THE QUEEN v. SIZTO YUK HING

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MAGISTRACY APPEAL NO. 103 OF 1985

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BETWEEN

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JUDGMENT

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1. This is an appeal from two convictions entered by a magistrate after a full trial for the offences of failing to produce proof of identity on demand contrary to section 17C(3) of the Immigration Ordinance (Cap. 115), and obstructing a police officer in the execution of his duty contrary to section 63 of the Police Force Ordinance, Cap. 232.

2. The summary of the evidence which the learned trial magistrate set out was this :

"The prosecution alleged that the defendant was named in a warrant and that it was necessary for her to produce her identity card so that the person named in the warrant, i.e. the defendant could be correctly identified before arrest. They further alleged that she did not produce the identity card when requested, attempted to leave, walked away from them and generally obstructed them in the discharge of their duties. The defendant's story was to the effect that she was inside her shop when the police officers approached her, and not outside as was alleged by the police, that they never told her why they wanted to see the identity card, and the question of any warrant was raised much later when the two police officers had summoned further assistance. Mr. WING Sum-lo had argued that if the incident was 'inside' the police had no right to ask for her identity card."

The appellant admitted that a demand for the identity card was made, and said :

"At 01.16 I was sitting inside garage. Two police constables came and one went inside my garage and he asked me to produce my identity card. I asked him 'What is the matter?' I was in a hurry. My identity card was inside my purse and wrapped by another piece of paper. I was not aware it was inside. He said 'nothing'.''.

3. It was not disputed that the identity card was produced some time later and some distance from the garage where the initial demand was made; the appellant first having attempted to leave in a private car of D.W.2 and later walking away with a ten year old child who she said was her nephew. One police officer (P.W.2) said that outside her home a woman came and handed the appellant her identity card, which was shown to the police officers The appellant denied that this happened.

4. For the appellant it was submitted that whereas section 17C(3) of the Immigration Ordinance mentions demand", because the word "immediately" was omitted, the Legislature could not be said to have meant that the identity card had to be produced then and there. Mr. Kwan said that a person does not commit the offence if he has his card within reasonable reach and produces it within a reasonable time. Learned Crown Counsel submitted that the law is quite clear and the identity card has to be produced on demand, and it is a matter for the Court in any particular case whether it was produced on demand. She said that the Legislature applied its mind to certain circumstances and provided for some exceptions in section 17C(3) and (4).

5. Section 17C(1) of the Ordinance requires "every person who (a) has attained the age of 15 years; and (b)(i) is the holder of an identity card or .....; or (ii) is the holder of a Vietnamese refugee card, to have with him at all times proof of his identity". Sub-sections (2) and (3) read:

I agree with learned Crown Counsel that the provisions of this law are clear and unambiguous. The case of A.G. v. CHAN Wai-lan and others (1982) H.K.L.R. 68.was an application for review of sentences imposed on the defendants who had pleaded guilty to a similar offence. Dealing with the explanation of the magistrate for imposing the sentences which he did on the basis that the defendants were of good character and their refusal to produce proof was not wilful and they had no criminal intent, the learned Chief Justice said:

"However, while there may be no element of moral blame involved, if the Legislature provides that failure to produce proof of identity shall constitute an offence, any person who goes out without his card must realize that he is doing something which will involve a breach of the obligation imposed upon him by the law to have it with him; and that, if he is asked to produce it by a police officer, or by one of the other persons who is qualified to demand its production by virtue of section 17C(2) of the Immigration Ordinance, he will have committed an offence. The offence is complete where there is a failure to produce proof of identity on demand, irrespective of the defendant's mental attitude at the time ......"

While I appreciate that this was said in relation to the propriety of the sentence, I am of the considered opinion that the comment about when the offence is complete was not obiter, and when it is read with the proviso to subsection (3) there can be no doubt that the person charged is provided a defence of reasonable excuse for failing to produce proof of identity. Also, failure to produce proof of identity on demand is an arrestable offence without warrant under section 17(D). The word "demand" is an ordinary English word which is an imperative request preferred by one person to another requiring the latter to do or yield something or to abstain from some act. Following the case of CHAN Wai-lan, I find that the offence is complete where there is a failure to produce proof of identity on demand.

