the Appellant following her daughter, one step below them on the staircase, and turned to look at him. She saw the hand of the Appellant stretched out between the feet or legs of her daughter. She saw something in the palm of his hand, square in shape with "something like a lens"; the lens was pointing upwards. PW1 asked the Appellant what he was doing and if he were taking photographs but he did not reply.

8. As PW1 thought the Appellant wanted to run away she took hold of his rucksack strap and pulled it, shouting for help. The Appellant tried to run downstairs, but was unable to do so and ran upstairs. PW1 shouted for help and a man stopped to assist. He asked what was wrong and PW1 told him that she had seen that the Appellant wanted to photograph what was underneath her daughter's skirt. A second man (PW4) stopped to assist, they pressed the Appellant, who was struggling to get away, to the ground. A third man (PW5) stopped to help also. Eventually, PW1 sought help from a police officer (PW6) and everyone went back to the police station.

9. The daughter, who was aged 18, had not seen what the Appellant was doing, though she noticed PW1 struggling with him. At that point she saw the Appellant was holding something that was about the size of his palm. She did not know why her mother grabbed the Appellant's rucksack. Her evidence was that the Appellant asked to be released, but her mother refused.

10. PW3 the first man who gave assistance, heard PW1 saying to the man "you were taking photographs under my daughter's skirt". He noticed the Appellant holding a device, more or less square in shape, in his hand. He confirmed the struggle and said the Appellant managed to get away from him. He chased the Appellant and "a foreigner" joined in.

11. PW4 saw PW1 and the Appellant arguing on the staircase. He heard PW1 shout for help so he grabbed the Appellant as he walked past him. PW1 complained that the Appellant had been using a camera to photograph up her daughter's skirt and PW4 asked if he should report to the police. PW1 asked him to do so.

12. PW5 (referred to as "the foreigner") saw the Appellant pressed down by the two other men and heard the daughter shouting for help. He helped the two men subdue the Appellant. He saw the man, whilst being subdued, throw something down off the footbridge so he called to a passer-by below to pick up the object. He believed initially that the Appellant was being detained because he had stolen something.

13. PW6, a Police Officer, heard someone shouting for help. He went to the scene (which had attracted onlookers) and PW1 complained to him that she had seen the Appellant "taking photograph under her daughter's skirt in a sneaky manner next to her close to the footbridge, and that the Appellant was using a digital camera to do that".

14. It appears that PW6's evidence about the content of PW1's report is not an entirely accurate account of what she said. His evidence was given some time after the incident and after the officer had spoken to all the other witnesses. In her evidence in chief PW1 was not so specific and said only that she had seen some device with what appeared to be a lens. In any event it was PW1's evidence on which the Magistrate relied.

15. PW3 told the officer the Appellant had thrown the camera to the ground. Subsequently a digital camera was recovered from underneath the footbridge. PW6 arrested the Appellant for loitering and cautioned him. Under caution, the Appellant told him that he only wanted to take photographs of the buses. He saw the Appellant had injuries on his neck and arms.

Defence Evidence

16. The magistrate found a case to answer and the Appellant elected to give evidence. He was a Senior Immigration Assistant, who had worked for the Immigration Department since 1993. He said his hobby was taking photographs of buses, and produced in court an album of photographs that he had taken. On the day in question he was going to meet his father, a bus driver, and intended to take photographs of buses from the footbridge. The Appellant confirmed that he had been in possession of a digital camera and that, it was the one produced in evidence.

17. He claimed he was stopped suddenly by PW1 who demanded "in a fierce manner" what he was doing. When she grabbed his rucksack he ignored her and continued to walk. He could not do so as she was holding his rucksack so he walked two steps backwards. PW1 continued to hold the rucksack and he asked her to release him so they could discuss the matter calmly, but she ignored him. The Appellant walked forward and PW1 released her grip on the rucksack. She shouted for help and a man grabbed the Appellant. Two other men joined in and forced the Appellant to his knees. One man punched him during the struggle. The Appellant said he was holding a wallet and his camera and they fell to the ground. As he did not want the men to take his property he "brushed" them away. He denied that he wanted to take photographs underneath the PW2's skirt, or that he had pressed the camera shutter.

18. He attributed his initial silence, when questioned by PW1, to his being stunned, with no idea what had happened. He thought the people who subdued him were intending to rob him of his wallet and camera. A statement from the Appellant's supervisor was produced which praised the Appellant's character and work ethic.

