ATTORNEY GENERAL v. TAM MAN WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 917 OF 1988

___________

BETWEEN

_____________

------------------------

J U D G M E N T

------------------------

1. This is an appeal by way of Case Stated under the provision of Section 105 of the Magistrates Ordinance.

2. The respondent had been charged in the Magistrate's Court at South Kowloon with two charges as follows :-

1st Charge

" Statement of Offence

Spitting in a public place, contrary to Section 4(2) of the Summary Offences Ordinance, Cap. 228.

Particulars of offence

TAM Man-wai, on the 25th day of. January 1988, at No. 1 Hart Avenue, Kowloon, Hong Kong, without lawful authority of excuse, did spit in a public place namely on the pavement outside No. 1 Hart Avenue, Kowloon, Hong Kong, otherwise then into a receptacle or channel for sewage, sullage or waste water."

2nd Charge

" Statement of Offence

Obstructing a public officer, contrary to Section 23 of the Summary Offences Ordinance, Cap 228.

Particulars of Offence

TAM Man-wai, on the 25th day of January 1988, at No. 1 Hart Avenue, Kowloon, Hong Kong did obstruct a public officer, namely YUEN King-hung a foreman of the Urban Services Department in the performance of his public duty,"

3. The charges were heard by the Magistrate on the 10th of February and the 7th of March. Before the conclusion of the Crown Case, the 1st charge was amended to read "at the gutter outside No. 1E Hart Avenue" On the 7th March 1988 the prosecution indicated that it only wished to pursue the 2nd charge. At the conclusion of the Crown Case the Magistrate dismissed the 1st charge and ruled that the respondent had no case to answer on the 2nd charge and the respondent was therefore acquitted.

4. The case is stated in the following terms:-

''(8.1) The Crown called two witnesses in support of this case.  PW1, Mr YUEN King-hung was a foreman with the Urban Services Department. PW2, Mr LOK Kin-chuen was also a foreman with the same Department on duty with PW1 on the day of the 25th of January 1988. PW1 and PW2 were in plain clothes. PW1 produced Exhibit P. 1, a form on which PW1 had recorded only the surname of the Respondent. He also produced Exhibit P. 2 a warrant book.

(8.2) PW1 gave evidence that he, saw the defendant spit into the aide of the pavement at No. 1E Hart Avenue. PW1 approached him and produced his warrant card. He requested the Respondent to produce his identification document. The Respondent challenged the power of PW1 to request for his identification document and called the Police. Two Police constables arrived. One of the Police Constables asked the Respondent to produce his identity  card. The Respondent produced his identity card, handed it to the Police Constable, who then handed it to PW1 for PW1 to fill in Exhibit P.1. Prior to PW1 being able to complete the details on Exhibit P. 1, the Respondent took the identity card away from PW1.

(8.3) PW2 gave evidence that he was together with PW1 on the day in question, that he produced his identity document to the Respondent and asked the Respondent to produce his identity card. PW2 confirmed that PW1 had shown the warrant book (Exhibit P. 2) to the Respondent.

(8.4) At the conclusion of the Crown's case, the prosecution sought to amend the first charge. At the next hearing day on the 7th of March 1988 the prosecution asked for the first charge to be withdrawn and the second charge (as amended) to be proceeded with. I allowed the first charge to be withdrawn and the second charge to still stand.

(8.5) I then asked for submissions from both Counsel on the second charge.

(8.6) Counsel for the Respondent questioned as to what was the alleged obstruction. He submitted that the only obstruction was the non-production of the identity card. Further, that PW1 and PW2 did not actually asked the Respondent for his name. After identifying themselves, the first thing that they asked the Respondent for was his identification document or identity card.

(a) a Police Officer;

(b) an Immigration Officer; or

(c) any person authorisd for the purpose.

The above mentioned classes of person must be in uniform or must produce documentary identification officially issued to him of his appointment as one of the above mentioned officers.

(8.8) Counsel for the Respondnet further contended that the Urban Services Department Officers, namely PW1 and PW2 are not officers under the category of section 17C(2)(c) and there was no evidence to show that they were acting in accordance with that section. He further submitted that PW1 and PW2 did have, the power to ask the Respondent's name first, but that they did not do so.

(8.9) The Crown contended in reply that PW1 had produced his warrant card to the Respondent to read and further that the warrant book stated that the Respondent should give his name and, address and also produce proof of his name and address. Counsel for the Crown further contended that the identity card is the means to prove the identity of the Respondent. When the Respondent failed to produced, his identity card it amounted to obstruction. Further, it was sbumitted that PW1 and PW2 had authority under section 23(1)(a) of the Public Health and Municipal Services Ordinance, Cap. 132 to require any person whom he reasonably suspects of having contravened any regulation made under section 15 of Cap. 132 to give his correct name and address and produce evidence to that effect to the public officer.

(8.10) After hearing the submissions from both Counsel for the Appellant and Counsel for the Respondent, I formally dismissed the first charge and found no case to answer on the second charge.

(8.11) I referred to section 17C of the Immigration Ordinance, Cap. 115 and found that PW1 and PW2 were, not within any of the categories therein stated. I found that PW1 and PW2 did not have any power to ask any person to produce his identity card, that such power is limited to ask the person to give his name and address and to produce evidence to that effect.

(8.12) I also found that there was no obstruction in this case because the two public officers had no power to ask any person to produce hisidentity card and that the Respondent was required not to produce his identity card.

(8.13) I further found that the Respondent was entitled to take the identity card away from PW1 and PW2 because they had no right to have the card even though it had been handed to them by the Police Constable.

