HUNG HING TONG v. THE QUEEN

Criminal law - whether arrest without warrant lawful - sufficient if on an objective assessment arresting police constable had reasonable grounds to suspect the commission of an offence - whether arrested person later charged or whether evidence fails to establish prima facie case may be relevant but is never decisive or the legality of the arrest - where written evidence tendered by one party and admitted by other party desirable that express order he made as to the basis of admissibility - if' parties represented primary duty is on Counsel and not on the trial magistrate to ensure that the appropriate order is made - Section 50(I) Police Force Ordinance, Cap.232; Section 65C Criminal Procedure Ordinance, Cap.221.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 222 of 1985

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JUDGMENT

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1. The appellant worked in Kowloon. He lived with his wife at Taipo. On the morning of Sunday, 9th December, 1984 he had finished nightshift at about 8 a.m. and hurried to the Kowloon-Canton Railway terminus in Hunghom, Kowloon, to board the train to Taipo. His wife was ill and he was anxious to return home without delay. That morning the Terminus was particularly busy and additional temporary iron railings had been placed across some of the entrances to assist in preserving queues and maintaining crowd control. The appellant generally used the No.8 Entrance from Cheung Wan Road. He found that entrance blocked by one of the temporary railings so jumped over the railing intending to walk towards an automatic ticket selling machine to buy his ticket. When he jumped the railing he was observed by two plain clothes police constables who were on anti-pickpocket duties.

2. On this particular Sunday morning there were about 1,000 persons lining up to buy tickets and about 500 to 600 persons in the immediate vicinity of the appellant. The appellant alleged that there were not many people present. Some of the people in the queues, the police constables stated were making a commotion and asking the appellant why he jumped the queue. The police constables asked him to return back over the railings and join the queue from the outside. The appellant refused. The police constables stated that then he refused to return outside the railing, he was told that unless he did so he would be arrested for disorderly conduct. Jumping a queue is not, of course, by itself a criminal offence but depending on the reaction of others, if a breach of the peace is likely, the queue jumper may run the risk of being charged with disorderly conduct. When he refused one of the police constables declared his arrest. On leaving the Terminus to go to the Police Station, a struggle ensued. There was medical evidence that the appellant suffered minor injuries.

3. The appellant was charged with disorderly conduct in a public place contrary to Section 17B(2) of the Public Order Ordinance, Cap. 245 and of resisting a police officer contrary to Section 63 of the Police Force Ordinance, Cap.232. He pleaded not guilty to both charges. After the prosecution evidence was completed the learned magistrate found that there was no evidence of any likelihood of a breach of the peace occurirg. Accordingly he ruled that the appellant had no case to answer and dismissed the first charge.

4. On the remaining charge of resisting a police officer in the execution of his duty, the appellant gave evidence and was convicted, fined $500 and ordered to pay $500 costs. From that conviction he now appeals. Counsel for the Appellant submitted that the police constable had no lawful grounds to arrest the appellant. In support of this submission it was pointed out that the learned magistrate had ruled at the trial that there was not even a prima facie case established on the first charge of disorderly conduct which was the sole ground of arrest.

5. The second ground of appeal was that the appellant's evidence that he was not approached from the front and first warned by the police constables but was grabbed from behind, was supported by the medical certificate admitted by the prosecution but wrongly given only limited weight by the learned magistrate.

6. The first ground of appeal involves a consideration of the circumstances in which a lawful arrest maybe made by a police constable without warrant. The common law long required that before a person could be arrested without warrant, the arresting, person had to have reasonable grounds for suspecting that the arrested person had committed an offence. In Hong Kong those requirements are reflected in the express statutory provisions of Section 50(1) of the Police Force Ordinance, Cap. 232 which provides:

"50.(1) It shall be lawful for any police officer to apprehend any person who may, be charged with or whom he may reasonably suspect of being guilty of any offence without any warrant for that purpose and whether he has seen such offence committed or not and also any person whom he may reasonably suspect of being liable to deportation from the Colony."

7. The minimum requirement, where there is no warrant is, that the arresting police constable must reasonably suspect the arrested person of being guilty of an offence. If that reasonable suspicion exists, it matters not that the arrested person is not later formally charged with any offence; it matters not that, if charged, on trial a Court rules that there is no case to answer; it matters not that, at the trial, the prosecution fails to establish the charge beyond reasonable doubt.

