HKSAR v. MATT JAMES PEARCE

HCMA 740/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 740 OF 2009

(On appeal from ESS18525/2008)

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REASONS FOR JUDGMENT

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1.  The appellant was convicted after trial by Tong Man, Esquire, Chief Magistrate, on a summons alleging the commission of an offence contrary to s. 4(28) of the Summary Offences Ordinance, Cap. 228, referred to as “obstruction in a public place” and sentenced to undergo imprisonment for four weeks. He appealed both conviction and sentence. On 28 October 2009 I refused an application that I recuse myself and indicated that I would give my reasons for that decision later. At the conclusion of the hearing on 24 November I dismissed the appeal against sentence but allowed that against conviction. I adjourned sentencing to enable a report to be prepared on the appellant’s suitability to perform Community Service. I indicated that I would give my reasons for those various decisions later. These are they.

The background

2.  This matter has had a chequered and protracted history. The conduct which gave rise to the issue of the summons occurred on 30 November 2007 outside the Court of Final Appeal where Battery Path passes it by. The appellant mounted a demonstration calling for there to be an end to what he referred to as "prisoners of conscience", which was a category into which he perceived himself to fall.

3.  The reasons for his perception are relevant both to whether the obstruction caused by the appellant exceeded the bounds of reasonableness and to sentence. In short, the appellant had fallen out with a lady with whom, in his view, he had been romantically involved. As a consequence, he pursued a course of conduct which he ultimately categorised as exercising his right of free speech and which involved, amongst other things, writing threatening letters and mounting one-man demonstrations, whilst carrying a placard, outside her place of employment. A complaint was made to the police. He was charged with a variety of offences including criminal intimidation, loitering and making a false report to the police. He was convicted after trial and was sentenced to an overall period of imprisonment of 42 weeks.

4.  He appealed (see HKSAR v PEARCE HCMA635/2006). The appeal against the convictions was dismissed. The judge on appeal altered the sentence, imposing a conditional discharge on one of the two criminal intimidation charges and sentencing the appellant to serve an overall period of eight months imprisonment on the remaining charges. The appellant was dissatisfied with the outcome. He sought, unsuccessfully, a certificate from the judge to enable him to pursue the matter in the Court of Final Appeal. He also sought, unsuccessfully, leave from the Appeals Committee (see FAMC9/2007). He remained disgruntled, believing he had suffered an injustice.

5.  To return to these proceedings: on 25 and 26 August and 2 September 2008, the appellant appeared before a magistrate sitting at Eastern Magistracy. At the end of the prosecution case the magistrate made a finding that there was no prima facie case for the appellant to answer and dismissed the charge.

6.  The Secretary for Justice challenged that decision by way of case stated, pursuant to s. 105 of the Magistrates Ordinance, Cap. 227. That was heard on 21 April 2009 by Hartmann JA, sitting as an additional judge of the Court of First Instance. In a judgment on 11 June 2009 (unreported, HCMA 1078/2008) he allowed the appeal, set aside the order of the magistrate and remitted the case to another magistrate for trial de novo.

7.  The appellant was retried. There were four witnesses for the prosecution and extracts from video recordings of the demonstration were played to the magistrate. The appellant elected, as was his right, not to testify or to call any witnesses. The magistrate convicted and sentenced the appellant. He allowed the appellant bail pending appeal given the short period of imprisonment imposed.

8.  The appellant appealed. The matter was listed for hearing on 28 October before me. The appellant sought, by way of letter dated 8 October, to have the matter referred, pursuant to s. 118(1)(d) of the Magistrates Ordinance, to the Court of Appeal and requested that, if the request were to be refused, the decision be put in writing in order that that decision may be appealed. He was advised that this was not a matter which was regarded as appropriate for reference; that no appeal lay against such a decision; that the Court of Appeal had no power to arrogate the hearing to itself.

9.  The appellant sought, by way of a letter dated 12 October, an adjournment of the hearing in order to "... in order to obtain legal advice and representation from a specialist human rights lawyer and to apply for legal aid.". That request was declined.

