HKSAR v. OSUNWOKE IFEANYI JOHN

HCMA 369/2017

[2018] HKCFI 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 369 OF 2017

(ON APPEAL FROM ESCC 2999 OF 2016)

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J U D G M E N T

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Introduction

1.  The appellant, was charged with one count of common assault, contrary to Common Law and section 40 of the Offences Against the Person Ordinance, Cap. 212 (“Charge 1”) and four counts of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212 (“Charges 2-5”).

2.  After trial, the appellant was acquitted by a Deputy Magistrate[1] (“the magistrate”), of Charge 1, Charge 2 and Charge 3 and convicted of Charge 4 and Charge 5.  He was sentenced to 3 weeks imprisonment for each charge to be served concurrently, making a total sentence of 3 weeks imprisonment. 

3.  The appellant has completed the jail term.  He now appeals conviction and sentence. 

Prosecution Case

4.  The appellant is a Hong Kong Identity card holder.  At the material time he was working as a security officer at Gurkha Bar, at D’Aguilar Street, Central, Hong Kong.  Near the Gurkha Bar was another bar called Mine Bar. 

5.  The police were called to the above location when a dispute arose between the appellant and a taxi driver at around midnight on 13 September 2016 that is moving into 14 September 2016.

6.  The prosecution case was that in the early hours of 14 September 2016, the police had a genuine suspicion that the appellant assaulted a taxi driver PW1[2]. PW2 therefore declared arrest on the appellant for assaulting the taxi driver.

7.  To effect the arrest five police officers PW2[3], PW4[4], PW6, PW3[5] and PW5[6] tried to handcuff the appellant, he however evaded or resisted them by pushing and struggling with the police officers.  Warnings by police officers were given to the appellant that if he did not stop resisting he would be hit with the police baton.  Despite these warnings the appellant continued to resist therefore the police officers used reasonable force on the appellant to effect the arrest.  

8.  Whilst reasonable force was used on the appellant by the police officers, the appellant grabbed PW3’s baton away from his hand, lifted it above his head and made a threatening gesture (as if he was going to hit the officers with the baton) with the baton towards PW3 (Charge 4).  In the course of the struggle in trying to retrieve the baton by the police officers, the appellant pushed PW5 (Charge 5) away and in doing so assaulted him.

9.  It was the prosecution case that at the material time the police officers were acting in the due execution of their duty by using reasonable force and the appellant assaulted them in the course of their effecting his arrest.

The lead up to the appellant’s assault on PW3 and PW5

10.  PC 20016 Ho Hing-lung (PW2) and PC 49264 Lam Lok-sang (PW4) initially attended the scene to deal with the dispute between the taxi driver and the appellant.  Thereafter SGT 49356 Chan Tin-chu, Anthony (PW3), PC 16277 Kong Sin-ming (PW5) and PC 20127 Chan King-lun (PW6) arrived at the scene.

11.  PW3 made enquiries with both PW1 and the appellant.  The appellant denied assaulting PW1.  PW3 then instructed PW2 to arrest the appellant.  The police officers wanted to handcuff the appellant but he started pushing and struggling.  PW3 warned the appellant if he did not stop pushing and struggling he would be beaten with his baton.  The appellant continued to push and struggle.  The police officers then used their batons to strike the appellant. 

12.  PW’s 2-6 together then tried to restrain the appellant outside the Mine bar.  During the struggle with PW’s 2-6, the appellant pushed the police officers away and snatched PW3’s baton from him. The appellant then proceeded to lift PW3’s baton, now in the appellant’s hand high above his head and appeared that he was about to hit PW3 (Charge 4). PW5 attempted to take back the baton from the appellant but was pushed away by the appellant (Charge 5).  PW3 drew his revolver and pointed it at the appellant.

13.  The appellant then went into the Mine Bar and the police followed him.  Only then did the appellant drop PW3’s baton on the floor.  There was a continuation of the struggle, pepper spray was used on the appellant and the appellant was arrested and handcuffed.

14.  Later, the appellant was cautioned by PC 19857 Lo Chun-wai (PW7) in Punti.  The appellant remained silent.

Appellant’s Case

15.  At trial, the appellant was legally represented by Counsel assigned to him by the Duty Lawyer Service.[7]

16.  In summary, the appellant’s case was the police officers did not declare arrest upon him until there were inside the Mine Bar.  When outside the bar he was acting in self-defence as the police were assaulting him.  The appellant’s case was that he was subject to an unreasonable attack by the police officers at that time and he was only trying to stop them from hitting him. This was consistent with reasonable force for self-protection.  The level of force used by the police officers was so excessive that they ceased to be acting in the course of their duty.

