R. v. CHEUNG WAI-WAN

IN THE HIGH COURT

1994, No. 167

Magistracy Appeal

- Headnote -

Assault on police acting in the execution of his duty - section 63 Police Force Ordinance - Appellant resisted arrest and put up a fight - Crown failed to prove what offence the appellant had allegedly committed which led to the arrest - Conviction quashed. Court refused to direct that the case be heard de novo under s119(1)(d) Magistrates Ordinance.

IN THE HIGH COURT

1994, No. 167

Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. This is an appeal by Cheung Wai-wan against his conviction at the Shatin Magistracy by Mr. C.R. Mackintosh on 30 December 1993. The charge, brought under section 63 of the Police Force Ordinance, was that on 18 March 1993 at room 231 Shatin Police Station, he assaulted Li Kam-wah, a detective sergeant of the Royal Hong Kong Police Force acting in the execution of his duty.

2. The background facts are straight-forward. The appellant was, on the 15 March 1993, at the Shatin Police Station. He was being interviewed by a police officer, detective PC Yeung Yuk-keung PW1. The Crown case as summarised by the Magistrate in his statement of findings was this: In room 231 PW1 asked the appellant if he had lost or lent his identity card. The appellant said he had not, whereupon PW1 arrested him. The appellant then stood up saying that the officer had no right to arrest him. When PW1 asked to search him, the appellant flung off his arm, ignored requests to co-operate and pushed PW1 away. PW1 called for assistance and he was joined by PW5, another detective police constable, and by detective sergeant LI Kam-wah, the officer named in the charge, who was slightly hurt in the struggle. The appellant was eventually subdued.

Ground of appeal

3. The appeal boils down to one point; as stated in ground 1 of the grounds of appeal it is this:

"The learned magistrate erred in ruling that the alleged arrest by PW1 was lawful where there was no evidence or no sufficient evidence to prove any lawful arrest".

Power of arrest

4. Section 50(1)(a) of the Police Force Ordinance makes provisions for the circumstances under which a police officer may apprehend a person without a warrant. It says:

"50(1):
It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of

(a) any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment...."

5. Section 50(6) provides:

"(6) Where any person is apprehended by a police officer it shall be lawful for such officer to search for and take possession of any newspaper, book or other document .... and any other article or chattel which may be found on his person or in or about the place at which he has been apprehended and which the said officer may reasonably suspect to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed or is reasonably suspected of having committed."

6. PW4, the detective sergeant named in the charge, did not interview the appellant and it was not this officer who told the appellant that he was under arrest. Nor did be proceed to search him. The Crown case at trial must therefore rest upon this fact: That PW1 was acting in the course of his duty in arresting the appellant and then in attempting to search him; detective sergeant Li, PW4, in coming to his assistance was seeking to achieve the same objectives.

Magistrate's conclusion

7. The conclusion to which the Magistrate came is expressed simply thus:

"I found that PW1 had asked the Appellant about his identity card and that the Appellant's reply justified the officer in arresting him. The arrest was therefore lawful...."

Evidence of reasonable suspicion

8. I asked Crown Counsel Miss Anna Lai who appears for the Crown on this appeal (but not in the court below) where was the evidence before the Magistrate which established the fact that, at the material time, PW1 suspected the appellant of having committed an offence. She pointed to one passage in the evidence when PW1 was recalled as a witness. The questioning proceeded as follows:

"Reminded of affirmation

Q. When you arrested this defendant, did you suspect him of
having committed an offence?
A. Yes.

No further questions.

Cross-examination

Q. Although you had suspicion, when you saw him in room 231,
there were a lot of questions you wanted to know from him?
A. Yes.
Witness released."

9. When Crown Counsel was asked what was the offence of which the appellant was suspected, she was unable to give an answer. Upon the basis of the Crown case as set out in the statement of findings it is difficult to imagine what offence it might have been which led PW1 to arrest the appellant: all that happened was that the appellant was asked if he had lost or lent his identity card and upon the reply No, PW1 arrested him. Counsel was wholly unable to tell me what offence might have been in PW1's mind which led him to declare the arrest.

10. I have been taken through the notes of proceedings carefully made by the magistrate, and it appears that things went wrong at a fairly early stage of the trial. In the course of PW1's examination-in-chief, immediately after he had testified to the effect that he had asked the appellant if he had lost his identity card or lent it to anybody in the past six months and received a reply No, the magistrate intervened. The magistrate said:

"I do not wish to hear evidence which is irrelevant to the charge which I have to try."

