HKSAR v. WONG CHI HUNG

HCMA 171/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 171 OF 2005

(ON APPEAL FROM KCCC 13635 of 2004)

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J U D G M E N T

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1.  The appellant appears in person before me seeking to overturn his conviction for resisting a police officer in the due execution of his duty contrary to section 36 (b) of the Offenses against the Personal Ordinance.

2.  The magistrate's statement of findings read thus:

“1. I convicted this defendant of one charge of resisting a police officer in the execution of his duty after trial on 17 February 2005.  He was represented.  I sentenced him to two weeks in prison.  He appeals against conviction.

2. The burden of proof remained on the prosecution throughout.  The defendant testified.  It was his case that he was being framed up.  Police assaulted him and he did nothing.  I found the prosecution witnesses to have been honest and reliable witnesses.  PW1 was a civilian who happened to have been present in the Report Room at the time.  Some of his evidence was inconsistent with that of the other witnesses.  Having considered the differences and inconsistencies in the prosecution evidence I found them have been, in the circumstances, immaterial to their credibility and reliability.  Each witness came to court with their own recollections of the events, from their own unique perspectives.  These were events that transpired unexpectedly and reasonably quickly.  Having observed the defendant in the witness box and having considered his evidence, I found him to be an unreliable witness; I rejected his evidence as a convenient fabrication and gave it no weight.

          Findings of Fact

3. The defendant was in the Report Room of Yaumatei Police Station, Kowloon at about 2100 hours.  This can be seen at Ex. P1-1.  The public waiting area is to the left foreground.  The reception desks can be seen on the right.  He was waiting for certain procedures to be attended to.  He told officers that he wanted to step out of the station for a minute but this was refused.  He became impatient, pacing about the Room.  He was pacing in the area seen in P1-1.  He started to speak very loudly and to swear in a loud voice.  Officers asked him to calm down.  He didn’t.  PW3 approached and asked the defendant to calm down.  He refused and carried on swearing obscenities.  He was formally warned to settle down.  He refused and responded with further loud cursing of a vile nature interspersed with meaningless threats such as “…if you have enough guts, beat me…” and with objectionable references to PW3’s mother.  PW3 reported these events to the Duty Officer.

4. The Duty Officer authorized PW3 to arrest the defendant for disorderly conduct in a public place.  I found that there were ample grounds to arrest the defendant for this offence.  PW3 approached the defendant to do so at about 2115 hours.  PW3 motioned him over with his hand from a position near the entrance to the corridor (P1-3) about 20 feet away.  The defendant walked over to PW3.  PW3 stated that he was arresting the defendant for disorderly conduct in a public place and placed his right hand on the defendant’s shoulder.  The defendant walked with PW3 for about three steps then quickly turned around and walked away.  As he did this, the defendant’s left elbow forcefully hit PW3’s right-side ribcage.  PW3 “stopped for a moment”, as the blow hurt him, then struggled to stop the defendant.  During this struggle, PW3 warned the defendant he would be arrested for resisting a police officer if he did not cooperate.  The defendant continued to struggle and was finally subdued.  Some of these events were captured on a CCTV tape and were played in court.  The corridor where the defendant testified he was assaulted can be seen at P1-3 (the entrance) & 4 (a shot of the corridor-it curves around to the right, leading to a large office staffed by numerous officers).

5. I found that PW4 was a Police Officer on duty and that he was acting in the execution of that duty as he attempted to arrest the defendant.  The defendant’s acts in striking and struggling to resist the lawful actions of PW4 constituted resisting the officer in the due execution of his duty.  I found the prosecution had proved the charge beyond reasonable doubt and convicted him accordingly.”

3.  It was thus not apparent what the differences were between the civilian witness and the police officers; why the magistrate judged the defendant to be an unreliable witness; what were the ample grounds to arrest the defendant; whether any disorderly conduct was intended or likely to cause a breach of the peace; what supported the finding that the police officer was acting in the execution of his duty; what test the magistrate had applied to judge if a breach of the peace was likely (if that is what he in fact did) and what events were captured on the CCTV tape.

