HKSAR v. TSANG WAI MAN

[English Translation – 英譯本]

HCMA 7/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 7 OF 2005

(ON APPEAL FROM TWMP 2019 OF 2004)

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Judgment

Background

1. The appellant attended a hearing in the Tsuen Wan Magistracy on 1 December 2004.  At that hearing, the prosecution applied to the court for an order that the appellant be bound over to be of good behaviour by abstaining from sending nuisance e-mails to the victim Ms. Yiu, or committing or attempting to commit any criminal act involving the sending of nuisance e-mails to any person.

2. Upon the appellant agreeing to the brief facts of the case prepared by the prosecution, the magistrate forthwith made an order that he be bound over in his own recognizance of $1,000 to be of good behaviour for 12 months, so that he would not commit the above-mentioned prohibited act again.  The appellant was also ordered to pay costs of $300.

3. The appellant appealed against the above orders.  After hearing, I allowed the appeal, quashed the bind-over order and set aside the costs order.  I also awarded costs of $8,250 to the appellant.  I now set out my reasons.

Facts

4. The prosecution case was that in January 2001, the appellant and Ms. Yiu got acquainted through “ICQ” and they soon became “close friends”, but in March 2003 they broke up.

5. On 6, 7, 15 July and 27 August 2004, the appellant sent “e-mails” to Ms. Yiu, asking her pay him $33,850 to compensate him for the money he lost and the emotional injuries he sustained.

6. Ms. Yiu reported the matter to the police on 9 November 2004.  The Appellant surrendered to the police on 11 November and admitted that he had sent those “nuisance e-mails”.

7. As the appellant had a clear record and had admitted his wrongdoing, the police applied to bind over the appellant to be of good behaviour.

Grounds of appeal

8. The appellant contended that the order made by the magistrate was improper and lacked a sound legal basis.

Amicus curiae

9. As the appellant acted in person and this appeal involved points of law of great importance, this court enlisted the assistance of Mr. Richard Wong, who appeared as amicus curiae.

Points of law

10. The present case involves two points of law:

(1)     Under the law, when the prosecution has decided not to prosecute a defendant, can it apply and rely on section 109I of the Criminal Procedure Ordinance, Cap. 221 and seek an order binding over the defendant to be of good behaviour?

(2)     Did the facts of the present case justify the magistrate’s decision to order the appellant to be bound over to be of good behaviour?

(1)     Question of law

11. In the present case, the prosecution made the application pursuant to the aforesaid section 109I.  Section 109I provides that:

A judge, a District Judge or a magistrate shall have, as ancillary to his jurisdiction, the power to bind over to keep the peace, and power to bind over to be of good behaviour, a person who or whose case is before the court, by requiring him to enter into his own recognizances or to find sureties or both, and committing him to prison if he does not comply.

12. After considering the Court of Final Appeal case of HKSAR v. Lau Wai Wo (2003) 6 HKCFAR 624 and section 61 of the Magistrates Ordinance, Cap. 227, I am of the view that the appellant at that time was in such a position (i.e. he had not been charged) that the prosecution could not bring him before the court by invoking section 109I.

13. Section 109I is an empowering section which confers on a judge/magistrate a power ancillary to his jurisdiction.  When the judge/magistrate exercises this ancillary power, the person affected must be a person who is before the judge/magistrate in a specific capacity, such as a defendant, a plaintiff or a witness.  Only then can the judge/magistrate have the jurisdiction to deal with the witness.

14. When the person affected is a defendant who has been charged, the judge/magistrate plainly has jurisdiction to exercise the ancillary power conferred by section 109I.  However, when a person has not been charged, the prosecution must bring the person to a judge/magistrate via a proper procedure before the judge/magistrate can exercise the ancillary power under section 109I.

15. Section 61 of the Magistrates Ordinance provides that:

(1)        The power of a magistrate, on complaint of any person, to adjudge a person to enter into a recognizance and find sureties to keep the peace or to be of good behaviour towards such first-mentioned person shall be exercised by an order upon complaint, and the provisions of this Ordinance shall apply accordingly, and the complainant and defendant and witnesses may be called and examined and cross-examined, and the complainant and defendant shall be subject to costs, as in the case of any other complaint.

(2)        The magistrate may order the defendant, in default of compliance with such last-mentioned order, to be imprisoned for 6 months.

The heading of the above provisions is “Exercise on complaint of power to bind over to keep the peace”.

16. It can therefore be seen that, where the prosecution does not intend to charge a person but thinks that the person should nevertheless be bound over by a magistrate to keep the peace, the procedure which the prosecution should follow is to lodge a complaint in accordance with section 61 above.  Once the complaint is lodged, the magistrate, besides being able to make an order to bind the person over to keep the peace under section 61, will also have jurisdiction to exercise the ancillary power conferred on him by section 109I.

17. As Lau Wai Wo is currently the most authoritative decision on binding over to keep the peace, I have to point out that the circumstances in the present case are different from those which came to be considered by the Court of Final Appeal in Lau Wai Wo.

18. In Lau Wai Wo, the defendant was charged with common assault on his own brother.  The magistrate acquitted him of the charge but ordered him to be bound over.  He objected.  The magistrate asked him whether he understood the content of the order and the consequences of breaching it.  He said that he understood and then signed a recognizance.

