HKSAR v. YEUNG HO YIN

[English Translation – 英譯本]

HCMA 354/2020

[2022] HKCFI 569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 354 OF 2020

(ON APPEAL FROM FLCC 1309 OF 2020)

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JUDGMENT

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1.  The appellant was charged with the following offences:

(1)  the offence of loitering causing concern[1]; and

(2)  the offence of obstructing a police officer in the due execution of his duty.[2]

2.  He pleaded not guilty to the two charges.  After the trial, the magistrate[3] found him guilty on the first charge but not guilty on the second charge.  The magistrate sentenced the appellant to nine months’ imprisonment on the first charge.

3.  The appellant appeals against both conviction and sentence in respect of the first charge (“the charge”).

Prosecution Case

4.  The prosecution claimed that on 26 December 2019, in a restaurant at Tai Po Mega Mall (“the restaurant”), the appellant loitered in the said public place, and his presence there with other unknown persons caused the owner of the restaurant reasonably to be concerned for her safety or well-being[4].

5.  The prosecution summoned three witnesses to give evidence.

6.  The first prosecution witness (“PW1”) was one of the police officers who handled the appellant at the scene.  He did not witness the incident and his evidence was mainly about the second charge of which the appellant was found not guilty[5].

7.  The second prosecution witness (“PW2”) was the officer who arrested the appellant. Likewise, he did not witness the incident.

8.  The third prosecution witness (“PW3”) was the said restaurant owner.  According to her evidence, around 2 pm on the day when the incident took place, some 50 people wearing face masks were gathering and shouting outside the entrance of the restaurant. Later, some of them went into the shop, making her frightened.  Three to four of them who entered the shop sat at a table near the entrance, took salt and sugar from the shop and scattered them over the table. Some people also threw the tableware onto the floor.  She was worried that they might harm the customers and staff.  Under the circumstances, some customers just left without paying for what they had ordered and she thus suffered financially[6].

9.  In addition to calling witnesses, the prosecution also produced as exhibits certain footage captured by the shopping mall’s CCTV[7] and a video clip uploaded by Next Media Animation[8].

Defence Case

10.  At the trial, the appellant did not testify, nor did he call any witness.

11.  The appellant did not dispute that he was the man captured by the CCTV, nor did he take issue over the allegation that he had entered the restaurant[9].

12.  In view of the defence’s written closing submission at trial[10], the appellant’s line of defence was that:

(1)  the appellant’s conduct did not constitute loitering;

(2)  there was no evidence to prove a common purpose shared by the appellant and those people who created disturbances;

(3)  the testimony of PW3 was untrustworthy; and

(4)  the word “well-being” as one of the elements of the offence of loitering causing concern should not include business well-being.

The Magistrate’s Findings

13.  The magistrate was satisfied that PW3 was an honest and reliable witness.  He took the view that she had tried her best to reveal the truth to the court and gave full weight to her evidence.[11]

14.  Regarding the video clips, the magistrate had the following observations[12]:

(1)  Exhibit P7:

“File name: Genki 3

14:20:30 More than ten people started to assemble at the outside of Sing Thai Cuisine, which attracted the attention of passers-by, who even stopped and watched on; the number of people assembling kept going up to over 20, and a lot of them were taking photos or videos with smartphone-like devices.

14:24:18 The crowd assembling outside Sing Thai Cuisine gradually began to get in the restaurant; many of them were holding up their smartphone-like devices shooting images of the table nearest to the entrance; even more passers-by were looking on outside the restaurant.

14:25:54 Some people who had been shooting images in the restaurant started to move back to the shopping mall, and some other people also came out from the restaurant to the shopping mall area.

14:26:10 A large group of people were encircling the cashier counter of the restaurant.

14:27:07 A large group of people were walking quickly or running from the left-hand side of the screen to the right-hand side, leaving the shopping mall using the glass doors.

14:27:11 The defendant emerged from behind the pillar on the left-hand side of the screen and walked quickly towards the glass doors.

14:27:13 The defendant took the black mask off his face and looked back from time to time.

14:27:21 Anti-riot police officers came running to the scene along the pavement outside the glass doors and stayed guarding on the pavement.

File name: Sing Thai 1

14:23:38 The defendant, wearing a black face mask, emerged from the right-side edge of the screen and walked slowly to the bottom right corner of the screen where he was facing Sing Thai Cuisine.

14:23:59 The defendant moved forward and went out of the screen from the bottom right corner; scores of passers-by stopped and watched while facing Sing Thai Cuisine; some people in reflective vests were holding up their smartphone-like devices shooting at the bottom left of the screen which was the outside of Sing Thai Cuisine.

14:27:04 Some 20 to 30 people began to walk quickly and leave the shopping mall through the glass doors.

14:27:08 The defendant again turned up in the middle of the screen’s bottom part. He was having his back towards the CCTV camera and he took off his black face mask with his left hand; He was walking in the same direction as the crowd that was leaving the shopping mall in quick pace.

14:27:10 The defendant put the face mask held in his hand into the left front pocket of his pants.

14:27:11 The defendant turned right, walked towards Genki Sushi and looked back at the CCTV camera.

File name: Sing Thai 3

14:20:30 A group all wearing face masks started to gather outside Sing Thai Cuisine and some people in reflective vests were taking photos or videos. (Sing Thai Cuisine had two entrances. At trial, when the distance from the CCTV camera was taken as reference, one was called “near door” and the other “far door”.)

14:21:10 Two teenage girls came into view at the bottom left of the screen, ie 4 to 5 metres off Sing Thai Cuisine, and remained there throughout; one of them was clad in a white windbreaker, carrying a red backpack and wearing a medical face mask while the other was clad in a grey top, carrying a black backpack and wearing a black face mask.

14:23:53 The defendant appeared on the left side of the screen, wearing a black face mask and facing Sing Thai Cuisine all the time.

14:24:10 The crowd gathering outside Sing Thai Cuisine wearing face masks began to go in the restaurant through the far door.

14:24:18 The said two teenage girls went inside through the near door of Sing Thai Cuisine.

14:24:20 The defendant proceeded to walk to the far door of Sing Thai Cuisine when the girl carrying the black backpack was already sitting at the first table inside which was closest to the near door; a lot of people went into Sing Thai Cuisine successively.

14:24:32 The defendant entered Sing Thai Cuisine by the far door; a large group of people went into Sing Thai Cuisine through the far door and the near door respectively.

14:24:51 The girl with the black backpack stood up; quite a number of people clad in reflective vests were holding up cameras and smartphones outside Sing Thai Cuisine, shooting the inside of the shop.

14:25:46 Several people wearing face masks proceeded to leave Sing Thai Cuisine by the far door.

14:25:56 The said two girls left Sing Thai Cuisine by the near door and stopped about 5 metres off the restaurant; more than ten people wearing face masks also left Sing Thai Cuisine one after another, through either the far door or the near door.

14:26:14 The defendant exited Sing Thai Cuisine by the far door. (He was the last person to leave the place.)

14:26:23 The defendant was staying outside Sing Thai Cuisine, about 4 to 5 metres from the far door, still facing the restaurant.

14:26:30 Some 20 to 30 people wearing face masks, including the defendant and the two girls mentioned above, were still gathering outside Sing Thai Cuisine between the far door and the near door.

14:27:06 The crowd assembling outside Sing Thai Cuisine began to leave by walking fast or running in the direction of the CCTV camera, ie the direction of the glass doors.

14:27:13 The defendant’s left hand was on the left side ear loop of the black face mask on his face.

14:27:14 The defendant moved out of the screen from its left side edge.

14:27:15 Those with police batons in hand believed to be plainclothes officers came from afar in quick pace to the outside of Sing Thai Cuisine.

14:27:58 Riot police entered the shopping mall through the distant glass doors and walked towards the outside of Sing Thai Cuisine.