17.  He denied he was resisting arrest.  He did not push or struggle with the police officers before he was hit with the baton. 

18.  The appellant’s case was that he was only told to sit down and shut up.  There was no declaration of arrest.  He was then hit by the police officers with their batons.  The appellant admitted to grabbing PW3’s baton, in order to stop PW3 from hitting him with it.  He then went into the Mine Bar where the appellant asked the police officers, “Why don’t you arrest me?”.  Arrest was declared at this point.  He then surrendered, offering his hands to be handcuffed. 

Grounds of Appeal

19.  The appellant was not legally represented at the appeal.  In his oral submissions he reiterated the submissions of his defence counsel’s submissions at the trial.  He averred that the magistrate had erred in convicting him as he was acting in self-defence and that his actions were warranted as:

a)   the act of the police officers hitting him repeatedly was unreasonable;

b)   he did not push or struggle with the police until he was assaulted by them;

c)   he had grabbed PW3’s police baton and pushed PW5 as he was acting in self-defence; and

d)   the officers had not declared arrest upon him outside the Mine Bar but only ordered him to sit down.  He asked them why he needed to sit down. 

Respondent’s Reply

20.  Counsel for the Respondent, Mr Prakash L Daryanani, Senior Public Prosecutor submitted that the magistrate’s findings were entirely correct.  He argues that the arrest was lawful and the use of force used by the police officers was entirely reasonable under the circumstances.  Further, the sentence of 3 weeks after trial for each offence was neither manifestly excessive or wrong in principle. 

21.  In both his written and oral submissions, Mr Daryanani highlighted the issues of:-

(1)   when exactly the arrest was declared on the appellant; and

(2)   was the use of force by the police reasonable to effect the arrest of the appellant taking into account the resistance by the appellant;

22.  If as according to the appellant there was no arrest by the police until the end of the struggle at the Mine Bar, then the use of force by the police prior to the arrest would be unlawful and the appellant was entitled to defend himself as his detention would then be unlawful.[8]

23.  Mr Daryanani submitted that an arrest was declared upon the appellant on the street and not as alleged by the appellant in Mine Bar.  He initially submitted that appellant resisted his arrest by struggling and pushing the police officers but having reviewed the video evidence he appropriately retracted that suggestion and accepted that prior to the appellant being assaulted with a baton by a police officer there was no resistance either by pushing or struggling by the appellant. 

24.  Mr Daryanani accepted that the actions and force used by the police was in his own words “not done that well.”He however submitted the appellant did not succumb to the arrest. He averred the appellant refused to go with the officers voluntarily and did not comply with the officers as a result the force used was reasonable to effect the appellant’s arrest. 

Magistrates Findings

25.  In his detailed Statement of Findings and Reasons for Sentence[9], the magistrate noted that there had been different versions of events put forward by the police officers and the appellant[10].

26.  The Prosecution relied on the evidence of PW’s 2 to 7 and CCTV footage from China Bar (Exhibit P5) and California Tower (Exhibit P6) that showed the incident. These were produced by way of admitted facts.[11]

27.  The appellant adduced a Whatsapp Video which showed a much closer view of the incidents leading up to Charge 4 and Charge 5 which happened directly in front of the Mine Bar (Exhibit D2).  This footage had sound.

28.  In the analysis of the evidence[12], the magistrate accepted the evidence of the police officers and ruled them credible and reliable witnesses.  He found their evidence to be clear, straight to the point and with no inherent improbabilities or inconsistencies and the evidence corroborated one another on significant matters.[13]

29.  The magistrate did not find the appellant’s evidence credible nor reliable, and found it to be inherently improbable[14]. He rejected the appellant’s evidence that he felt intimidate and discriminated upon being told to “lie down”[15].

30.  In analysis of the elements of the charge,that is whether the police officer was acting in the due execution of duty and whether the appellant’s actions amounted to an assault[16], the magistrate found that the arrest was lawful and did not agree that the level of force used by the officers was so excessive that they ceased to be acting in the course of their duty.  Further, he rejected the appellant’s case that he acted in self-defence.

31.  In convicting the appellant on Charges 4 and 5, the magistrate relied on the Whatsapp video exhibit D2.  In relation to charge 4, he found that the appellant intentionally caused PW3 to anticipate immediate and unlawful violence, with a hostile intent calculated to cause apprehension in the mind of PW3.[17] As a result, PW3 reacted by drawing his revolver.[18] 

32.  In relation to Charge 5, the magistrate found that the appellant’s pushing of PW5 intentional.  It was forceful, targeted and caused PW5 to fall onto the ground.  However, the magistrate opined even if the act of the appellant was not intentional, it was clearly reckless.[19]

Discussion

33.  The following discussion is premised on the basis that PW2 had lawfully declared arrest on the appellant on the genuine suspicion that the appellant had committed an assault on the taxi driver. 

