HKSAR v. KWOK CHEUK KIN

HCMA861/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.861 OF 2006

(ON APPEAL FROM ESCC 5231 OF 2005)

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J U D G M E N T

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Introduction

1.  The appellant, who faced three charges of obstructing a public officer in the exercise of his power, contrary to s. 21(6)(b) & (7) of the Hotel and Guesthouse Ordinance, Cap. 349, was convicted of one charge and acquitted of the other two.  He was sentenced to 120 hours of Community Service Order.  He now appeals against his conviction.

2. The prosecution case was that on the day in question three Licensing Inspectors of the Home Affairs Department went to conduct routine licence checks of vacation houses in Cheung Chau.  They met the appellant, who assumed a supervisory role in respect of the Villa named in the particulars of the charge, at the main gate.

3. It was the prosecution case that the prosecution witnesses identified themselves and stated their business.  The appellant indicated that he understood, but said that they had no right to use the paths and walkways between the main gate and the buildings to be inspected.  The appellant even brought along three unleashed dogs, causing them fear and concern for their safety.  The attempt to inspect was thus aborted and the police were called.

4. The appellant gave evidence.  He said he was the chairman of the Villa in question.  He said he thought that the three prosecution witnesses were news reporters.  Whilst the prosecution witnesses had at some stage stated they were officers of the Licensing Section of the Home Affairs Department, he asked for their “staff cards” which they produced but refused to let him look at them.  As a result he told them that they had no authority under the Ordinance to enter a private place, and then he “went home”.

5. He said that he only let his dogs out to the courtyard and there was a fence and closed gate between the dogs and the prosecution witnesses.  He never took the dogs to their vicinity.  He admitted to have told them, however, that there were dogs at other houses and if they knocked at the door casually, they might be bitten.

6. The appellant said that the prosecution witnesses then told him that he was cheeky and they would phone the police and falsely accuse the appellant had released dogs to bite them.

7. The appellant claimed that his requirements as to visits from Home Affairs Department staff on inspection visits had been made plain in previous correspondence with the office of the Chief Executive of Hong Kong and the Director of the Home Affairs Department.

Grounds of appeal

8. There are, broadly speaking, two main grounds of appeal and I shall renumber and rephrase the grounds as follows for ease of reference:

(1) The Magistrate erred in relying on the warrant card of PW1 to find that PW1 was “authorized by the authority in writing” and had the lawful authority to effect the inspection under s. 18 of the Ordinance;

(2) In the alternative, PW1 and the other Licensing Inspectors, in failing to produce their ID cards as required under s. 18, failed to establish their lawful authorities.

Respondent’s reply

9. Counsel for the respondent submitted that:

(1) The warrant card of PW1 was direct evidence of PW1 being “authorized by the Authority” to exercise the powers or functions set out in s. 18 of the Ordinance, and no further proof of authorization in writing is required.  The Magistrate was correct in finding that PW1 had the lawful authority to effect the inspection;

(2) S. 18 provides that such an officer, if so required, shall produce the written authorization and his or her ID card.  It was a finding of fact as to whether at that time PW1 was so required by the appellant and the Magistrate was entitled to find that the appellant did not so require.

My Judgment

10. I shall first deal with the short point of alleged material irregularity at the trial.  Counsel for the appellant submitted that the Magistrate erred in re-opening the prosecution case by asking PW1 to produce a photocopy of her warrant card as an exhibit just before he deliberated his oral reasons.  What transpired, as seen in the transcript, was that the Magistrate, whilst still preparing his Decision, told the parties in open court that the warrant card of PW1, though inspected by him at the trial during PW1’s evidence, was not exhibited.  He proposed to exhibit its photocopy.  He then stood the case down for some half an hour, and when court resumed he made specific enquiries with both parties as to whether they had any observations or submissions to make in respect of the issue of the warrant card.  Mr Tang, who represented the appellant at the trial below, was given ample opportunity to voice objections, if any.  He did not, but made a further submission that this could not constitute written authority under s. 18.  Having chosen and taken the course as he did, counsel for the appellant simply could not rely on this as a ground of appeal.

11. I now turn to Ground One.

S. 18 of the Ordinance provides that:

“Any public officer authorized by the Authority in writing for the purpose of this section may, without warrant and on production, if so required, of his written authorization and his identity card issued under the Registration of Persons Ordinance, Cap. 177…”

12. It is common ground that the authorizing Authority means the Hotel and Guesthouse Accommodation Authority constituted under s. 4 of the Ordinance, which, for the purpose of this Ordinance, shall be the Secretary for Home Affairs.