File name: Sing Thai

14:20:30 The said two girls emerged from the bottom right-hand corner of the screen.

14:21:04 The said two girls moved out of the screen from its bottom part.

14:23:43 The defendant stepped out from behind the staircase exit in the middle of the screen, wearing a black mask on his face.

14:23:54 The defendant at the bottom left corner of the screen stopped walking while facing Sing Thai Cuisine; meanwhile, as can be seen from the screen, some 20 other people wearing face masks were gathering there.

14:24:28 The defendant walked towards the far door of Sing Thai Cuisine.

14:24:27 The defendant moved out of the screen from its right-side edge.

14:26:05 The said two girls came into view at the bottom right-hand corner of the screen and stayed there.

14:26:18 The defendant emerged again from the right-side edge of the screen and remained there, ie about 4 metres away from the said two girls.

14:27:06 The assembled crowd, including the said two girls and the defendant, left the above-mentioned location either in quick pace or by running.

14:27:13 The defendant, with his left hand put on his left ear, moved out of the screen from the bottom left corner.”

(2)  Exhibit P8:

“37:00 The girl with the red backpack appeared at the bottom left corner of the screen.

37:41 The defendant was in the middle of the screen.

37:45 The defendant again appeared in the middle of the screen.

37:46 The girl with the red backpack went into Sing Thai Cuisine by the near door.

37:53 The girl with the red backpack sat down inside at the first table from the near door; the girl with the black backpack was seated to her right, and some other people wearing face masks also went into Sing Thai Cuisine and shouted about.

38:26 The man sitting at the table closest to the far door was throwing things at the cashier counter.

38:31 The girl with the red backpack and those people occupying the same table began to throw sundry items such as sachets of sugar and tableware, and they also scattered seasonings over the table.

39:22 The girl with the red backpack shouted out loud, ‘Bill please!’  Then she left Sing Thai Cuisine through the near door with the other people wearing masks, leaving behind tableware, menus and sugar sachets strewn all over the table(s) and the floor; some other people were still shouting about.”

15.  The magistrate made the following findings of fact[13]:

(1)  About 2:20 pm on that day, a group of people wearing face masks assembled outside the restaurant.

(2)  Around 2:23 pm, the appellant with a face mask on was seen among the assembled crowd.  At that time, about 30 people were there with their face masks on.

(3)  About 2:24 pm, the group wearing face masks began to go into the restaurant in batches.  The appellant was one of them who went in about 22 seconds after the first batch.

(4)  The appellant and that batch of people shared a common purpose of causing a disturbance in the restaurant.

(5)  This batch of people wearing face masks who were already in the restaurant caused a disturbance inside by shouting, tipping tableware over the floor, throwing things around and scattering seasonings over the tables.  Some of them just occupied the tables without patronizing.

(6)  Due to the disturbance which took place in the restaurant, some customers just made off without payment.

(7)  After causing a disturbance and occupying tables at will for about two minutes, this batch of people wearing face masks left the restaurant and stayed outside.  The appellant also left.  He had spent a total of one minute 42 seconds in the restaurant.

(8)  When the police proceeded to enter the shopping mall, this batch of people wearing masks, including the appellant, immediately dashed from the place outside the restaurant where they were assembling and dispersed in all directions.  The appellant removed his face mask while making off.  He was subsequently subdued by the police in the shopping mall.

(9)  The restaurant was a public place.

(10)  With the idling, lingering or hanging about in the said public place, the appellant’s conduct amounted to loitering.

(11)  When he was loitering there in the company of other unknown persons, PW3 was caused reasonably to be concerned for her well-being.

(12)  The prosecution has proved all the elements of the offence beyond reasonable doubt.

Grounds of Appeal Against Conviction

16.  The appellant was represented by Mr Kei Rui Tien in the hearing who adopted the grounds of appeal drawn up previously for the appellant by Mr Duncan D.H. Ho[14]:

(1)  The magistrate erroneously convicted the appellant on the doctrine of joint criminal enterprise;

(2)  The magistrate erred in holding that there was sufficient evidence to draw the only reasonable inference that the appellant was there to support and incite others to cause a disturbance, and that there was a tacit understanding and a common purpose between him and the other people creating disturbances in the restaurant in question, which constituted a joint criminal enterprise;

(3)  The magistrate erred in holding that there was sufficient evidence to draw the only reasonable inference that the appellant’s conduct amounted to “idling, lingering or hanging about”, thereby erroneously finding that the appellant’s conduct amounted to loitering;

(4)  The magistrate erred in following the decision in R v Ng Chun Yip[15] in finding that the phrase “well-being” as in “loitering which caused any person reasonably to be concerned for his safety or well-being” should be defined as equivalent to a pleased and satisfied state, the reason being that it is too broad a definition which has no regard to the protection stipulated in Articles 5(1), 8(1) and 11(1) of the Hong Kong Bill of Rights and Articles 28, 31 and 39 of the Basic Law, it goes against the principle that legal provisions shall be specific and certain, and it is contrary to the proportionality principle; and

(5)  The appellant’s conviction is unsafe and unsatisfactory. (At the appeal hearing, Mr Kei Rui Tien pointed out that this ground of appeal, which was first compiled by Mr Duncan D.H. Ho, was more than just a general ground in that it also comprised the argument on whether the magistrate had neglected to consider the elements of the offence in their entirety.)

Discussions and Considerations

Ground of Appeal (5)

17.  As this ground of appeal involves the elements of the offence in this case, I shall deal with it first.

18.  The offence in question was formulated on section 160(3) of the Crimes Ordinance[16] which reads:

“If any person loiters in a public place or in the common parts of any building and his presence there, either alone or with others, causes any person reasonably to be concerned for his safety or well-being, he shall be guilty of an offence and shall be liable on conviction to imprisonment for 2 years.”

19.  According to Mr Tien’s submission, the elements of the offence shall consist of:

(1)  any person;

(2)  in a public place or in the common parts of any building;

(3)  loitering;

(4)  his presence there either alone or with others;

(5)  causing any person reasonably to be concerned for his safety or well-being; and

(6)  knowingly, intentionally or recklessly (mens rea) causing any person reasonably to be concerned for his safety or well-being.

20.  Mr Wayne Lee, Public Prosecutor representing the respondent, took issue with the 6^th element put forward by Mr Tien, saying that the prosecution was only required to prove that the defendant’s loitering had caused the concern as described in the provision, but not his mens rea.

21.  Provisions on loitering have long been in existence.  In 1979, regulation of loitering was incorporated into the Crimes Ordinance[17] as section 160.

22.  In the 1990s, the Law Reform Commission had submitted a report on the offence in question[18].  At that time, other than the subject offence which was formulated on section 160(3), there were two other offences[19] formulated on the basis of section 160:

“(1) Any person who loiters in a public place or in the common parts of any building shall, unless he gives a satisfactory account of himself and a satisfactory explanation for his presence there, be guilty of an offence and shall be liable on conviction to a fine of $2,000 and to imprisonment for 6 months.

(2) Any person who loiters in a public place or in the common parts of any building and in any way wilfully obstructs any person using that place or the common parts of that building, shall be guilty of an offence and shall be liable on conviction to imprisonment for 6 months.”

23.  Simply put, the suggestions of the Law Reform Commission were that[20]:

(1)  the entire section 160(1) should be repealed; and

(2)  sections 160(2) and 160(3) should be retained the way they were.

24.  In 1992, having considered the suggestions above, the Government amended section 160(1)[21] to its current form.  Since then, there was no more amendment to its content except the part of the provision on penalty.  It reads as follows:

“A person who loiters in a public place or in the common parts of any building with intent to commit an arrestable offence commits an offence and is liable to a fine of … and to imprisonment for 6 months.”

Sections 160(2) and 160(3) were not amended, neither at that time nor subsequently[22].  The provisions have been the same as those set out in paragraphs 22 and 18 above.

