HKSAR v. LEUNG KONG KEI AND OTHERS

HCMA1253/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1253 OF 2001

(ON APPEAL FROM NKCC 5092 OF 2001)

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J U D G M E N T

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1. This is an appeal by the 1st and 3rd appellants, who were the 1st and 3rd defendants in the court below, against the convictions for respectively resisting and obstructing a police officer in the due execution of his duty and also an appeal by the 2nd and 4th appellants, being the 2nd and 4th defendants in the court below, against the magistrate's failure to award them costs as a result of their acquittals to the count of obstructing.

2. The 1st appellant, being the 1st defendant at the hearing before the magistrate, was convicted after trial by Magistrate Peter Hui of resisting PC 58666 on 15 August 2001 at the Neway Karaoke on the 1st floor, Nos.1-3 Fa Yuen Street, Mongkok, in the due execution of his duty (Charge 2 refers) but was acquitted by the magistrate of the charge of assaulting the same police officer at the same time and place (Charge 1 refers).

3. The 2nd, 3rd and 4th appellants were jointly charged (Charge 3) with obstructing the same police officer at the same time and place in the due execution of his duty. After trial, the magistrate acquitted the 2nd and 4th appellants of that charge but convicted the 3rd appellant of it.

4. The prosecution's case can be summarised as follows. At about 6 a.m. or just shortly before it on 15 August 2001, as a result of a report made to the police, PC 58666 (PW1) and PC 51462 (PW5), both of whom were in uniform were dispatched to the Neway Karaoke in Fa Yuen Street, Mongkok, to deal with a dispute there. On arrival, the two officers saw the four appellants at the reception counter arguing over the bill with three of the staff of the karaoke. When the two officers attempted to approach to enquire into the matter reported to the police, the 1st appellant came up and blocked their way to the reception counter. He was followed by the other three appellants. The 1st appellant used his chest to press against the body of PW1 thus blocking his way and saying in foul language that this was a matter between them and the karaoke and no business of the police. The other appellants also blocked the way of the police officers by stretching out their arms to prevent the officers from getting to the reception counter. At that time the officers were five or six feet away from the counter.

5. When PW1 warned the appellants to move away or else he would arrest them for obstructing, the 1st appellant started to use both his hands to push PW1 still using foul language thus causing PW1 to lose his balance and to have to step backwards two steps.

6. PW1 suspecting that the appellants were under the influence of alcohol and that the two officers may not be able to control the situation there, then pressed the emergency button of his console to summon further police assistance.

7. PW1 then verbally declared arrest of the 1st appellant for assaulting a police officer. At that time, the 2nd and 4th appellants attempted to block PW1 from the 1st appellant still using foul language to say that this was not any business of the police. PW5 then managed to pull the 2nd and 4th appellants away to the counter.

8. The 1st and 3rd appellants then approached PW1. The 3rd appellant grabbed the hands of PW1 and the 1st appellant attempted to slap at PW1. However, his blow missed PW1's face but knocked PW1's glasses onto the floor. PW1 pushed away the 3rd appellant and a minor scuffle then ensued between the 1st appellant and PW1 during which the 1st appellant used his knee to knock on the inner thigh of PW1. PW1 then took out his handcuffs to try to restrain the 1st appellant. The 1st appellant resisted by struggling and refusing to let PW1 put the handcuffs on him. The 3rd appellant again came up behind PW1 to try to pull PW1 away from the 1st appellant.

9. At this juncture, police reinforcements arrived. Some assisted PW5 in restraining the 2nd and 4th appellants while PC 34917 (PW7) assisted PW1 to eventually put the handcuffs on the 1st appellant. After the handcuffs were put on the 1st appellant, he was still struggling by twisting and turning his body and shouting in foul language. Later the police took the 1st appellant into one of the rooms of the karaoke to calm him down. Inside the room, the 1st appellant was still agitated and struggling and using foul language to challenge the police to a fight.

10. This evidence came primarily from PW1. It was largely supported by the evidence of PW5 in all material aspects.

11. Three staff of the karaoke also gave evidence. Leung Yat Wai (PW2) was the supervisor of the Neway Karaoke at the material time. His evidence was that at about 5:45 a.m., he heard noises at the reception counter. He went out to find that the 3rd, 4th and 5th appellants were arguing with the staff about the bill. Then the 1st appellant came out from a room and stood by watching the argument. The dispute could not be resolved. As a result, police were called by the staff of the karaoke.

12. When two uniformed officers arrived, the argument was still going on. The 2nd, 3rd and 4th appellants started arguing with the police saying it was none of their business. Then the 1st appellant also went over and joined the other appellants saying things to the police but PW2 could not hear what the 1st appellant said. The police officers were then about six feet from the counter. When he looked again, he saw that a pair of spectacles worn by one of the police officers had fallen onto the ground.

