THE QUEEN v. LI TSZ-HEI

Headnote - obstruction of a police officer in the due execution of his duty - Cap. 212, section 36(b) - obstruction of a police officer contrary to section 31(4) Road Traffic Ordinance, Cap. 200 - Crown not prohibited from pursuing a prosecution under section 36, Cap.  212 where offence falls equally under section 31(4) of Cap. 200.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 536 of 1984

____

______________

J U D G M E N T

______________

1. The appellant was convicted on the 2nd August 1984 before A.R. Upham Esquire, a magistrate sitting at San Po Kong magistrate's court, of dangerous driving contrary to section 11(1) of Cap. 220 and of obstructing a police officer contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212. He appeals against conviction on both charges.

2. The incident of dangerous driving allegedly occurred on the 14th June, 1984 at about 6.45 p.m. in Boundary Street and in the vicinity of the Shell Petrol Station approximately 150 yards before Princess Margaret fly-over. The case for the prosecution was that the appellant sought to force his way into the lane which gave access to that fly-over and that in doing so he put other vehicles in that lane and in his own at risk.

3. Numerous grounds of appeal have been argued in respect of the appellant's alleged wrongful conviction for dangerous driving. These grounds are factual. Mr. Sedgwick, who appeared on behalf of the appellant, contended that the whole incident of dangerous driving was no more than a frustrated attempt by the appellant to get into the same lane as that in which the complainant, Superintendent Galbraith, was driving. He claims that not only did Superintendent Galbraith prevent the appellant from entering his lane but also that he has magnified the incident and distorted the evidence as to danger to others on the highway from the appellant's attempted manoeuvre. All this, he says, springs from the Superintendent's dignity being affronted by what he believed was an impertinence on the part of the appellant.

4. The only witness called by the prosecution was Superintendent Galbraith. Mr. Sedgwick claimed that it was not reasonable from the facts given in evidence for the magistrate to have inferred that the appellant sought to force his way into Galbraith's lane and that neither vehicles following Galbraith nor an oncoming motor cyclist in the appellant's lane could have been put in peril.

5. This court has carefully considered the grounds raised and it is perfectly satisfied that there was sufficient evidence before the magistrate for him to convict the appellant of dangerous driving once he concluded the evidence of Superintendent Galbraith was truthful. The magistrate did reach such a conclusion and he set out, commendably, in his Statement of Findings the numerous specific facts he found proved and his reasons therefor. He rejected the appellant's evidence and it is not possible for this court to say that the magistrate erred in so doing. This court does not have the opportunity of seeing the witnesses which is vital in assessing credibility. Nor does this court believe the magistrate might have placed undue emphasis on the evidence of Superintendent Galbraith or fail to appreciate and give appropriate consideration to the possible lack of disinterest on the part of Superintendent Galbraith in the prosecution of this appellant on both charges.

6. There being nothing on the record to show the magistrate misunderstood the facts or misapplied the law this court sees no reason to disturb his verdict and accordingly the appeal against conviction for dangerous driving is dismissed.

7. Likewise there was ample evidence before the magistrate for him to find the appellant obstructed Superintendent Galbraith by his repeated refusal to produce his driving licence which he then had in his possession. The magistrate was fully satisfied Superintendent Galbraith repeatedly asked the appellant to produce his driving licence. He found that the officer sought confirmation that the appellant was entitled to drive and was initiating enquiries into the earlier incident of suspected dangerous driving. He found, as indeed he was entitled to find, that the appellant knew Superintendent Galbraith was a police officer upon his showing him his warrant card and that the appellant deliberately and without lawful justification made it more difficult for the officer to perform his duty by persistently refusing to produce his licence until after he had been arrested at the scene.

8. The magistrate found the evidence of the appellant and his witness not credible arid in his Statement of Findings. he went on to say:

"Knowledge that the person is a police officer or knowledge he is acting in his duty is not required. The charge is wilfully obstructing not wilfully obstructing knowing the person is a police officer of knowing he is acting in the course of his duty. I was however satisfied the Appellant knew PW1 was a police officer. It is hard to see how anyone could have done more than PW1 did to reveal his identity. Again Again I recorded and considered all matters and authorities urged upon me. The test is whether the Appellant's conduct in fact prevented PW1 carrying out his duty or made it more difficult for him to do so and that the Appellant intended that conduct to prevent PW1 carrying out his duty or to make it more difficult for PW1 to do so (see Lewis v Cox, Times Law Report July 11 1984). The act has to be done deliberately and with the knowledge and intention it would obstruct. That was the position here; deliberate acts directed towards PW1, hostile to him and intended to make his job as difficult as possible. The legal and factual requirements of section 36(b) of Cap. 212 were satisfied. There was no lawful excuse for such sustained, deliberate awkardness."