25.  Both parties pointed out that as at today, there has not been any judicial precedent regarding the elements of the present offence (the offence under section 160(3)).

26.  AG v Sham Chuen[23], which was taken to the Privy Council of the United Kingdom on appeal from Hong Kong, was about the offence under section 160(1). The Law Reform Commission had referred to and discussed the case before making the above suggestions[24].

27.  In Sham Chuen[25], the Judicial Committee of the Privy Council interpreted the meaning of “loitering” in section 160.  Their Lordships pointed out that the meaning of the word was simply “lingering”.  However, there were different interpretations of the word “loitering” in various subsections.  The loitering referred to in subsections (2) and (3) was a particular kind of loitering[26]. In fact, subsection (1) is also concerned with loitering of a particular character, namely loitering which calls for a satisfactory account of the loiterer and a satisfactory explanation of his presence.  Their Lordships took the view that a person may loiter for a variety of reasons, some entirely innocent and others not so.  They concluded in respect of section 160(1) that the loitering this sub-section aimed at is loitering “in circumstances that reasonably suggest that its purpose is other than innocent”.[27]

28.  Mr Tien submitted that the Judicial Committee of the Privy Council actually pointed out with its analysis that the “mens rea” of section 160(1) was having “a purpose other than innocent”, the “mens rea” of section 160(2) as stipulated in the provision was “to wilfully obstruct any person”, and the “mens rea” of section 160(3) should be “with intent to cause any person reasonably to be concerned for his safety or well-being”.  Each “loitering offence” has a different “character” which comes with the corresponding “mens rea”.

29.  Sham Chuen[28] did not touch upon the issue of whether proof of mens rea was necessary in terms of section 160(3).

30.  Citing the authorities such as Hin Lin Yee v HKSAR[29] and Kulemesin v HKSAR[30], Mr Tien submitted that according to the established principle of statutory interpretation, the legislative intent would not have been to create an offence of absolute liability.  In statutory interpretation, it is essential to take account of the presumption that in terms of each and every element of the offence which is not related to the offender’s state of mind[31], the prosecution is obliged to prove the mental state[32].

31.  In Kulemesin[33], the Court of Final Appeal examined a series of cases and set out five possible alternative regimes in relation to the mens rea of statutory offences[34], namely:

(1)  that the mens rea presumption persisted and the prosecution must prove knowledge, intention or recklessness as to every element of the offence (“the First Alternative”);

(2)  that the prosecution need not set out to prove mens rea, but if there was evidence capable of raising a reasonable doubt that the defendant might have acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proved beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief ( “the Second Alternative”);

(3)  that the presumption had been displaced so that the prosecution need not prove mens rea but the accused had a good defence if he could prove on the balance of probabilities that he acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, he would not be guilty of the offence (“the Third Alternative”);

(4)  that the presumption had been displaced and the accused was confined to relying on the statutory defences expressly provided for, the existence of such defences being inconsistent with the second and third alternatives mentioned above (“the Fourth Alternative”); and

(5)  that the presumption was displaced and the offence was one of absolute liability so that the prosecution succeeded if the prohibited act or omission was proved against the accused, regardless of his state of mind regarding the relevant elements of the offence in question (“the Fifth Alternative”).

32.  Mr Tien submitted that the offence of “loitering which causes any person concern” under section 160(3) falls within the first alternative set out in Kulemesin, ie the presumption of mens rea persists and the prosecution must prove mens rea as to every element of the offence.  Therefore, the prosecution must prove the defendant’s intention or recklessness in causing another person reasonably to be concerned for his safety or well-being.  As to the remaining four alternatives, they do not apply in this case.

33.  In HKSAR v Leung Chung Hang Sixtus[35], the Court of Final Appeal reiterated that whether proof of mental state is required as an element in any given statutory offence is a matter of statutory construction. [36] It is only when the provision which creates the offence is silent, ambiguous or equivocal as to the state of mind required[37] would the aforesaid presumption[38] be adopted to supplement the text of the statutory language.[39] However, a statute may, on its proper construction, displace the presumption of mens rea expressly or by necessary implication.[40]

34.  The first question of construction arising is whether the presumption of mens rea is to be maintained or displaced. If it is determined to be so displaced, the next thing to be considered is, what is the requisite mental requirement to be established and how.  The construction shall have regard to the following: the nature and subject-matter of the offence, its seriousness in terms of penalty, social obloquy, the need to ensure protection of the public, the practicalities of prosecution and conviction, and whether the defendant was the one having sole access to the relevant information, and so on. 

35.  Section 160 created three different scenarios in which the offence of loitering is committed, and each scenario alone can constitute the offence of loitering.

36.  As far as the offences created under section 160(1) and 160(2) are concerned, it is expressly stipulated in the provisions that proof of mens rea is required.  Offences under subsection (1) require proof of intent to commit an arrestable offence while offences under subsection (2) require proof of wilful obstruction.

37.  As to the offence under subsection (3), that is the present one, the only condition set out on the loitering was one “which caused any person reasonably to be concerned for his safety or well-being”, which is about the consequences of the conduct, and it is not expressly stipulated in the provisions that proof of the offender’s state of mind is necessary.

38.  In the circumstances, the first thing I have to decide is whether the presumption of there being a mental element to prove is valid or should be displaced.

39.  Mr Wayne Lee, Public Prosecutor representing the respondent, emphasized that when offences under subsections (1) and (2) specifically require proof of mens rea but those derived from subsection (3) do not have such an express requirement, it is a clear indication that it was the legislature’s deliberate choice to have the provision drafted that way.  It also shows that it was the legislative intent that for offences under subsection (3), it is not necessary to prove any mental element.

40.  I am of the view that the above submission makes sense.  It is true that the three kinds of offences were targeted at different conduct and circumstances. Had it been the legislature’s intent that proof of mens rea is an indispensable element of offences created under subsection (3), it would have been really easy to make it clear at the time the provision was drafted.

41.  However, in cases such as Sweet v Parsley[41], it was expressly stated that we should not conclude, on that basis alone, that the legislative intent was to dispense with the need to prove mens rea.

42.  I have also noticed the fact that at the time the provision was drafted, not only were any expressions on mens rea deliberately avoided, but the phrase “reasonably to be concerned” was also chosen as a criterion to gauge the situation which causes concern.  This also shows that the legislative intent was to prove only that the loitering had caused the person concern for his own safety and well-being and that the concern was reasonable, without any need to prove anything on mens rea such as intention, wilfulness, or even recklessness.

43.  Besides, I also agree with Mr Lee’s submission that if the prosecution is to prove mens rea as Mr Tien suggested, it would pose an obstacle to the object of creating the offence.

44.  According to section 19 of the Interpretation and General Clauses Ordinance[42]:

“An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

45.  At the Second Reading of the Bill in 1979, the Attorney General stated that crime prevention was a major purpose of creating the offence of loitering. [43]

46.  When addressing the court, Mr Tien contended that if proof of mens rea is not required, innocent people are likely to fall foul of the law unwittingly.  In so doing, he cited the following as an example: a person loitering somewhere, thinking there was nobody around, may unexpectedly find that someone was there, and if his loitering causes concern to that person, he would be deemed to have contravened subsection 160 (3).  In my view, his submission has neglected the provision’s requirement that the concern has to be a reasonable one which entails both subjective and objective tests.  Innocent loitering in the circumstances as suggested by Mr Tien is presumably not culpable.