13. PW1’s warrant card, exhibited as P3, contains the following full text on its back as follows:

“The public officer whose name, photograph appear on the front of this warrant card is authorized by (i) the Hotel & Guesthouse Accommodation Authority; (ii) The Secretary for Home Affairs and (iii) the Bedspace Apartments Authority to act on their behalf to carry out or cause to be carried out any work which the officer is authorized to carry out under the Hotel & Guesthouse Accommodation Ordinance, the Clubs (Safety of Premises) Ordinance, the Karaoke Establishments Ordinance and the Bed Space Apartments Ordinance respectively”.

14. Appellant’s counsel submitted that the Magistrate erred in finding this warrant card as “authorization in writing” on the following grounds:

(1) Lack of evidence that the Secretary for Home Affairs could or had delegated its power under s. 18 to the issuing person who signed on the warrant card;

(2) At best the warrant card gives general authorization whilst s. 18, which refers to “any public officer authorized…in writing for the purpose of this section” requires specific authorization;

15. Counsel for the appellant submitted that the Defence, by challenging the legal authority of PW1 to PW3 in entering the private passageway to conduct the inspection, tantamount to a challenge to the legal authority of PW1, thus putting the prosecution to strict proof of the validity or authenticity of the warrant card.

16. With respect to Counsel, I do not share his view.  The facts found by the Magistrate was that the appellant understood that they were officials carrying out their duties for inspection of the Villa.  He did not challenge their legal authority but was just trying to be confrontational by saying that they could inspect the Villa but could not use the passageway to get to the place of inspection.  Neither was there any express challenge to the validity or authenticity of the warrant card on 14 February 2006 when the Magistrate proposed to mark the photocopy of it as an exhibit.  All Mr Tang focused on at that time was that this warrant card did not amount to the written authorization referred to in s. 18 and PW1 never produced her ID card for the purpose of inspection.  This submission on strict proof of the validity or authenticity of the warrant card is nothing but an afterthought.

17. I now move on to the “specific authorization” point.  Counsel for the appellant relied on the case of R v Yip Kin Kwok [1990] 1 HKC 362 which distinguished between the phrase “any public officer” in s. 13 of the Crown Land Ordinance, Cap. 28 from the phrase “an authorized person” in s. 16 of the same Ordinance.

18. That case is unique on its facts.  The warrant card in question stated that the officer was “authorized by the Authority to enter and inspect…for the purpose of s. 13 of the Crown Land Ordinance”.  In that case it was not disputed that the officer was a public officer “authorized in writing”.  The question in that case is s. 16 of that Ordinance provides that any person who obstructs an “authorized person…carrying out any functions under this Ordinance shall be guilty of an offence…”  Under that Ordinance there is a separate section defining an authorized person which does not specifically include public officer authorized under s. 13.  As a result it was held that the public officer, not being an authorized officer, had no authority to carry out the said functions and thus the appellant could not be said to have obstructed an authorized person.

19. The offence that the appellant in this case was charged with was under s. 21(6)(b) and (7) of the Hotel & Guesthouse Ordinance, Cap. 349 which, unlike Yip’s case, was an offence of obstructing a public and not an authorized officer.  The only bearing of Yip’s case on the present case, as far as I can see, is against the appellant.  Counsel in that case had reasonably and quite rightly so, conceded that the warrant card constituted “authorization in writing”.  By the same token, PW1’s warrant card authorizing her to carry out “any work which the officer is authorized to carry out under the Hotel & Guesthouse Accommodation Ordinance” would surely cover inspection of hotels and guesthouses under s. 18.

20. The Magistrate was correct to find that the warrant card was direct evidence of written authorization.  (See also香港特別行政區訴林東，HCMA 851/2005) Ground One fails.

21. S. 18 specifies that the written authorization and the officer’s ID card should be produced, if so required.  I do not wish to repeat what I said in earlier paragraphs.  The Magistrate, having rejected the evidence of the appellant, was entitled to find that there was no expressed or implied challenge to the lawful authority of the officers apart from a mere confrontational stance to make it difficult for the officers to carry out their duties and therefore, the officers were not so required to produce the written authorization together with their ID cards.

22. There is nothing in this appeal.  The appeal is dismissed and I affirm the conviction.