THE QUEEN v. KU KAT-SUI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 816 OF 1989

-------------------------

BETWEEN

-------------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was convicted by Mr Upham at Tsuen Wan Magistrates Court on three charges of assaulting a police officer, contrary to section 63 of the Police Force Ordinance, Cap. 232.

2. On 22nd February three police constables were on plainclothes patrol in Kwai Chung when they saw the appellant. He had the appearance of an illegal immigrant and this was apparently a spot in which illegal immigrants were frequently found.

3. Two police constables went up to the appellant and stopped him. According to PC 20622, he produced his warrant card and asked for his identity card. The appellant however, merely shook his head and walked on. He was stopped again and held by both officers. PC 20622 again asked for his identity card and, when it was not produced, handcuffed the appellant's right hand. As the police constable was trying to handcuff his other hand behind his back, the appellant pushed both officers aside and, in doing so, waved his hands in such a way that the handcuff on his wrist struck PC 20622 on the head.

4. While the appellant was held by PC 4071, PC 20622 seized the appellant's hand, but the appellant then kicked PC 4071, who fell but soon got to his feet and helped PC 20622 subdue and handcuff the appellant.

5. PC 20622 arrested him for assaulting a police officer and he was taken to the police station, where a search revealed that he was in possession of a valid identity card and was not an illegal immigrant.

6. The account given by PC 4071 varied in one respect from that of PC 20622. He said that,' when the appellant was asked for his identity card for the second time, he pushed the officers aside and started to run. Only then, he says, did PC 20622 begin to handcuff him.

7. PC 46789 does not mention "pushing", but says the attempt to handcuff the appellant's right hand was made after the appellant started to run away. When the appellant struck PC 20622 with the handcuff, PC 46789 grabbed the appellant from behind, but could not prevent him kicking PC 4071. He says he himself was punched by the appellant on the chest and back as he approached him.

8. The appellant gave evidence. He said he came to Hong Kong in November, 1988 and his native dialect was Mandarin. He did not know the three men were police officers because he did not understand Cantonese, yet he realised the men wanted to see his identity card. Although they did not identity themselves, he gave them his identity card. When it seemed-as if they were not going to give it back, he seized it, whereupon they grabbed his arms and tried to handcuff him. The appellant resisted, still not believing they were police officers, and a mêlée ensued. He was eventually handcuffed and taken to the police station, where at last he realised the "bad guys" were police officers.

9. In cross-examination the appellant admitted that he spoke a little Cantonese. He called his co-worker, who was also at the scene, and she said that she did not speak Mandarin - though she understood it 'to some extent' - and they usually communicated in Cantonese.

10. The magistrate accepted the police evidence and disbelieved the appellant He considered that the discrepancies in the evidence of the prosecution witnesses were "unimportant in the context of the evidence as a whole and no more than I would have expected in a developing incident".

11. He was satisfied that the appellant was not "reasonably defending himself against improper force". He found that the police had reasonable grounds to believe that the appellant was an illegal immigrant and that taking hold of his hands was solely to stop him leaving, so that Pc 20622 could pursue his enquiries to see if he was an illegal immigrant. He was also satisfied that the appellant's reaction made it impracticable to tell him the reason for his arrest until he was subdued and secured.

12. Mr Wong, who appears for the appellant, has two main-grounds of appeal. The first is that the magistrate was wrong to dismiss the discrepancies in the police evidence as unimportant and to accept PC 20622's evidence "in full", when it conflicted materially with that of PC 4071.

13. The magistrate has, I think dealt adequately with this point. One cannot expect the evidence of three officers, who are involved in this sort of incident, to tally exactly. It would be suspicious if it did. Their evidence was substantially the same and there was no reason why the magistrate should not have accepted it.

14. The other ground was that the arrest was unlawful because :- (1) There was insufficient reason to suspect that the appellant was an illegal immigrant. (2) Proper enquiries were not made. (3) The appellant was not informed that he would be arrested and-the reasons therefor. (4) The use of handcuffs represented excessive force.

15. Section 50 of the Police Force Ordinance, Cap. 232 provides:-

"(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.

(2) If any such person forcibly _'resists the endeavour to arrest him or attempts to evade the arrest, such officer or other person may use all means necessary to effect the arrest."

16. Section 54 of the same ordinance provides further.-

"It shall be lawful for any police officer to stop and search and if necessary to arrest and detain for further inquiries any person whom he may find in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night, who acts in a suspicious manner or whom he may suspect of having committed or of being-about to commit or of intending to commit, any offence."

17. The appellant has cited a line of authorities, including Christie & another v. Leachinsky [1947] 1 A.E.R. 567, in which it was held that arrest without warrant can be justified only if the charge is made known to the person arrested, unless the circumstances are such that the person arrested must know the substance of the alleged offence, or when he forcibly resists arrest.

18. Police officers in Hong Kong, particularly in the New Territories, are frequently faced with difficult decisions to make in the present illegal immigration crisis. Persons who have arrived illegally from China tend to present similar appearances, particularly their dress and they often have little or no knowledge of Cantonese. They are aware that, if they have no valid identity card, they will be returned to China. A police officer in such circumstances has to use nice judgment.

19. These officers had reasonable grounds to suspect that the appellant was an illegal immigrant from the area in which he was seen, his dress, his apparent failure to understand Cantonese and his repeated failure to produce his identity card on request.

20. Whether or not the pushing and attempt to run occurred before or after PC 20622 started to handcuff the appellant, the former was fully entitled under Section 54 to arrest and detain him for further enquiries. In the circumstances the police constables acted reasonably in delaying telling the appellant that he was a suspected illegal immigrant until he had been secured against flight.

21. The importance of the reasonableness of the police officers' conduct in determining whether an arrest is lawful was emphasised in Dallison v. Caffery [1965] 1 Q.B. 348, in which, inter alia, Christie  v. Leachinsky was considered.

22. Finally, I do not consider that the use of handcuff represented excessive force in the circumstances.

23. The conduct of the police cannot be criticised and the appeal is dismissed.