47.  With the maximum sentence of two years’ imprisonment, the penalty carried by the subject offence cannot be said to be not severe.  I have considered whether dispensing with the requirement to prove mens rea would give rise to the impropriety of imposing absolute liability as pointed out by the Court of Final Appeal in Hin Lin Yee[44].  In that case, it was pointed out by the Court of Final Appeal that to convict a person regardless of the mental state accompanying his conduct even if he can show that he acted in a reasonable, diligent and socially unblameworthy manner, especially if it is a serious offence carrying substantial penalties, is probably contrary to the fundamental values of the common law. [45]

48.  The aforesaid are important considerations.  However, in Leung Chung Hang Sixtus[46], the Court of Final Appeal said that the court has to take into account other factors including the statutory objectives and the nature of the subject-matter of the offence.[47]  The act of the offender in this case was sufficient to cause people reasonably to be concerned, and I reckon that it is the consequences of the act that matters, not whether the person acting that way did it with intent or whether he knew what possible consequences his act might cause.  Moreover, any person committing the act which constituted the present offence can hardly be described as the kind of person whose conviction would go against the basic values of common law[48], the reason being that when he committed the act which was sufficient to cause another person reasonable concern, a consequence that is socially unacceptable, he did not do it unwittingly.

49.  I have also taken into account other offences in which the consequences of the defendant’s act were considered an element of the offence.  It was held that the prosecution only needs to prove causation, but not the mens rea in relation to the consequences. These are some examples:

(1)  assault occasioning actual bodily harm, see R v Savage[49]; and

(2)  dangerous driving causing death, see R v A[50].

50.  However, even if the prosecution is not required to prove the mens rea[51] suggested by Mr Tien, the situation would still be different from that of many other offences such as those related to industrial accidents where it is absolutely unnecessary to prove any mens rea.  In the present case, the prosecution is required to prove that the defendant did the act deliberately (the loitering act which caused any person to be reasonably concerned for his own safety or well-being).

51.  Based on the above reasons, I found that in the present case, the prosecution is not required to prove that the defendant intended to cause any person the concern as stipulated in the provision, or that he caused any person concern with mens rea. What the prosecution has to prove is simply that the defendant was loitering deliberately which caused another person reasonably to be concerned for his own safety or well-being.

52.  Regarding the question of whether mens rea is an element of the subject offence, Mr Lee submitted that it has nothing to do with the decision in the present appeal, the reason being that in any event, the magistrate’s finding was that the appellant was acting in a joint enterprise with those people who actually created disturbances, and any person committing an offence under the doctrine of joint criminal enterprise does have the mens rea necessary for conducting criminal activities in a joint enterprise.

53.  I agree with his submission that the magistrate’s finding clearly showed that he was sure about the appellant’s mens rea which was necessary for conducting criminal activities in a joint enterprise.  Therefore, the above discussion is immaterial to the present case.

54.  Ground of appeal (5) does not stand.

Ground of Appeal (4)

55.  This ground of appeal is directed at the precise meaning of well-being in the provision and whether the prosecution managed to prove that the particular loitering had caused any person reasonably to be concerned for his own safety or well-being.  As it is about the elements of the offence, I shall likewise give priority to this ground of appeal.

56.  In the present case, the appellant was charged under section 160(3) of the Crimes Ordinance.  The relevant provision is as quoted in paragraph 18 above.

57.  Mr Tien submitted that the magistrate erred in following the decision in Ng Chun Yip[52] by holding that the meaning of “well-being” was the equivalence of a happy and contented state[53].  The error stemmed from the adoption of the definition of an English civil case Inland Revenue Commissioners v Baddeley[54] and its application to a criminal case, and the consequence that entails is that any person who lingers in a public place would be held criminally liable if he causes anyone to be reasonably concerned for his own happiness or contentment.  Mr Tien criticized the definition as being too broad.

58.  Mr Tien also put forward arguments on constitutionality:

(1)  To define the word well-being as a happy and contented state in the way that the magistrate did it not only makes it too broad a definition, but it would also impose unreasonable restrictions on people’s activities in public places, which runs counter to the protection given by articles 28, 31 and 39 of the Basic Law and articles 5 and 8 of the Hong Kong Bill of Rights; and

(2)  Moreover, this definition is not specific or certain enough and it goes against the principle of proportionality.  It would not be possible for the public to monitor their own conduct by reasonably referring to this overly broad definition of the word “well-being”, nor would it be possible for the public to reasonably be alert to the rules applicable to individual cases and circumstances.

59.  Mr Tien also pointed out that the decision in Ng Chun Yip[55] was made before the Hong Kong Bill of Rights and the Basic Law came into effect, and therefore did not take account of the protection of personal freedom afforded by the Hong Kong Bill of Rights and the Basic Law.

60.  At the trial, counsel for the defence had also raised similar submissions, but the magistrate’s view was that as Ng Chun Yip was a decision of an upper court, he must follow it[56]; and, by looking at the contents of the statement of findings as a whole, it is discernible that the magistrate did express his agreement with the decision in Ng Chun Yip[57].

61.  Mr Lee pointed out that in 1992, on the recommendation of the Hong Kong Law Reform Commission[58], section 160(1) of the Crimes Ordinance was amended to its current version[59], and it was specified in the Bill that the purpose of the amendment was for the provision to conform to the requirement of the Bill of Rights.  It is evident that at that time, the offence in the present case, ie section 160(3) of the Crimes Ordinance, was considered not in violation of the Bill of Rights.   He also cited HKSAR v Pearce Matt James[60] in support of his argument.

62.  Mr Lee also pointed out that since the coming into effect of the Bill of Rights, the courts have been adopting the definitions[61] used in Ng Chun Yip in relation to the elements of the offence of “loitering causing any person concern”. Nevertheless, he was fair in accepting that in those cases, the focus was mainly on the definition of the word “loitering”, without dealing specially with the definition of the word “well-being”.

63.  Mr Lee further submitted that, in any event, judging from the facts of the present case, under the doctrine of joint criminal enterprise, the creation of disturbances and shouting about of the appellant and the other people acting in a joint enterprise must have caused PW3 reasonably to be concerned for her well-being, both psychological and material well-being.  The magistrate also held that PW3 was worried about the safety of her employees and that of her customers, and he had correctly analysed the issue both subjectively and objectively.  He did not err in doing so.

64.  The term “利益” as seen in the English text of the Ordinance is “well-being”, the ordinary meaning of which does comprise a state of happiness, contentment and safety.  In my view, the tribunal of facts, when considering the evidence as a whole, ought to take on the ordinary meaning of the term in both languages in order to decide:

(1)  whether the defendant was loitering;

(2)  whether the conduct of the defendant caused any person to be concerned for his own safety or well-being; and

(3)  whether the concern was reasonable under the circumstances.

65.  The relevant provisions were put in place to deal with outlaws somewhere taking on conducts that were threatening, and such conducts may not necessarily be active in nature[62].  It was for this lawful and reasonable purpose that the subject offence was set up, and it also served the function of crime prevention[63].  For the purpose of fulfilling the aforesaid three conditions, I find it hard to accept that the requirements of the provision were not made specific or certain enough, but at the same time, I do not find that those requirements had gone beyond what was necessary for achieving the purpose either.  For that reason, I do not agree that the provision is in violation of the principle of proportionality.  Based on the above reasons, I find that the offence brought under section 160(3) does not violate the rights conferred by the Basic Law and the Bill of Rights, and therefore is not unconstitutional.

66.  With reference to the findings of fact, I am of the view that the magistrate’s finding that the act in question had caused PW3 to be reasonably concerned for her own safety or well-being was well justified[64] and supported by ample evidence.

67.  Ground of Appeal (4) also failed.

Ground of Appeal (1)

68.  Mr Tien commented that while the magistrate convicted the appellant under the doctrine of “joint criminal enterprise”, such doctrine was not raised by the prosecution as their case, or at least the prosecution did not make it clear that it was the doctrine of “joint criminal enterprise” that they relied upon in their allegation. Likewise, the magistrate never mentioned during the trial that he was going to consider the doctrine of “joint criminal enterprise”.  The result was that the appellant did not put forward any evidence or submission in that regard, which rendered the trial unfair to the appellant.  HKSAR v Maeda Hisato[65] was cited in support of his argument.