13. This witness also gave evidence that the 3rd appellant remained leaning against the counter and continued speaking to the staff of the karaoke but he could not remember if the 3rd appellant had left the counter after he saw the pair of spectacles fall onto the floor.

14. The 1st, 2nd and 4th appellants, according to this witness, talked in a very loud voice to the police officers and kept saying it was none of the police business. He also gave evidence that in that confrontation, the appellants kept on moving forward while the police officers kept stepping backwards.

15. When the appellants were having that confrontation with the police officers, he did not speak to the officers but he did not know if his colleagues at the karaoke did. Later, one of the officers kept arguing with the appellants and was surrounded and struggling with the appellants while the other officers did walk up to the staff of the karaoke.

16. The argument was still going on when police reinforcements arrived. He could see the 4th appellant very agitated and kept shouting "police hitting somebody".

17. He also admitted in cross-examination that part of his view of the occurrences was obstructed by a wall and his other colleagues who were standing at the counter.

18. Mr Lau Kwok Pui (PW3) was the assistant supervisor of the karaoke at the material time. At 5:45 a.m. on the day in question, he was working at the counter when three or four youngsters came over to dispute the bill. Unable to resolve that dispute the police was called. Later, two to three policemen came and asked what happened. An argument took place between the policemen and the 2nd, 3rd and 4th appellants. Later, another group of policemen arrived and he could not remember what happened afterwards. According to PW3, the first group of policemen remained at the counter until the second group of police arrived.

19. In cross-examination, PW3 said that the first group of policemen went up to the counter and he had told the police what happened, then the argument took place between the police and the appellants. When police reinforcements arrived, the first group of officers were still arguing with the appellants. He saw another person coming out but did not see the 1st appellant joining in the argument with the police. After the reinforcements arrived, all the policemen surrounded the appellants at the lobby and he did not see what happened between them as his view was obscured. He later saw police took one of the appellants into a room. The other appellants wanted to follow but they were stopped by the police. One of the appellants took off his clothes in the lobby and was shouting that police was hitting people. He could not say which appellant it was.

20. In re-examination, he said when he told police what happened, he was addressing to one police officer.

21. Mr Chu Kwok Keung (PW4) was the manager of the karaoke at the material time. At about 5:45 a.m. that day, he was at the counter when four youngsters came up to argue over the bill. He then asked his staff to call the police. Later, two uniformed officers came. The four youngsters were still at the counter disputing the bill. One of the officers asked who reported to police. He then told police he had and explained the matter to them. He was then between the staircase landing and the reception counter a few feet away. One officer then asked the customers what happened and the customers said that it was no business of the police but it is a matter between them and the karaoke. The police replied that someone had called the police. PW4 then said he left the matter to the police to handle and did not concern himself with it any more.

22. PW4 further elaborated on his evidence that when the youngsters and the police spoke to each other, they were all at the counter. He did not feel that the police had been obstructed on their way to the counter. Thereafter, he did not pay any more attention to what happened between the youngsters and the police officers. He later saw police reinforcements arrived at the karaoke and again he did not pay any attention to what happened between the youngsters and the police after the reinforcements came.

23. In cross-examination, he said that when both the police officers and the four youngsters were at the counter, he did show the police the bill that was being disputed. The youngsters did not interrupt his conversation with the police. He recalled that the four youngsters had their clothes on.

24. In re-examination, he said he had related to one officer what had happened and had shown the bill to that same officer. That took place before reinforcements arrived.

25. PC 34917 (PW7) is one of the reinforcement police officers who arrived at the scene after he had received instructions at 6:07 a.m. On arrival, he saw PW1 having a struggle with the 1st appellant while trying to handcuff the 1st appellant. He came up to assist PW1. There were other young men nearby. He saw one of those young men trying to stop PW1 and the 1st appellant from struggling. He described the 3rd appellant trying to separate the two from struggling "by touching the arm and shoulder of those two who were moving their bodies in the struggle". He cannot say if the 3rd appellant was using force or not. PW7 then walked up and took the 3rd appellant away, then he went back to help PW1 to handcuff the 1st appellant. According to him, the 4th appellant who was then very agitated went up to PW7 and tried to pull PW7 away and other people were shouting loudly. He, together with PW5, then held the 4th appellant onto the floor to control him.

26. As the people in the lobby were very agitated, he and PW1 then took the 1st appellant into an empty room in order to control the scene. Inside the room the 1st appellant, although handcuffed, still moved his body about forcefully to resist their control. The 1st appellant also challenged the police to a fight using foul language. Later, the 1st appellant calmed down, then Sergeant 11434 arrived at about 6:10 a.m.

