HKSAR v. Tsang Chun Ying

[English Translation – 英譯本]

HCMA 166/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Appeal against Conviction

MAGISTRACY APPEAL NO. 166 OF 2015

(ON APPEAL FROM ESCC NO. 3347/2014)

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JUDGMENT

1.The appellant was charged with one charge of “Obstructing an officer of the Legislative Council in the execution of his duty”[1]. He appeared before the Eastern Magistracy where he pleaded not guilty.  The Magistrate convicted him after trial. He appealed against the conviction.

Prosecution case

2.According to the statement of findings, the prosecution case is as follows:

“The prosecution only called one witness, Mr Yip Hoi-chung, who was a Security Assistant II of the Legislative Council.

At 3pm on 13 June 2014, the Finance Committee of the Legislative Council met at the Conference Room of Legislative Council Complex to vet the application for a kick-off grant for the “North East New Territories New Development Areas”. During the meeting, a “public activities area” was marked off outside the Building of the Legislative Council for protestors to gather there.

At around 9 o’clock of the same evening, while the witness was on duty, he was instructed to go to the basement carpark of the Building to assist with the handling of a complaint regarding an attempted entry into the Building by unauthorized persons. He found the defendant in the carpark. He approached him and said, “I am a security guard of the Legislative Council. What are you doing here? Who are you? How did you enter?” The defendant answered, “Move off. It’s none of your frigging business.” He then immediately held the defendant by his right shoulder with his right hand, but not only did the defendant not stop, he twisted his right thumb with his hand to cause him pain. He immediately followed the defendant to walk towards a staircase[2].

Having gone inside a smoke lobby through a door, he tried to stop the defendant from leaving. Not only did the defendant take no heed of him, he kept struggling. In the meantime, another Security Assistant, Mr Lai (“Lai”) arrived. Lai put his arms round the lower half of the defendant’s body. But by holding with his hand/s and hooking around with his leg/s the door of the smoke lobby, the defendant tugged strength with the Security Assistant. At the same time, another Security Assistant, Madam Chung (“Chung”) also arrived to assist. In the end, the defendant was subdued. During the struggle, the defendant twice said, “Come quickly to help!” They later took the defendant to the photocopier room of the Receipt and Delivery Unit.

At the material time, no pass was displayed on the person of the defendant, nor did he indicate that he was an authorized person. The basement carpark gave no free access and egress to any authorized visitors.

The prosecution witness, Lai and Chung all sustained minor injuries during the struggle.”[3]

Defence case

3.During the trial, the defendant elected not to testify and called no witnesses. It can be seen from the thrust of the cross-examination that the position of the defence was that he had never twisted the right thumb of the prosecution witness. As a matter of fact, the Security Assistant/s held him down on the floor by the door of the smoke lobby to subdue him without allowing any explanation. During that time, the prosecution witness had even uttered four letter words three times in his ear.[4]

Findings of the Magistrate

4.The Magistrate made the following analysis and findings:

“Having considered all the circumstances, I find that the prosecution witness was an honest and reliable witness. I accept his evidence.”[5]

“In so far as this offence is concerned, the prosecution must prove: 1. The prosecution witness was an officer of the Council (which was not disputed); 2. He was in the due execution of his duties; 3. The defendant acted in a way that caused obstruction.

As far as the duties of the prosecution witness are concerned, according to paragraph 16 of the written statement[6] of Mr Lo (transliteration), Assistant Secretary of the Legislative Council, the duty of a Security Assistant was to maintain order within the precincts of the Chamber. At that time, a Finance Committee meeting was being held in the Legislative Council and so the whole Building, including the basement carpark, was deemed to be the Chamber. According to the evidence given by the prosecution witness and that in the witness statements of Lai and Chung[7], the duties of a Security Assistant at that time were to maintain security, inspect and verify the identities and information of the people going into the Legislative Council.

