R. v. SIU YAU KIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 206 OF 1994

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J U D G M E N T

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1. On 28th January 1994 at Tsuen Wan Magistrates' Court, the Appellant was convicted, after pleading not guilty, of two offences. The first was resisting arrest, and the second was assaulting a police officer. He was fined $500.00 on each charge. He now appeals against his convictions.

2. On both charges, the Crown had to prove that the police officer, whose arrest of the Appellant the Appellant was supposed to have been resisting, and who the Appellant was said to have assaulted, had been acting in the execution of his duty. The only point which this appeal raises is whether, on the primary facts found by the magistrate, it was open to the magistrate to conclude that the arrest of the Appellant was lawful. If the Appellant's arrest was not lawful, the police officer had not been acting in the execution of his duty, and the Appellant should have been acquitted.

3. The magistrate accepted the evidence of the police officer concerned. The material parts of his evidence were that he was a member of a team of police officers who had been called to deal with an incident involving criminal damage and blackmail at a restaurant in a shopping centre in Kwai Chung. The officer saw the Appellant loitering in a garden outside the restaurant. He kept the Appellant under observation for a short while. Thinking that the Appellant matched the description of the culprit in the case he was investigating, he approached the Appellant, revealed his identity and asked him what he was doing there. The Appellant told the officer that what he was doing there had nothing to do with the officer. The officer repeated his question, and this time the Appellant told him that he was there to buy comics. When he was asked where the comics were and when he had bought them, the Appellant did not reply but lowered his head. That was when the officer told him that he was arresting him for criminal damage and blackmail. He did so "both because he looked like the suspect and because he thought that the answers to his questions were suspicious".

4. Section 50(1)(a) of the Police Force Ordinance (Cap. 232) provides for the circumstances in which a police officer may arrest a person without a warrant:

"It shall be lawful for any police officer to apprehend any person who he reasonably ... suspects of being guilty of ... any offence ... for which a person may be ... sentenced to imprisonment."

The magistrate noted that it had not been challenged that the police officer genuinely believed at the outset that the Appellant might well have been the culprit who the police were looking for. I take that to be a finding by the magistrate that the police officer suspected the Appellant of being guilty of the offences which the police had gone to the shopping centre to investigate, namely the offences of criminal damage and blackmail, which are, of course, offences for which a person may be sentenced to imprisonment. The magistrate added that he thought that the police officer was acting "properly" when he arrested the Appellant. I take that to be a finding by the magistrate that the officer had reasonable grounds for suspecting the Appellant of being guilty of those offences. The short point which this appeal raises is whether that finding was one which it was open to the magistrate to reach on the evidence.

5. I think it was. The Appellant was in the area, and the officer believed that he looked like the man who the police were looking for. That, I think, is what the magistrate must be taken to have found when the second sentence in para. 8 of his Statement of Findings is properly analysed. The fact that there was no evidence as to (a) the description of the culprit, (b) the appearance of the Appellant on the day he was arrested, and (c) how and in what way the appearance of the Appellant matched the description of the culprit is, in my view, irrelevant. Once the magistrate had found, as a fact, that the officer believed that the Appellant matched the description of the culprit which the officer had received, the fact that the magistrate could not test the reasonableness of that belief himself is beside the point, if the magistrate satisfied himself, as he did, that it was that belief which was one of the reasons which caused the officer to suspect the Appellant. What had to be proved was that the officer's suspicion as to the guilt of the Appellant was reasonable, not that the officer's belief as to the correctness of a fact which contributed to that suspicion was reasonable. That, I believe, is the fallacy behind the elegant submission developed before me today by Mr. Erik Shum on the Appellant's behalf.

6. Apart from the Appellant's appearance, the police officer's suspicion was based on the Appellant's initial refusal to tell the officer what he was doing, and his subsequent refusal to say where the comics which he gone there to buy were or when he had bought them. Mr. Shum's skeleton argument took the point that the Appellant had an absolute right not to answer the questions he was asked, and that his exercise of that right could not justify an inference in a court of law that he was guilty. But the issue was not whether he was guilty of the offences. The issue was whether the officer had reasonable grounds to suspect that he was guilty of the offences. The fact that an inference of guilt could not be drawn in a court of law does not mean that a suspicion of guilt in the mind of the police officer could not reasonably arise from his evidence of his conversation with the Appellant.

7. For these reasons, it was, in my view, open to the magistrate to conclude, on his primary findings of fact, that the Appellant had been lawfully arrested, and that the police officer had therefore been at the material time acting in the execution of his duty. This appeal must therefore be dismissed.