8. I was referred to Attorney General v. Kong Chung-shing (1980) 533 where the Court of Appeal in relation to Section 50(1), held that arrest without warrant is lawful if the suspicion is based on reasonable grounds. In that case it was hold that there were no reasonable grounds to support any suspicion on the part of the arresting officer. I accept Counsel for the appellant I submission that the standard to be applied, whether reasonable grounds exist is objective. On the general issue of a police officer acting in the course of his duty I was also referred to King v. Hodges (1974) Crim. L.R. 424.

9. So far as the learned magistrate's ruling that there was no case to answer is concerned, that fact is, of course, always relevant but never decisive. This logically follows from the fact that the evidence which justifies a lawful arrest is less than the standard to establish a prima facie case. For an arrest it is necessary that the arrested person be suspected on reasonable grounds of having committed an offence. The establishment of a prima facie case invokes a more stringent test, namely that the evidence adduced by the prosecution must be such that a tribunal of fact, properly direct on the law might convict. At the trial the prosecution, of course, were obliged to establish beyond reasonable doubt that the police constable suspected on reasonable grounds that the appellant had committed an offence.

10. It is therefore not uncommon and in strict accordance with these principles that, in practice, the prosecution, after lawfully arresting a defendant without warrant, may be unable to establish even a prima facie case. This is precisely what happened here. For I am satisfied that the, hostile reaction of some of the large Sunday holiday crowd present at the Terminus, to the appellant's action in jumping the temporary railings, in an apparent attempt to avoid joining the end of the long queue, provided reasonable grounds for the arresting police constable to suspect that a breach of the peace was likely. The first ground of appeal is rejected.

11. The second ground of appeal concerns the medical certificate in relation to the appellant's injuries. This medical certificate was tendered by Counsel, for the defence and the material paragraphs particularising the nature of the injuries were not objected to by the prosecution but the opening statement that the injuries were claimed to have been caused by an assault with a fist were not admitted. After perusing the learned magistrate's record I am well satisfied that the prosecution effectively, if informally, admitted the latter paragraphs in compliance with the provisions of Section 65C of the Criminal Procedure Ordinance, Cap. 221. Ideally, a formal order should have been made recording the nature of that admission. However, I would emphasise that the obligation is on the represented party tendering a document or other statement for admission under Section 65C expressly to inform the Court the basis on which the document is being tendered and expressly to invite Counsel for the opposing party to admit the document in terms of Section 65C.

12. There is no responsibility on the trial Magistrate where the parties are represented to take the initiative of ensuring that the provisions of Section 65C are expressly employed in this manner. Although in practice I suspect that magistrates are often obliged to because of the parties neglect. Where a party is unrepresented the position is different and the magistrate must then take the procedural initiative. That was not the position in this case because both parties were represented. Finally, under Section 65C it may be noted that the strict position is that documents or facts are not tendered by agreement or produced as "agreed facts" but are either admitted by one party or, in some instances, mutually admitted by both parties.

13. The material latter paragraphs of the medical certificate having been admitted by the prosecution, it was not strictly correct for the learned magistrate to hold that the contents of the certificate were not relevant to the charge. However, after considering the observations of the learned magistrate in their entirety I am satisfied that what he in effect held, was that those parts of the medical certificate relating to the physical examination of the appellant and the doctor's findings thereon, were considered by him as relevant. The only part of the medical certificate not considered as relevant was the opening hearsay statement as to how the injuries were claimed to have been caused. That objectionable hearsay statement was also the same portion of the medical certificate which was not admitted by the prosecution.

14. On this basis I am satisfied, that the learned magistrate fully considered that portion of the medical certificate which was admitted and properly did not consider that portion which was not admitted. The basis of this ground of appeal was therefore more superficial than real. I am equally satisfied that those portions of the medical report which were relevant to an assessment whether the nature of the injuries confirmed the allegations by the appellant as to how he was first approached at the Terminus by the police constables were considered by the magistrate.

15. The learned magistrate, I am sure, considered that medical evidence before he rejected the appellant's explanation of what occurred at the Terminus and accepted the evidence of the police constables on that issue. The second ground of appeal also fails.

16. The appeal is dismissed.

(Deputy High Court Judge Cruden)