THE QUEEN v. SHUM KWAN CHEE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 69 of 1987

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J U D G M E N T

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1. On the 24th November 1986 two officers of the Urban Services Department engaged in hawker control duties saw the appellant selling fish in the vicinity of Fa Yuen Street, Kowloon. She spotted the officers at almost the same time as they spotted her. Without more ado she took .to her heels, pursued by the officers. She was caught and told she was being arrested for causing an obstruction and for hawking without a licence. Instead of submitting to arrest she cried out that she was being indecently assaulted and kicked one of the officers in his private parts. Another hawker control officer came up and he was bitten in the elbow. Eventually she was subdued and later she appeared in court to answer a number of charges. Those which concern this court are charges A, B and D, on each of which she was convicted.

2. Charge A was one of resisting a public officer in the execution of his duty, contrary to Section 23 of the Summary Offences Ordinances, Cap. 228; Charge B alleged hawking without a licence contrary to Section 83B(1) and (3) of the Public Health and Urban Services Ordinance, Cap. 132 and Charge C was for selling restricted food without a permit, also contrary to Section 83B(1) and (3) of Cap. 132.

3. The magistrate did not notice that the offence in Charge D had been laid under the wrong section. That offence should have been brought under by-law 31(1)(a) of the Food Business By-laws.

4. The appellant would not have been misled on this but Counsel for Crown did not support the conviction on Charge D and accordingly her appeal against conviction on that charge was allowed. The fine of $300 is to be repaid to her.

5. She appealed also against her conviction on Charge B but this was abandoned by Mr. Bell. That conviction stands.

6. The main argument in this appeal relates to her conviction on Charge A.

7. The ground of appeal alleges :-

"That the public officers whom the appellant is alleged to have resisted had no power to arrest the appellant. In the circumstances the arrest of the appellant was unlawful and she was entitled to resist it."

8. This was not a matter raised in the magistrate's court. Had it been raised I am sure the magistrate would have dealt with it and afforded the prosecutor an opportunity to close the gap had he thought that was just in all the circumstances.

9. No objection has been taken by Mr. Whitehouse to the point being raised on the appeal.

10. The offence under Section 23 of Cap. 228 is in these words :-

"Any person who resists or obstructs a public officer or other person lawfully engaged, authorised or employed in the performance of any public duty or any person lawfully assisting such public officer or person therein shall be liable to a fine of $1,000 and to imprisonment for 6 months."

11. It is not in dispute that the hawker control officers are "public officers" within Section 23 by virtue of Section 2 of Cap. 228. The issue here is whether the officers were entitled to arrest the appellant.

12. The power of arrest conferred upon hawker control officers is set out in Section 84 of the Public Health and Urban Services Ordinance.

13. Section 84(1) enacts :

"Any public officer authorized in writing in that behalf by the Authority may arrest without warrant any person whom he may reasonably suspect of being guilty of any scheduled offence."

14. Hawking without a licence under Section 83B is a scheduled offence by reason of the amendment contained in L.N. 264/86. No evidence was led that the officers who arrested the appellant had been authorized in writing to arrest without a warrant. Thus the single point for consideration is whether or not this omission is fatal to the conviction. Mr. Whitehouse argues that it is not. Mr. Bell contends that it is.

15. Mr. Whitehouse has referred this court to Section 94A of Cap. 221 which deals with negative averments and to Section 38 of Cap. 1 but with respect to him I do not see how either section assists him. Section 38 would be relevant if the exercise by the Authority of their power was called into question. That does not arise here. The main thrust of his argument relies on the operation of the presumption omnia praesumuntur rite et solemniter esse acta.

16. In a nutshell his argument is that since the hawker control officer acted so as to arrest the appellant he must therefore be presumed to have been invested with that power by having earlier been authorized in writing by the Authority.

17. He has referred me to a passage appearing at page 462 of Murphy's 2nd Edition of Practical Approach to the Law of Evidence which reads :-

"On proof of the primary fact that some official or public act has been performed or that a person acted in an official or public capacity, it is presumed that the act done complied with any necessary formalities, or that the person so acting was properly appointed for the purpose, as the. case may be. This presumption applies to judicial acts in the sense that it is presumed that a person presiding over an inferior court or a tribunal, was validly appointed to do so. It applies to a great variety of other official acts, such as those performed by constables or justices of the peace, and even to acts of divine service performed in a building, which were presumed to have been performed after due consecration.

It is sometimes said that this presumption cannot be relied on to establish an ingredient of a criminal offence, if the substance of the act or appointment is disputed at the trial. But there is authority that such dispute must be made by way of challenge by evidence, which if correct, weakens the authority of the rule. It may be that the presumption ought to apply, even in such cases, because it may be rebutted by very slight evidence of irregularity, and saves much specious dispute."

18. Mr. Bell argues that the presumption cannot be applied so as to presume the existence of facts which are central to the commission of the criminal offence.

19. He referred me to Cross on Evidence, 6th Edition at pages 26 to 28. At page 26 it is stated :-

"On a charge of assaulting a police officer in the course of his duty, formal proof of his appointment is not essential as evidence that he acted as a police officer will suffice."

This is the decision of the well known case of R. v. Gordon (1789) Leach 515.

20. But Mr. Bell goes further and says : whereas it is not disputed that the two officers were properly appointed as such and for which the presumption could be applied as proof of that fact nevertheless their power to arrest is not to be so presumed where the Ordinance requires a specific authority in writing delegated to the officer by the Authority.

21. Cross, on page 27 states :-

"The maxim omnia praesumuntur rite esse acta must, however, be used with care in criminal cases. It cannot be relied upon to prove the existence of facts central to the offence. (R. v. Willis (1872) 12 Cox CC 164; Scott v. Baker [1969] 1 Q.B. 659; Dillon v. R. [1982] A.C. 484) Nor should it be relied upon to presume a fact contrary to the liberty of the subject, such as that a prisoner is being held in lawful custody. The presumption cannot be invoked to support the conclusion that a breathalyser was approved by the Secretary of State in accordance with Statutory requirements from the mere fact that an instrument of that type was issued to the police."

22. In Dillon v. The Queen [1982] 1 All E.R. 1016~ the appellant, a police constable, had been convicted of negligently permitting two prisoners, lawfully in his custody in a lock-up, to escape. There was no evidence before the court that the two prisoners were lawfully detained in custody. In his appeal to the Privy Council the Board held that it was essential for the Crown to prove that the arrest and detention of the prisoners were lawful since the Crown was not entitled to rely upon a presumption of lawfulness, because the lawfulness of the detention was a necessary precondition for the offence of permitting escape from lawful custody, and it was well established that the courts would not presume the existence of facts which were central to the offence.

23. This decision is binding on this court.

24. The question I therefore ask myself is this :-

"Was proof of the power to arrest a necessary precondition for the offence of resisting this particular public officer in the execution of his duty?"

25. The answer must, I think, be "Yes" because if the hawker control officer had no power to arrest then the conduct of the offender could not amount to resisting him in the execution of his duty.

26. This is not a case where each and every officer has a power to arrest, but only those authorized in writing and whether there was a written authorization is and remains unknown.

27. For these reasons the appeal against conviction on Charge A will be allowed. Her conviction will be quashed and order of 4 months' imprisonment suspended for one year and a fine of $500 set aside. The fine is to be returned to her.

28. Earlier orders in the case which happily were not perfected are replaced.