THE QUEEN v. YEUNG HO KWONG

IN THE COURT OF APPEAL

(CRIMINAL JURISDICTION)

MAGISTRACY APPEAL NO. 1424 OF 1990

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BETWEEN

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JUDGMENT

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Liu, J. (delivering the judgment of the Court):

1. The appellant and his co-defendant Were each charged with an offence of assaulting a police officer in the execution of his duty, contrary to s.63 of the Police Force Ordinance. It was alleged that on the 21st June 1990, outside 84 Shaukeiwan Road, the appellant did so assault Police Constable Tam. In a separate charge, his co-defendant was charged with a similar offence involving another police officer, Sergeant Cheung.

2. These charges arose as the result of a shop party for a mahjong game and the World Soccer Series broadcast live on the 21st June 1990. Both defendants were convicted and dealt with by the magistrate. The appellant alone appeals against conviction. When the matter came before Wong J. on the 6th December 1990, a direction was given pursuant to s. 118(1)(b) of the Magistrates Ordinance for this appeal to be argued before the Court of Appeal.

3. Early morning on the 21st June 1990, one of the guests of the co-defendant's, a partner of the Ming Sze Hair Saloon at 84 Shaukeiwan Road, damaged the front glass door. The shattering of the glass disrupted the mahjong game and the enjoyment of the televised World Soccer Series. Little was known as to precisely what transpired, but an altercation thereupon ensued. Police began to congregate at the scene. Sergeant Cheung, joined later by Constable Tam, was in charge. According to Constable Tam, the appellant was peacefully standing there as an observer. At an earlier time, the appellant had been seen by Sergeant Cheung to join others in restraining his co-defendant. Soon after his arrival, Constable Tam was instructed by Sergeant Cheung to take the appellant back to the police station. When the appellant was being led to the police transport, Constable Tam "turned slightly sideways and made a gesture to (the appellant) to follow (him)". The appellant pushed Constable Tam who fell and was then kicked lying on the ground. On these facts, the appellant was charged.

4. The magistrate found that Sergeant Cheung gave an order to have everyone at the scene arrested. In particular, the finding of the trial magistrate is that the order for arrest was given in excess of the Sergeant's power and not in due execution of his duty with respect to the appellant. However, the magistrate concluded that Constable Tam "had not yet tried to effect an arrest pursuant to (the Sergeant's) order; he had made a request, politely, which met [with] a violent and illegal response". In other words, the magistrate found "that (Constable Tam) was not in the process of arresting (the appellant) when the incident between them took place". In consequence, Constable Tam was not effecting an unlawful arrest.

5. The appellant was virtually an innocent bystander. He was seen to have tried to prevent violence. Constable Tam invited the appellant to follow him to the police car in moderate terms : "please come with me to the vehicle." No reason was given. The appellant was not told that he was arrested. In the confusion of a commotion such as this, it would be tempting to conclude that the appellant was not in fact being arrested.

6. Sergeant Cheung gave an order to all his officers that everyone at the scene was to be arrested. In inviting the appellant to the police station, Constable Tam was "acting on instructions". He had been briefed by the Sergeant that all were suspected of fighting in a public place and was only too aware of the, reason for the Sergeant's decision. He knew "why (the appellant) was being taken back". In particular, the Sergeant specifically informed him that the appellant was himself involved in fighting in a public place. He "just followed the Sergeant's order". He was assigned by the Sergeant "to escort (the appellant)". In fact, the appellant was the first to be led away. It was a general instruction, in obedience to which others were also arrested. When the order to arrest was given, the appellant was "close by". The sergeant was adament at the trial that Constable Tam "carried out (his) order by taking (the appellant) away". He was left in no doubt as to the consequence : "So I arrested them all."

7. We are conscious of the perogative of the trial magistrate to return a factual finding on an event in utter confusion. He found that Constable Tam was not, in effect, Making an arrest. But in the final analysis, there is some lurking doubt in our minds as to whether it could in justice be denied that the appellant had been arrested. For these reasons, we find the verdict unsafe and unsatisfactory.

8. It is quite unnecessary for this Court to rehearse the appellant's violent reaction which was wholly unwarranted. We do not wish to be taken as in any way endorsing it. But be that as it may, on the anthorities such as Ludlow v. Burgess, (1982) 75 Cr. App. R. 227, Daniel v. Morrison (1980)70 Cr. App. R. 142, R. v. Inwood (1973)57 Cr. App. R. 529, the appellant could not be guilty as charged. His appeal must be allowed, his conviction quashed and his sentence set aside. Costs and fine imposed, if paid, be returned to the appellant.