9. It has been argued by Mr. Sedgwick that the appellant's conviction for wilful obstruction of a police officer contrary to section 36(b) of Cap. 212 is invalid in law. He claims that the charge should have been laid under section 31(4) of Cap. 220 and that the failure of the prosecution to do so must lead to the conviction being quashed.

10. To understand this argument it is necessary to refer to sub-sections 3 & 4 of section 31 of Cap. 220 as well as regulation 19 of the Road Traffic (Driving Licences) Regulations.

11. Regulation 19 provides:

"Any person driving on a road a vehicle for the driving of which a driving licence is required under the Ordinance or these regulations, on being so required by a police officer, shall produce his driving licence for examination by the police officer, or on being so required, if he has not got his driving licence in his possession, shall produce his driving licence to a police station within 72 hours."

12. This regulation thus empowers a police officer to demand a driver to produce his driving licence for examination.

13. Section 31(1), so far as it is relevant to this appeal, enacts:

14. In the course of his evidence Superintendent Galbraith testified:

"I wanted to see his driving licence mainly to ascertain he had a lawful right to use the vehicle. The speed and manner in which he was driving, his behaviour was unusual, his speed and manner excessive, the car could have been stolen."

Later in his evidence he said:

"I did say that I said 'the way he'd been driving had been dangerous' and I asked to see his licence. I did not specify anything further other than the way he had been driving."

15. The magistrate made no finding that Superintendent Galbraith then thought the vehicle to be a stolen one and therefore I shall assume this to be a casual afterthought of Galbraith made during the giving of his evidence as a make-weight.

16. Section 31(3) of Cap. 220 provides:

"Any person who fails to produce his driving licence immediately when asked for it or, alternatively, if when he was required to produce it, he had not got it in his possession, to bring it, in person within 72 hours after its production was so required to such police station as he shall have specified at the time its production was required, shall be guilty of an offence and shall be liable on summary conviction to a fine of $500."

 

Section 31(4) enacts:

 

"Any person who obstructs any police officer or the Commissioner in the exercise of any powers conferred under this Ordinance or who refuses to answer or answers falsely any inquiry authorized to be made by a police officer under section 11(8) shall, without prejudice to any other provisions of this Ordinance, be guilty of an offence and shall be liable on summary conviction to a fine of $500."

17. Mr. Sedgwick argues that the power of a police officer to demand production of a driving licence emanates from regulation 19 and that sub-section (4) of section 31 makes specific provision for obstructing a police officer in the exercise of his powers conferred under the Ordinance. Thus it is contended in this case that since the obstruction arose from non-production of a driving licence the Crown was obliged to prosecute for the specific offence under section 31(4) of Cap. 220 and having failed to do so the prosecution under section 36(b) of Cap. 212 is invalid.

18. In my opinion the absence in section 31(4) of the word "wilful" which is present in section 36(b) is of no significance in deciding this point.

19. The appellant relies first on the case of R v Barnett & ors [1951] 2 KB 425, a decision of the Court of Criminal Appeal. In that case the court held that no indictment lay for conspiracy to contravene the provisions of section 1 of the Auctions (Bidding Agreements) Act, 1927 "by being dealers, agreeing to offer and accept consideration as an inducement or reward for abstaining from bidding at sales by auction" since section 1 of the Act made it unlawful to enter into such an agreement. Prior to the passing of the Act such an agreement was not unlawful. Inasmuch as the section provided only for the summary prosecution of a contravention of it no indictment lay as the substance of the offence itself was itself a conspiracy. In other words the indictment amounted to a conspiracy to commit a conspiracy.

20. This decision was explained in R v Blamires Transport Services Ltd. & anr. in [1963] 3 A11 E.R. 170 where it was held that a charge by indictment to commit an offence may be valid notwithstanding the offence itself is triable only summarily. In referring to Barnett's case, Edmund Davies, J. (as he then was) said:

"The making of such an agreement constituted no offence at common law, but, by the statute, it became a summary offence which could be prosecuted only with the consent of a Law Officer. This court held that, as the offence was created for the first time by the statute and summary trial only was prescribed by the Act, and as the particulars of the conspiracy alleged were in terms or in substance the very offence created by the Act, the indictment did not lie and it should have been quashed at the outset."