When the prosecution witness saw that no pass whatsoever was displayed on the defendant who also completely ignored the questions he asked, in order to perform his duties, he could no doubt make enquiries of the defendant whose identity and intention were unclear. But not only did the defendant twist his thumb, he also tried to leave and indicated to other people to help him escape when he was at the door of the smoke lobby. In my view, judging by the struggle the defendant put up, the force the prosecution witness used was reasonable. Just imagine, if the prosecution witness was not allowed to have any physical contact at all with the suspect, the suspect would have already made good his escape. It was not possible for him to have been able to perform the duty of maintaining the security within the precincts of the Legislative Council.

As regards the struggle the defendant put up, it was more than making it a bit more difficult for the prosecution witness to perform his duties. Judging by the situation at the time in question, it took the combined efforts of several Security Assistants to stop and subdue the defendant. I have no doubt that the defendant acted in a way that caused obstruction.

Based on the above analysis, I am satisfied that the prosecution has proved all elements of the offence beyond any reasonable doubt.

In view of the above findings, this court does not have to make a ruling on the alternative charge. But for the sake of completeness, I am satisfied that the defendant had twisted the right thumb of the prosecution witness for the clear purpose of breaking free from him, to cause him to let go so that he could escape. This was surely an intentional act with a hostile intent. If I was to consider the alternative charge, I would also be satisfied that the prosecution had proved beyond reasonable doubt all the elements of the alternative charge.”[8]

Ground of appeal

5.During the appeal, Mr Douglas Kwok, counsel for the appellant[9], advanced one ground of appeal:

“The Magistrate erred in allowing the prosecution witness to exercise the right against “self-incrimination” not to answer questions the appellant asked in cross-examination. As a result, both the court and the appellant did not have sufficient opportunity to query whether or not the prosecution witness had “falsely imprisoned” the appellant. This error renders the conviction in the present case (including that of the alternative charge) unsafe.”

Discussion and consideration

6.As the Magistrate said, the parties had no dispute that the elements of the offence in the present case are as follows:

(1) The prosecution witness was an officer of the Council;

(2) He was in due execution of his duties;

(3) The act of the defendant caused obstruction.

7.This appeal turns on the issue of whether or not the prosecution witness was in due execution of his duties.

8.It was the submission of Mr Kwok, counsel for the appellant, that during the trial, the position of the defence was that the acts of the prosecution witness amounted to unlawful detention or false imprisonment. The Magistrate entered into the arena uninvited when the prosecution witness was being cross-examined. He held the view that “false imprisonment” involved a criminal offence which might be against the interest of the witness himself. He reminded the witness that he had the right not to answer the questions. After that, the prosecution witness elected not to answer questions regarding “unlawful detention” and “false imprisonment”[10]. In other words, the prosecution witness did not have to answer any follow-up questions regarding whether or not he had used excessive force to hold the appellant’s shoulder down, or if he had interfered with the freedom of movement of the appellant without any reasonable ground, or his lawful right to remain within the precincts of the Chamber[11], or if he had used means disproportionate to the duties that he had to execute, or in view of the fact that the Legislative Council Complex had put in place an electronic security system,  whether or not the fuss he made in respect of an unregistered visitor was out of proportion or overly targeted against the appellant etc. No questions of these kinds could be pursued. The scenario that might emerge was, these follow-up questions might challenge the consistency and reliability of the prosecution witness which would in the end affect the findings of facts the magistrate made (such as the issue of whether or not the appellant had twisted the right thumb of the prosecution witness).

9.Mr Kwok pointed out that Part II of the Administrative Instructions for Regulating Admittance and Conduct of Persons[12] (“the Administrative Instructions”) defined the areas that that are out-of-bounds to members of the public, such areas do not include carpark. Besides, although section 3 of the Administrative Instructions provides that visitors [13]shall display a pass at all times when they are within the precincts of the Chamber. But the maximum penalty for breaching section 3 was only ‘a fine of $2,000 and 3 months’ imprisonment’[14]. It does not amount to an “arrestable offence” under section 3 of the Interpretation and General Clauses Ordinance[15]:

“"arrestable offence" (可逮捕的罪行) means an offence for which the sentence is fixed by law or for which a person may under or by virtue of any law be sentenced to imprisonment for a term exceeding 12 months, and an attempt to commit any such offence;”

Therefore, generally speaking, when a member of the public fails to display a pass, a security officer might not exercise the power of arrest under section 101(2) of the Criminal Procedure Ordinance[16]:

“Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence.”