6. Regarding Mr. Kwan's comment that the offence is not committed where the identity card is within reasonable reach and is produced within a reasonable time, that of course is a matter of further interpretation of what is reasonable in any given situation or circumstance. This issue does not arise in this appeal and was not alive issue before the learned trial magistrate. With respect, I must decline to consider this matter on this appeal. On the appellant's own evidence the police officers had demanded that she produce her proof of identity and she was unable to produce it. Her case was not that it was somewhere within "reasonable reach"; it was as she said -"My identity card was inside my purse and wrapped by another piece of paper. I was not aware it was inside.'' With that knowledge and lack of awareness that it was in her purse, I should have thought that, the purse being with her at the time of the demand which her witness also saw at the time, she would have inspected the purse without much trouble.

7. There was the issue of exactly where she was when the demand for the identity card was made, or exactly when the warrant was mentioned. These were factual matters which were considered by the learned trial magistrate. He found that a warrant for non-payment of fine was in existence but the police officers were not in possession of it at the time but knew of its existence and were under orders to execute it, if possible, and they told the appellant about the reason for the demand. There, he was accepting the evidence of those two officers which he was entitled to do. He further found that they were acting within their rights ''whether the defendant was outside the shop or inside, to ask for the identity card for the purpose of identification before the execution of the warrant". It is quite plain that the learned magistrate must have had the provision of section 53 of the Police Force Ordinance (Cap. 232) in mind. That section reads

"53.    Any warrant lawfully issued for any purpose may be executed by any police officer at any time notwithstanding that the warrant is not in his possession at the time, but the warrant shall, on the demand of the person affected be shown to him as soon as practicable after its execution."

Quite clearly therefore the police officers were acting properly and reasonably in the execution of their duty. The warrant was in fact produced by a woman police officer who responded to the call of the two police officers, and the appellant was arrested.

8. It was submitted that the learned trial magistrate's findings were not satisfactory in that he did not comment on the evidence of either side. Mr. Kwan complained that it was not stated by him that the appellant had produced her identity card a little later. With respect, I must disagree. The learned trial magistrate dealt with the issues which were put before him and those were in the main matters of evidence and credibility. He dealt with those adequately.

9. In the circumstances, I find that the appellant was rightly and properly convicted of the offence charged in the first count on the evidence which was before the trial court.

10. Turning to the count of obstruction, Mr. Kwan's first submission was that section 63 of the Police Force Ordinance, under which that charge was laid, does not create such an offence. That section deals with assaulting or resisting a police officer in the execution of his duty-obstruction is not mentioned. He wondered how the trial court could have been satisfied that all the ingredients of the offence had been proved. Learned Crown Counsel conceded that the statement of offence wrongly mentions that section but submitted that the appellant knew exactly what the offence charged against her was and she was not prejudiced in any manner. The particulars of the offence which were put to the appellant state

"SIZTO Yuk-hing, you are charged that on the 25th day of September 1984, at Kowloon in Hong Kong, you did wilfully obstruct Police Constable 23057 KWOK Yip-yee, a police officer of the Royal Hong Kong Police Force, in the execution of his duty.".

Mrs. Harris said that these particulars provided all the elements which, if proved, would amount to an offence under section 36 of the Offences Against The Person Ordinance (Cap. 212). She relied on LIU San v. Reg., Criminal Appeal No. 215/73(CA). I agree that in the circumstances the appellant could have been left in no doubt whatsoever as to the nature of the offence she faced. But Mr. Kwan said that it is not the question of prejudice here, it is only that the trial magistrate kept on referring to the wrong ordinance which creates a doubt as to his actual knowledge of the ingredients of the relevant offence. With regard to this latter part of this argument I will come to it presently. For the time being I will only say that the irregularity in citing the wrong law in no way prejudiced her.