4.  The case had to be adjourned for a full transcript.  The full transcript revealed that the duty lawyer, acting on behalf of the appellant below, took two main points.  The first was that the police officer was not acting in the execution of his duty because no breach of the peace was intended or likely.  The second point was that the prosecution evidence taken as a whole was not to be trusted, which was supported by some strong jury points, not least the facts that the part of the incident recorded on the CCTV tape, admittedly without sound, arguably showed the police officer to be the aggressor, thrusting his face into that of the appellant who was backed up to a wall before the arrest; that at the time of the arrest the defendant was in fact filling in forms; that the appellant obediently came to the officer at the officer’s beckoning for the arrest to be affected, the resistance to which (said by the officer to have commenced unintentionally) occurred conveniently with every other police officer looking the other way and out of sight of the CCTV cameras. 

5.  Were there grounds to arrest the appellant? The officer purported to make the arrest on the basis of disorderly conduct.  Section 17B(2) of the Public Order Ordinance provides that any person who in any public place behaves in a noisy or disorderly manner or uses….threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence.  The police officer would also have power to arrest for a breach of the peace at common law.

6.  There was ample evidence of the appellant swearing offensively and loudly.  The question was whether a breach of the peace was thereby likely to be caused.

7.  In R.v. Howell [1982] QB 421, the leading case as to what is meant by the phrase “breach of the peace”, it was said :

“We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.  It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest on offender without warrant.”

8.  And elsewhere in that case, the court said so far as the likelihood of the threat of violence causing a breach of the peace is concerned :

“...we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done.  There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person's body or property.”

9.  Harm to property was never suggested or remotely relevant.  So, could the police officer reasonably apprehend that any harm was actually done to anyone then present at the police station, or that it was likely to be done or that anyone there was in fear of such harm being done?

10.  The answer to that question, having been through the transcript, is undoubtedly no.  The civilian witness who was called never spoke of such or laid the ground for it to be inferred.  No police officer spoke of or feared the appellant harming them.  The evidence was that there were two or three members of the public waiting in the lobby area of the police station.  The arresting officer surmised that one of them felt impatient at what had been going on and walked out and the most he could say about any general reaction was that the speaking of the foul language “affected the mood of the public”.  It was clear from his evidence that he paid them no particular attention.  When asked if they were disturbed he said that he supposed so.  It was clear from the evidence that whilst those members of the public may not have liked what they heard and saw there was no question of them being the subject of either harm or threatened harm sufficient to constitute a breach of the peace. 

11.  The test that the police officer used to justify his arrest was apparent from what he said to the appellant, namely “if you are so noisy here affecting others…..you would have committed an offence being disorderly behaving in a public place”.  “Affecting others” is not the same as a breach of the peace being likely to be caused.

12.  On the evidence before me I cannot be sure that the appellant intended a breach of the peace to occur or that one was likely to be caused by his conduct.  Nothing in the statement of findings helps me to any other conclusion.  The first point is a good one and the appeal must succeed.  There was no reasonable ground to apprehend a breach of the peace and none had occurred.  It follows that the prosecution could not establish that the officer was acting in the execution of his duty.  In fact this is a situation well known to those familiar with the criminal law: whilst arrests are made all over the common law world when citizens are unwise enough verbally to abuse a police officer, no right to arrest in fact thereby arises unless the speaker is drunk or a breach of the peace is likely to be caused.

13.  It follows that I do not have to deal with the second line of argument, although I remark that it was based on some powerful points, upon which the contents of the statement of findings afforded no help.

14.  I have of course based my decision on the evidence before me.  This is not an appeal decided by the respondent's concession.  However, I mention that Mr Cheung Wai sun, deputy principal government counsel, had seen the point once he read the transcript and agreed in his written skeleton argument that the appellant could not be guilty of the offence charged.

15.  Accordingly, I quash the orders of conviction and sentence made by the magistrate and order that the charge be dismissed.  I appreciate that police officers do a difficult job and I have no sympathy for those who swear at them.  However, it is important that their reaction is one justified by law.

16.  It would be right and proper therefore that in this case the appellant be spared the two weeks’ imprisonment to which he was sentenced.  That is not possible because the magistrate took the course of remanding the appellant in custody for a fortnight pending a background report.  The appellant was released on the day he was sentenced.  He had served his sentence but was effectively denied the prospect of appealing it and was obliged to serve it whatever the merits of his appeal against conviction or sentence.  There is nothing on the transcript or in the papers before me that made a remand in custody for a background report appropriate.  There is certainly nothing that justified the taking of such a course without giving the appellant or his lawyer the opportunity to be heard on the matter: yet that is what occurred.  This appellant might have won his appeal, but I fear his victory is a hollow one.