10.Furthermore, Mr Kwok pointed out that the magistrate made no mention at all in his statement of findings of his reminding the witness that he had the right not to answer the questions. On the contrary, the magistrate understood that the defence was challenging if the prosecution witness was in the due execution of his duties. Nevertheless, he did not deal with the question of whether or not he “unlawfully detained/imprisoned” the appellant.

11.The description the prosecution witness gave regarding the acts performed by the appellant was as set out in paragraph 2 of this judgment. The magistrate found that what happened was as the witness described and that the prosecution witness was in the due execution of his duties.

12.Mr Kwok pressed the point that the interference by the magistrate and his raising the need of telling the prosecution witness that he had the right not to answer was not proper. It affected the consideration the magistrate made regarding whether or not the witness was in due execution of his duties.

13.It can be seen from the transcriptof the trial how the circumstance which caused the magistrate to deal with the matter the way he did arose:

“Question[17]:	Understand. Then I really have to ask you this. Since you had already been trained in the Police Force and were aware of the powers of arrest, then by virtue of what power did you forbid the defendant to leave on that day and instead touched him with your hand to stop his act?”
Answer[18]:	After he had injured me, he did not immediately explain the reason, and as I said before, the purpose of going into the Building, that is, the Legislative Council Building and (his) identity.
Question:	Right. What you said exactly reflects the question I asked just now. Please tell me by virtue of what power did you try to restrain a person’s freedom of movement?
Answer:	I was not trying to restrain his movement. I was trying to make him, before he wanted to leave himself, to further get a deeper understanding. If he wanted to forcibly leave, so I would pol…intended to get the police to deal with it.
Question:	That’s why you grabbed him with your hand to stop him from leaving? Answer: Yes, correct.
Question:	I put it to you that this act of yours was an act of unlawful detention. You said that you…do you have any reply to what I have just put to you?
Magistrate:	Unlawful detention?
Mr Fok[19]:	Unlawful detention. (I) think, I should put it this way, an act of false imprisonment.
Magistrate:	If it was false imprisonment, it was an offence. You may have to give him a warning, right?
Mr Fok:	Yes, Your Worship.
Magistrate:	Is that so, Mr Man?
Mr Fok:	Perhaps may be it’s necessary, may be…
Mr Man[20]:	Yes, I think so.
Magistrate:	So it is necessary. If it was false imprisonment, because it concerns a criminal offence.
Mr Fok:	Yes, Your Worship.
Magistrate:	Did you hear the question defence counsel just asked? First of all, did you hear it clearly? Do not answer (it) yet.
Answer:	I understand.
Magistrate:	Understand.
Answer:	Understand.
Magistrate:	Well, your answer may hurt your own interest, if you think the answer is against your own interest, you have the right not to answer this question. You of course have the right to answer it. You make your own choice to decide whether or not to answer this question.
Answer:	Understand. Understand.
Magistrate:	Right, (are you) going to answer this question?
Answer:	I maintain (the position) of not answering it yet. That is to say, I will not answer it yet.”[21]

14.The key points submitted by counsel acting for the respondent, Mr Edmond Lee, Senior Assistant Director of Public Prosecutions, are:

(1) As far as the present case is concerned, there is in fact insufficient ground to make the allegation of “false imprisonment”;

(2) In any event, the magistrate in fact should not have allowed the defence to ask the prosecution witness  whether or not he falsely imprisoned (the defendant) mainly for the reason that this invited the witness to give his view on whether or not his act constituted a criminal offence. This was in fact to solicit an opinion which was not allowed in the circumstances in question. Besides, it was not relevant to the case as whether or not it constituted a criminal offence was a matter for the court to decide after considering the factual evidence.