(8.14) On the 17th day of March 1988 the prosecution sought to review my decision on the second charge. Such application was refused.

(8.15) The question of law arising on the above statement for the opinion of the High Court is therefore:-

(1) Was I correct in holding that PW1 and PW2 were not "persons authorised for the purpose" within the meaning of section 17C(2) (c) of the immigration ordinance, Cap. 115, and therefore were not entitled to demand the production  of the identity card from the Respondent?

(2) Under section 23(1) (a) of the Public Health & Municipal Service Ordinance; Cap. 112, is an authorised public officer entitled to ask a suspect (whom he reasonably suspects of having committed an offence under section 15 of Cap. 132) to produce his identity card to him bearing in mind that section 23(1)(a) states that he may require any person to give him correct name and address and produce evidence to that effect to the public officer and is an identity card which contains no address of that person the evidence to that effect?"

5. The two sections referred to in the Case Stated are set out below. Section 17C(2) of the Immigration Ordinance, Cap, 115 provides:

"A person who is required by sub-section (1) to have with him proof of his identity shall on demand produce it for insection by -

(a) any police officer,

(b) any Immigration officer, or Immigration assistant or,

(c) any person or member of a class of persons authorised for the purpose by the Governor by order published in the gazette who is in uniform or who produces, if required to do so documentary identification officially issued to him as proof of his apppintment as a public officer, Immigration officer, Immigration assistant or as the case may be person authorised under paragraph (c)."

6. Section 23(1) of the Public Health and Municipal Services Ordinance, Cap. 132 is as follows :-

"Any public officer authorised in writing in that behalf by the authority may -

(a) require any person whom he reasonably suspects to have contravened any regulation made under,section 15 to give his correct name and address and produce evidence to that effect to the public officer."

7. Mr Coughlan who appears for the Attorney General no longer seeks an answer to the first question, conceding that neither PW1 nor PW2 were "persons authorised for that purpose" within the meaning of Section 17C(2) (c) of the Immigration Ordinance, Cap: 115.

8. So far as the second question is concerned, he urges me to adopt a common sense approach and to not require Urban Services Officers to use the exact words of the section when they exercise their powers under Section 23(1)(a). They can require proof of his name and address under that section, he says, and if they require the suspected person to produce his identity card, that is all they are seeking, i.e proof of his name and address. It had been explained to the respondent, he says, that the effect of producing the identity card was not a check under the. Immigration ordinance, but that it was under Section 23(1) of the Public Health and Municipal Services Ordinance because the officer's warrant book had been shown to him and read out showing the officer was authorised to ask for proof of his name and address. The respondent, therefore, would not have been under a misunderstanding that this was a check for any other purpose. The significance of the identity card as proof of identity to anyone in Hong Kong is well known, he says.

9. Mr Fok, for the respondent, argues that the powers of the public officer under Section 23(1) (a) are prescribed by that section. He can ask any person he reasonably suspects to have contravened any regulations made under Section 15 to give his correct name and address and produce evidence to that effect to the public officer.

10. On the evidence in this case, the foreman did not ask for the name and address but directed the respondent to produce his identity card. Under Section 21(1) (a), he has no power to do that. It only gives the public officer power to ask him to produce evidence of the correct name and address and this may be proved by other documents, such as driving licence or other documents. He submits that the Magistrate was correct in ruling no case to answer.

11. It appears that the obstruction upon which the Attorney General relied, in the Court below, as contravening Section 23 of the Summary Offences Ordinance, was that the respondent"failed to produce the identity card when required to do so.

12. The sole ground upon which the appellant maintains the Magstrate was wrong to rule no case to answer is that the public officer was empowered to ask for an identity card under Section 23 (1) (a) and that when the respondentfailed to produce the identity card that amounted to obstruction.

13. With the greatest of respect to the Attorney General, I cannot accept that to be so.

14. I agree with Mr Fok that all the public, officer can do under this section is to ask the suspected person for his correct name and address and to require him to produce evidence to that effect.

15. The section does not prescribe what sort of evidence is necessary and it appears to me that the evidence may be in manydifforent forms, It would be absurd for a man who produced other documents in proof of his identity and address to be charged with obstruction for not producing an identity card when asked for it in purported compliance, with this section.

16. It may be that the.respondent's conduct at the material time amounted to obstruction of a public officer in some other way, but I do not consider his failure to produce an identity card when it was demanded at first instance in purported exercise of the powers under Section 23(1)(a) in itself amounted to obstruction.

17. The second question posed in this Case Stated consists really of two questions. So far as the first of these two questions is concerned, I think the answer depends upon the facts found. Strictly speaking all the officer can do is ask the suspect for his correct name and address and ask him to produce evidence to that effect. This is obviously required .for follow up procedures. I do not consider. any exact phrase is required as long as it is made clear that the officer requires his correct identity and his address, and evidence of those two facts. However, if in the known circumstances, the suspected person had no evidence other than his identity card,I think that the public officer would be entitled to demand that he produce that.

18. So my answer to the first part of the second question is that the public officer is only entitled under Section 23(1)(a) to ask for the correct name and address and to require the production of evidence substantiating that. In circumstances where it is clear that the suspected person had no evidence other than his identity card, the officer may require him to produce that. So far as the second part of the second question is concerned, my answer is that the identity card would be evidence of both name and address because of the duty to supply particulars under Regulation 4(i) (b), the duty to maintain a record under Regulation 8 and the duty to report corrections under Regulation 18 of the Registration of Persons Regulations made under the enabling powers in Section 7 of the Registration of Persons Ordinance.

19. The appeal is dismissed.