69.  Mr Tien contended that although it was mentioned in the particulars of offence that the appellant was loitering in the restaurant, that his “presence there with other unknown persons caused PW3 reasonably to be concerned for her own safety or well-being”, such particulars of offence cannot be viewed as proof of the prosecution’s reliance on joint criminal enterprise.  As the prosecution did not make any opening submission, the prosecution case was based on the contents of the summary of facts[66].  However, the summary of facts prepared by the prosecution did not contain any details about joint criminal enterprise.  It only mentioned that “the protesters answered the call on the internet and held a demonstration at [the shopping mall]” and that “it was captured on the CCTV that when two female protesters were messing up the tableware and seasoning containers, [the appellant] was in the restaurant”. These statements do not provide any basis or particulars for an allegation of joint criminal enterprise, such as common purpose, the terms of the agreement and the crime the participants agreed to commit.

70.  He also pointed out that during the entire process of the trial, the prosecution never made it clear that the prosecution case was based on the doctrine of joint criminal enterprise, and therefore the appellant did not consider putting forward any evidence in that regard.  When it came to the stage of final submission, the magistrate did not invite the prosecution or the defence to make submission on the doctrine of joint criminal enterprise.  Nevertheless, it was on the basis of joint criminal enterprise that he found the appellant equally criminally liable for the disturbances caused by the other persons, which rendered the trial of the appellant unfair.

71.  Below are the salient points of Mr Lee’s submission:

(1)  It was specified in the particulars of the amended offence that the appellant’s “presence there with other unknown persons caused [PW3] reasonably to be concerned for her own safety or well-being”.  It is evident that the prosecution’s allegation was based on the appellant’s participation in the joint criminal enterprise with the other unknown persons.  Therefore, the magistrate did not depart from the prosecution case in convicting the appellant on the basis of joint criminal enterprise.

(2)  Although the prosecution’s summary of facts did not say expressly that the appellant’s culpability came from him inciting those who caused disturbances, it did set out the facts relevant to the offence: there were protesters gathering outside the restaurant, and during that time, some protesters went in the restaurant, disturbed the customers and messed up the tableware and seasonings while the appellant was inside the restaurant.  All these clearly point to the fact that the appellant took part in the disturbances in the restaurant in the form of a joint enterprise.

(3)  The defence at trial must have known that it was the prosecution’s stance that the appellant and the people who caused substantive disturbances shared a common purpose, hence the commission of the offence.    In fact, whether the appellant and the people who caused disturbances had a common purpose and whether the appellant’s conduct had incited the acts of disturbance were among the crucial issues at trial.  In their closing submission, the defence at trial stressed that at the time of the offence, the appellant went in the restaurant by the entrance which was relatively far off and sat down where he was unable to see the acts of disturbance.  Therefore, he did not “incite or take part in” the acts of disturbance, and there was no basis to infer that the appellant and those who caused disturbances had a “common purpose”[67].

(4)  Even if the court is of the view that the magistrate convicted the appellant on a basis different from the one which the prosecution originally relied on, it was after all a decision made on the basis of evidence.

(5)  Although the magistrate did not invite the defence to make any submission on the doctrine of joint criminal enterprise, defence counsel at trial in his closing submission did address the court and make analysis on the essential elements of the doctrine. 

(6)  Under the above circumstances, the appellant did not suffer any procedural unfairness as a result.  This proposition was upheld by the Court of Final Appeal in Hau Tung Ying & Others v HKSAR[68].

72.  It is to be noted that the particulars of the offence had been amended, and the allegation put forward before the magistrate was about what happened inside the restaurant[69], targeting at acts done inside the restaurant, which basically included that:

(1)  two teenage girls creating disturbances by messing up the menu, tableware and sachets of sugar on the table;

(2)  someone shouting about in the restaurant;

(3)  someone throwing things around; and

(4)  someone occupying the table with no intention to patronize.

73.  It was not alleged that the appellant had done any of the above.  The basis of prosecution was obviously that the appellant and those people were considered to have committed the same offence based on the doctrine of joint criminal enterprise.

74.  I do not agree with the rule as set down by the Court of Appeal in Maeda Hisato[70] which was cited by Mr Tien: The prosecution must state clearly during the opening submission that their allegation against the accused was based on joint criminal enterprise.  McWalters JA[71] made it explicit in the judgment that such a need came about only as a result of the specific circumstances of that case[72].  In many cases, even if the prosecution does not expressly set it out, it would become obvious from the material disclosed by the prosecution, including the charge sheet, the summary of facts and witness statements that the prosecution is relying on the doctrine of joint criminal enterprise as the basis of prosecution, and there is no need to mention it separately.

75.  In this case, I find it remarkably obvious that the prosecution of the appellant was based on the doctrine of joint criminal enterprise.  Having carefully considered the closing submissions of the parties at trial, my view is that any contention that the defence counsel at trial did not notice it would mean that his submission on this point at closing was neglected.  As defence counsel at trial had made the submission in that regard, it would not be justified to say that the defence was deprived of the chance to adduce evidence in defence for not grasping the prosecution’s basis of accusation.

76.  In respect of this ground of appeal, Mr Tien made further submission that the magistrate did not distinguish between Basic Joint Criminal Enterprise[73] and Extended Joint Criminal Enterprise[74], that the matter was misconceived and as a result, the conclusion made was incorrect.  Moreover, the defence was not given sufficient opportunity to respond.

77.  Mr Tien’s submission was directed at the magistrate’s use of the expression that “the disturbance created by the two teenage girls was really something foreseeable as part of the common purpose of creating trouble for the restaurant”[75].  In particular, he took issue with the term “foreseeable” as it showed that the magistrate considered the matter on the doctrine of extended joint criminal enterprise.

78.  The magistrate failed to state clearly which kind of joint criminal enterprise he relied on when he considered the matter, or he considered both.

79.  The Court of Final Appeal, in cases such as Sze Kwan Lung v HKSAR[76], HKSAR v Chan Kam Shing[77] and HKSAR v Leung Tin Kei[78], had elaborated on the doctrine of joint criminal enterprise.[79]

80.  Basic joint enterprise, put briefly, involves the defendant and others agreeing to carry out a crime and then executing the planned crime according to the agreement.[80]

81.  Where a criminal offence is committed by two or more people, each of them may play a different part. Nevertheless, provided they are acting together as part of a joint plan or agreement to commit the offence, they are all guilty.

82.  The words “plan” or “agreement” do not mean that there has to be any formal plan or agreement between them. An agreement to jointly commit an offence may arise on the spur of a moment. Nothing needs to be said at all. The agreement can be made with a nod or other kinds of indication, or even a facial expression to reach an understanding.  It can also be inferred from the behaviour of parties. The essence is that the accused all shared a common intention to commit the offence and played his part in it, however great or small, so as to achieve that aim.

83.  The extended version of joint enterprise usually addresses the situation where certain people have agreed on jointly committing a certain crime, and in the course of carrying out the agreed plan, one of them (A) commits a more serious offence. Whether the other people in the agreement shall be criminally liable for the more serious offence committed by A depends on whether A’s conduct was foreseeable by them in the execution of their agreement. [81]

84.  Judging from the statement of findings’ formulation as a whole, I am of the view that the magistrate had considered and made his final decision as to whether the appellant committed the present offence under the doctrine of basic joint enterprise.  In my view, when the magistrate used the word “foreseeable”, he was merely talking about one of the factors he took into account in analysing whether there was an agreement between the appellant and the other people involved.  It was the magistrate’s finding of fact that the common purpose between the appellant and that group of people was to cause a disturbance in the restaurant[82]. There are various kinds of disturbances.  What the magistrate meant to say with that expression was that the actual disturbance caused was not something unexpected to the appellant and had not gone beyond the parties’ common purpose.  What actually happened in the present case was not that the conduct of the girls constituted another offence or a more serious offence.  What they did was simply a manner or extent of disturbance caused within the scope of the common purpose of disturbing the restaurant which was not beyond the appellant’s expectation.

