HKSAR v. IP KENNETH

FAMC No. 20 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2006 (Criminal)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
HCMA No. 1161 of 2005)

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.  The applicant was convicted after trial before the magistrate, Kevin Browne Esq, for assault occasioning actual bodily harm on a woman.  The magistrate found that the defendant had followed her into a lift and attempted to take a photograph up her skirt, using the camera in his mobile phone.  The woman protested and, seizing his shirt, attempted to drag him out of the lift when it reached her floor.  The assault for which the applicant was convicted occurred when he struck her arm to force her to release her grip.

2.  The focus of the unsuccessful defence was on the allegation that the defendant had not in fact taken the photo complained of and that there was accordingly no basis for attempting to detain him.

3.  The applicant seeks leave to appeal on a question of law of great and general importance concerning citizens’ arrests, namely, as to whether the statutory power of arrest under s 101 of Criminal Procedure Ordinance (Cap 221) permits a person to be detained only where it is made clear to him that he is being subjected to an arrest.  It is suggested that in the present case, there was room for doubt as to whether this was the complainant’s intention when she physically took hold of the defendant.

4.  However, the magistrate found that the woman had sought to detain the applicant because she reasonably suspected him of being guilty of an arrestable offence and not, as had been suggested below, simply “to question him”.  She had immediately protested and accused the defendant of taking the objectionable photo so that it was obvious to him why she was grabbing hold of him.  There is no basis for suggesting that there was any doubt in his mind as to the fact of and reason for his detention.  The point therefore does not arise on the facts of the present case.

5.  Leave is also sought on the substantial and grave injustice ground.  It is alleged that the magistrate failed properly to consider self-defence.  But the magistrate raised it specifically with counsel in the course of submissions and then rejected it, finding that the defendant had struck the complainant in order to resist a lawful arrest.  He found “beyond doubt” that the defendant was not acting in self-defence and had, in any event, used force going beyond what was reasonable.  This ground is therefore not reasonably arguable.

6.  Leave to appeal is accordingly refused.