34.  The issues to be decided therefore is if the force used by the police officers was reasonable to effect the appellant’s arrest and did the appellant act in self-defence.

35.  Section 36(b) of the Offences Against the Person Ordinance, Cap. 212 states that any person shall be guilty of an offence if he: 

“assaults, resists, or willfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer.”

36.  Section 50 (2) of the Police Force Ordinance, Cap 232 gives the police the power to effect arrest on the appellant.  Section 50 (2) of the Police Force Ordinance, Cap 232 reads as follows:

“If any person who may lawfully be apprehended under subsection (1) or (1B) forcibly resists the endeavor to arrest him or attempts to evade the arrest, a police officer or other person may use all means necessary to effect the arrest. (Replaced 57 of 1992 s.2)”

37.  It has been decided in Browne [1973] NI 96 at page 107 of the judgment, where Lowry LCJ said:

“Where a police officer is acting lawfully and using only such force as is reasonable in the circumstances in the prevention of crime or in effecting the lawful arrest of offenders or suspected offenders, self-defence against him is not an available defence.”

38.  Browne has been said by some respected legal commentators as being too wide.  However, the emphasis is such force as is reasonable.  As held in Burnley [2000] Crim LR 843 at 844: 

“It was not the law where a person was assaulted by the police he could not plead self-defence or raise the defence of duress by circumstances. If that were the law there would be less constraint upon the police in the amount of force they might use in order to effect an arrest.”

39.  In the commentary of R v Kelbie [1996] Crim LR 802 at 804 entitled “Use of Force”, it states in part:

“Whatever the purpose of the use of force, it cannot be lawful if the force used is greater than is reasonable in the circumstances to achieve the purpose. It can never be lawful to use unreasonable force……”

Was the force used by the police officers reasonable in order to effect the appellant’s arrest?

40.  It was the prosecution case that the police officers tried to effect arrest by handcuffing the appellant however he struggled and pushed them away. He was warned if he did not stop pushing he would be beaten by the baton.  He did not stop resisting so he was beaten.

41.  In the present case, the evidence turned on video footage from both the prosecution and the appellant.  At this appeal hearing, the CCTV video footage (Exhibits P5 and P6) and Whatsapp video footage (Exhibit D2) were viewed in their entirety in order to gain an accurate account of the incident from beginning to end. 

42.  After careful scrutiny, the Mr Daryanani for the respondent correctly and importantly accepted that there was no pushing or resisting or struggle notably prior to the appellant being hit with the police officers batons.

43.  This is plainly against the finding of the magistrate.  In paragraph 19, the magistrate stated:

“PW2 to PW6 told the Court that after the Defendant was enquired about the alleged assault on PW1 and being declared arrest, the Defendant refused to be handcuffed and struggled. Therefore, the police officers considered it necessary to restrain and control the Defendant, but they were resisted and assaulted by the Defendant in various ways.” (emphasis added)

At paragraph 23:

“I had carefully watched the CCTV footage from California Tower… I noticed that at 00:34:32 of the footage, PW3 went from the front of the taxi to the rear. At around 00:35:00 (i.e. around 30 seconds later), the Defendant and the police officers started to have body movements. These movements later transpired into struggling and pushing between the Defendant and the police officers lasting for around 45 seconds until the Defendant entered MINE bar at around 00:35:45.” (emphasis added)

At paragraph 33:

“(PW3) directed PW2 to arrest the Defendant for assault. However, the Defendant repeatedly resisted arrest, struggled and pushed the police officers.” (emphasis added)

At paragraph 33(3)

“…It was only after the Defendant did not respond to the repeated warnings at each stage that the police officers stepped up the level of force –

…

(3) As the Defendant continued to resist and push the officers, PW3 drew his baton and struck the thigh of the Defendant. As the strike made no effect in controlling the Defendant, PW3 warned the Defendant again by saying “stop pushing, otherwise I use baton”. As the Defendant did not respond and kept resisting and pushing, PW3 held the baton in a position preparing to strike the Defendant again but the Defendant snatched his baton before the strike”. (emphasis added)

44.  With respect, the magistrate’s finding is in error.  I cannot accept that finding.  It is readily apparent and unmistakably observed on the video footage there was no resisting or pushing by the appellant before he was struck with the baton by the police officers.