10.  By way of a letter dated 16 October directed to the Chief Judge of the High Court an application was made for the appeal to be listed before another judge, excluding two other judges named in that request. That request was denied. The appellant was informed that any application for recusal should be addressed to the allocated judge. This he did by way of a similarly dated letter, in reply to which he was told that any formal application for recusal should be made before the commencement of the hearing on the appointed date. He indicated his intention to pursue such an application.

The application for recusal

11.  The application proceeded on a somewhat informal basis, the ground relied upon appearing to be that set out in the letter dated 16 October addressed to the Chief Judge of the High Court seeking relisting of the matter. It was contended:

"... the listed judge... was the appeal judge for another case I was in only a few months ago (HCMA 322/2009) and I believe he has some personal prejudices against me.

... I believe he has some personal prejudices against me and my tactics and ideas to make Hong Kong a better place. There is likely to be considerable public interest in the appeal as it affects all of Hong Kong's political groups staging a demonstration in a pedestrian street. It is probably best to all of us that the appeal is seen to be fair and just."

12.  The appeal to which the appellant's letter refers was heard and judgment given on 30 June, reasons following on 10 July. That appeal related to his conviction by another magistrate on a single charge of public nuisance contrary to common law, which arose from a demonstration mounted by the appellant on 8 August 2008 on the Tsing Ma Bridge, timed to coincide with the opening of the Olympic Games in Beijing. As in the instant matter, the appellant asserted in respect of those proceedings that he was doing nothing other than exercising his right to mount a peaceful protest, advancing his interpretation of what was said by the Court of Final Appeal in YEUNG May Wan and Others v HKSAR [2005] 2 HKLRD 212.

13.  The test to be applied in an application for recusal was considered recently by the Court of Appeal in HKSAR v Habibullah Abdul Rahman (D2), unreported, CACC 302/2008, 30 June 2009, in which a number of authorities were considered and the test formulated in these terms:

"… whether a fair-minded and informed observer would conclude that there was a real possibility that [the judge] would, by reason of his role in the first case and the conclusions at which he arrived, consciously or subconsciously approach the forthcoming appeal of the applicant other than wholly objectively, uninfluenced as against the applicant by anything he had heard or any view that he had reached in the first case."

14.  I applied that test and concluded that no such real possibility could be said to exist by virtue of the fact that:

12.1  an appeal from a magistrate is heard by a single judge of the Court of First Instance: a judge in such a position is expected and able to disregard matters which, before a jury, indeed may be prejudicial, and is experienced in doing so;

14.2 no issue arose in the trial as to the appellant's credibility, as he elected not to testify;

14.3 consequently, no question of any findings of credibility adverse to the appellant could arise which may have affected factual findings which needed to be made insofar as the appeal is concerned, an appeal from a magistrate being a rehearing on the evidence before the magistrate;

14.4 there was no substantive challenge to the facts at the trial which gave rise to the present appeal, the real issue being, both below and here, how the facts were to be applied to the principles enunciated in YEUNG May Wan;

14.5 the charge to which the appeal in HCMA 322/2009 related, public nuisance, was entirely different from the instant summons, obstruction, and was set against an entirely different factual matrix even if, in each instance, the appellant's motive was to make his views publicly known; and

14.6 insofar as knowledge of the fact of the applicant's previous conviction under HCMA 322/2009, and consequently of earlier criminal convictions, was concerned, any judge hearing the appeal would have become aware of those by virtue of the appellant's own submissions.

15.  As a consequence, the application for recusal was refused. However, the appellant being unrepresented had failed to appreciate the necessity of laying before the court at least those extracts from the video recording made on the day of the offence which were shown to the magistrate. The proceedings were adjourned to enable both the appellant and the respondents to prepare, respectively, those extracts which were thought to be pertinent and copies of the extracts which had been exhibited to the magistrate during the trial.