11. After this intervention the next piece of evidence was to the effect that knowing that the appellant had neither lost his identity card nor lent it to any one, PW1 "declared arrest on him". This plainly is not sufficient evidence to establish the ingredient of the charge "acting in the execution of his duty" under section 63 of the Police Force Ordinance. It would appear that the magistrate was aware of this because later on, after PW1 had been released as a witness, the magistrate said he wanted to raise a matter with counsel. The notes read thus:

"Court discusses with counsel the question of whether there is an issue that, if there was an arrest (which is disputed) the arrest was not lawful and therefore that the officer later involved was not acting in execution of duty. Crown case appears to be: there was an arrest, it was resisted, the alleged victim of assault was involved in dealing with resistance. But issue of lawfulness of arrest not explored in evidence. Defence Counsel indicates that whether it is an issue as to whether there was an arrest, no such point is being taken - i.e. not being said that arrest, if it occurred, was unlawful."

12. As can be seen, defence counsel's statement was equivocal.

Section 65C Criminal Procedure Ordinance

13. It cannot be sufficiently emphasized that the Criminal Procedure Ordinance prescribes a statutory procedure for the formal admission of facts. These are provided for in Section 65C of that Ordinance. What is capable of admission under section 65C is any fact of which oral evidence may be given in the proceedings, either on behalf of the prosecution or of the defence.

14. What had to be established by the prosecution in this case was something reasonably simple: that, at the material time, PW1 suspected that the appellant was guilty of an offence for which either the sentence was fixed by law or for which he could have been sentenced to imprisonment: see section 50(1)(a) of the Police Force Ordinance. This was a simple fact to establish. Apparently, as I am now told by counsel, prior to the incident which gave rise to this charge, PW1 had cautioned the appellant. This would mean in normal terms that PW1 would have revealed his identity, told the appellant what he was investigating and that the appellant was suspected of involvement in that crime and he was going to ask questions of the appellant about it; but before doing so, the appellant was cautioned that he was not obliged to answer. Why, if that indeed did take place and was presumably recorded in writing in either PW1's notebook or on a police statement form - why it was not adduced in evidence as part of the Crown case is difficult to understand.

15. It is quite clear that the magistrate was troubled by this aspect of the case because he raised the issue again later on. At page 30 of the record there is this passage:

"Court: I raised earlier the question of the lawfulness of arrest, and as to whether that is in issue. Mr. Wong said that whilst an issue exists as to whether there was arrest, lawfulness is not in issue. Mr. Wong cannot be asked to make a 'conditional admission' re lawfulness of arrest. At present I have evidence of an arrest but not of its lawfulness. I think that PW1 should be asked - 'When you arrested the defendant, did you suspect him of committing an offence.' Otherwise, the defendant may say - well, even if there was a declaration of arrest, where is the evidence that it was lawful and how therefore could it be said that Crown have established prima facie the fact that the police officers were acting in execution of duty."

It was apparently pursuant to this that PW1 was recalled and the questioning of PW1 proceeded in the way I have indicated earlier.

Gap in the evidence

16. It seems to me, upon perusing the record, that what has happened is that an essential ingredient in the charge has not been established, namely, evidence sufficient to satisfy the court that at the time of the arrest PW1 reasonably suspected the appellant of having committed an offence for which he could have been arrested under s.50(1)(a) of the Police Force Ordinance. It would have been a very simple matter for that evidence to have been adduced but apparently it was not. The responsibility for the prosecution case rested upon counsel engaged on fiat. It would appear that part of the blame for what had occurred must be on his shoulders.

Conclusion

17. Miss Anna Lai for the respondent to this appeal now urges me that should exercise my powers under section 118 of the Magistrates Ordinance to permit fresh evidence to be adduced by the prosecution to fill the lacuna. Plainly a court would not exercise this discretion in this way. The only question for my consideration is this: the appellant having in effect benefited by what might be called a technicality, whether in the exercise of my powers under section 119(1)(d) of the Magistrates Ordinance I should direct that the case be heard de novo by another magistrate. I have regard to the fact that what ultimately I am concerned with is not a case of the utmost seriousness. The maximum penalty for the offence is a fine of $5,000 or imprisonment for six months. The magistrate has fined him $2,000 and awarded costs of $3,000 against him. It seems to me, upon a review of the notes of proceedings, that the responsibility for the irregularity in the court below cannot in any way be laid at the door of defence counsel. This gap in the prosecution case was pointed out to the prosecutor repeatedly by the magistrate. The evidence which the prosecutor adduced, upon PW1's recall, failed to fill the gap. In these circumstances I do not think it would be fair to put this appellant through the trauma of trial de novo. The conclusion I have come to therefore is that the appeal must be allowed and the conviction quashed. If the fines and costs have been paid they must be repaid to the appellant.

Costs

18. I am now asked by the appellant's counsel to award the costs of the appeal to him on the basis that the ground of appeal upon which he has succeeded should have been obvious to the respondent long ago and the appeal should not have been resisted. That in my judgment is too narrow a view to take. I must look at the matter in the round. It would appear that the matter was capable of proof, even though I remain in ignorance as to what was the offence was for which this appellant was suspected of having committed. It could be said that the appellant has succeeded on a technicality. Having regard to all the circumstances, the application for cost is refused.