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HCMA 168/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 168 OF 2013
(ON APPEAL FROM ESCC NO. 1828 OF 2012)
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BETWEEN
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HKSAR |
Respondent |
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and
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SHAHID |
Appellant |
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| Before: Hon McWalters J in Court |
| Dates of Hearing: 28 March and 28 June 2013 |
| Date of Judgment: 16 August 2013 |
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JUDGMENT
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Introduction
1. On 24 September 2012 at Eastern Magistrates’ Courts the appellant was convicted on his own plea of two charges of communicating false information as to the existence of a bomb, contrary to sections 28(2) and 28(4) of the Public Order Ordinance, Cap 245, by Deputy Magistrate Mr A. Wyeth.
2. On 8 October 2012 the appellant was sentenced to 10 months’ imprisonment for each offence with the sentences ordered to be served concurrently with each other.
3. On 26 November 2012 the appellant wrote to the court wanting to appeal against his convictions. On 6 December 2012 Tong J granted the appellant an extension of time in which to appeal. On 19 December 2012 the appellant filed his notice of appeal.
4. At the hearing of the appeal I reserved my judgment and said I would hand it down at a later date. This I now do.
The Offence
5. In order to understand the developments that occurred in the course of and subsequent to the hearing of the appeal it is necessary to have an understanding of the structure of the offence and of its elements. Section 28(2) of the Public Order Ordinance, Cap 245 is part of a section headed “Bomb hoaxes” and provides as follows:
“Any person who communicates any information which he knows or believes to be false to another person with the intention of inducing him or any other person to believe that a bomb or other article, substance or thing liable to explode or ignite is present in any place or location whatever shall be guilty of an offence.”
6. This offence has an actus reus of communicating information that a bomb or other article, substance or thing liable to explode or ignite is present in any place or location.
7. The offence has a mens rea composed of two elements. The first element is that when the defendant communicates the information he knows or believes it to be false. The second element is that when he communicates the information to another person he has the intention of inducing that person, or any other person to believe that a bomb liable to explode is present in any place.
The Circumstances of the Offence
8. The offences took place over the space of 5 to 10 minutes commencing from around 1:35 p.m. on 16 May 2012. At this time an inbound MTR train travelling on the Tsuen Wan line reached the Central Terminus and stopped at platform 2 to allow passengers to alight and, as it would be shortly travelling outbound from this platform, to allow new passengers to board.
9. The appellant was seen in the first compartment of the train and there were present a number of passengers in this compartment. The appellant had a rectangular object taped to his left wrist with black electrical tape. There also appeared to be a piece of grey coloured string attached to the object. It was subsequently determined that the rectangular object was a mobile phone wrapped in black electrical tape. The grey string that appeared to be attached to it was in fact the handle of a paper bag that the appellant was carrying. Inside this paper bag were, amongst other things, one paper cutter, two lighters, one pack of cigarettes and one cap. The appellant was also carrying a plastic bag containing three bottles of distilled water.
10. Each of the charges relates to the appellant’s conduct on board the train and to his representations both by the words he spoke and his conduct generally as to what was strapped to his wrist. The Amended Brief Facts set out the circumstances of the 1st charge as follows. The Mr Li referred to was the Captain of the train who had entered the compartment.
“… Soon afterwards, the Defendant shouted ‘Explosion!’ in an agitated state and a loud voice. He waived his hands and asked passengers in the Compartment to leave. Passengers complied and alighted the Train.
3. In the meantime, Mr. Li arrived at the Compartment and saw the Defendant standing inside it. The Defendant was repeatedly telling all passengers to leave the Train. After the last few passengers had alighted, Mr. Li and the Defendant were alone in the Compartment.
4. Mr. Li observed that the Defendant had a rectangular object taped to his left wrist with electrical tape in black. Also appeared to be attached to the object was a piece of string in grey colour. The Defendant pointed to the object, waved at Mr. Li and asked him to ‘keep away’. Suspecting that the object was dangerous, Mr. Li stepped outside the Train and reported the matter to the station control room.