85.  Even if the magistrate did consider the matter under the doctrine of extended joint enterprise (which I believe is not the case), when joint criminal enterprise was obviously the basis of prosecution and defence counsel at trial had raised the relevant arguments in his closing submission, my view is that the magistrate did not handle it improperly and there was nothing undue or unfair in terms of procedures.

86.  Ground of Appeal (1) cannot stand.

Ground of Appeal (2)

87.  Mr Tien contended that the magistrate erred in finding that the appellant’s presence there supported and incited others to cause disturbances and that a tacit understanding and a common purpose existed between the appellant and the youngsters causing disturbances in the restaurant, which was “a plan to jointly commit a crime”.  That is erroneous because it is not the only reasonable inference to draw from the evidence.

88.  Mr Tien pointed out that both the CCTV footage and the Apple Daily video clip did show that the appellant entered and left the restaurant at a time close to that of the other people and that he sat down at a table inside the restaurant for approximately one minute.  However, during the entire incident, the appellant and his accompanying female friend(s) had never had any communication or conversation with the youngsters who created disturbances.

89.  Besides, Mr Tien also pointed out that from Apple Daily’s video clip, one can see that those youngsters only started to cause a disturbance after they had sat down for 38 seconds (37:53-38:31), and the appellant was already sitting behind the thick pillar, ie at the table in front of the cashier counter before the youngsters began to cause a disturbance.  With the pillar in between, his table was separated from the table of the disturbance-causing youngsters.  The appellant apparently did not and could not talk or communicate with those youngsters who caused a disturbance.  He was not even able to see the tabletop that the youngsters were messing up.

90.  Mr Tien further submitted that PW3 admitted in her testimony that except for one table of youngsters, all the other people who entered the restaurant did not cause any disturbance.  Obviously, it was beyond the appellant’s ability to foresee that the table of youngsters were going to cause a disturbance, not to mention him deliberately taking part in it or having a plan to jointly commit the crime of causing a disturbance with them.

91.  On the other hand, Mr Lee submitted that the evidence accepted by the magistrate, including the following, is sufficient to prove that the appellant and the other protesters at the scene of crime (counting the protesters who messed up the tableware and seasonings) did share a common purpose in loitering together:

(1)  The appellant was among the crowd gathering outside the restaurant;

(2)  After the people who went in the restaurant to cause a disturbance had gone in, the appellant followed immediately by getting in through another entrance;

(3)  Some of the people who had entered the restaurant simply occupied the table(s) without patronizing;

(4)  After the protesters who caused a disturbance had left the restaurant, the appellant immediately followed suit;

(5)  The appellant only stayed in the restaurant for less than two minutes.  Obviously, he had no intention to patronize;

(6)  Having left the restaurant, the appellant and the other protesters continued to assemble at the entrance of the restaurant;

(7)  At the time of the incident, the appellant and the other protesters all wore face masks to conceal their identity; and

(8)  Upon the arrival of the police, while he was leaving, he took off his face mask.

92.  I have watched the video clips.  There were people gathering outside the restaurant, chanting slogans.  The undisputed facts are that the appellant was among the crowd in which many, including the appellant, were wearing masks.  Certain people among the crowd entered the restaurant, and then the appellant also went in.  The appellant did not get in the restaurant through the same entrance used by the girls who caused substantive disturbances.  The girls went in by the entrance called the near door while the appellant used the entrance called the far door. After the appellant went inside, he could no longer be seen in the video clip. It was not known exactly where he was and what he had done.  PW3 in her testimony said that the person who went in by the far door got a table, sat down and checked the menu, appearing calm.

93.  In addition to the findings of fact as set out in paragraph 15 above, the magistrate also made the following observations[83]:

(1)  It was a time before the pandemic struck when people normally would not wear face masks in their daily lives;

(2)  The crowd outside the restaurant stayed there for at least three minutes.  Among them a lot were wearing masks, including the appellant;

(3)  About one minute after the appellant emerged in the video clip, some ten odd to twenty people went in the restaurant;

(4)  The appellant followed suit and stayed inside the restaurant for one minute and 42 seconds;

(5)  Meanwhile, some people in the restaurant caused disturbances mentioned in paragraph 15(5) above;

(6)  Despite the lack of evidence as to what the appellant had actually done, he did occupy a table which could have been used to serve real customers;

(7)  After staying in the restaurant for about two minutes, the appellant and the other people came out. Theyobviously did not intend to patronize;

(8)  Having come out, the appellant and quite a number of people remained there outside the restaurant’s entrance;

(9)  They did not disperse until the police came and then some people ran away; and

(10)   The appellant took off his face mask and left as if nothing had happened.

94.  The magistrate made the following conclusion[84]:

(1)  There was no evidence that the appellant had actually caused any disturbance in the restaurant, but he did not go in to patronize.  Instead, he went inside at the same time as a large group of people who meant to cause a disturbance and occupied space of the restaurant.  Had he not been there to cause a disturbance on purpose or to deliberately support and incite others to cause a disturbance, there would have been no need for him to enter the restaurant and he would have stayed outside like some of the people wearing masks there.  The two teenage girls and those people who threw sundry items and shouted about took advantage of their numerical strength and created disturbances.  The restaurant was not large in area.  What they did must have created some noise and customers in the restaurant would not have been unaware of the disturbances caused and the appellant would not have failed to notice that either. [85]

(2)  That group of people all put on face masks to cover part of their face when it was not necessary to do so.  The only reasonable inference was that they all wanted to hide their identity when they all knew very well that they were doing something improper.

(3)  The appellant was among this group of mask-wearing people and they entered the restaurant in the same time slot.  After the trouble took place, they left the restaurant during the same time slot and remained outside together afterwards.  Taking the evidence as a whole, the only reasonable inference was that the appellant’s presence and stay there for one minute and 42 seconds without patronizing was not as innocent as “mere presence”.   He actually turned up in the restaurant to support and incite other people to cause a disturbance in the restaurant, and there was a tacit understanding between the appellant and the people who entered the restaurant to cause a disturbance.  Their common purpose was to stir up trouble to the restaurant.  The appellant took part in causing the disturbance and did it deliberately. [86]

95.  I take the view that the conclusion made by the magistrate is well-reasoned and supported by ample evidence.  I agree that the appellant’s presence there supported and incited the other people to cause a disturbance and it was his intention to do so, and that there was a tacit understanding and a common purpose between him and the people who caused a disturbance in the subject restaurant, which constituted a joint criminal enterprise.

96.  Therefore, Ground of Appeal (2) also failed.

Ground of Appeal (3)

97.  According to Ng Chun Yip[87], as far as the present offence is concerned, loitering means “idling, lingering or hanging about”[88]. In Tong Yiu Wah v HKSAR[89] , the Court of Final Appeal agreed with that view.

98.  Mr Tien submitted that the magistrate erred in finding that the appellant’s act amounted to idling, lingering or hanging about, for that conclusion was not the only reasonable inference to draw from the evidence.  Therefore, the magistrate also erred in finding that the appellant’s act was sufficient to constitute “loitering”.

99.  Mr Tien submitted that the magistrate neglected the following part of PW3’s evidence with which he was satisfied: Those who came in by the far door also sat down at a table and looked at the menu.  She was at the cashier counter but she did talk with the persons occupying one of the tables.

100.  Mr Tien contended that although the appellant did not patronize in the end and left the restaurant within two minutes after he went in, sat down and finished reading the menu, he could have done so for a legitimate reason.  Perhaps the price did not suit him or the appellant simply wanted to confirm whether borsch, the soup which others kept shouting for, was not available there.  In the circumstances, “idling, lingering or hanging about” was not the only reasonable inference to draw from the evidence.