Grounds of Appeal

19. The formal grounds of appeal were that the magistrate:

(1) erred in amending the charge from loitering causing concern, to disorderly conduct because he failed to consider sufficiently that it caused injustice to the Appellant and the purported amendment was statute-barred;

(2) erred in ruling that the Appellant at the material time behaved in a disorderly manner, whereby a breach of the peace had actually taken place;

(3) failed to analyse fully all the evidence given by the witnesses before concluding that "I am entirely satisfied the facts are as contended for by PW1";

(4) failed, in delivering judgment, to consider fully the Appellant's evidence before he rejected it. In particular, he erred in ruling that the Appellant had lied to the court.

For these reasons, it was submitted (Ground 5) that in all the circumstances the conviction was unsafe and unsatisfactory.

Ground 1

20. The defence arguments underlying the grounds of appeal were all put before the magistrate at trial. On the first, I am satisfied that the magistrate had the power to amend under section 27 of Magistrates Ordinance, Cap. 227 and secondly, that the amendment was not time-barred. The magistrate was correct in finding that there was no evidence to support the allegation that the Appellant was loitering causing concern. For that reason he was justified in amending the charge, or replacing it with some more apposite charge.

21. The amendment did not cause any injustice to the Appellant. It was made after the examination in chief of PW2, the daughter. Argument was heard. Some time was given for the defence to take instructions from the Appellant. Despite being given the opportunity to do so, the defence did not seek any further adjournment, nor did they apply to recall PW1, to cross-examine her in light of the fresh charge. Counsel proceeded to cross-examine PW2 after a break of 2-3 hours.

22. The claim that the charge was statue-barred cannot be sustained. The incident occurred on 9 November 2002 and the original charges were laid within the appropriate time on 13 March 2003. The new offence was based on the same facts and was not time-barred when the prosecution was commenced. On the authority of Poon Chau-cheong v Secretary for Justice [2000] 2 HKLRD 636, the amendment was to be treated as being retrospective to the date of commencement of the trial.

Ground 2

23. Counsel for the Appellant submitted there was no evidence that a breach of the peace had been, or was likely to be, occasioned by the action of the Appellant. The magistrate, in his Statement of Findings, examined the cases he considered relevant to this question namely, R v Howell [1982] QB 416 and also the Hong Kong case of R v Kam Man-fai [1983] 1 HKC 614 which applied it. Howell held there could be no breach of the peace where no violence was apprehended, or likely to occur.

24. Watkins LJ in Howell stated that the power of arrest lay not only in cases where a breach of the peace occurred in the presence of the potential arresting officer, but also where a breach of the peace was reasonably apprehended in the immediate future, even though the person arrested had not yet committed any breach. He reviewed a number of the older authorities in considering what a breach of the peace consisted of and stated (p. 426):

"... we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person's body or property." (p. 426)

25. The 1976 edition of Halsbury's Laws of England stated:

"For the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where public alarm and excitement are caused by a person's wrongful act. Mere annoyance and disturbance or insults to a person or abusive language, or great heat and fury without personal violence are not generally sufficient."

26. Watkins LJ disagreed with that statement of the law because it failed to relate all the kinds of behaviour therein mentioned to violence. His lordship stated (p. 427):

“We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance."

27. The magistrate accepted the principle of law in Howell, but found it difficult to reconcile with the facts described. Police in that case had been called to deal with a noisy party in the very early morning. It was doubtful that any actual violence was used at the house where the party was being held, save for some pushing and shoving when police arrived.

28. There was no evidence that Howell was trying to return to the house where the party was being held, or that his shouting and swearing, which precipitated his arrest, would have led to an outbreak of violence. No violence was used by Howell against the officers. Nor was there evidence that the residents nearby were being provoked to use violence against Howell and his companions. There was no evidence Howell was inciting his companions to use violence upon the two constables following the group.

29. The magistrate concluded, with some justification, that the evidence in Howell revealed precisely the sort of disturbance, with an absence of violence, that Watkins LJ thought insufficient to found a breach of the peace. He commented that the facts of Howell appeared to support a wider definition of breach of the peace than is actually set out in the judgment. However, for the purposes of the instant case it is not necessary to do more than follow the principle of Howell, as affirmed in R v Kam Man-fai (supra).