11. Mr. Kwan again mounted an attack on the learned magistrate's findings and relied on LAW Keung v. Reg., Criminal Appeal 625/72. Now, keeping in mind the learned magistrate's earlier findings which I have mentioned when dealing with the first charge, for those form the common basis for both counts, this is what he had to say about the second charge:

"I also found that her subsequent movements, after she knew why the police officers wanted her, amounted to obstruction within the meaning of the Ordinance. It would be an impossible situation for the police force to discharge its duties if people were to 'walk all over the place' as the defendant did in Ex. P1 when lawfully challenged by the Police. I therefore convict her accordingly.".

12. In the case of CHAN Oi-lin, Criminal Appeal No. 107/84, the test which Mr. Kwan relies on, was stated as follows:

"The correct test is not she refused police entry, it is whether she wilfully obstructed the officers in the sense that she did so intentionally and without any lawful excuse.''.

This test is based on Rice v. Connolly, (1966) 2 Q.B.414, cited before me by Mrs. Harris. It may be added that there the defendant had said that she did not obstruct the officers intentionally. Learned Crown Counsel does not seem to have any quarrel with the ingredients of the offence of wilful obstruction; she says that the trial magistrate was entitled on the evidence to find that the appellant was deliberately making it more difficult for the police to carry out their duties as the trial magistrate had found.

13. The trial magistrate found that the appellant had been told the reason for the demand to produce her identity card. The law imposed on her the obligation to act in the manner requested by the police officer in the circumstances of this case. Instead of checking her purse to satisfy herself about her identity card, she walked away from them and, when stopped from riding away in the car, she continued to walk down the street. That was a positive act. Mr. Kwan argues that the appellant had a "legal duty" to escort her 10 years old nephew. By that I understand him to mean that her predominant intention was not to obstruct the police. In the case of Lewis v. Cox (1984) 3 All E.R. 672 D.C., cited in the recent supplement to ARCHBOLD, 41st edition, the Court was considering the position where the defendant's predominant intention was not to obstruct the police. The Court stated that although it may not be unhelpful in certain case to consider whether the actions of the defendant were aimed at the police, the simple facts which the Court has to find are whether the defendant's conduct in fact prevented the police from carrying out their duty or made it more difficult for them to do so, and whether the defendant intended their conduct to prevent the police for carrying out their duty or to make it more difficult to do so. If those criteria are satisfied then it matter not at all that his predominant intention in doing what he did was not to obstruct the police.

14. Looking at the trial magistrate's finding on this issue, I have no doubt in my mind that he had the correct principles of law in mind and fully appreciated what the ingredients of the offence were. I am of the opinion that not only did he deal adequately with the evidence, his finding based on the testimony which he accepted was fully justified. He was satisfied that those ingredients had been proved and I see no reason to disturb this conviction which, in view of what I have said concerning the correct law under which this charge should have been laid, I amend accordingly and this conviction will be under section 36, Offences Against The Person Ordinance.

15. Lastly, Mr. Kwan referred to the fact that a witness was recalled during the defence case, at the end of the appellant's evidence, and questioned by the Court. Those questions concerned the warrant, the witness saying that he did not have it on him but had seen it at the police station and had copied its details. In his note to the record of the proceedings, the magistrate referred to it as follows :

"Immediately after the defendant had given her evidence, it is obvious from the notes that a prosecution witness was recalled and questioned by me, but the record does not mention such recall or which prosecution witness: I can only apologise for the omission.".

Mr. Kwan said that this indicated that the trial magistrate did not have the trial properly under his control and if those questions which he asked were material and important, how could he have failed to take notice of who he was. I do not understand this comment as a submission that this inadequacy in maintaining a proper record makes the convictions unsatisfactory or unsafe, nor was this a ground of appeal. Mrs. Harris said that the Court has a discretion to recall a witness at any stage and question him in the interests of justice. That is right no doubt, but I need comment that it is the duty of the Court to maintain a proper record and to indicate, where such becomes necessary, why the witness was recalled end and who was. It is unfortunate that the magistrate overlooked this. The fact that these officers did not have the warrant with them at the time had already been given in the course of the prosecution evidence by P.W.2, and I do not think that the recall of one of the prosecution witnesses in all the circumstances did anything to buttress the Crown's case.

16. For these reasons, this appeal is dismissed in respect of both charges.