101.  On the other hand, Mr Lee for the prosecution stressed that the appellant had stayed in the restaurant for one minute and 42 seconds while he was occupying a table without patronizing.  During the time of his stay there, some people who had been gathering with him caused a disturbance in the restaurant.  At least within that time, the appellant’s act could be categorized as loitering.

102.  As to whether the appellant could have stayed in the restaurant for some innocent reason, the argument was untenable in the circumstances when the appellant did not testify at trial.  In HKSAR v Tai Chi Wai and another[90] cited by Mr Lee, the Court of Appeal pointed out that:

“85. In criminal cases, defendants do not have any burden of proof. It remains the duty of the prosecution throughout to produce sufficient evidence to prove a defendant’s guilt before a defendant can be convicted.

86.       However, in dealing with criminal cases, the court not only has to rely on direct evidence, but it also has to draw reasonable inference.   When the truth of a certain matter is within the defendant’s knowledge and if he is innocent, he would presumably give evidence in response to certain evidence against him to contradict, undermine or explain the prosecution case.   If the defendant elects not to give evidence, the court will more readily draw adverse inferences against him (see Li Defan & Another v HKSAR [2002] 5 HKCFAR 320).”

103.  In the present case, since the appellant did not testify, there was no evidence from the appellant himself as to why he entered the restaurant, what was in his mind at the material time and the purpose of him doing so.  The duty of the magistrate was to make his findings on the basis of the totality of the evidence adduced.  The magistrate’s findings were that the appellant was loitering, that he and the other people had a tacit understanding and a common purpose, and that his presence at the scene was for supporting and encouraging others to cause a disturbance.  I agree that this was the only reasonable inference to draw from the evidence as a whole, and his findings were not contrary to or contradicted by any of the evidence in the case.

104.  Ground of Appeal (3) cannot stand.

Ruling on the appeal against conviction

105.  For the above reasons, the appellant’s grounds of appeal all failed.  I am of the view that the magistrate did not err in the process of handling and analysing the case.  Having scrutinized the evidence at trial, I find the magistrate’s findings of fact justified.  I rule that the conviction was safe and satisfactory and supported by ample evidence.  Therefore, the appeal against conviction is dismissed and the conviction is affirmed.

Appeal against sentence

106.  The magistrate said that in sentencing, he took into account mainly the following:

(1)  the nature and facts of the case[91];

(2)  the appellant’s personal background: the appellant was then aged 37 and single.  He worked as an assistant marketing manager with a monthly salary of $29,000.  He has a 62-year-old mother at home.  The appellant has no previous convictions and has been of good character all along.  His former and present superiors and his friend(s) had written mitigation letters for him; [92]

(3)  the actual and possible consequences of the incident, including an adverse impact on Hong Kong’s business environment; [93]

(4)  mitigation submission by the defence:  In mitigation, counsel for the appellant said that the appellant did not realize at the time of committing the offence that his conduct might bring him serious legal consequences.  He described the appellant’s conduct as out of character, saying that he was impulsive and acted recklessly as he was influenced by the high emotions of the people there.  He further submitted that there was no evidence to prove that the appellant had done anything concrete in the restaurant where the disturbance was caused, and the two teenage girls’ conduct in the restaurant merely showed that they were naive.   Relying on Ng Chun Yip[94], counsel for the appellant asked the magistrate to consider imposing a nominal fine or calling for a probation order report and a community service order report; [95]

(5)  the fact that the appellant was convicted after trial, not that he pleaded guilty; [96]

(6)  the maximum penalty of the present offence is 2 years’ imprisonment while that of the other two kinds of loitering is only 6 months;

(7)  the high opinion of the appellant’s superiors and friend(s) about the appellant; [97]

(8)  the fact that the appellant did not have any previous criminal conviction record. [98]

107.  The magistrate took 10 months as the starting point for sentence and gave the appellant a discretionary reduction of one month as he admitted part of the evidence and elected not to give evidence, thereby saving the court’s time.

108.  Mr Tien submitted the following grounds of appeal against sentence for the appellant:

(1)  The sentence imposed by the magistrate is manifestly excessive, and/or wrong in principle;

(2)  The present case involved a single incident which lasted but several minutes.  The actual disturbance caused was only in the form of tipping salt, sugar and tableware over the table and the floor, which was not a serious act of property damage.  There was no evidence of frequent occurrence of similar cases of loitering which inflicted an adverse impact on Hong Kong’s business environment.  Moreover, the appellant did not do anything in particular to cause a disturbance.  To the contrary, PW3 confirmed that the appellant simply sat there quietly and looked at the menu, and he left in less than two minutes. It is neither necessary nor justified to impose a deterrent sentence on the appellant; and

(3)  Having regard to all the circumstances as a whole, it was too severe a sentence and manifestly excessive.

109.  Mr Tien contended that as no sentencing guidelines had been laid down for the present offence, sentencing depended very much on the facts of each individual case. The loitering in the present case was relatively trivial in nature.  The restaurant in question did not suffer any substantial damage to property.  The time of the disturbance was short.  Not all of the customers left in apprehension.  Only part of the business was affected, and the appellant did not cause any disturbance.  In the circumstances, an immediate custodial sentence of nine months is manifestly excessive.   As the facts of the present case are similar to those of Ng Chun Yip[99], the Court should consider imposing a fine, a community service order or a suspended sentence.

110.  Mr Tien also pointed out the following which he said the magistrate did not handle properly:

(1)  The magistrate erred in law in referring to the appellant’s plea of not guilty as a waste of court time[100]. By pleading not guilty and making it necessary for the prosecution to adduce evidence, the appellant was exercising the right to a fair trial guaranteed to all defendants under the Basic Law.  The magistrate was wrong in principle in criticizing the appellant’s choice as a waste of court time, which rendered the sentence unreasonably heavy.

(2)  The magistrate alleged without a proper basis that the appellant was asking the court to pamper him in every respect[101] when in fact the appellant never asked the court to do so, not during the submission, nor did he do that in mitigation.  In criticizing the appellant that way, the magistrate erroneously considered this irrelevant factor, hence the sentence which was unreasonably heavy.

(3)  The magistrate erred in taking account of factors not substantiated by evidence, including:

(i)  the unsubstantiated allegation that the appellant was shouting about to lend support[102];

(ii)  that there was a joint criminal enterprise between the appellant and the other youngsters who caused a disturbance when the appellant was standing at the back and the youngsters were causing a disturbance on his behalf[103]; and

(iii)  that perhaps some customers do not dare to patronize the restaurant again, which would lead to its permanent loss in business[104].

All these allegations were not substantiated by facts.  The magistrate erred in taking account of these factors which rendered the sentence unreasonably excessive.

(4)  The magistrate reckoned that the appellant’s behaviour was no different from or even worse than that of the triad’s[105], and thereby erred in taking this aggravating factor into consideration.  The present case is a single incident which lasted for only several minutes.  Even though PW3 had a loss in business, the present offence should not and could not be compared to an organized and serious crime of a triad society which usually involved persistent acts of extortion, not to mention the allegation that it is even more serious than triad offences, and the appellant did not commit the crime for personal financial benefit.

(5)  The magistrate erred in taking into account an irrelevant factor in finding that the appellant’s conduct violated the capitalist system safeguarded by the Basic Law[106].  The accusation of violating the capitalist system was not a consequence that the appellant’s loitering would reasonably bring about.  The magistrate was wrong in taking account of this factor which made the sentence unreasonably excessive.

