R. v. LAU YIN KUM

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.15 OF 1997

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J U D G M E N T

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1. The appellant was charged with obstructing a police officer in the execution of his duty. She was convicted of the offence charged and was fined $1,000 and ordered to pay $500 costs. She now appealed against conviction.

2. The prosecution case was based on the evidence of a single witness PW1, a police officer on duty in uniform outside Mongkok MTR station on 1st November 1996 at 4.20 pm. His evidence is that he saw the appellant and because her clothes looked like trendy fashion in China, he suspected her to be an illegal immigrant. He stopped her and asked her to produce her identity card. The appellant asked him why he had to see her identity card. PW1 explained he did so under immigration laws. The appellant then asked PW1 to produce his warrant card which he produced but did not let her read it. When she said she wanted to know his number, PW1 showed her the number on his shoulder. After that she showed her identity card to PW1. PW1 took it and checked it. The appellant asked PW1 to give it back to her because she was in a hurry. PW1 refused saying that he had to check it and he suspected it was a faked one. The appellant then ignored PW1 and left saying she would go to Mongkok Police Station. PW1 stopped her from leaving. A crowd gathered. The appellant then shouted she would go to Mongkok Police station but PW1 blocked her way. PW1 then warned her for disorderly conduct in a public place. The appellant shouted that PW1 had no right to check her identity card and wanted to find a reporter. PW1 then arrested the appellant. The appellant wanted to leave but PW1 intercepted her and told her she was already arrested. PW1 used his hand to grab her to prevent her from leaving. When she ignored him, PW1 used handcuffs to handcuff her and there was a struggle during which the appellant suffered an abrasion on her wrist. The incident ended when a sergeant arrived at the scene and persuaded the appellant to go to the Report Room of the MTR station.

3. The appellant gave no evidence. The magistrate accepted the evidence of PW1 and convicted her of the offence.

4. It should be noted that there is nothing in the evidence of PW1 that the appellant was warned, cautioned or arrested for obstructing a police officer in the execution of his duty. She was arrested, according to PW1, for disorderly conduct.

5. The magistrate in his findings said this:

"I considered very carefully the evidence of PW1. I considered the way in which he gave his evidence, his demeanour and the contents of his evidence. PW1 was a young officer and I was impressed by the way in which he gave his evidence. It was not challenged that he had approached the defendant in the Mongkok MTR and asked her to produce her identity card. This is a common place occurrence in public places in Hong Kong.

The defendant did not produce her identity card but instead asked the officer to produce his warrant card notwithstanding he was in uniform. The purpose of producing the warrant card was presumably with a view to obtaining the officer's number although this would be displayed on his tunic.

I accepted the officer's evidence. The officer was acting in the execution of his duty and the defendant's behaviour amounted to a deliberate obstruction of the officer."

6. One of the grounds of appeal is that the magistrate in his findings did not make it clear what conduct of the appellant he found to constitute the offence of obstructing a police officer in the execution of his duty.

7. From the passage of his findings quoted above, the magistrate appeared to have convicted the appellant of the offence of obstructing a police officer in the execution of his duty on the basis of the appellant's failure to produce her identity card immediately on request by PW1and the appellant's demand to see the officer's warrant card even though the officer was in uniform and his number was displayed on the shoulder of his uniform. If that is the basis of the conviction, that cannot be right since a citizen has the right to demand a police officer on duty, whether in uniform or otherwise, to produce his warrant card for identification. If the magistrate found the offence proved based on the cumulative behaviour of the appellant throughout the incident, he had not said so in his statement of findings. The magistrate had not made a specific finding on what conduct on the part of the appellant constituted the offence charged against her.

8. The more important ground of appeal is that the magistrate erred in not permitting the appellant reasonable time to find new legal representation.

9. Counsel for the appellant submitted that the appellant, after dismissing her counsel in the middle of trial, had asked for an adjournment to seek alternative legal representation but the magistrate refused the application. The trial proceeded with the appellant acting in person. This continued for a short time when the appellant renewed her application for an adjournment on the same ground, i.e. to seek legal representation. The magistrate again refused her application. She renewed her application on two subsequent occasions and again these applications were turned down by the magistrate. Counsel submitted that this had deprived the appellant of proper legal representation. By consent of the prosecution, counsel for the appellant tendered an affidavit of the appellant which set out the background which led to the appellant dismissing her counsel on the date of trial. The appellant in her evidence stated that on the date of trial prior to the hearing, her counsel suggested to her that she should accept an offer by the prosecution of "binding over" and in that event there would be no trial. However, acceptance of such an offer would necessarily require the appellant to accept the facts which indicated she had misbehaved. The appellant refused and wanted a trial to prove her innocence. At the commencement of the trial, there was discussion in court between the prosecution, the magistrate and the defence after which her counsel again urged her to accept a binding over order. She refused. During cross-examination, this matter was again raised and her counsel asked for an adjournment to take instruction from her. During the adjournment, there was a discussion as a result of which she did not wish him to continue representing her.

10. Counsel for the appellant submitted that counsel at the trial had been dismissed for some valid reasons. The application for an adjournment after counsel was dismissed was for good reasons. There was nothing to show the appellant was difficult and always finding excuses to adjourn.

11. The magistrate in his findings gave the following reasons for his refusal to grant the adjournment:

"In considering the defendant's repeated applications for an adjournment, I considered the complexity of the case and whether or not the defendant would be able to conduct the proceedings in person.

The case was relatively straightforward and there were no complicated legal issues to resolve.

The defendant appeared to be a bright and articulate person who understood and spoke English. Obviously the latter is not necessary but I mention it as an indication of her level of education. Many far less intellectually able defendants represent themselves before me. I also took into account that she had chosen to dismiss her lawyer."

12. The right to legal representation is a defendant's basic right. The fact that the appellant may have been well educated, articulate, intelligent is irrelevant and so is the fact that the issues are simple and straightforward. The appellant may also seek new legal representation if counsel acted against her instruction. Thus, the fact that she had chosen to dismiss at the trial counsel representing her should not be regarded as a basis for depriving her of legal representation.

13. In the circumstances, the appellant had not been given a fair trial. In addition, there was no specific finding of the facts which supported the conviction. The conviction should be quashed. The appeal against conviction is allowed. Having regard to the nature and circumstances of the offence, it is not in the public interest that there should be a retrial. The fine and order for costs is set aside. Any fine and costs paid should be refunded to the appellant.