21. Later in his judgment he said:

"In our judgment, R v Barnett affords no authority for the proposition that there cannot be a conspiracy to commit summary offences in general."

22. This court is, of course, unconcerned with conspiracy. Mr. Sedgwick relies upon the case of R v Barnett in support of his argument that for a prosecution for obstruction of a police officer in the exercise of any of his powers conferred by the Traffic Ordinance then the prosecution is obliged to lay the charge as being contrary to section 31(4) of Cap. 200, there being no power conferred on a police officer to demand production of a driving licence outside the Traffic Ordinance.

23. Barnett's case was concerned with the mode of trial being prescribed as a summary trial. In Barnett's case the longstanding principle was reiterated that "where a statute makes unlawful that which was lawful before and appoints a specific remedy, that remedy must be pursued and no other but where a statute prescribes a particular remedy in case of disobedience such particular remedy is cumulative and proceedings may be had either at common law or under the statute."

24. By enacting section 31(3) the legislature created the new offence of failing to produce a driving licence on demand by a police officer. This is an offence vastly different from the offence of obstruction or "wilful" obstruction of a police officer (assuming these two offences to be co-terminous).

25. The question here seems to me to be one of statutory interpretation and it may be put in this way. When enacting section 31(4) of Cap. 220 did the legislature intend to remove from the scope of section 36(b) of Cap. 212 matters affecting obstruction of police officers in the exercise of their powers under the Road Traffic Ordinance? If that is so then the Crown would be precluded from prosecuting under section 36(b) for this offence.

26. Mr. Sedgwick maintains such to be the case. He also referred this court by analogy to a passage from Hawkins' Pleas of the Crown cited in the judgment of Charles, J. in The Queen v Hall [1891] 1 Q.B. 747 at page 753 which reads:

"Also, where a statute makes a new offence which was no way prohibited by common law, and appoints a peculiar manner of proceeding against the offender as by commitment, or action of debt, or information, etc., without mentioning an indictment it seems to be settled to this day that it would not maintain an indictment, because the mentioning the other methods of proceeding seems impliedly to exclude that of indictment."

27. No one would challenge this statement but this approach by Mr. Sedgwick tends to overlook that obstruction of a police officer was an offence previously provided for. The question here, as I have said, seems to be one of statutory interpretation. Has section 31(4) curtailed the operation of section 36(b) of Cap. 212 previously unlimited within its own terms??

28. Did the legislature intend specifically that for the offence of obstruction of a police officer arising out of the truculence of a driver failing to produce his driving licence on demand that the maximum penalty on summary conviction should be a fine of $500 or was this penalty intended as a cumulative or alternative remedy available to the Crown dependent upon which Ordinance it decided to prosecute??

29. In Baxter v Keldon [1955] 1 W.L.R. 84 the Divisional Court held that where one Act of Parliament in successive sections enacted two related but distinct offences one of which, being a substantive offence and carrying a lesser penalty had been fully committed by the appellant, it was not open to the prosecution to charge him with aiding the commission of the other offence which carried a heavier penalty.

30. In that case the respondent had committed the less serious substantive offence. Lord Goddard, CJ. said:

"Where an Act creates a substantive offence upon a person doing a certain thing and the evidence shows that a defendant did that very thing, it seems to me that by all canons of construction he must be prosecuted for that offence, and the prosecution must not, by inference, try to get him made liable to a more severe penalty by saying that, in so doing that thing he in some way aided and abetted - because that is what the argument comes to - the commission of an offence under the previous section."

31. Section 31(4) does not deal specifically with obstruction for failing to produce a licence but deals generally with obstruction of a police officer in the exercise of any powers conferred under the Ordinance.

32. The case of R v Beanland (1970) 54 Cr. App. R. 289 was one involving a dreadful assault on a child. It was held that where the circumstances justified it, an assault against a child may be prosecuted under some provision other than section 1 of the Children and Young Persons Act 1933 and an appropriate sentence passed, albeit greater than the maximum provided under section 1.

33. I should point out in this case that the appellant was fined $500 for wilful obstruction contrary to section 36(b) which is the maximum fine imposable for an offence contrary to section 31(4) of Cap. 220.