111.  Mr Tien also cited the authorities below in support of his argument that it was too heavy a sentence:

(1)  R v Ng Chun Yip[107];

(2)  HKSAR v Wong Chun Yam[108];

(3)  香港特別行政區訴陳文珍[109];

(4)  HKSAR v Li Jacob[110];

(5)  HKSAR v Au Pak Chung[111];

(6)  HKSAR v Choi Kwok Keung[112]; and

(7)  HKSAR v Pearce Matt James[113].

112.  On the other hand, Mr Lee endorsed the magistrate’s reasoning in adopting a deterrent sentence.  He submitted that the appellant and his accomplices premeditated the commission of the offence.  They took advantage of their numerical strength in maliciously causing a disturbance to the restaurant and committed the illegal acts in a wanton manner.  The court is obliged to convey a deterrent message in order to safeguard Hong Kong’s business environment.

113.  He also cited Secretary for Justice v Wong Chi Fung and two others[114] to support his argument.  That case, as he submitted, involves the offence of unlawful assembly which is different from the present offence, and no violence was involved in the present case.  However, the observations of the Court of Appeal in that case equally apply.   He contended that the conduct of the appellant and his accomplices in the present case amounted to collective violation of public order and breach of peace.  Since the restaurant was open for business when the incident took place, quite a number of customers were inside, including elderly people.  A lot of people were then surrounding the restaurant and some participants kept shouting about.  Having entered the restaurant, some protesters deliberately tipped the seasonings and tableware over the table and made provocative comments.  What they did might also bring about confrontations or stir up the emotions of the people there who might commit other offences as a result.  The behaviour of the appellant and that of the other people caused not only apprehension in the restaurant owner and the customers there, but also a financial loss to the restaurant owner.  The facts cannot be described as trivial.  When the appellant was convicted on the basis of joint criminal enterprise, he was just as culpable as all other participants.  Moreover, given the social environment at the time when there were increasing incidents of unrest and a rising number of large-scale public protests, a deterrent sentence not only lowered the risk of the appellant re-offending, but it also served the purpose of a preventive measure as well as a warning to others not to follow suit.[115]

114.  Mr Lee submitted that under the circumstances, considering the number of the people present and the behaviour of the participants, the sentence imposed by the magistrate may seem a bit too severe, but it was within his discretion and not manifestly excessive.  Whether the magistrate handled some of the matters correctly is open to discussion, but the crucial thing is whether the sentence passed on the appellant was appropriate and suitable.  Given the facts of the present case, neither a community service order nor a probation order would be sufficient to reflect its seriousness.

115.  I will first deal with the criticisms raised by Mr Tien in para 107 above, in particular about the magistrate’s comment that:

(1)  the appellant’s denial of the charge was a waste of court’s time[116]; and

(2)  the appellant was not entitled to ask the court to pamper offenders in the same way social workers do[117].

116.  These may well be no more than some imperfect comments made by the magistrate, but they do bring about misgivings that they were misconceived.

117.  A defendant’s denial of a charge is certainly an important factor to be considered in sentencing, but the main concern was really that it shows his lack of remorse.  Even when it is a plea of guilty, as long as it is not a timely plea, the percentage of sentence reduction will likewise be affected. [118] Nevertheless, if the need to proceed to trial is taken as an aggravating factor, it would be a violation of the defendant’s right and an infringement of the presumption of innocence.

118.  It is certainly improper for a sentencing judge to “pamper” a defendant who has been found guilty, but generally speaking, the court in sentencing will take into account the overall circumstances of the case as well as the personal circumstances of the offender and strike a proper balance with reference to the following four sentencing principles: retribution, deterrence, prevention and rehabilitation.[119]

119.  As for Mr Tien’s criticisms set out in paragraph 107(3) above, I take the view that the magistrate was only saying that the appellant committed the offence under the doctrine of joint criminal enterprise, which does not render the sentence unsafe or have any bearing on the key factors in sentencing.  The magistrate’s finding was that the harm done to the restaurant’s business by the relevant conduct was not limited to the day in question.  I agree with that finding and I also concur that the relevant conduct is going to damage the overall reputation of Hong Kong.

120.  It was not an offence committed by triads, but no doubt it involved a large number of people acting together, which the court must take into account.

121.  The magistrate did mention that the maximum sentence of two years’ imprisonment for the present offence was heavier than that of the other two loitering offences which was one of six months’ imprisonment.  That is what the Ordinance requires.  However, the difference has been there for decades, and it is not the result of any recent amendment that would raise the maximum sentence for the present offence.  In any event, it is quite unnecessary for the magistrate to think that he was bound to impose a prison sentence of more than 6 months[120].  The duty of the court is to take account of the overall circumstances of the case as well as the personal circumstances of the defendant with reference to the relevant sentencing principles and case authorities to see what the most appropriate sentence to pass is.

122.  My duty is to decide whether the sentence imposed by the magistrate is in defiance of the sentencing principles or manifestly excessive.

123.  I have referred to the cases cited by Mr Tien, but every case is unique in terms of background and facts, and there are different considerations in sentencing in light of the circumstances of individual cases and personal circumstances of the defendants.  Therefore, it does not serve any real purpose to simply compare the gravity of the sentences.

124.  In the present case, the magistrate attached a lot of weight to deterrence in sentencing.  I agree that the way he approached the matter is consistent with what the authorities said.  However, it is still necessary to make adjustments according to the nature and facts of the present case.

125.  Having considered the overall circumstances, I took the view that neither a community service order nor a probation order is sufficient to reflect the gravity of this case.  Moreover, as the appellant pleaded not guilty and appealed against conviction, I am not convinced that he has satisfied the condition of full remorse which is necessary for a sentence of community service order.[121]

126.  I concur with the magistrate’s view that an immediate custodial sentence is the only sentence that is appropriate.

127.  Mr Tien in his submission stressed that in view of the appellant’s personal behaviour, his case should be relatively less serious than that of some other offenders there in terms of culpability.

128.  This is a case of joint criminal enterprise[122]. In HKSAR v Thapa Ramkishna[123], having reviewed AG v Tam Ka Lok[124], the Court of Appeal had this to say:

“But while in that judgment it was recognised that there may be room for differentiation in that, for example, an identified ‘ring leader’ may properly receive a stiffer sentence, it was recognised that the scope for differentiation between the culpability of those who participate in a joint enterprise will invariably be limited as, in respect of each, the sentences must reflect their shared basic criminality. Unless the facts clearly demand it, it is not therefore obligatory for a sentencing judge to draw distinctions between differing degrees of participation in a joint enterprise.” [125]

129.  The same view was taken by the Court of Appeal in quite a number of cases, including SJ v TSO Tsz kin[126], HKSAR v Lai Kam Tong[127] and AG v Sin Wai Lun[128].

130.  Although the substantive acts of disturbance were only those referred to in para 15 above, in assessing the gravity of the case, the court must take into account the social environment at the time as well as the nature of the case, instead of focusing only on the disturbances that actually happened.  The instant case took place on 26 December 2019 when social events were rife and acts of violence were common.  During the incident, there were many people acting together.  Although they did not stay long in the restaurant, they were all wearing face masks and had been causing disturbances for quite some time, which was bound to cause PW3 to be reasonably apprehensive, and the overall circumstances were very much worrying.  The incident came to an end when the police arrived, which must have brought relief to PW3.  However, her worries came not only from what had actually happened, but also from not knowing whether something more serious would occur.  As far as the present case is concerned, given the social environment at that time, such worries about the unknown are something which the court must take into consideration. In fact, other than gauging the severity of the things that had actually happened, the court must also take notice of the consequences of the matter.  As I have mentioned earlier, the consequences are not confined to the day in question.

131.  Taking into account the overall circumstances of the matter, the nature and facts of the case, the appellant’s personal background and the fact that there were doubts about the way the magistrate handled the matter, I take the view that there is room for sentence reduction.  Having carefully considered the matter, I am allowing the appellant’s appeal against sentence and the sentence is reduced to one of 6 months’ imprisonment.