YUEN WAI LEUNG v. HKSAR

FAMC No. 20 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 1045 OF 1998)

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

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Mr Justice Ching PJ:

1. The applicant faced three charges in the Magistrate's Court. The first was that he had stolen certain specified items from Lane Crawford. The second was that he had assaulted one of the security men of that company with intent to prevent lawful apprehension. The third was that he had assaulted another security guard, Ng Kam Ming, with the same intent. He was acquitted of the first two charges but was convicted of the third. He appealed unsuccessfully to the Court of First Instance and now applies to us in person to appeal to the Court of Final Appeal.

2. The facts so far as the assault on Ng Kam Ming was concerned are in a very small compass. The applicant was stopped upon his leaving the store and ran away. While he was running away he threw away pieces of clothing to which were still attached Lane Crawford tags. He resisted efforts to apprehend him and in so doing assaulted Ng Kam Ming. The applicant gave no evidence at the trial and the Magistrate accepted the evidence of Ng Kam Ming.

3. The applicant asks this Committee to certify a question of law in the following terms,

That is not what section 101(2) provides. It provides that

Theft is clearly an arrestable offence. The Magistrate found, as she was entitled to find, that Ng Kam Ming reasonably suspected that the applicant was guilty of that arrestable offence and in the circumstances the conviction for assault with the intention of preventing lawful apprehension inevitably followed. Section 101A relates to the force which it is permissible to use in effecting the arrest. It is not relevant to the facts of this case. Before us the applicant argued that he could not be found guilty of the third charge since the attempt to apprehend him was not lawful. He referred to a number of English decisions dealing with provisions in that country. Those provisions are materially different from section 101(2) and the decisions therefore do not assist him. Nor is Article 28 of the Basic Law relevant. The acquittal of the applicant on the first charge was not conclusive so far as the third charge was concerned. The relevant evidence as briefly set out above showed that Ng Kam Ming had reasonable grounds of suspecting the applicant of being guilty of theft. The attempt to apprehend him was therefore lawful.

4. This application is in any event made out of time. There being no arguable point that may properly be put before the Court of Final Appeal we decline to extend the time. This application is dismissed.