HKSAR v. TAM CHUN YIN AND OTHERS

HCMA548/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.548 OF 1998

(ON APPEAL FROM ESCC 5206 OF 1997)

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J U D G M E N T

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1. The four appellants in this case were part of a group of demonstrators who took part in a protest against the World Bank and IMF on 21 September 1997 when the delegates of the participating nations met at the Hong Kong Exhibition and Convention Centre in Wanchai. The 1st appellant, Tam Chun Yin, was the person responsible for organizing the demonstration.

2. On 12 September 1997, the police was notified that there would be a public meeting and procession, consisting of about 100 persons, to be held between the hours 1:30 and 4:30 in the afternoon of 21 September. In the letter dated 19 September 1997, the Commissioner of Police indicated that the police had no objection to the intended public meeting and procession subject to a number of conditions, one of which was the public procession should be conducted between 3:00 p.m. and 4:00 p.m. along a specifically designated route.

3. The procession duly took place on the appointed date during which course, a number of demonstrators, the four appellants included, wanted to demonstrate at areas other than those designated by the police. At one stage, the demonstrators tried to approach the Convention Centre via the elevated walkway along O'Brien Road. The police set up two cordons at the entrance to the Immigration Tower to block them off. The scene quickly became confused, chaotic and noisy. The events were recorded on video tape which was subsequently produced at the trial by the defence.

4. A number of demonstrators were arrested by the police and five of them were charged. At the trial they were all represented by Mr Lok, SC, who also appears in this appeal. The 1st appellant, Tam Chun Yin who was the 2nd defendant at the trial, and the 4th appellant, Wong Shui Ying who was the 5th defendant at the trial, were jointly charged with one charge of disorderly conduct in a public place. At the commencement of the trial, the prosecution applied to amend the charge against Tam and Wong by adding an alternative charge against each of willfully obstructing a police officer in the due execution of his duty. The learned magistrate refused the application.

5. At the close of the prosecution's case, the learned magistrate ruled that there was no case for the then 1st defendant to answer and he was acquitted.

6. Counsel for the prosecution then applied to amend the disorderly conduct charge to two charges of obstructing a police officer in the due execution of his duty in respect of the 1st and 4th appellants. The application was made pursuant to section 27(1)(b) of the Magistrates Ordinance. After hearing detailed submissions by the parties, the amendments were made and the provisions under section 27(3) complied with. The defence did not recall any of the prosecution witnesses for further examination.

7. The 2nd and 3rd appellants elected to give evidence. No witness was called.

8. At the end of the trial, the learned magistrate found that the willful obstruction charges were proved against the 1st and 4th appellants, and they were both convicted of the amended charges.

9. The 2nd appellant, Wong Shui Hung, was convicted of one charge of assaulting a police officer acting in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap.232.

10. The 3rd appellant, Chan Siu Ping, was convicted of three charges of assaulting a police officer under the same ordinance.

11. This is their appeal against their convictions.

12. There are a total of five grounds of appeal. Grounds One and Two are directed at the conviction of the 1st and 4th appellants. Ground Three deals with the conviction of the 2nd appellant on the charge of assaulting a police officer. Ground Four relates to three convictions of the 3rd appellant of assaulting the three police officers specified in the respective charges. Ground Five is a general ground that the said convictions were unsafe and unsatisfactory.

Ground One : 1st and 4th appellants

13. Under this ground, Mr Lok, SC submitted that the learned magistrate erred in allowing the prosecution to amend the original charge of disorderly conduct against the 1st and 4th appellants to two separate charges of willful obstruction of police officers in execution of their duties. The appellants contended that there was no basis upon which the learned magistrate could have amended the original charge under section 27 of the Magistrates Ordinance. The reason being that whatever variance identified by the learned magistrate did not come from the prosecution evidence but by way of the evidence contained in a video tape. The tape was produced by the defence in the course of cross-examination of the prosecution witnesses, the evidence therein was not part of the prosecution case. Further, having made the amendment under section 27, the learned magistrate was wrong, it was submitted, in failing to identify and inform the defence of the variances. The result is such that the 1st and the 4th appellants were prejudiced in that they did not know the precise allegation they had to meet.