The video footage

45.  The sequence of events happened rapidly in a matter of seconds.  It is difficult to see what is happening if the video is played at its normal speed. To capture the sequence of events I watched the video using the step function. That is capturing each incident step by step.  The below is what can be seen from the footage on Exhibit D2 the Whatsapp video: -

(1)   the appellant standing up on the street surrounded by about 3-4 police officers,

(2)   one officer was immediately at the appellant’s back during this time with both arms around the appellant,

(3)   the appellant was struck by a police officer from his front left with a baton,

(4)   the appellant was then struck on his left shoulder area by PW3 with his baton,

(5)   on the appellant’s right PW5 shouted at the appellant in Chinese “sit down,” followed by PW3 putting his left hand on the appellant,

(6)   then PW3 striking the appellant again on his left shoulder with his baton,

(7)   up until this point the appellant did not push or struggle, he remained standing there;

(8)   after being hit with the baton by PW3 the appellant raises his left arm towards PW3, PW3 then approaches the appellant at his front with his baton above his head, the appellant then reaches for PW3’s baton the appellant is struck again by PW3 with the baton at his front lower body, he is tackled by 3 police officers with the police officer at his back still holding the appellant with his arms around the appellant’s back,

(9)   the appellant falls down from the tackle by the police officers, colliding into standing cocktail tables, PW3 is standing in front of the appellant with his baton raised, the appellant stands up attempting to retreat from the police officers and grabs the baton from PW3.  The appellant then walks backwards towards Mine Bar with the baton in his hand facing the officers in front of him and raises the baton with his right hand above his head towards the officers then puts the baton into his left hand, turns around with his back facing the officers to go into the Mine Bar and,

(10)   the police follow the appellant.

46.  The video evidence is powerful and compelling evidence of the events that occurred in relation to charges 4 and 5.  The magistrate himself relied on it to make his findings and convict the appellant of the charges. 

47.  It demonstrates indisputably that the appellant was struck by the police officers with the batons despite there being no resistance or pushing or struggling by the appellant.  It clearly shows the degree of force used by the police officers and the actions of the appellant. 

48.  The appellant was told to sit down after he was hit with the baton.  His non-compliance was simply that he did not sit down (on the ground).  I fail to see how, even if this is to be regarded as a non-compliance, that it gave the officers the justification to rain further assaults on him.  Nothing in the video supports Mr Daryanani’s submission that the appellant did not succumb to arrest or go with the police voluntarily. 

49.  The police officers exercised no restraint in resorting to their baton.  The speed at which the police officers drew their batons to strike their blows on the appellant was rapid.  The blows by the batons were heavy, made with brute-force.  This was a display of swift unnecessary violence inflicted far above and beyond what was required in the scenario faced by the police officers.  There was no justification in using the force exhibited. The appellant’s actions were not threatening nor was it an attempt to evade arrest or resist arrest.  The force used was not at a level that warranted that degree.  There was no gradual escalation of force.  It was wholly disproportionate to the appellant’s actions or lack thereof.  It shows unequivocally that the force used was unreasonable and excessive.  

50.  I venture to say that if the appellant was not as well built as he is they may have caused serious injuries. Fortunately, they did not. 

51.  The appellant was not resisting or pushing or struggling with the officers before he was beaten with the baton.  The force used by the police officers was greater than was reasonable to achieve their purpose of handcuffing the appellant or to effect his arrest.  It was not lawful.  The level of force used by the police officers was so excessive that they were not acting in the execution of their duty.

52.  Given that the level of force used was unreasonable and the police officers were not acting in the due execution of their duty the appellant could not be assaulting the officers in the due execution of their duty.  He was entitled to use reasonable force to free himself from it.  The Court of Final Appeal in Yeung May Wan & Others v HKSAR [2005] 2 HKLRD 212 (at paragraph 53) stated that:

“If a person is subjected to an unlawful arrest by a police officer, the continued detention of that person pursuant to the arrest perpetuates the unlawfulness and constitutes a false imprisonment. It matters not that the continued detention is placed in the hands of officers other than the original arresting officers and it is irrelevant that the latter officers may know nothing of the circumstances of the arrest. The act of maintaining custody which is unlawful forms no part of the duty of any police officer and if he is obstructed or assaulted while doing so, he is not obstructed or assaulted while acting in the due execution of his duty. On the contrary, persons unlawfully in custody are entitled to use reasonable force to free themselves.” (emphasis added)