The appeal against conviction

16.  In his Statement of Findings the magistrate noted:

“The defendant has little dispute over the facts sought to be proved by the prosecution. This is not surprising for the police had videotaped the demonstration staged by the defendant … from 08.30 to 14:10 on 30 November 2007. The defendant has signed an admitted facts... admitting the integrity of 13 video tapes recording the process and such tapes were admitted as exhibits... The admitted facts also admitted a log sheet prepared by Police Constable 1990 recording the blockages caused by the defendant, the number of pedestrians affected, and the number of complaints made by those pedestrians against the blockages. The record was then admitted..."

17.  Two of the witnesses who testified for the prosecution described events as they were depicted in the extracts from the video recording, one described a discussion with the appellant the previous day and the fourth spoke to the log sheet prepared by him. Of passers-by polled during the course of the demonstration, 588 persons indicated on the form that they were inconvenienced by the demonstration, of whom 176 said they would consider using an alternative route and 404 said they would not do so.

18.  The magistrate then described what he categorised as "The factual circumstances of the demonstration" which, with respect, apart from an introductory paragraph, primarily consisted not of his findings of fact but, rather, a recitation of what Hartmann JA had recorded as being his impressions from watching the video recordings during the hearing of HCMA 322/2009. A court hearing an appeal against a magistrate's decision is required to arrive at its own decision in regard to criminal liability. With the benefit of the videotapes and particularly as there is no issue in regard to credibility, I am in as good a position as was the magistrate to assess the evidence.

19.  The principles which the Court of Final Appeal set out in YEUNG May Wan are sufficiently well-known as not to require restating at length: they appear clearly in §§42-45, thus:

“42.  …  The suggestion in some of the earlier reported cases that the public’s right to use the highway is limited to the right of passage and re-passage and acts incidental or ancillary thereto, is too narrow.  It is now established that “......the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public’s primary right to use the highway for purposes of passage and repassage” (DPP v Jones [1999] 2 AC 240 at 255E-G per Lord Irvine of Lairg LC; see also Lord Clyde at 279F, and Lord Hutton at 290H).

43.  Many examples of obstructions which may nevertheless constitute reasonable use of the highway can be found in the cases: …  While other users of the road or footpath may be to some extent impeded by such conduct, the law looks upon such cases applying what Stock JA (citing Harper v G N Haden and Sons Limited [1933] 1 Ch. 298, 320) called “the law of give and take”.  It seeks to strike a balance between possibly conflicting interests of different users of the highway based on a requirement of reasonableness.  Whether any particular instance of obstruction goes beyond what is reasonable is a question of fact and degree depending on all the circumstances, including its extent and duration, the time and place where it occurs and the purpose for which it is done:  Nagy v Weston, at 80, DPP v Jones, at 257E-G, 281E-F and 293B-C.

44.  Where the obstruction in question results from a peaceful demonstration, a constitutionally protected right is introduced into the equation.  In such cases, it is essential that the protection given by the Basic Law to that right is recognized and given substantial weight when assessing the reasonableness of the obstruction.  While the interests of those exercising their right of passage along the highway obviously remain important, and while exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances, such bounds must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.”

20.  Consequently the question which to be addressed was whether the appellant exceeded the bounds of reasonableness in exercising his right to demonstrate which is a question of fact and degree depending on all circumstances, including its extent and duration, time and place where it occurs and the purpose for which it is done.

The demonstration

21.  The demonstration essentially involved: a long banner bearing the slogan "No more prisoners of conscience" in English as well as Chinese characters; one end of the banner was attached to an immovable object whilst the other end was held by the appellant dressed in a costume which it appears he believed to represent prison uniform; a large pink teddy bear apparently accompanying the appellant; and, from time to time, the exterior wall of the Court of Final Appeal. There was another banner erected some short distance away but the prosecution did not rely on its presence as being relevant to the charge.