14. In his reasons for amending the charges under section 27(1) of the Magistrates Ordinance, the learned magistrate found favour in leading counsel's submission regarding the video tape evidence. The section reads :-

"Where it appears to the adjudicating magistrate that there is -

(a) ....

(b) a variance between the complaint, information or summons and the evidence adduced in support of it (my emphasis)

he shall, subject to subsection (2) -

(i) amend the complaint, information or summons if he is satisfied that no injustice would be caused by that amendment; or

(ii) dismiss the complaint, information or summons."

15. This was what the learned magistrate said at page 347 of the transcript of proceedings :-

"Now having looked at the wording of the section carefully, I find there is merit in the defence submission. The subsection does not simply refer to the evidence which would be a neutral term, rather it refers to the evidence adduced in support of the complaint, et cetera.

I have been unable to find any authorities to rely upon concerning this point. So clearly where there is a conflict or where there is a doubt, it is a situation where I must lean in favour of the defence. Therefore, I rule that the videotape recording produced by the defence cannot be relied upon by the prosecution in support of their application, as it is not evidence which they adduced in support of the complaint."

16. He went on to indicate that he approached the issue before him by confining himself to the evidence which was adduced by the prosecution in examination-in-chief. In my view, his reasoning cannot be faulted as the evidence in the video tape was not evidence adduced by the prosecution in support of their case against the two appellants.

17. In the case of the 1st appellant, although the learned magistrate did not specifically identify the nature of the variance in the evidence, it must have been the evidence of PW10, Police Constable Lau who described the 1st appellant as rushing against the police cordon the access of the demonstrators into the Immigration Tower by way of the O'Brien Road. Despite warnings by this officer, the 1st appellant, nevertheless, rushed against the cordon and he was subsequently arrested.

18. In the case of the 4th appellant, the variance was again not specified in the magistrate's ruling. From the subsequent exchanges between the learned magistrate and counsel, it is apparent that the variance was found in the evidence of PW5, Woman Detective Police Constable Chung who was on plain clothes duty at the time. She described two demonstrators were in front of her, screaming and pressing against her for some two to three minutes on the O'Brien Road elevated walkway in the direction of the Immigration Tower. She tried to persuade them to go back without success. She assisted in the arrest of the 4th appellant.

19. If one is to read the original Charge One of disorderly conduct in a public place, contrary to section 70B(2) of the Public Order Ordinance, under which the 1st and 4th appellants are jointly charged, there was clear variance in the prosecution case against the 1st and the 4th appellants. The evidence adduced by the prosecution suggested that it was a case of willful obstruction of the police rather than a case of disorderly conduct when the appellants were told to move back from the cordon. The learned magistrate was under a duty to amend the charges when he was satisfied that the evidence was at variance with the original charge. At the time of the trial, the case of Poon Chau Cheong v. Secretary for Justice [2000] 2 HKC 279 has not been decided. The course taken by the learned magistrate must have been correct in the light of Poon's case.

20. The learned magistrate then went on to consider and was satisfied that the amendment would not have given rise to any injustice to the defendants concerned. He had been at pains in excluding the video tape evidence which was a defence exhibit. He certainly did not reply on the evidence of the defence as the basis of making the amendments.

21. Criticism was also leveled at the learned magistrate for his failure to identify the variances based upon which he allowed the amendment. I can find little justification in this line of criticism. The transcript shows that after the amendment, Mr Lok SC for the appellants made a submission of no case to answer on behalf of the 1st and 4th appellants. In the course of his submission, he referred to the evidence against the two appellants with particular emphasis, in the case of the 1st appellant, on the evidence of Senior Inspector Ho who gave evidence as PW4, and in the case of the 4th appellant, on the evidence of PW5, the woman police detective constable. The evidence of these two witnesses formed the main thrust of the prosecution's case against the two appellants. They gave an account of the conduct of the two appellants and both witnesses were subjected to detail and forceful cross-examination by senior counsel. The appellants must have known the precise nature of the case they had to face at the end of the prosecution's case. I find there is no attraction in the submission that the failure by the learned magistrate to identify the variances was unfair in any way to the two appellants.