53.  It follows that the magistrate erred in his conclusion.  At paragraph 34:

“34. By making enquiries with the Defendant and arresting him for a suspected offence of assault, the police officers were acting within their powers and discharging their duties of keeping the peace and preventing crime. Having considered the circumstances at the material time, I did not consider that the level of force used by the police, which was gradually escalated in light of the Defendant’s paying no heed to repeated police warnings at the time, was beyond what was reasonable and necessary in the exercise of their powers.” (emphasis added)

Self-Defence

54.  The magistrate was not satisfied the appellant was acting in self-defence.[20] I find there to be little or no justification for this in his findings.  Specifically, on self-defence, the magistrate stated[21]:

“46. It could be seen from the video footage adduced by the Defence that prior to the instant when the Defendant pushed PW5 (around 12 seconds into the footage), the Defendant was grabbed hold of by PW4 from behind, pressed by another police officer on the right side and hit by PW5 with baton at the front. However, after falling onto the ground with PW4 (around 14-15 seconds into the footage), the Defendant had let loose of PW4 and the police officer on the right side. At the material moment of pushing PW5 (around 16 seconds into the footage), the Defendant had managed to get back to his feet and was no longer constrained. In the circumstances, I was not satisfied that the Defendant was acting in self-defence. I found beyond reasonable doubt that the Defendant had assaulted PW5.”

55.  In R v Cheung Kwok Wai [1997] Crim App 271 of 1996 the Court of Appeal (adopting Palmer v R [1971] AC 814) stated that the test for self-defence is a question of whether the defendant honestly and instinctively did believe that the degree of force was necessary.[22]

56.  In HKSAR v Tang Sau-ling [2012] HKCFI 283 McWalters J (as he then was) set out the law on self-defence also referring to Palmer above[23]:

“2. Archbold Hong Kong summarises the law of self-defence at para 20-44 of its 2012 edition as follows

The test of whether or not a person had acted in self-defence is partly objective and partly subjective.  The jury must decide whether the defendant actually and honestly believed that he was compelled to act as he did in order to defend himself, and then must decide whether, in all the circumstances, his response was reasonable.”

Once raised the defence of self-defence has to be rebutted by the prosecution…

“5. Whether the response of a defendant is reasonable will depend upon the circumstances of the case as the defendant honestly believes them to be. In R v Man Wai-keung [1992] 1 HKCLR 89 the Court of Appeal said at page 95, lines 29-36:

‘The test of the reasonableness of the response remains objective but the objective assessment must be made in the light of the seriousness of the attack as the defendant honestly believes it to be and it is not material that his belief was a mistaken one as long as it was honestly held.

The focus is now upon the honesty of the belief of a defendant as to the seriousness of the attack and, in the light of that belief, the reasonableness of the response must be judged. The critical factor is whether the person being attacked honestly, perhaps “genuinely” is a better word, believed the attack to be a serious one against which he had to defend himself. If he did, then the reasonableness of his response must be judged in accordance with that belief...’” (emphasis added)

6. In coming to this conclusion the Court of Appeal referred to the judgment of the Privy Council in Palmer v R [1971] AC 814 where, in an often quoted passage, it was said by Lord Morris at page 831:

‘If there has been an attack so that defence is reasonably necessary it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.  If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.’”

57.  If self-defence is raised, it is for the prosecution to prove the defendant was not acting in self-defence.  That is, the prosecution has the burden of proving beyond reasonable doubt that the actions of the defendant in assaulting the police were not done in self-defence.

58.  The blows inflicted upon the body of the appellant came with haste and velocity.  The appellant’s reaction can only be described as instinctively reactive to defend himself from the aggression by the police officers.  The video footage is convincing evidence that the appellant took defensive action to the unreasonable force used. 

59.  Under those circumstances the appellant can only be said to have honestly or genuinely and instinctively believed the attack to be a serious one against which he had to defend himself.  His actions of removing the baton from PW3 as well as lifting it in the air and pushing PW5 was a reasonable and instinctive response by the appellant in the circumstances he encountered.

60.  The appellant’s level of force used was reasonable under the circumstances.

61.  There is no evidence in this case from the prosecution to prove that the appellant was not acting in self-defence. 

Conclusion

62.  The inescapable conclusion is the police officers were using unreasonable and excessive force.  They were not acting in the due execution of their duty.  I am satisfied that the appellant’s actions amounted to reasonable force to free himself from their assaults and hence acted in self-defence. 

63.  The magistrate’s omission to analyse and consider the compelling video evidence sufficiently, renders the conviction unsafe and unsatisfactory.  The appeal against conviction for both charges are allowed and the convictions for charges 4 and 5 are accordingly quashed.