R. v. NG WAI KUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.893 OF 1995

______________

_______________

J U D G M E N T

________________

1. This was an appeal against convictions for obstructing a public officer in the execution of his duty and criminal intimidation. The charges arose out of the seizure by USD officers of goods they claimed were obstructing a pavement.

2. The simple point on the appeal was that there was no evidence that the USD officer was, in accordance with s.86 of the Public Health and Municipal Services Ordinance, Cap.132, "authorised in writing by the authority for the purposes of this section ... to seize any equipment or commodity in respect of which he has reason to believe that a hawker offence has been committed." It was conceded by the Crown that there was no such evidence, but the Crown submitted that in accordance with the presumption of regularity, a court could find that as the USD officers were carrying out the duties of USD officers, they should be presumed to be such. That, of course, fell short of a presumption that the USD officers were authorised in writing by the authority for the purposes of seizing equipment involved in hawking offences. Not every USD officer had such authority in writing. It was therefore necessary to establish by evidence that the officers in question had such authority.

3. This matter was dealt with in R. v. Shum Kwan Chee (1987) HKLR 740 and the decision in that case by Addison, J. that "proof of written authorisation in such circumstances was necessary", was approved of in R. v. Kwok Mei Sheung and 33 others MA1278 of 1988, decided by the Court of Appeal.

4. That being the case, there was no evidence that the public officer named in the first charge of obstruction was, in fact, engaged in the execution of his duties. The appeal against conviction on that charge had to succeed.

5. I felt that as that charge was inextricably involved with the second charge of criminal intimidation, that the problem with the first charge vitiated that charge also. I therefore allowed the appeal on both charges.