THE QUEEN v. LEE YUNG-CHI

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JUDGMENT

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1. The Appellant was charged with two offences, one of loitering and one of resisting arrest. The Prosecution called P.C. Wong to gave evidence in support of both charges.

2. This officer described the Defendant's  behaviour, at about 13.40 hours on the 6th of August,  in the area of Tung Choi Street.

3. At the end of the evidence-in-chief of this  witness, the magistrate ruled as follows:

"It is an abuse of the law, to stop and  question someone in the street acting in  the innocent manner   described by P.W.l.  If this type of behaviour was allowed to continue, Hong Kong would become a.total police state. It is not an offence to hang around ;the street or walk into a building. A police officer must have reasonable suspicion that a person is lingering for an unlawful purpose before he can question that person under the loitering law."

4. As a statement of the effect of section 160(1), this is unobjectionable and follows The Attorney General of Hong Kong v. Sham Chuen^(l),   judgment in which was delivered on the 17th of June of this year. Lord Keith, delivering the opinion of the Privy Council, observed at page 5:

"Their Lordships conclude that the loitering aimed at by the sub-section (subsection (1) of section 160 of the Crimes Ordinance) is loitering in circumstances which reasonably suggest. that its purpose is other than innocent."

5. I was asked by Counsel for the Crown to find that, on the facts presented to him, no reasonable magistrate could have come to the conclusion that the Defendant was not loitering in circumstances which reasonably suggested that its purpose was other than innocent.

6. An appellate court is reluctant to over-turn a finding of fact of this nature by a trial magistrate, unless it could be shown that the magistrate's finding was wholly unreasonable, in the light of the evidence put before him.

7. I am not prepared to do so in this instance, since I do not consider that the conduct of the Defendant was so clearly of a nature which suggested an unlawful purpose that I could over-turn the magistrate's finding in this respect.

8. From this finding of the magistrate, it must follow that he also found that the officer could not avail himself of the powers conferred by section 50(1) of the Police Force Ordinance. This empowers a police officer to arrest a person "whom he may reasonably suspect" of being guilty of an offence. If a person is charged with resisting arrest, contrary to Section 63 0f the Police Force Ordinance, he can be convicted only if he is resisting a police officer "acting in the execution of his duty", which he is not doing if he seeks to make an arrest which is notlawful under section 50(1) of the Police Force Ordinance.

9. This question has already been considered by two judges of this court in R. v. Siu Kam Luen⁽²⁾ and Hung Hing Tong v. R.⁽³⁾.

10. The law is succinctly put in the latter case -

"For an arrest (to be lawful) it is necessary that the arrested person be suspected on reasonable grounds of having committed an offence."

11. The magistrate having found that the Defendant was not suspected of an offence on reasonable grounds, he is entitled to an acquittal of the offence of resisting an arrest, because it was unlawful.

12. The magistrate based his finding on the second charge on his acceptance that, although the police officers concerned did not have grounds to reasonably suspect an offence, they were, nevertheless, acting honestly, and so were acting within the due execution of their duties.

13. With respect to the magistrate, I think this is a misreading of the law, as indeed appears from R. v. Siu Kam Luen⁽²⁾ . The test is whether or not there was a reasonable belief, not whether there was an honest belief.

14. In one respect the magistrate has gone astray, namely in his ruling that there was no case to answer on the loitering charge at the conclusion of the evidence-in-chief of the first Prosecution witness.

15. I need not refer to any authorities for the proposition, which is indeed self-evident, that it is improper for a court to reach a decision as to whether or not tnere is a case to answer until it has heard the whole of the evidence which the Prosecution wishes to put before it.

16. I must allow the appeal against conviction.

⁽¹⁾   Privy Council Appeal No. 13 of 1986

(2)   Magistracy Criminal Appeal No. 114 of 1984

(3)   Magistracy Appeal No. 222 of 1985