34. Mr. Harris, on behalf of the Crown, supported the conviction. He said the real issue was whether the prosecution was entitled to prefer the charge it did. He referred the court to the cases of A.G. v Chung Yim-fai (Cr. App. 757/78) and A.G. v Chan Shui-leung (Cr. App. 470/82) which emphasised the right of the Crown to choose which charge it would prefer. In both those cases the appellants had been charged with possession of offensive weapons contrary to section 33(1) of the Public Order Ordinance, Cap. 245. In the former case the magistrate amended the charge to one of possession of an offensive weapon contrary to section 17 of the Summary Offences Ordinance and convicted the respondent of that offence. Cons, J. (as he then was) held this was impermissible. He said:

"The Attorney General has well-established prerogative powers and duties in relation to criminal proceedings. 'In exercising these powers he (is) not subject to direction by his administrative colleagues or to the control or supervision of the court' per Viscount Dilhorne in Gouriet's case. What charge should be preferred in any particular circumstances is a matter for the Attorney's discretion and for his discretion alone."

35. In the latter case, O'Connor, J. said, inter alia, when referring to the powers of the Attorney General,

"He may decide on particular facts, whether to lay a charge that results on conviction, in a mandatory or discretionary penalty. This arises very often in regard to the decision whether to lay a charge that, on conviction, would result in a mandatory disqualification or to lay a charge that would not have that result, R v Saddle worth JJ. ex. p. Stales [1968] 1 W.L.R. 556. . There is no reason why the legislature could not make a matter an offence under two identical laws and leave the decision to the Attorney General as to which to prosecute for ..."

36. Mr. Harris submits that these cases alone dispose of this appeal.

37. In my opinion the answer is to be found in deciding whether the legislature by its enactment of section 31(4) withdraw from the ambit of section 36(b) of Cap. 212 all cases of obstruction of a police officer by a motorist who wilfully refuses to produce his licence in circumstances similar to this case. Were the appellant to have assaulted the police officer at the same time Mr. Sedgwick would, I imagine, concede that section 36(b) would continue to apply but not where there was a simple obstruction unaccompanied by assault. There is no doubt that appellant in this case could have been charged and convicted of an offence contrary to section 31(4) of Cap. 220. No doubt he should have been, but that is not the issue here.

38. In my opinion section 31(4) is not so specific a provision to remove obstruction of this kind from the continued operation of section 36(b). It is possible to conceive of many minor situations where either a police officer or the Commissioner is obstructed in the exercise of their many and varied powers under the Traffic Ordinance. Following the principle enunciated in R v Barnett that where an offence is antecedently punishable by a common law proceeding as by indictment, and a statute prescribes a particular remedy in case of disobedience such particular remedy is cumulative and proceedings may be had at common law or under the statute I find that the conviction of the appellant not to be invalid. In my judgment the prosecution was entitled to proceed under section 36(b) of Cap. 212. There needs be very clear and specific legislation partially to restrict the scope of a power exercised antecedently in the furtherance of maintaining law and order or to uplift or transplant that power to an entirely different Ordinance and which is to be exercised in a limited and particular field alone.

39. In Michell v Brown 120 E.R. 909 Lord Campbell, CJ. said:

"But if a later statute again describes an offence created by a former statute and affixes a different punishment to it, varying the procedure, etc., giving an appeal where there was no appeal before, we think that the prosecutor must proceed for the offence under the later statute. If the later statute expressly altered the quality of the offence, as by making it a misdemeanour instead of a felony or a felony instead of a misdemeanour, the offence could not be proceeded for under the earlier: and the same consequence seems to follow from altering the procedure and the punishment. The later enactment operates by way of substitution, and not cumulatively giving an option to the prosecutor or the magistrate. Sections 21, 23, 26 and 27 of Stat. 54 G. 3, c. 159, as to the recovery of penalties, the mode of convicting, the appeal, and the limitation of actions, are all material to shew that the proceeding for such an offence should be under this statute."

40. Looking at section 31(4) I do not see it as the sole and exclusive penalty for obstruction of a police officer in the exercise of powers conferred upon him under the Traffic Ordinance. Modern day traffic legislation gets bulkier by the year and is continually placing more arduous duties on the police. The weight of these duties vary. The seriousness of an obstruction of a police officer in the exercise of those duties depends on the nature of the duty interfered with. In my opinion there has been no substitution of the earlier powers of a police officer under section 36(b) whereby the prosecution is obliged to proceed under section 31(4) of Cap. 200. I find these remedies are cumulative. For these reasons, there being no other ground of appeal meriting consideration, the appeal against conviction on the second charge is also dismissed.

41. Before leaving this appeal this court desires to record that police officers intimately concerned with a prosecution as Superintendent Galbraith was in this case should neither be in the front line of the investigation at the police station nor take cautioned statements. To do so inevitably leads the public to believe that the police have not that sense of impartial justice vital to the administration of the law.