(3) Since the magistrate had allowed the question, it was entirely consistent with the relevant legal principle for him to explain to the witness his right against “self-incrimination”, and it was done with the support of both parties at the time in question;

(4) Before that, the defence had already had sufficient opportunities to cross-examine the prosecution witness on whether or not the act in question had been performed. There was nothing unfair in the trial.

15.Mr Lee argued that after the prosecution witness had received the news that a suspicious person had barged into the precincts of the Chamber, he went up to reveal his identity on seeing the appellant who did not display a pass and enquired him of his identity and intention of remaining in the precincts of the Chamber. Not only did the appellant not answer the questions, he retorted by telling the prosecution witness to go away and walked towards the staircase with the clear intention of leaving. The prosecution witness therefore put his right hand on the shoulder of the appellant to make further enquiries. The appellant immediately twisted his thumb with his hand to break his grip so he could leave. Finally, he went into the smoke lobby to try to leave by keep putting up a struggle that lasted for as long as one minute. Not only that, he had twice indicated to other people to assist him to escape. It was only with the combined efforts of several people that he was subdued in the end. The acts of the prosecution witness and the other security staff members were all lawful, sensible and reasonable be they as a result of a power conferred on them by an “instruction” or the duties of a security staff member of any private property. The allegation of “false imprisonment” the defence made against the prosecution witness was groundless.

16.Mr Lee also submitted that given the circumstances of what happened during the trial, it was proper for the magistrate to remind the witness of his “privilege against incrimination”. He cited a Court of Appeal case, HKSAR and Leung Oi Yin Scarlette[22], to support his argument.

17.In Leung Oi Yin Scarlette, Poon J, as he then was, said:

“32. In the course of testifying in court, a witness may exercise the common law privilege to refuse to answer possibly self-discriminating questions, which is a deep-rooted legal principle established for a long time: see Riberio PJ’s judgment at p156D-F in HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133. This privilege is not only a principle of the law of evidence, but also the fundamental and substantial right of a witness, of which the importance is obvious. When a witness testifies under oath in court, he must answer questions raised by the judge and both the prosecution and the defence, or he may be held in contempt of court; and in facing possibly self-incriminating questions, if he does not have the privilege to refuse to answer them, he would be put in a trilemma: (1) the answer may be self-incriminating if it must be true; (2) it would be perjury if the answer is false; and (3) refusal to answer may lead to accusation of being in contempt of court. This privilege not only protects the witness from criminal liability arising from his own testimony, but also ensures that he would not give false evidence or be held in contempt of court because of refusing to answer relevant questions.

33. Since this is the essence of this important privilege, the court cannot, solely on the basis of the witness’s refusal to answer potentially self-incriminating questions, infer that his evidence is incredible or unreliable for the reason that his evidence is incomplete, otherwise the actual function of the privilege would be undermined. If the court were bound to find a witness’s evidence incredible or unreliable because of his refusal to answer possibly self-incriminating questions, the witness might then choose to answer those self-incriminating questions (regardless of the truthfulness of the answers) in order to ensure the credibility of his evidence; and if he does so, he just cannot be protected by the privilege. I therefore cannot accept Mr. Pang, S. C.’s proposition.”

18.During the trial, defence counsel put directly to the prosecution witness that what he did constituted unlawful detention, it was entirely proper for the magistrate to remind the witness of the relevant privilege that he enjoyed. The position is the same even if the witness in question was a public officer. [23] What’s more, he discussed the matter with both counsel before he reminded the witness. Neither counsel had any objection to the magistrate giving the reminder.

19.Mr Kwok submitted that if in answering the question, the prosecution witness admitted that what he did constituted unlawful detention, this would be sufficient to prove that he was not in the due execution of his duties. On a balanced consideration of the matter, the magistrate should not have taken the course of action that he took during the trial, because doing so would bring about injustice.

20.In my view, what the Magistrate did was proper. First, as Ribeiro PJ said, it was the fundamental and substantial right of a witness, of which the importance is obvious[24]. Second, before reminding the witness, the magistrate had given ample room to the trial defence counsel to cross-examine on this point. There was no injustice.