19. Lord Scott of Foscote NPJ gave at least four examples of the two categories of persons referred to in section 109I, namely a person who or whose case is before the court:

(1)     A defendant who is acquitted after trial, including one who was charged but who, at the commencement of trial, agreed to be bound over in exchange for the withdrawal of the charge(s) by the prosecution;

(2)     A defendant who has been convicted and the bind-over order is part of the sentence;

(3)     A witness who has given evidence in a civil or criminal case; or

(4)     A person who is before the court by reason of civil litigation.

20. Lord Scott of Foscote did not exhaustively set out all types of persons covered by section 109I.  However, the Court of Final Appeal did not deal with the type of persons of whom the appellant is one, i.e. he has not been charged, he is not a party to civil proceedings, and he is not a witness who has given evidence in a civil or criminal case.

21. The Court of Final Appeal did hold that section 61 was not an empowering section and that where a magistrate proposed of his own motion to make a bind-over order, the section should be regarded as a statutory guidance on the manner in which he should exercise his power.  As the facts in Lau Wai Wo were very much different from those in the present case, I believe that there is no inconsistency between the aforesaid judgment and the finding I now make in respect of section 61.

22. As far as this case is concerned, the prosecution should have made an application under section 61 and section 109I to invite the magistrate to consider binding over the appellant.

23. Even if my finding in respect of section 61 is wrong, I still find that the prosecution should have followed the procedure for making a complaint or laying an information under section 8 of the Magistrates Ordinance to require the appellant to appear before the court.  and the court could then have exercised the power conferred by section 61 and/or section 109I.

24. I find that when the magistrate made the order, the appellant was neither “a person who was before the court” nor “a person whose case was before the court”.  The magistrate had no jurisdiction and therefore could not exercise the power ancillary thereto to bind over the appellant to be of good behaviour.

(2)     Question of fact

25. I am also of the view that the facts of the present case did not justify the magistrate’s bind-over order against the appellant.

26. The prosecution, relying on section 20 of the Summary Offences Ordinance, Cap. 228, alleged that the appellant sent messages of a menacing character by means of “nuisance e-mails”.

27. The relevant provisions are as follows:

Any person who —

(a)        sends any message by telegraph, telephone, wireless telegraphy or wireless telephony which is grossly offensive or of an indecent, obscene or menacing character; or

(b)       sends by any such means any message, which he knows to be false, for the purpose of causing annoyance, inconvenience or needless anxiety to any other person; or

(c)        persistently makes telephone calls without reasonable cause and for any such purpose as aforesaid,

shall be liable to a fine of $1,000 and to imprisonment for 2 months.

28. The Court of Final Appeal in Lau Wai Wo confirmed (at paragraph 47, page 648) that conduct that would justify a bind-over to keep the peace must involve violence to person or property, or the threat of such violence, or be conduct giving rise to a reasonable apprehension that such violence will take place.  As to conduct that would justify a bind-over to be of good behavior, the conduct must involve the commission of the actus reus of a criminal offence, or the threat of such an act, or be conduct giving rise to a reasonable apprehension of the commission of a criminal offence.

29. In the brief facts, the appellant admitted that he sent “nuisance e-mails” to the victim, demanding that she give him money as “compensation for the time he has lost and the emotional injuries he has sustained”.

30. The magistrate pointed out in his Reasons for Decision that the appellant’s demands “had no legal basis whatsoever and did constitute demands of a menacing character as well as a nuisance to Ms. Yiu”.  The magistrate did not find that the appellant’s conduct involved violence to the victim or her property, or the threat of such violence, or gave rise to a reasonable apprehension that such violence would take place; nor did he find that the appellant’s conduct involved the commission of the actus reus of a criminal offence, or the threat of such an act, or gave rise to a reasonable apprehension of the commission of a criminal offence.

31. Leaving aside the question whether the e-mails were sent “by telegraph, telephone, wireless telegraphy or wireless telephony” as required by section 20 of the Summary Offences Ordinance, the actual words and sentences used by the appellant in the e-mails had not been included in the brief facts, and there was no evidence that the e-mails involved violence to the victim or her property, or the threat of such violence, or gave rise to a reasonable apprehension that such violence would take place.  There was no evidence that the e-mails involved any message within the meaning of section 20.  Nor was there evidence that the appellant sent the e-mails for the purpose of causing annoyance, inconvenience or needless anxiety to the victim.

32. Ms. Yiu received a total of four e-mails in July and August.  When the actual contents of the e-mails are not known, the mere fact that four e-mails were received within two months does not show that they were a “nuisance”.

33. For the above reasons, I allow the appeal.  The bind-over order is quashed and the costs order set aside.

Application for costs

34. As the appeal is allowed, I may award costs to the appellant pursuant to section 8 of the Costs in Criminal Cases Ordinance, Cap. 492.

35. Having considered the reasons for allowing the appeal, I should exercise my discretion to award costs to the appellant.

36. The appellant submitted that his losses amounted to $17,820.  The breakdown is as follows:

          (a)        Wages: 445.5 hours x $40 (hourly wage);

          (b)        Transportation expenses: $1,142;

          (c)        Stationery: $520; and

          (d)        Photocopying charges: $3,607.

37. After consideration, I assess the amount of reasonable costs at $8,250.  The breakdown is as follows:

          (a)        Wages: 150 hours x $40 = $6,000

          (b)        Transportation expenses: $1,000;

          (c)        Stationery: $250; and

          (d)        Photocopying charges: $1,000.