30. In Kam Man Fai, the appellant stood in the middle of a road moving his hands and feet about, blocking the way of moving taxis. The taxi drivers were not provoked by his actions and waited for him to move. A police officer approached the appellant and asked what was the matter. The appellant replied it was nothing to do with the officer and used foul language. The officer asked him to move but he took no notice and continued his actions. The appellant was told that if he did not behave himself, he would be arrested for disorderly conduct. When he continued to refuse to move, a struggle took place. The appellant appears to have forced the officer to the ground and struck him in the chest, at which point other officers subdued and arrested him.

31. Kam's appeal against his conviction for behaving in a disorderly manner whereby a breach of the peace was likely to be caused was allowed. The reason for allowing it was that the magistrate had not made any determination whether a breach of the peace was likely to be caused. Garcia J held that it would be difficult for the magistrate to make such a finding as:

"In the instant case, when Constable Wong came to the Appellant, no violence was apprehended nor was it, according to the evidence and the findings of the magistrate, likely to occur."

32. The magistrate agreed that the factual basis of the decision in Kam was correct, but difficult to reconcile with that in Howell as the factual basis of the two cases was similar.

33. Parkin v Norman [1983] QB 92, cited in R v Kam Man-fai, held that if the only other active participants in the situation were police officers, there was no likelihood of there being a breach of the peace as police officers are held to be trained to control their tempers in circumstances where citizens might well breach the peace. Garcia J did not specifically adopt the ratio of Parkin v Norman, but as the taxi drivers were playing no part in the incident and the police officers concerned would not have breached the peace, an offence could not have been made out.

34. In an earlier case, R v Li Wai-kuen [1973-1976] HKC 346, the only persons involved in the incident were the appellant and police officers and Huggins J concluded that:

"It is to the credit of the police forces in most countries where the common law prevails that they conduct themselves with outstanding tolerance and good humour even in the face of provocation more grave than that in the presence case."

He allowed Li's appeal against a conviction under what was then s. 13(2) of the Public Order Ordinance, Cap. 245 as there was no evidence showing his behaviour (using abusive language to a police officer) might cause a breach of the peace.

35. Having examined the cases, the magistrate posed the question what is the position in law if the facts of the present case support the prosecution case? He noted that the main witness, PW1, said she was scared, but had raised a hue and cry when the Appellant managed to escape her grip. Other members of the public had come to assist her. The magistrate believed that if he accepted the prosecution evidence, there was an actual breach of the peace, because members of the public took hold of the Appellant and a struggle followed in which the Appellant was injured. The magistrate held that the violence that did occur, need not necessarily have been visited by the Appellant on others. He concluded that Howell envisaged an occasion when members of the public would take the law into their own hands as the result of a defendant's behaviour and found that this was the sort of incident in which a breach of the peace is likely to occur.

36. In the course of considering this aspect of the appeal, I noted Percy v DPP [1995] 1 WLR 1382, which was commented on briefly by Professor Sir John Smith in the Criminal Law Review [1995] Crim. LR 714. The court in Percy examined the requirements for a binding over by the justices under the Justices of the Peace Acts of 1361 and 1925, as well as the Magistrates Court Act of 1980. This meant looking at a number of cases as to what constituted a breach of the peace.

37. Percy concerned the binding over of a female protester who had entered an air force base as a trespasser, five times in a 2-hour period, on the same day. She had been escorted off the base four times and was arrested, after refusing to leave, on the fifth occasion.

38. The court held, allowing the appeal:

"That violence or threatened violence was required before justices could exercise their powers under section 115 of the Magistrates' Courts Act 1980 to bind a defendant over to keep the peace; that the violence did not have to be perpetrated by the defendant, it being sufficient that the natural consequence of the defendant's conduct, which did not itself have to be disorderly or a breach of the criminal law, was violence from some third party; that the justices had to be satisfied before making an order that there was a real risk, rather than a mere possibility, of a future breach of the peace occurring."

The court concluded there was no evidence of violence being the natural consequence of Percy's actions and her conduct was not likely to provoke trained personnel to violence.

39. At 1394C the court stated:

"In our judgment, breach of the peace is limited to violence or threats of violence as set out in Reg. v. Howell [1982] QB 416 any observations which may indicate something wider ought not to be followed."

40. That restating of Howell answers the concerns of the magistrate in the instant case that Howell seemingly permits a wider definition of breach of the peace than delineated by Watkins LJ.

41. Professor Smith's comment on Percy is pertinent in the context of the instant case:

"The slightly confusing thing about the terminology of the law is that the person responsible for a breach of the peace, and who may be arrested and bound over to keep the peace, is not necessarily, or usually, the actual breaker or apprehended breaker of the peace, but the person who has provoked, or may provoke, the violent response of others by his improper, though not necessarily unlawful conduct."

