THE QUEEN v. MAN WING CHEUNG

IN THE COURT OF APPEAL

(Criminal Jurisdiction)

MAGISTRACY APPEAL NO. 1437 OF 1989

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BETWEEN

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JUDGMENT

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Liu, J. (delivering the judgment of the Court):

1. On the 21st July 1989, the appellant was a Light Rail Transit passenger. When he was unable to produce a ticket,the police were called. He was summarily fined $120 for travelling on a Light Rail vehicle without payment. He also failed to produce his Identity Card to the police. As a result, he was taken to the Tuen Mun Police station for enquiry. It is not the case of the appellant that he was at any time arrested or detained.

2. From the Tuen Mun Police Station, the appellant frantically called his family enquiring as to the whereabouts of his July Monthly Ticket and Identity Card. The call he made was unfruitful.

3. The appellant is a construction site worker. He comes from the Po On District and speaks a somewhat hybrid dialect between Punti and Hakka. Even at his hearing before the magistrate, a special interpreter had to be arranged. He was in distress and his agitation grew. In the course of his conversation with his family, he managed to retrieve the July Monthly Ticket and Identity Card from a wallet in his shirt pocket. His frustration became uncontrollable. He used foul language, vented his temper, complained of his unjust penalty and demanded an explanation as to the need for the supply of his personal data to the Light Rail Transit Authority.

4. During the process of the noting of an entry in the Report Book, the appellant was making a nuisance of himself, both vocally and by his conduct. Constable Ng asked the appellant to calm down but to no avail. Constable Liu, who was also present, had the impression that P.C. Ng asked the appellant to take a seat in one of the chairs at a table in the Report Room. Constable Ng himself explained to the trial magistrate that he was minded to request the appellant to leave the room for a seat. In his words : "To quieten him, I intended to ask him to take a seat outside".

5. Thereupon, with his left hand the appellant pushed the right hand and the chest of Constable Ng. A commotion ensued. Another officer from behind restrained the appellant who also pushed him on his chest, as a result of which he fell. The combined effort of these and other officers succeeded in subduing the appellant, in the course of which Constable Liu was pushed on the chest by the appellant with his left hand and fell against the wall next to the table.

6. Two charges were laid against the appellant, one for assaulting Constable Ng and the other Constable Liu, both in due execution of their respective duty. It was altogether an unfortunate incident. He was convicted on both charges but discharged conditionally on his entering into a recognizance to commit no further offence for a period of twelve months and a further recognizance in the sum of $500. He was ordered to pay $300 costs. The appellant feels aggrieved and appeals against his convictions. On the 5th December 1990, pursuant to s.118(1) (d) of the Magistrates Ordinance, Wong, J. directed his appeal to be entertained by the Court of Appeal.

7. The appellant accused the police of assault and oppressive conduct. The magistrate accepted the version of the police officers.

8. It is not the appellant's case that he was at any time detained. Little was said of the nature of the appellant's stay in the Tuen Mun Police Station for his failure to prove his identity. After the discovery of the appellant's Identity Card, evidently the police could not have had cause for further enquiry. It is clear that the approach made by Constable Ng was merely to pacify the appellant. Constable Ng's hand must have had a role to play in the appellant's violent response otherwise that hand would not have had to be brushed aside. It was sought to be argued that the approach of Constable Ng coupled with some movement of his right hand was tantamount to an unlawful exercise of restraint over the appellant presumably to enable police formalities to be completed. There was no evidence that the constable's hand was even in motion. "Due execution of duty" is a crucial ingredient of the offence in the instant charges. Positioning of the constable's right hand in an effort "to quieten" the appellant was said to have been motivated by some design to exercise a measure of physical restraint(not even, be it noted, control) on the appellant so as to lay hopefully a foundation for the execution of such an imagined duty to be impugned. The evidence accepted by the magistrate fell far short of establishing any such vague design to delay the appellant's departure until police formalities were completed.

9. The appellant was the author of his own misfortune. The police officers, Ng, Liu and the others were clearly not then interfering with the appellant's liberty. The constables had a duty to preserve the tranquillity of their Report Room. It is inconceivable that any approach "to quieten" the appellant in these circumstances could be condemned as an unlawful exercise of such a duty. What was it that could be said to be lacking or inadequate in Constable Ng's approach or the conduct of the other officers who rallied to his assistance? Even if the conduct of the police officers had not been in accordance with their duties as prescribed by section 10 of the Police Force Ordinance, it would certainly have been within the scope of their duties as recognised by this court in HO Shau-hong v. Commissioner of Police (1987) HKLR 945. They were exercising functions incidental or consequential upon their statutory and common law duties and powers. It would have been a dereliction of duty if these officers had been indifferent to the disturbance so generated.' The appellant's case virtually stands or falls on some shape of wrongful restraint, for the inference of which there was clearly insufficient evidence. The appeal is therefore dismissed.