22. I cannot find fault in the learned magistrate's approach to the video tape evidence as was with his reasons given in support of amending the charges pursuant to his powers under section 27 of the Magistrates Ordinance.

Ground Two : 1st and 4th appellants

23. The second ground of appeal relates again only to the case of the 1st and 4th appellants. It is said that the learned magistrate adopted a fundamentally flawed approach in convicting the two appellants, in that, he did not rely on the evidence which formed the basis of the prosecution's case.

24. It must have been clear to learned senior counsel that the evidence of the video tape which was previously excluded from the mind of the learned magistrate when he considered the application for amendment became evidence which he had to consider along with all other evidence of the trial.

25. He considered that the action of the police in setting up the two cordons near the Immigration Tower is part of the duty of the police to prevent breaches of the peace. The demonstrators had departed from the designated route. As it was correctly pointed out by the learned magistrate, the police were acting in pursuance of their powers when they tried to stop the demonstrators, the four appellants included, from getting to the Convention Centre by way of the elevated walkway. It was never in dispute that the 1st and 4th appellants were demonstrators and it would be ludicrous to suggest that they were not aware of the intention of the police. Despite repeated warnings by the police that the demonstrators should not move beyond the cordon, both appellants, nevertheless, had chosen to disobey the request of the police.

26. Learned senior counsel, by way of his thorough and skillful cross-examination, tried to demonstrate that the evidence of the prosecution witnesses were inconsistent with what was recorded on the video tape. In my view, it matters very little that the request by the police to get the appellants to retreat were not recorded on the video tape. Useful as it might have been, the video recorder can only capture a specific scene at any given time. The police witnesses were also observing the same scene from different angles. It is a fact of human nature that different persons may react differently to a given situation so that the same event might have a different impact on different persons. This would become apparent if the person is asked to give a description at some future date. Any attempt to compare what was recorded on the video tape with the account given by the police witnesses would review a certain degree of discrepancies. If one is to expect surgical precision in matching the accounts of the police witnesses to that of the video tape, then one must necessarily be disappointed.

27. The question which the learned magistrate had to decide at the end of the day was whether the conduct of the 1st and 4th appellants amounted to willfully obstructing the police officer specified in the amended charge. The learned magistrate was entitled to take a global view of the evidence and that was exactly what he did. In approaching the question, he reminded himself of the correct test as formulated in the English case of Rice v. Connolly [1966] QBD 414 : whether a person's act or conduct amounts to an obstruction depends on whether it makes it more difficult for the police to carry out their duties? Putting the test to the evidence before him, the learned magistrate found that both appellants, by remaining at the cordon line and refusing to leave despite repeated police requests, have made it more difficult for the police to carry out their duties.

28. There was ample evidence before the learned magistrate to support his conclusions in respect of charges against the 1st and 4th appellants.

Ground Three : 2nd appellant

29. Ground Three of this appeal addresses the conviction of the 2nd appellant, Wong Shui Hung, of one charge of assaulting Senior Inspector Ho, acting in the execution of his duty. The evidence against the 2nd appellant came from PW3, Station Sergeant Leung, and the victim of the charge, Senior Inspector Ho. Station Sergeant Leung stated in his evidence that he saw the 2nd appellant waving her hands about and kicking Inspector Ho with her right foot. The inspector, who gave evidence as PW4, said that the 2nd appellant attacked him with her feet and hands. He told the court that he was punched on his chest and kicked at the lower part of his body. He then ordered that the appellant be arrested.

30. The 2nd appellant elected to give evidence. She admitted to kicking the Senior Inspector and waving her hands about and told the court that she did so because the inspector had grabbed her breast and pulled at her bra strap. She reacted to what she considered to be an indecent assault strongly and her actions at the time were not intended as assaults at the police officers.

31. The issue of what the 2nd appellant perceived as an indecent assault on her and her reactions were addressed in detail by senior counsel for the 2nd appellant in his final submission.

