HKSAR v. EJEGI EDWIN ROBORT

HCMA 197/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 197 OF 2014

(ON APPEAL FROM ESCC 3634 OF 2013)

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J U D G M E N T

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1. The appellant was convicted after trial of an offence of obstructing a police officer in the due execution of his duty contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212.

2. Upon conviction, the learned deputy magistrate Lee Siu-ho sentenced the appellant to 7 days imprisonment.  The appellant was granted bail pending appeal.

3. The appellant now appeals against conviction and sentence.

The facts

4. The majority, if not all of the prosecution case was not challenged by the defence.

5. On 21 October 2013, the police arrested the appellant and another person for trafficking in a dangerous drug, contrary to section 4(1) (a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.  After his arrest on Robinson Road, Central, the appellant was taken to the Central Police Station, at No. 2 Chung Kong Road, Central, Hong Kong.

6. On 22 October 2013 in a room at the Central Police Station between 7:38 pm and 7:54 pm a police officer, PC5492 (PW1) conducted a video recorded interview (exhibit P2) with the appellant.

7. The recording of the video interview reveals PW1 made repeated requests to the appellant to provide his fingerprints.  The appellant however refused his requests.  PW1 also repeatedly warned the appellant that if he failed to provide his fingerprints he would be arrested for obstructing a police officer in the due execution of his duty.  Further PW1 informed the appellant that reasonable force could be used to take the appellant’s fingerprints.  In addition PW1 explained to the appellant that he was empowered to take the appellant’s fingerprints under section 59(1) (a) of the Police Force Ordinance, Cap. 232 and the handling and disposal of such fingerprints taken would be in line with what section 59(2) prescribes.

8. Present throughout the interview was a police interpreter proficient in Chinese and English PW2 and PW3, an interpreter in the English and Nigerian languages.  The Nigerian language PW3 used was an English based Pidgin or Creole.  The appellant understood the requests made to provide his fingerprints. 

9. In the course of the video recorded interview, at around 7:49 pm after the repeated requests, refusals and warnings, the appellant was arrested by PW1 for the offence of “obstructing a police officer in the due execution of his duty”.

10. At around 8:05 pm on the same day, shortly after the video recorded interview was completed, the appellant was brought to Interview Room No. 7 by PW1 where 3 other police officers were present.

11. For about 20 minutes inside Interview Room No.7, PW1 tried to take fingerprints from the appellant but he was unsuccessful.  The appellant held his fists tightly, put them next to his thighs and refused to release his hands to allow PW1 to take his fingerprints from him.  He kept shaking his body when PW1 tried to get hold of his hands.  PW1 tried to lift his right hand but was unsuccessful.  PW1 handcuffed the appellant.  After that, PW1 and his colleague tried to lift the appellant’s right hand again but the appellant again put his hands tightly and firmly between his thighs.  Despite PW1 pressing one pressure point of the appellant’s forearm, the appellant kept his hands between his thighs.  As a result PW1 abandoned his fingerprint-taking exercise.

12. On 23October 2013 at 7:17 pm the appellant was charged with the offence of obstructing a police officer.

13. He was remanded in police custody from the time of his arrest until he was first brought to Eastern Magistracy on 24 October 2013, whereupon he was granted bail.

14. The Appellant eventually gave his fingerprints on 19 December 2013.

15. At a later date the charge of trafficking in a dangerous drug with withdrawn against the appellant however the prosecution proceeded with the charge of obstructing a police officer.

Grounds of appeal

16. There was one ground of appeal against conviction.  That was that the learned deputy magistrate erred in relying on evidence of what occurred after the appellant’s arrest in convicting him when there was no evidence of the appellant obstructing a police officer in the due execution of his duty prior to his arrest.

Discussion

17. The appellant complains that he was convicted entirely upon evidence that occurred after his arrest for obstructing a police officer during the video interview.

18. It was Mr Littlewood, solicitor for the appellant’s submissions, which he had also relied on as trial counsel, that evidence of what occurred in Interview Room No. 7 was not evidence that could be relied upon in support of the charge by the prosecution.  He submitted that once an arrest had been made for an offence, any conduct after that arrest could not be used against the appellant. The only behavior of the appellant to be taken into account must be only that prior to arrest.  He pointed out that the appellant’s oral refusals to have his fingerprints taken did not amount to obstruction as in HKSAR v Tam Lap Fai (2005) 8 HKCFAR 216

19. He submitted that by relying on evidence after an arrest of the appellant for the present offence is a departure from accepted norms in Hong Kong criminal trials such as to render the conviction unsafe and unsatisfactory.

20. If Mr Littlewoods submissions were to be adhered to, in the present case two separate charges should have been laid against the appellant for obstructing a police officer.  One charge for inside the video recorded interview room prior to arrest and the other inside Interview Room No.7 but with the precondition that the appellant would have had to have been arrested again.  With respect this proposition cannot be correct.

21. If Mr Littlewood’s submissions were correct it would result in absurd scenarios in which the police would have to make separate arrests and bring separate charges for each and every single suspected infringement of the law.

22. There is no merit in the appellant’s submission.

23. It was not disputed by Mr Littlewood in the present appeal that the appellant’s conduct inside Interview Room No.7 amounted to an offence of obstructing a police officer in the due execution of his duty.

24. The particulars of the amended charge are unambiguous.  It covers the conduct of the appellant inside the Central Police Station on  22 October 2013.  It is not specific to events inside the room of the video recorded interview.  The charge is broad covering the actions of the appellant inside the Central Police Station which includes the locations inside the video record interview room and Interview Room No.7

25. The learned deputy magistrate was correct in considering the events and behavior of the appellant inside Interview Room No.7.