21.Mr Kwok pointed out a number of times that what the magistrate did stopped the trial defence counsel from further exploring this point, as a result, the court did not get sufficient evidence to assess the integrity of the witness and to consider if he was in due execution of his duties.

22.Mr Lee’s reply was, before such situation arose, the defence counsel had already spent considerable time on cross-examining the witness on this[25].

23.I agree with this observation. The cross-examination by the defence was all along concerned with the question of whether or not the witness was in the due execution of his duties. To find out about this, it was not necessary to ask the witness directly if he was unlawfully detaining the witness, as the court could make a finding based on the factual evidence, including the course of what happened, the surrounding situation, the words, the deeds and the behaviour of the people concerned. Very often, a simple reply a witness gives in response to such a direct accusation cannot be relied upon, not to mention that it also involves an opinion the witness gives regarding whether or not what he did was against the law. It should even be excluded from the evidence.

24.Mr Kwok submitted that what the magistrate did was an indication to imply that the defence should not pursue that line of cross-examination. This deterred the defence from further cross-examining the witness. With respect, I cannot agree with this. What the Magistrate did was merely to remind the witness of a right that he had, he even did not disallow the defence asking that question.

25.The appellant was represented by counsel during the trial. How the cross-examination was to be conducted was up to the professional judgment of the counsel. Mr Kwok made no criticism whatsoever in this regard. Mr Kwok’s submission was, the defence case was evolving during the cross-examination, a reasonable counsel would think with good reason that the magistrate was indicating that he should not pursue this line of questioning. I do not think so. There is no evidence either to show why the trial defence counsel chose to conduct the subsequent cross-examination in the way he did.

26.I have also considered to what extent the question that the prosecution witness chose not to answer in exercise of his right had affected the magistrate in the assessment of his integrity and if the way the magistrate dealt with it was proper.

27.In Leung Oi Yin Scarlette, the Court of Appeal pointed out:

“36. In our view, when a witness declines to answer possibly self-incriminating questions, the court may consider and determine if his overall evidence would be affected by looking at the actual situation of the case. On one hand, the court has to recognise that the witness is perfectly entitled to enjoy such privilege and cannot infer that he is untrustworthy or unreliable solely because he has declined to answer those questions; on the other hand, the court has to realise that the witness’s testimony may be incomplete to a certain extent and this may affect the analysis and assessment made by the court on his evidence as a whole. It all depends on the actual situation of the case. In general, if the questions concerned are irrelevant to the dispute(s) in the case, the court would be slow in drawing adverse inference against the witness, however, if the questions are relevant, then the court may consider and determine whether this would affect the credibility of his evidence as a whole by looking at the actual situation.”

28.The magistrate did not say much in this regard. As far as the present case is concerned,  this is only to be expected, because there was so much other relevant evidence, the impact resulting from the refusal of the witness to answer this question can be described as negligible.

29.I do not consider that the magistrate was wrong in his assessment of the integrity of the witness.

30.The magistrate pointed out at the outset that one of the key questions of the case was whether or not the prosecution witness was in the due execution of his duties. The duty of the magistrate was to make a finding on this based on the evidence in the case.

31.His finding was: the prosecution witness was in the due execution of his duties.

32.Mr Kwok pointed out that the magistrate did not deal with or did not sufficiently deal with this question. This was particularly so given the fact that the prosecution witness was not a police officer. This should not be overlooked in considering the matter. All in all, the consideration the magistrate made was not sufficient.

33.There was no dispute in the case that the prosecution witness was an officer of the Council.

34.According to section 24 of the Legislative Council (Powers and Privileges) Ordinance[26] (“the Ordinance”):

“Within the precincts of the Chamber, every officer of the Council shall, for the purposes of this Ordinance and of the application of the criminal law, have all the powers and enjoy all the privileges of a police officer.”