42. "Disorderly conduct" - is not defined in the Public Order Ordinance so the words are to be treated as words in everyday use and given their normal meaning. The relevant entry for "disorderly" in "The New Shorter Oxford Dictionary" refers to 'unruly or offensive behaviour' or 'violating public order or morality'. It must be a question of fact for the trial court as to whether conduct is characterised as disorderly.

43. The case of Chambers and Edwards v. DPP (apparently unreported) is discussed in [1995] Crim LR 896 as to what disorderly conduct means in s. 5(1) of the Public Order Act 1986. The section refers to disorderly behaviour in the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. There need be no element of violence whether present or threatened; it covers conduct which is not necessarily, threatening, abusive or insulting.

44. The conduct of this Appellant in attempting to or photographing under the skirt of PW2 is properly categorised as "disorderly conduct". There was no dispute that the place where the incident occurred was a public place. And, as the magistrate presciently remarked:

"Taking into account the likely reaction of members of the public to a person photographing under the skirt of a woman I am very firmly of the view that there is every likelihood of a breach of the peace being caused. In my judgment, the average Hong Kong citizen is likely to be outraged by such behaviour and it is entirely predictable that a hue and cry would be raised and that concerned citizens would endeavour to detain an alleged miscreant. In so acting, it is entirely predictable that both the members of the citizenry and the alleged miscreant would be likely to commit a breach of the peace. In my judgment, therefore, the behaviour alleged against the Appellant is entirely capable of being the sort of behaviour that would make it likely that a breach of the peace would be caused."

Grounds 3-4

45. These grounds criticize the magistrate's analysis of the evidence and his alleged failure to consider fully the Appellant's evidence. The magistrate examined the evidence to determine whether or not the case had been made out. He concluded that although there were some discrepancies in PW1's evidence, her credibility had not been destroyed and she had been objective in giving evidence. He found her reaction in raising a hue and cry was entirely consistent with her claim to have seen the Appellant not merely following her daughter, but stretching out his hand so that it was between her legs or feet. He found he could rely on PW1's evidence.

46. In assessing the Appellant's evidence, the magistrate accepted that his hobby was photographing buses, but found this was not incompatible with the behaviour alleged against him. He acknowledged his own factual error when he gave his Reasons for Verdict at the end of the trial. Originally he stated that the Appellant was not telling the truth when he said he told the police officer at the scene he intended to photograph buses. The magistrate pointed out that he had been wrong to say so as the police officer, PW6, confirmed that was what the Appellant said under caution. This reassessment did not cause him to alter his unfavourable view of the Appellant's evidence.

47. He found that as an Assistant Immigration Officer, the Appellant would have been used to dealing with pressure and the unexpected. His response that he was so stunned and shocked by PW1's action in grabbing hold of him that he merely wanted to escape did not appear credible. Nor did he consider credible the Appellant's response that he thought those members of the public who assisted PW1 were trying to rob him. The magistrate found the Appellant must have been aware he was not being treated as a potential robber by the persons stopping him. This was particularly so as PW1 questioned him immediately as to what he was doing and whether he was taking photographs under PW2's skirt.

48. The magistrate reviewed all the evidence carefully and in some detail. He noted various discrepancies in the evidence and reconciled them. At the time he prepared his Statement of Findings he was aware of his error as to what the Appellant told PW6 and had taken account of it, concluding it did not detract from the decision he had already made about the Appellant's credibility. The magistrate directed himself in respect of the Appellant's good character, both as to propensity and credibility and noted the comments of his character witness. It was for the magistrate to conclude whose evidence he accepted and whose evidence he rejected and this court can see no basis for interfering with his findings of fact, bearing in mind his opportunity of seeing and hearing the witnesses.

49. I am satisfied that this incident occurred in a public place and that the Appellant in using the digital camera in the manner described by PW1 was guilty of disorderly conduct likely to cause a breach of the peace. The magistrate was correct in finding that if such disorderly conduct became known to passers-by (as indeed occurred here) that a breach of the peace was likely to result and did result. Here, three men came to aid PW1 and a citizen's arrest involving violence was effected. It is easy to envisage other circumstances in which a general fracas might, or does, occur, because citizens are enraged by some form of disorderly conduct and decide to seize or punish the perpetrator, without bothering to call the police.

50. This appeal against conviction is dismissed.