5. The Defendant remained inside the Compartment and gained entry to the driver’s compartment.
6. In response to Mr. Li’s report, Mr. Chan Chu-kei Albert (PW3), Station Officer of Central Station, attended the Compartment for reinforcement. On his arrival, he saw the Defendant inside the driver’s compartment of the Train. At that time, he was making the call to the police 999 console, subject of 2nd Charge. The Defendant ignored Mr. Chan’s requests for him to leave and said ‘Don’t push me!’.
7. Mr. Chan noticed the unknown object taped to the Defendant’s left wrist. The Defendant, who was then smoking, placed a lighter near the object and gestured to ignite it. Despite repeated demands, the Defendant refused to leave the Train.”
11. The second offence arose out of the 999 phone call that the appellant made to the police from the train driver’s cabin. The relevant paragraph from the Amended Brief Facts describes the content of that phone call as follows:
“8. At around 1:40 p.m., the Defendant called the 999 console of the Police. He spoke in both English and Punti dialect. He told the console officer that he was in the MTR Central Station and that he was ‘with a bomb’. He said that he did not ‘like to hurt people’. He asked for ‘just only Police, no more CID’. When asked about his location, he said he was ‘inside the MTR in the driving seat’. The Defendant’s call lasted approximately 108 seconds.”
12. As soon as the police arrived, the appellant surrendered to them. When all the items were examined it became quite clear that they did not contain explosives and none of the items were an explosive device.
The Hearing of the Appeal
13. At the hearing of his appeal the appellant discharged his counsel and indicated he wished to conduct his appeal himself. He took this action because he felt he knew better than his counsel all the background to his case. Here he was referring to his complaint that the police had previously failed to properly investigate an assault upon him.
14. After informing the appellant that his dissatisfaction with the police in their investigation of this other matter was not relevant to his appeal and after providing him with more time to discuss his case with his counsel he re-engaged Mr Wong who proceeded to make his submissions.
15. In the course of hearing the appeal I raised a concern I had about the 1st charge. There were two versions of the 1st charge in the appeal bundle. The first version has a line through it and written above it are the words “Amended 17/7/12”. There is then another charge which has typed on it “Amended Charge” and which bears a stamped date of “17 Jul 2012”. It is not clear why it was felt necessary to file an Amended Charge as there are only quite trivial differences between the two in terms of the particulars. In the Amended Charge, the appellant is described as being of 37 years (in the original charge he was said to be 36 years) and in the original charge the statement of offence correctly contained a reference to the sentencing provision section 28(4) of the Public Order Ordinance, whilst in the Amended Charge this reference has been deleted.
16. However, there is one very important difference between the two charges in the pleading of the offence. The original charge correctly pleaded the offence whilst the Amended Charge removed all reference to the second mens rea element of the offence i.e. “with the intention of inducing another to believe” etc. Thus the Amended Charge read:
“… you did communicate information which you knew or believed to be false to other person to believe that a bomb or other article …”
17. I had hoped the DARTS recording system would provide a quick resolution of how the appellant had been arraigned but it transpired that the trial proceedings had been communicated to the appellant in the Punjabi language. The transcript of the court proceedings do not include the taking of the plea and merely record “Amended Charge 1 read: Defendant PG to Amended Charge 1”. As the parties could not agree on what had taken place at trial I called for an English translation of the taking of the plea and adjourned the hearing of the appeal for that to be done.
18. The English translation of the arraignment is as follows:
“1 Interpreter: Shahid there is an allegation against you that on 16th May 2012 on train the number of train was 38 Platform Number 2 M.T.R. in Central Station, in Central, in Hong Kong. In that your expressed/provided an information about, this thing that you knew that it was suspected that it is not true. Towards another person about that the thing was that, that there was a bomb or such a thing in it which can be exploded. Right/OK. And was present inside the train number 38, platform number 2 M.T.R. Central, Central Station.
2 Interpreter: Do you plea, “Guilty” (original in English) for this or “not guilty” (original in English)
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