35.“Precincts of the Chamber” is defined in section 2 of the Ordinance as follows:

“"precincts of the Chamber" (會議廳範圍) means the Chamber and offices of the Council and any adjacent galleries and places provided for the use or accommodation of members of the public and representatives of the press, television and radio, and subject to any exceptions made by the President under subsection (2) includes, during the whole of any day the Council or a committee is sitting, the entire building in which the Chamber is situated and any forecourt, yard, garden, enclosure or open space adjoining or appertaining to such building and used or provided for the purposes of the Council”;

36.According to section 1 of the Administrative Instructions for Regulating Admittance and Conduct of Persons [27] (“the Instructions”):

“"precincts of the Chamber" (會議廳範圍) means the Chamber and offices of the Council and any adjacent galleries, and places provided for the use or accommodation of members of the public and representatives of the press, radio and television, and subject to any exceptions made by the President includes, during the whole of any day the Council or a committee is sitting, the area marked as such on the plan”

37.And the plan refers to:

“(a) a plan of the Building; or

(b) a plan of the precincts of the Chamber,

Marked and signed by the Clerk and deposited in the office of the Clerk;”[28]

38.The plan was produced in court as an attachment to Exhibit P14. According to the plan, the location in question was within the precincts of the Chamber.

39.According to section 8(2) and (3) of the Ordinance:

“(2) The right of persons other than members or officers of the Council to enter or remain within the precincts of the Chamber shall be subject to the Rules of Procedure or any resolution of the Council limiting or prohibiting the enjoyment of such right.

(3) The President may from time to time, for the purpose of maintaining the security of the precincts of the Chamber, ensuring the proper behaviour and decorum of persons therein and for other administrative purposes, issue such administrative instructions as he may deem necessary or expedient for regulating the admittance of persons (other than members or officers of the Council) to, and the conduct of such persons within, the Chamber and the precincts of the Chamber.”

40.Sections 2, 3 and 11 of the Instructions provide that:

“(2) Members of the public may be admitted to a public gallery whenever the Council or a committee is sitting in public in the Chamber or in a committee room.”

“(3) Visitors to the precincts of the Chamber, other than those attending public sittings of the Council or a committee, shall apply to an officer of the Council for a pass, and shall display the pass at all times when within the precincts of the Chamber.”

“(11) Persons entering or within the precincts of the Chamber shall behave in an orderly manner and comply with any direction given by any officer of the Council for the purpose of keeping order.”

41.In my view, in the circumstances of the present case, according to s.24 of the Ordinance, the prosecution witness should possess all the powers of a police officer.

42.Pursuant to section 54 of the Police Force Ordinance, a police officer has the following powers[29]

(1) If a police officer finds any person in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night, who acts in a suspicious manner, it shall be lawful for the police officer-

(a) to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer;

(b) to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed any offence at any time; and

(c) if the police officer considers it necessary to do so-

(i) to search the person for anything that may present a danger to the police officer; and

(ii) to detain the person during such period as is reasonably required for the purpose of such a search.

(2) If a police officer finds any person in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night, whom he reasonably suspects of having committed or of being about to commit or of intending to commit any offence, it shall be lawful for the police officer-

(a) to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer;

(b) to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed any offence at any time;

(c) to search the person for anything that is likely to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed, or is reasonably suspected of having committed or of being about to commit or of intending to commit; and

(d) to detain the person during such period as is reasonably required for the purpose of such a search.”

43.It appears that as long as it is within the precincts of the Chamber, for the purposes of the Ordinance and the application of the criminal law, an officer of the Council has all the powers of a police officer without being subject to the restrictions regarding the incident location as set out in section 54 of the Police Force Ordinance.

44.Nevertheless, due to the unique situation of the present case, I will not rely on this to consider the matter. Besides, the question has not been explored in the submissions the parties made, the above is only my preliminary view.

45.The unique situation is, during the trial, the prosecution did not rely on the powers a police officer possesses. After the closing submissions, the magistrate mentioned to the prosecution the powers of an officer of the Council and a police officer. The prosecution replied to it and submitted that “in fact, he did not have to be a police officer” and “in fact, we have no evidence to say that he was exercising his powers as a police officer”[30]. The prosecution also cited section 101A of the Criminal Procedure Ordinance[31] as the basis of the prosecution witness’s powers.