27. PW7 also gave evidence that in the police van on the way back to the police station, both the 1st and 2nd appellants took turns standing up in the vehicle still agitated and shouting and both had to be restrained by the officers in the van.

28. PC 54574 (PW8) was another officer arriving at the scene as reinforcement at about 6:10 a.m. He noticed the 2nd - 4th appellants shouting loudly in the lobby. The 4th appellant was naked on top and challenged the police to a fight one to one. He was instructed by the Sergeant to arrest the 1st appellant for assaulting a police officer which he did. After cautioning the 1st appellant in making the arrest, the 1st appellant ignored him. On the way back to the station in the police van, the 1st and 2nd appellants had stood up in the police van in turn, throwing their bodies against the vehicle and shouting.

29. No evidence was called by the appellants nor did any of the appellants give evidence as was their right.

30. On such evidence presented to the magistrate, a clear and consistent version of what had happened can be seen from the evidence given by PW1, PW2, PW5 and PW7 and not surprisingly, the magistrate found PW1, PW2, PW5 and PW7 to be honest and truthful witnesses.

31. However, a very different version of what had happened and how it happened appear from the evidence of PW3 and PW4. The magistrate had some reservations about the evidence these two witnesses had given when he said in his Statement of Findings that :

"I have doubt whether PW3 and PW4 have told me the whole truth. ..."

Be that as it may, he did not reject the evidence of PW3 and PW4 entirely. Rather, he drew a distinction between those events which happened before police reinforcements arrived and those events which occurred after the police reinforcements arrived. For those events which occurred before the arrival of police reinforcements, the time period of which was covered by the evidence of PW3 and PW4, he gave the benefit of the doubt to the appellants which resulted in the acquittal of the 1st appellant for the first count of assaulting a police officer and also the acquittal of the 2nd and 4th appellants for the third count of obstructing a police officer in the due execution of his duty since those charges related to what occurred before the arrival of police reinforcements.

32. The magistrate then convicted the 1st appellant of the charge of resisting a police in the execution of his duty, being the second count, based on the evidence of what happened after the arrival of police reinforcements in relation to the 1st appellant resisting PW1 who was trying to handcuff him. That was supported by the evidence of PW7.

33. The magistrate also convicted the 3rd appellant of the obstructing charge (Charge 3), on the basis that when PW1 was trying to handcuff the 1st appellant, the 3rd appellant had obstructed him from doing so by pulling at PW1 from behind.

34. Insofar as the 1st appellant's appeal against conviction is concerned, two points have been taken. Firstly, that because of the acquittal of the 1st appellant in respect of the charge of assaulting a police officer, it is inconsistent and irrational for the magistrate to convict the 1st appellant of the resisting charge.

35. The assault charge and the resisting charge are separately charged of the 1st appellant. They are based on different facts albeit they occurred during the same incident. The magistrate was faced with a difficult situation in that the prosecution's evidence came out with two somewhat inconsistent versions of events. But such inconsistencies as there were only related to the occurrences before the arrival of the reinforcements. The magistrate quite properly gave the benefit of the doubt to the 1st appellant when it came to the charge of assaulting a police officer and acquitted him. That, however, does not mean to say that he did not believe PW1 to be an honest and truthful witness. The magistrate said so himself that he found PW1 to be an honest and truthful witness. He gave to the 1st appellant the benefit of the doubt in relation to that charge of assaulting a police officer only because he was faced with the different versions of events coming from PW3 and PW4. A difficulty which this magistrate chose to resolve in that way.

36. The same difficulty did not present itself in respect of the resisting charge. There was no inconsistent version to that given in evidence by PW1. Indeed, PW1's version of the resisting by the 1st appellant was supported in evidence by that of PW7.

37. On the evidence, the magistrate was well entitled to make that finding which he did and there is no inconsistency about it nor was it irrational.

38. For the second point taken on behalf of the 1st appellant, it was submitted that even if the magistrate found as a fact that the 1st appellant was putting up resistance to PW1 trying to handcuff him, the 1st appellant cannot be found guilty of the charge of resisting because the attempted arrest by PW1 was not a legitimate arrest and therefore unlawful; that the 1st appellant was merely trying to fend off an unlawful arrest.

39. All the evidence show that PW1 and PW5 answered the report made to the police by the staff of the Neway Karaoke. They were there on official police business. Neither can the fact that the 1st appellant was subsequently acquitted of the charge of assaulting a police officer make the attempted arrest of the 1st appellant unlawful. There was no other evidence to show that the arrest was unlawful. In so submitting, counsel has equated the conviction for the charge of assaulting a police officer with the lawfulness of that arrest. The fact that the 1st appellant was acquitted by being given the benefit of the doubt of the assaulting charge does not, in itself, make the arrest unlawful. On that basis, there is no merit to this ground either.

