THE QUEEN v. MOK KAM WING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 130 of 1986

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BETWEEN

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REASONS FOR JUDGMENT

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1. Having today allowed this appeal and set aside the appellant's conviction, I indicated that I would provide detailed grounds for my decision at a later stage. I now do so.

2. The appellant was charged in a Magistrates Court at North Kowloon with assaulting a police officer in the execution of his duty.

3. The facts were that the appellant was seen by two police officers coming up staircases. He was stopped and questioned. The two police officers were in plain clothes at the time. They gave evidence that they identified themselves to the appellant. PC 22326 then questioned the appellant about his address and the appellant replied that he was going to look for his younger brother. PC 22326 then asked him again "for his presence there", but the appellant remained silent. At that stage, PC 22326 said if the appellant could not explain himself he would arrest him for loitering. PC 22326 asked for the appellant's identity card and as the appellant was taking it out with his right hand he pushed PC 22326 away with his hand and went downstairs chased by the two police officers. It was during the course of this chase that the appellant picked up a piece of wood and threw it at PC 19487 (PW 1) hitting him on his forehead. The appellant was later subdued and arrested for the offence of loitering.

4. One of the grounds upon which the appellant bases his appeal against conviction is that there was no evidence or no sufficient evidence whereon to found this said conviction.

5. I allowed the appeal on the ground that there was no evidence to support the Crown contention that the police officers were acting in the execution of their duty at the material time. A perusal of the record of proceedings before the Magistrate indicates that there was no evidence to the effect that the appellant had been loitering on the evening in question. Indeed both police constables admitted under cross-examination that the appellant was not loitering and that there had been no prior observation of the appellant before he was stopped. He was just stopped while going up this staircase.

6. The police officers have power to stop and search and if necessary, to arrest and detain persons under Section 54 of the Police Force Ordinance. This provides :-

"It shall be lawful for a police officer to stop, search and if necessary to arrest and detain for further enquiries any person whom he may find in any street or other public place or on board any vessel, or in any conveyance, at any hour of day or night, who acts in a suspicious manner, or whom he may suspect of having committed or being about to commit or of intending to commit any offence."

7. This appears to have been the provision under which the police officers purported to act on the evening in question. However, there was no evidence that the appellant had acted in a suspicious manner or that the police officers suspected him of having committed or being about to commit or of intending to commit any offence. That being so, it was unlawful for them to stop the appellant under Section 54 of the Police Force Ordinance.

8. I refer in this connection to the case of Attorney General v. Kwong Chung-shing [1980] H.K.L.R. 533 at p. 535, a Court of Appeal decision. In his judgment, Huggins, J.A. (as he then was) giving the judgment of the Court of Appeal said :-

"The initial difficulty as it seems to us, is that once it was conceded that the Respondent was not acting in a suspicious manner, it was wrong to assume that the officer did suspect the Respondent of having committed or being about to commit or of intending to commit an offence. Not only was there no apparent ground for suspicion but there was no evidence that the officer did so suspect when he stopped and searched the Respondent."

9. In that case there was evidence that the Respondent when stopped had some packets of suspected dangerous drugs in his hand. The judgment continues :-

"However tempting it might be to hold otherwise, it does not seem to follow that because he stopped and searched the Respondent, he must have had the required suspicion, although we accept that the test under Section 54 is a purely subjective one whereas under Section 52 of the Dangerous Drugs Ordinance the officer must be able to assign a reason for his suspicion. The difference in wording between the two provisions must have been intended and the officer who has an intuitive suspicion may lawfully stop and search under Section 54, although he may arrest and detain only where that is necessary."

10. In the present case, the police officers were in plain clothing and there was no evidence as to the manner in which they identified themselves to the appellant.

11. The threat of PC 22326 that if the appellant could not explain himself, he would be arrested for loitering was an unlawful act, because there was no evidence that the appellant had been loitering, nor that the police officer suspected him of loitering. Indeed both police officers in cross-examination admitted that he wasn't loitering.

12. In the circumstances, the police officers could not have been acting in the execution of their duty when they questioned the appellant threatened him with arrest for loitering or chased after him for the purpose of arresting him for loitering.

13. If the police officer PC 19847 was not acting in the execution of his duty at the time when he was hit by the appellant, the offence was not established.

14. In all the circumstances, I considered that there was no evidence to prove that the police officer was acting in the execution of his duty and I therefore allowed the appeal and set aside the conviction.