THE QUEEN v. LEUNG KAM WAH

Mag. Appeal No. 78 of 1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(APPELLATE JURISDICTION)

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BETWEEN

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J U D G M E N T

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1. On the 20th December 1991, the appellant was found guilty by Mr. Buckley of the offence of obstructing a police officer in the due execution of his duty, contrary to S.36(b) of the Offences Against the Person Ordinance, Cap. 212. He was fined the sum of $1,500.

2. His perfected grounds of appeal against conviction raise a number of points, but I need only refer to the first point. The charge sheet upon which he was tried and convicted omitted the word 'wilfully' which should be inserted before the word 'obstructed' in the charge. 'Wilfully' appears in S.36(b) and it is clearly an essential element of the offence. The charge was, therefore, clearly defective and no application was made during the course of the hearing to amend it.

3. In addition to the omission of the word 'wilfully' it was apparent from the Magistrate's Statement of Findings that he did not apply his mind to the question whether the appellant was acting wilfully. No doubt he was misled by the absence of this word from the charge, but the simple fact remains that he never applied his mind to this particular issue. It may well be that had he done so he 'would have had little difficulty in coming to the conclusion that the appellant was acting wilfully. However, it is not for me to speculate because the Magistrate simply did not consider this particular matter.

4. It was apparent to me before going into court that this appeal had to be allowed on the basis that the charge was defective and that the Magistrate never applied his mind to the issue as to whether the appellant was acting wilfully and I was happy to note that Mr. Sham who appeared for the Attorney General conceded that the appeal had to be allowed on this ground alone.

5. I, therefore, allowed this appeal against conviction and ordered that the sum of $1,500 paid by the appellant by way of fine should be refunded to him.