40. Accordingly, the appeal against conviction by the 1st appellant is dismissed. I come now to deal with the appeal by the 3rd appellant against his conviction.

41. In convicting the 3rd appellant of the charge of obstructing a police officer in the due execution of his duty, the magistrate relied on the evidence of PW1 to say that the 3rd appellant was pulling him away from handcuffing the 1st appellant. That evidence, however, did not stand alone. There was also the evidence of PW7 which was different from that of PW1. PW7's evidence was that from what he saw, he was under the impression that the 3rd appellant was trying to separate the two from struggling. He also felt that the 3rd appellant was not using force but just touching the two who were struggling on their arms and shoulder.

42. In the light of this evidence between PW1 and PW7 which contradicts each other, in order for the magistrate to properly convict the 3rd appellant of the charge of obstructing, the magistrate ought to have made a specific finding of fact as to which of the two conflicting pieces of evidence he accepted and then to base his conviction on the facts found by him. He did not do so. All that the magistrate said in his Statement of Findings was that after repeating the different versions given by PW1 and PW7 in their evidence, the learned magistrate said this :

"... In my opinion, if D3 tried to intervene a police officer in arresting another person, he was obstructing a police in the due execution of his duty. ..."

That must be a big "IF". In the absence of any specific finding by the magistrate, the question whether the 3rd appellant was trying to stop the two of them from struggling any further or whether he was trying to intervene PW1 from arresting the 1st appellant remains unresolved.

43. One further point which causes me to feel that the conviction of the 3rd appellant is unsafe is the fact that both the 2nd and 4th appellants were jointly charged with the 3rd appellant in the same charge of obstructing a police officer. The evidence relating to the 2nd and 4th appellants on the obstructing charge refers to a point in time before police reinforcements arrived on the scene. And it was for that reason that the magistrate gave the benefit of the doubt to the 2nd and 4th appellants acquitting them of that charge of obstructing.

44. In those circumstances, and bearing in mind that it was a joint charge (Charge 3), how is it possible for the magistrate to sever the 3rd appellant from that joint charge and find him guilty of it based on something which happened after police reinforcements arrived remains a mystery. No steps were taken by the magistrate or by the prosecutor to amend that charge and to separate it from the joint charge with the 2nd and 4th appellants.

45. For these reasons, the conviction of the 3rd appellant by the magistrate of the 3rd charge of obstructing a police officer in the due execution of his duty is, in my opinion, unsafe and unsatisfactory. Accordingly, the appeal by the 3rd appellant against conviction is allowed and the conviction and sentence is set aside. I now turn to the appeal in respect of costs by the 2nd and 4th appellants.

Appeal on costs

46. Under section 3(1)(c) of the Costs in Criminal Cases Ordinance, the magistrate has a wide discretion in awarding costs whenever he dismisses an information of complaint after hearing and an appellate court would be slow to interfere with that exercise of discretion unless it can be shown either in failing to consider relevant factors or taking into consideration factors which should not have been considered by him in the exercise of discretion.

47. In the present case, the magistrate took into consideration the unruly conduct of the appellants at the material time. There was ample evidence of the unruly conduct of the appellants. Moreover, it was that unruly conduct which led to the appellants being charged with the obstruction charge. Furthermore, the cases put by defence counsel conceded that the appellants had employed abusive and foul language to the police officers. Finally, consistent with the view taken by the magistrate, although he acquitted the 2nd and 4th appellants of the charge of obstruction, because he had entertained a doubt from the evidence of PW3 and PW4, he did, with the agreement of the 2nd and 4th appellants, bound them over in the sum of $2,000 to keep the peace and be of good behaviour for two years. Moreover, it is clear from his Statement of Findings that on the evidence before him, the magistrate would have found the 4th appellant to have obstructed PW7 but because the charge as it stood, only charged the 4th appellant with obstructing PW1 and not PW7, the 4th appellant was not convicted of that.

48. Coming back to the conduct of the appellants the unruly behaviour which the magistrate found in respect of all of them, the fact that these appellants admitted to having gone to the Neway Karaoke for alcohol the fact that they appeared to be under the influence of alcohol to the police officers who initially arrived at the scene, all had an impact bearing on the chaotic situation at the scene - which resulted not only in the officers having to summon for assistance from other police officers, but also later resulted in the 1st appellant having to be forcefully restrained by the use of handcuffs. Taking all these matters into consideration, the magistrate cannot be faulted on his exercise of discretion in considering the matters which he did and finally in exercising his discretion to refuse to award costs to the appellants who were acquitted by him. By their conduct, it is clear that the appellants had brought this matter upon themselves. Accordingly, this part of the appeal is also dismissed.