32. The learned magistrate was criticised for having overlooked the 2nd appellant's subjective mind and erroneously concluded that she had no reason to kick the police. The conviction, it was said, was not based on a proper assessment of the evidence. At page 10 of the Statement of Findings, the learned magistrate dealt with this issue in the following manner :

"... Much was made of an alleged indecent assault on D3. It may have been that someone did grab her bra strap, near her left breast, as she claimed. I have no reason to doubt this. However if this did happen, it took place in the context of a confused and chaotic scene when the police were endeavoring to gain control of the situation by removing D3 [the 2nd appellant]. The incident was an accident, at most, certainly not an intentional or deliberate indecent assault. In her testimony, D3 stated that she ended up where she was, as depicted on the video, by accident. There is also no reason not accept this as being the truth. However once in that position, she should of [sic] moved back from the scene, back behind the police cordon lines. She choose not to do so. She intentionally stayed in the same spot a considerable length of time, in the context of this incident. When D2 was arrested, the police moved in to remove D3 from her spot, this is shown on the video. This resulted in D3 waving her hands about, as clearly shown on the video. ... From the facts of the case, I find that D3 did kick PW4, as he described. The question that had to be determined by the court was, was that kick justified in the circumstances, i.e. justified as it took place as a result of D3 being indecently assaulted. D3 claimed that the kick was a natural reaction to being indecently assaulted, not a conscious act on her part. I did not accept this. The video clearly shows D3 warding off the police as they move in to remove her, ... She is seen waving her hands about, making the police task more difficult. The police move into to grab her and forcible [sic] remove her, she waves her hands about, then she kicks PW4. I found that the actions of D3 were deliberate and intentional. She had no reason to kick PW4. PW4 was going about his duty, he was endeavoring to remove D3 from the scene, she could have easily have stepped down and walked away, she choose not to do so. Instead she deliberately and intentionally kicked PW4. It was for this reason that I convicted D3 of assaulting a police officer."

33. It is clear from the above passage that the learned magistrate had considered what was put forward as the 2nd appellant's reaction to what she perceived as having been indecently assaulted by the police. He took into consideration the surrounding circumstances and rejected the appellant's version that her kicks and punches were natural reactions to what she perceived as an indecent assault. It was a finding on the credibility of the 2nd appellant and the learned magistrate was entitled to make such findings. The fact that the 2nd appellant had chosen to remain where she was would have resulted in the police having to forcefully remove her from the spot by the use of reasonable force. Under the circumstances, bodily contact would have been unavoidable. The learned magistrate had, quite properly, considered all the relevant evidence in respect of this issue and came to the conclusion as he did. There was ample evidence to support the conviction of the 2nd appellant on this charge.

Ground Four : 3rd appellant

34. Ground Four of this appeal is directed at the conviction of the 3rd appellant of three charges of assaulting police officers in the due execution of their duty. It was submitted that the purported arrest of the 3rd appellant was unlawful as none of the arresting officers had told the 3rd appellant that she was under arrest. Learned counsel relied on the well established principles in this area of the law as stated by the English House of Lords in Christie v. Leachinsky [1947] AC 573. The case is authority for the proposition that it is a condition of lawful arrest that the party arrested should know on what charge or on suspicion of what crime he is arrested.

35. In the judgment of Viscount Simon at p.587, this was said :

"... (I.) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2.) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3.) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4.) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance ... (5.) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away. ..."

36. The evidence before the learned magistrate was that the demonstrators, despite repeated requests by the police to move back from the cordon, had nevertheless chosen to remain where they were. The learned magistrate found as a fact that the 3rd appellant was never formally told that she was under arrest. He went on, however, to find that it was the 3rd appellant who produced the situation which the police had to resort to forcefully removing her. The evidence contained in the video clearly depicted that the 3rd appellant was arguing with the police and was adamant in remaining where she was. When the police tried to remove her, she had chosen to bite the three police officers named in the charges. Her actions, as rightly found by the learned magistrate, clearly constituted assaults on those police officers.

37. I find that there is no substance in Ground Five of this appeal that the said convictions were unsafe and unsatisfactory.

38. For the reasons given, the appeals against convictions are dismissed.