22.  It is not disputed that for the majority of the duration of the demonstration the appellant stood in such a position, holding the unsecured end of the banner but close to the wall of the building, as to permit persons using Battery Path to pass between him/the end of the banner and the wall. It is self-evident that this conduct had the effect of restricting the passage of persons using Battery Path but not to prevent them entirely from doing so: instead of being able to use its full width, they were channelled into a narrow gap which enabled one person, sometimes two persons, to pass through at once.

23.  In these circumstances the appellant plainly exercised control over the free passage of other users of Battery Path, although the manner in which he did so still allowed other users to exercise their rights, albeit in a restricted manner. The appellant suggested during his oral submissions that no person has an absolute right to walk in a straight line. Nowhere has such a right been suggested. To walk around a group of persons who are occupying a portion of the pathway, as happened in YEUNG May Wan, or around a person and his banner is a far cry from being either denied entirely the right to proceed on a chosen path or being obliged to take what, in return, is a substantial detour.

24.  Given the further conduct of the appellant, I express no view as to whether this facet of the demonstration constituted an unreasonable exercise of the appellant's right to protest. It is unnecessary for me to make any finding in this connection.

25.  However, from time to time, and for various periods, the appellant moved from that position to a position against the wall of the building which, obviously, had the effect of completely blocking Battery Path. At these times the appellant can clearly be heard on the recordings instructing people "I advise you not to climb over the banner. Walk round" and directing people to "Walk around the building" indicating, as the magistrate subsequently found, incorrectly that it was an eight minute walk. In fairness to the appellant it has to be said that the individual periods for which he completely obstructed the path were not great, generally being less than or slightly more than a minute, before he moved or lowered the banner to enable pedestrians to pass.

26.  It was clear from the video recordings that reactions to the appellant's behaviour were mixed. A few persons appeared to be vaguely amused by his antics. Some appeared to be indifferent both to the obstruction and the message which the appellant hoped to deliver. The majority, however, were visibly put out by the restrictions imposed on their free passage, displaying reactions ranging from mild irritation through to real annoyance, to the appellant being berated and, in one instance, to the banner being torn from his hands.

27.  One pedestrian circumvented the obstruction by climbing through an adjacent garden whilst others climbed over or lifted and passed under the banner, waited until the appellant lowered the banner to allow them to pass or, in a very limited number instances, apparently opted to take an alternative route. A number of pedestrians requested the appellant to move in order to allow them to pass, which he refused to do.

28.  The appellant was indiscriminate in the effect his obstruction would have on pedestrians. The fact that one of them happened to be a member of the judiciary is of no greater relevance than the fact that one of them happened to be a delivery worker carrying a large box: every member of the public has the "... primary right to use the highway for purposes of passage and re-passage."

29.  The facts were strikingly different from those related as having existed in YEUNG May Wan. I endorse the magistrate's assessment of the actual situation as "... such obstructions and inconvenience caused... was disproportionate to the defendant’s staging his lone demonstration there at Battery Path.". It seems to me to be worth repeating my observation in HCMA322/2009:

“The consequences of the appellant’s conduct was wholly disproportionate and, as such, unreasonable. The right to demonstrate, whilst constitutionally entrenched, is not an absolute right. It is a right to which it may be said that there exists a corresponding obligation: the obligation to exercise that right in such a manner as not to unreasonably interfere with rights enjoyed by other members of the public. …”

30.  A consideration as to whether the bounds of reasonableness have been exceeded is the purpose to which the demonstration is directed. The appellant asserts that he was a victim of injustice meted out by the judicial system which resulted in his having been imprisoned for a substantial period of time. Whilst I have no doubt that he believes himself to be badly done by, the reality of the situation is that he exercised all the rights that were open to him, and anyone else, in the course of criminal proceedings - itself a fundamental right - but was consistently found to have behaved in a manner which gave rise to criminal liability on his part. That resulted in him being a prisoner, but not a prisoner of conscience.

31.  The appellant’s conduct in Battery Path, in my view, plainly was an unreasonable exercise of his right to demonstrate, which consequently rendered unlawful the obstruction. The appellant was correctly convicted.

