Tong Yiu Wah v Hksar

CourtCourt of Final Appeal (Hong Kong)
Judgment Date11 Jul 2007
Citation[2007] 3 HKLRD 565; (2007) 10 HKCFAR 324
Judgement NumberFACC7/2006
SubjectFinal Appeal (Criminal)
FACC000007/2006 TONG YIU WAH v. HKSAR

FACC No. 7 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2006 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 811 OF 2005)

____________________

Between

TONG YIU WAH

Appellant

and

HONG KONG SPECIAL ADMINISTRATIVE REGION

Respondent

____________________

Court: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Sir Noel Power NPJ and Sir Anthony Mason NPJ

Date of Hearing: 18 June 2007

Date of Judgment: 11 July 2007

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J U D G M E N T

____________________

Mr Justice Bokhary PJ:

1. I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

2. In this appeal, we are concerned with the offence of loitering in the Airport Bylaw Area without reasonable cause, contrary to s.20(1) of the Airport Authority Bylaw (“the Bylaw”) made under the Airport Authority Ordinance, Cap 483 (“the Ordinance”). Two issues are raised for determination. First, what, upon the true construction of s.20(1), are the ingredients of this offence; in particular whether “without reasonable cause” is an element which must be proved by the prosecution or an exception which has to be proved by an accused charged with such an offence. The second issue, which only arises if it is concluded that “without reasonable cause” is not an ingredient of the offence and that the burden is on an accused to prove that he has a reasonable cause, is whether s.20(1) is unconstitutional, being inconsistent with art. 11(1) of the Hong Kong Bill of Rights (“art. 11(1)”) and art. 87 of the Basic Law. In this judgment, unless otherwise stated, references to section numbers are references to sections in the Bylaw.

The facts

3. The appellant was a taxi driver. According to the prosecution, he was touting in the area designated as the Bylaw Area (“the Bylaw Area”) of the Hong Kong International Airport (“the Airport”). He was observed by two plainclothes police officers to be hanging around at the bus route notice board in the Airport Passenger Area which formed part of the Bylaw Area. He was seen to have approached several persons who had ignored him. He then approached two other persons and after a short conversation with them, went to the escalator near the shroff’s office while the two persons proceeded to the pick up and setting down area of the car park. One of the officers came up to the appellant and warned him that he was suspected of touting and would be arrested if he was seen doing that again. He was allowed to leave and he did. But about 35 minutes later, he returned to the same location and was seen again to have approached a few other persons who ignored him. He was then arrested and subsequently charged with the present offence.

Proceedings in the courts below

4. When the appellant was tried before a magistrate (Mr John Glass), a preliminary issue was taken as to whether s.20(1) is incompatible with art. 11(1). The magistrate ruled that it was not, holding that “without reasonable cause” was not a negative averment which the appellant had to prove and that the burden was on the prosecution to prove there was no reasonable cause. Having heard all the witnesses from the prosecution and the appellant not giving or calling any evidence, the magistrate found that the charge was proved beyond reasonable doubt and convicted the appellant. He was sentenced to two months imprisonment.

5. On appeal by the appellant, McMahon J upheld the conviction. However, he held that all that the prosecution needed to prove was that the appellant was loitering in the Bylaw Area, that s.20(1) imposed a persuasive (or legal) burden on the appellant to prove he had a reasonable cause for doing so and that this subsection was not inconsistent with art. 11(1). The appeal against sentence was allowed (for reasons which do not concern us) and the sentence was reduced from two months to three weeks.

6. With leave of the Appeal Committee, the appellant now appeals to this Court on both the “points of law” and the “substantial and grave injustice” limbs under the Court’s statute. Although this is an appeal by the appellant, his counsel, Mr Chan Siu Ming, quite frankly and fairly concedes that if he is correct on the construction of s.20(1) which was the view taken by the magistrate but rejected by the judge, the appellant was rightly convicted and his appeal should be dismissed. The purpose of this appeal, Mr Chan says, is to clarify the law. If, however, he is wrong and the judge is right in holding that there was an onus on the appellant, it is said that he has suffered substantial and grave injustice in that his choice not to give evidence was encouraged by the magistrate’s ruling to the contrary effect.

Offence created by s.20(1)

7. The offence in question is one of two offences created by s.20. As part of the relevant context, it is worth setting out the whole section:

“(1) No person shall loiter in any part of the Bylaw Area without reasonable cause. An Authorized Officer or an Authorized Person may request a person to leave the Bylaw Area or any particular...

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