THE QUEEN v. CHENG CHUN WO

1988, No. 1650
(Criminal)

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H E A D N O T E

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Assaulting police officer in execution of duty - arrest without warrant - 'reasonably suspect' - objective test - document containing reasons for suspicion not produced - no grounds for finding that officer in execution of duty.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1650 OF 1988

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J U D G M E N T

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1. The appellant was convicted by Mr Buckley at Kwun Tong Magistrates Court of assaulting a police officer in the execution of his duty, contrary to Section 36(b) of the Offences Against the Person Ordinance, Chapter 212, and was sentenced to three months imprisonment. He appeals against both conviction and sentence.

2. It is an unusual case. It arises out of a police raid on a flat in Shun Tin Estate, at which a bookmaker was suspected, to be operating. The raid took place at about 4.00 p.m. on 25th May, 1988. There was no evidence as to what occurred, except that some arrests were made. The magistrate has recorded that 'the outcome was essential', whatever that is supposed to mean.

3. The police had information that the appellant was the owner of the premises, but he was not present at the time of the raid. When they left, the police padlocked the door and left a note asking him to report to Sau Mau Ping Police Station on his return. The squad, including Inspector KWOK Yam-yang, the officer in charge, and PC20905, returned to the police station and eventually went off duty. However, before doing so, Inspector Kwok left instructions that the appellant was to be arrested and his particulars were circulated. His evidence was that this was the 'procedure'.

4. At 5.15 a.m. Inspector Kwok was notified at home that the appellant had surrendered himself. He contacted PC20905 and both went to the police station. The police constable arrived first and interviewed the appellant in the report room. The appellant admitted that he was the owner of the flat. The police constable asked him why he had come to the police station so late at night. The appellant replied that he had returned home at 2.00 a.m. called his friend and heard what had happened.

5. PC20905 later took the appellant to another room, where he presented him to Inspector Kwok, who instructed the police constable to arrest him for managing a bookmaking office. As he was being cautioned, the appellant interrupted and protested that he had come of his own accord and there was therefore no need to arrest him.

6. He became angry, stood up and banged the table. He said he was leaving and began to walk towards the door. The officers blocked his way and a scuffle developed, in the course of, which the appellant threw an ash tray at Inspector Kwok. He also shouted for help. Eventually, with the help of the Duty Officer, he was subdued and arrested for assaulting a police officer n the execution of his duty.

7. It is submitted by Mr Howard that the appellant's arrest was unlawful because the Inspector had no reasonable grounds for ordering his arrest.

8. There is no dispute that the situation is governed by Section 50(1) of the Police Force Ordinance, Cap 232, which provides:-

"It shall be lawful for any police officer to apprehend any person who may be charged with or whom he may reasonably suspect of being guilty of any offence without any warrant for that purpose and whether he has seen such offence committed or not and also any person whom h e may reasonably suspect of being liable to deportation from the Colony."

The key words are 'reasonably suspect'.

9. In Hussien v. Chong Fook Kam (1970) A.C. 942 Lord Devlin said at p. 948 :-

"Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove.' Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete. But if arrest before that were forbidden, it could seriously hamper the police. To give power to arrest on reasonable suspicion does not mean that it is always or even ordinarily to be exercised. It means that there is an executive discretion."

10. His Lordship cited with approval the dictum of Scott L.J. in Dumbell v. Roberts (1944)1 A.E.R. 326 at 329 :-

"The protection of the public is safeguard by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction; ........"

He went on to say :-

"There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. "

11. Mr Howard submits that there was no evidence that the premises were a gambling establishment. I am satisfied, however, that the fact that persons had been arrested there, following a gambling raid, was sufficient for Inspector Kwok reasonably to believe that unlawful gambling had been taking place.

12. But that is not enough. The presumption in Section 19(1) of the Gambling Ordinance only assists the prosecution to prove that the premises are a gambling establishment. To convict the owner of an offence under that ordinance, knowledge must be proved, LAI Lai-yuk v. R (1979) H.K.L.R. 467.

13. Inspector Kwok conceded that he had no such evidence and that the appellant could not have been prosecuted unless he made an admission to this effect.

14. He said, however, that another person had made an 'admission' in a cautioned statement. This document was not put in evidence before the magistrate. It would not have been admissible to prove that the premises were a gambling establishment, but it would have been highly relevant on the question whether the Inspector's suspicion of the appellant was reasonable. He did not reveal the identity of the person who made the statement, nor what he said.

15. In these circumstances, bearing in mind that the test is an objective one, I fail to see how the magistrate was in a position to say that Inspector Kwok had reasonable grounds for his suspicion.

16. It follows that the Inspector was not acting in the execution of his duty. The appeal is allowed and the conviction quashed.