The appeal against sentence

32.  In respect of the instant offence, the magistrate sentenced the appellant to undergo imprisonment for a period of four weeks. In doing so he said:

"The defendant got four previous conviction records and they relate to offences of public nuisance, criminal intimidation, loitering, making false reports of commission of an offence etc. For his last conviction of public nuisance, the defendant was sentenced to prison to 6 months in Tsuen Wan Magistrates Court on 30.3.2009 and the defendant said that related to his demonstration staged at Tsing Ma Bridge. It is obvious that defendant was a habitual demonstrator who pays little respect to the law when he staging his demonstration. Under such circumstances, I consider a deterrent sentence is called for in this case."

33.  The appellant's first conviction, one of public nuisance, was on 15 March 2006: it related to a "demonstration" which he mounted by scaling and sitting atop a large television screen in Central whilst dressed in a cartoon character costume, which resulted in substantial traffic and pedestrian congestion. He was sentenced to undergo a period of 21 days imprisonment which, on appeal, was suspended for 18 months.

34.  This was followed some three months later, by the convictions flowing from his conduct earlier described which gave rise to his disenchantment. Some five months after that, he was convicted of an offence of criminal damage which, so it appears, related to another "demonstration" which he decided to mount, this time against a well-known hamburger company: in respect of that offence he was sentenced to undergo imprisonment for a period of 12 weeks to be served consecutively to the previously suspended sentence which was activated. It is unclear whether the magistrate had regard to this conviction when deciding on the present sentence.

35.  It seems from his sentencing remarks, however, that he took into account the fact that the appellant had been convicted of a further charge of public nuisance which resulted in him being sentenced to undergo a period of six months imprisonment - that being the conduct on Tsing Ma Bridge which gave rise to the proceedings which culminated in HCMA322/2009. That offence occurred substantially after the present offence and consequently was not relevant to the question of sentence.

36.  In my view, even given the appellant’s previous convictions at the time of the commission of this offence, the extent of his conduct was such that left room for an alternative to simply, once again, imprisoning him even if a period of imprisonment was not wrong in principle. It needs to be borne in mind that over the full period of the protest on 30 November 2007, which lasted some six or so hours, the appellant actually impeded pedestrians for an aggregate period of slightly over 30 minutes and, as already indicated, for around about a minute on each occasion. The consequences of the appellant’s conduct as seen on the video recording are very different from the chaos caused by his earlier demonstration in Central and, although not relevant to this sentence, by way of illustration, that on the Tsing Ma Bridge. Another distinction that may be drawn is that no physical danger was in any way caused to any pedestrian or to himself.

37.  The appellant indicated that he used his printed banner to obstruct pedestrians in order to stop them so that they would read the banner which would have the effect of conveying his message to them. I do not doubt the sincerity of the appellant’s belief that he has been hard done by but once he had exhausted all lawful means open to him, that had to be an end to the matter. It has to be said that if the samples of the video recording which were played are anything by which to judge, this was an entirely counter-productive approach.

38.  The appeal was adjourned to enable a report to be prepared on the appellant's suitability for performing community service. That report indicated that the appellant was suitable, and willing, to perform such service. Given the inconvenience which he caused to those members of the community on the day of the offence it seems to me to be just that he perform work which from which the community will benefit. Community service is recognized for sentencing purposes to be a form of custodial sentence, not as a ‘soft’ option. I consequently ordered that the appellant perform 180 hours of community service.

39.  This offence was committed at a time when the order conditionally discharging the appellant remained extant. Having regard to the judgment delivered at the time that order was made, it seemed to me that the purpose of following an unusual course by imposing both an immediate custodial sentence and a conditional discharge was to attempt to ensure that the appellant did not have any further dealings with the lady concerned which were unwelcome to her. The appellant frankly conceded that he understood that this was what the judge had hoped to achieve by making the order and, indeed, has achieved. The time period for which that order was due to last has now expired. In the circumstances I propose simply to make no order in regard to it.