Hksar v Tung Wai Cheong

Court:High Court (Hong Kong)
Judgement Number:HCMA1222/1998
Judgment Date:25 Mar 1999
HCMA001222/1998 HKSAR v. TUNG WAI CHEONG

HCMA001222/1998

HCMA 1222/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1222 OF 1998

(On appeal from ESCC 2428 of 1998)

BETWEEN
HKSAR Respondent
AND
TUNG WAI CHEONG Appellant

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Coram: Deputy Judge McMahon in Court

Date of Hearing: 25 March 1999

Date of Judgment: 25 March 1999

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J U D G M E N T

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1. The Appellant was convicted after trial by Mr. Tong Man at Eastern Magistracy on 3 November 1998 of an offence of unlawful assembly contrary to section 18(3) of the Public Order Ordinance, Cap. 245.

2. The Prosecution's case was that the Appellant had been one of a number of young men who had gathered at the intersection of Luard and Jaffe Roads in Wanchai at about 10:30 p.m. on 13 March 1998. It was alleged during the course of trial that a van had delivered some of those individuals to that intersection. That gathering had attracted the attention and concern of the management of a bar located at that intersection and a phone call had been made to the police. Upon the arrival of the police, those assembled had then attempted to flee but a number were arrested.

3. Much of the evidence in the case had been agreed. The formal admissions at trial pursuant to s. 65C of Cap. 221 were, in brief :-

(A) At the scene along Luard Road and Jaffe Road junction there was a crowd of around 100 to 150 persons on the street.

(B) Police officers in plain clothes as well as in uniform came to the scene.

(C) The Appellant was present at the scene holding on to his mobile telephone.

(D) Two police officers (i.e. PW4 and PW5) heard the Appellant outside a 7-11 store talking over the phone telling the person (on the phone) that "policemen had arrived to search the van" around 11 p.m. on 13 March 1998. The Appellant also stated to the youths in the street "Disperse! Disperse! Policemen had come." People then began to leave the scene.

4. There are effectively 2 grounds of appeal advanced by Mr. Macrae for the Appellant. The first is that there was no sufficient evidence that those at the gathering had conducted themselves in an intimidating manner so as to make the assembly an unlawful one.

5. The magistrate in the course of his findings inferred from the admitted facts and from the evidence of a staff member of the nearby bar that...

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