Conclusion

26. I am satisfied that the conviction was neither unsafe nor unsatisfactory.  Accordingly, the appeal against conviction is dismissed.

Appeal against sentence

27. The appellant was sentenced to 7 days imprisonment after trial.

28. The appellant complains that the learned deputy magistrate erred in :-

(1)  failing to take into sufficient account the appellant’s clear record and other matters advanced in mitigation; and

(2)  not calling for a Community Service Report or Probation Report and imposing an immediate custodial sentence.

29. In mitigation Mr Littlewood advanced the following factors.  The appellant has a clear record.  He is living in Hong Kong under a dependent visa with his wife who is a permanent resident.  They have one child.  He is employed to do scaffolding work for the MTR earning $21,000 per month.

30. Mr Littlewood submitted that although the offence charged is an excepted offence, it is the criminality which forms the basis of the sentence rather than the actual offence charged.  He pointed out that the appellant’s conduct when committing the offence was not serious.  The learned deputy magistrate should have considered a community service order or probation order.

31. Mr Littlewood submitted that the appellant only remained physically immobile and did not impede the investigation.  He submitted the thrust of the appellant’s refusal to give his fingerprints was because the appellant was exercising his rights to have a lawyer present.  The appellant had been arrested for trafficking in a dangerous drug which was a serious offence.  The appellant was from a country where there was much mistrust of law enforcement agencies and he was worried about what the police would do with the fingerprints and the packaging of drugs.  Thus he insisted on the presence of a lawyer.  He was under the mistaken belief that a lawyer would be provided to him at no cost whilst at the police station.

32. The learned deputy magistrate considered other cases of failing to provide fingerprints as an indicator in the level of sentence.  These were HKSAR v Vasquez Tarazona Jesus Juan, unreported, HCMA 725/2001; HKSAR v Ma Sai Yuk, unreported, HCMA 361/2007.

33. In Vasquez the appellant pleaded guilty.  He admitted he refused to be fingerprinted by a police officer who was attempting to take his fingerprints maintaining his refusal and walking away even after the officer had explained his fingerprints were required and he would be charged if he refused.  The learned magistrate took a starting point of 3 months imprisonment and reduced it to one month on totality.  The appeal against sentence was dismissed.

34. In Ma Sai Yuk a sentence of 2 months for the same offence was upheld on appeal, although in that case the appellant had a very bad record.

35. Mr Daryanani, SPP in the appeal before me also referred to the case of HKSAR v Wan Ming Yee [2012] 5 HKLRD 240.  The appellant was charged with obstructing a police officer in the lawful performance of a public duty contrary to s.23 of the Summary Offences Ordinance, Cap. 228.  The facts were that the appellant initially cooperated with the police on having his fingerprints taken however when he was asked for the taking of his palm prints the appellant refused to cooperate by withdrawing his hands and getting up trying to open the room door to leave.  When the police officer grabbed hold of his hand to stop him, he lowered his body and lay down on the floor.

36. The judgment in Wan Ming Yee does not mention the sentence imposed.  It with an appeal against conviction only.  However Mr Daryanani, SPP in his fairness informed the court that the appellant was sentenced to 120 hours of Community Service.

37. One of the key reasons for taking an arrested person’s fingerprints is to be certain of the identity of the arrested person.  The taking of an arrested persons fingerprints is thus an essential part of the police officers duties.

38. The learned deputy magistrate said in his reasons for sentence the following :-

“However, despite such adequate explanations and stern warnings from PW1, the Defendant had persisted in obstructing PW1 inside Central Police Station on 22 Oct 2013 for as long as over 4 hours since 4pm. For as long as 20 minutes inside Interview Room No. 7 and despite he was handcuffed, he persisted in obstructive body and hand movements to prevent PW1 and his colleagues from taking fingerprints from him.It was not until close to 2 months later that he cooperated to allow fingerprints to be taken from him.

While I can imagine more serious cases, Defendant’s obstructions are, I think, by no means minor. And I am sure that it must have impeded police investigation and procedure to some extent.

Police officer like PW1 was there performing his duty to enforce the laws.The integrity of the laws must, I think, be protected against such wilful offending conducts of the Defendant which made PW1’s task much more difficult.

All things considered, a short custodial sentence is, I think, warranted and called for to deter the Defendant and others from committing similar offence. There are no other appropriate sentencing options in all the circumstances of this case.

Having regard to its maximum penalty, I consider it appropriate to adopt a starting point of 7 days for amended charge (2) in all the circumstances of this case.”

39. There is no tariff for the present offence.  The learned deputy magistrates approach to sentence was a carefully balanced one.  The sentence was within the range of the cases cited.  The learned deputy magistrate was mindful of the mitigation advanced by Mr Littlewood.  There can be no criticism of the sentence imposed.

40. The sentence is not either manifestly excessive or wrong in principle.  On the facts of this case it is indeed lenient.  I affirm the sentence.  The appeal is dismissed.

41. As a matter of postscript, I must comment on how Mr Littlewood did not submit any substantial skeleton arguments and only adopted his halfway and final submissions at trial by way of submitting the transcripts of the trial. This is unacceptable by any professional standards.  When appearing in an appeal, even when one is duplicating the submissions at trial, one would expect any diligent advocate to set out his submissions in written submissions and not simply refer the court to the transcript below.

42. In the present case Mr Littlewood offered his apologies for his neglect on the basis that sometimes solicitors have a different way of approaching things. No doubt other practicing solicitors may be slighted by his generalisation.  Solicitors do have the right of audience in magistracy appeals in the Court of First Instance [1], notwithstanding the fact that they have not been granted higher rights of audience as solicitor advocates in criminal proceedings.  I hope that all advocates in the future will prepare their submissions diligently and in accordance with the general practice presently adopted.