46.There is room for discussion on the narrow approach that the prosecution adopted. They might have done so in view of the evidence the prosecution witness gave in the trial. But whether or not the powers existed is a point of law that usually does not turn on the view or understanding that a witness takes.  In any event, Mr Lee pointed out that the respondent did not intend to broaden the question during the appeal. This is a very fair position to take. Therefore, I will not base my consideration on the powers a police officer has.

47.In the result, sections 50[32] and 54 of the Police Force Ordinance[33] will not be considered in this appeal.

48.In the circumstances, Mr Kwok submitted that the prosecution witness only had the civilian power of arrest. Pursuant to section 101(2) of the Criminal Procedure Ordinance, an arrestable offence the general public may arrest without warrant refers an offence for which the sentence is fixed by law or for which a person may under or by virtue of any law be sentenced to imprisonment for a term exceeding 12 months[34] .  The maximum penalty for breaching the relevant Instruction for failing to display a pass[35]is only a fine of $2,000 and 3 months’ imprisonment[36]. Therefore, breaching the Instructions is not an arrestable offence. For the same reason, the prosecution witness at that time did not have the power to arrest or detain the appellant. What he did amounted to false imprisonment or at least was not in the due execution of his duties.

49.Mr Lee submitted that the prosecution witness had the power from section 101A(1) of the Criminal Procedure Ordinance:

“(1) A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

50.Mr Lee submitted that a breach of the Instructions was an offence. In order to prevent a crime, the prosecution witness might use reasonable force.[37]

51.Mr Kwok submitted that the purpose of this Ordinance was only to regulate the force that might be used when making the arrest.

52.I agree with the submission of Mr Lee. Part of Section 101A says: a person may use such force as is reasonable in the circumstances in the prevention of crime.

53.According to the finding of the magistrate, the appellant was not displaying any pass at the material time. When coming across such situation, the prosecution witness said what he would do was:

“We…as I said just now, will find out everything about the reason, whether he did apply but failed to display, or deliberately did not display or had in fact never applied for one. In situations where he really had no pass, we had…to…must take him back to the appropriate place to get a pass. Or whether or not he could…in fact, could he get a pass.”[38]

54.Mr Lee pressed the point that at that time, a meeting was going on in the Council, during the time, people were protesting, the prosecution witness saw the appellant who was not displaying a pass, which was against the Instructions and might constitute an offence. The prosecution witness therefore could give an appropriate instruction to the appellant and took the action he described in his evidence when the appellant ignored the questions he asked. He was also entitled to use such force as was reasonable in the circumstances for the prevention of the crime.

55.In view of the circumstances and what had happened at that time, in my view, it was safe for the magistrate to find that the prosecution witness was in the due execution of his duties. It is on the one hand consistent with the legal principles and on the other well supported by evidence.

56.As the magistrate said in his statement of findings:

“32. When the prosecution witness saw that the no visitor’s pass whatsoever was displayed on the defendant who also completely ignored the questions he asked, in order to perform his duties, he could no doubt make enquiries of the defendant whose identity and intention were unclear. But not only did the defendant twist his thumb, he also tried to leave and indicated to other people to help him escape when he was at the door of the smoke lobby. In my view, judging by the struggle the defendant put up, the force the prosecution witness used was reasonable. Just imagine, if the prosecution witness was not allowed to have any physical contact at all with the suspect, the suspect would have already made good his escape. It was not possible for him to have been able to perform the duty of maintaining the security within the precincts of the Legislative Council.

33. As regards the struggle the defendant put up, it was more than making it a bit more difficult for the prosecution witness to perform his duties. Judging by the situation at the time in question, it took the combined efforts of several Security Assistants to stop and subdue the defendant. I have no doubt that the defendant acted in a way that caused obstruction.”[39]

57.It can be seen from the above extracts from the statement of findings that there is no merit in the criticism that Mr Kwok made against the magistrate that he had failed to deal with the two questions of whether or not the prosecution witness had power to use force and whether the force used was reasonable.

58.Mr Kwok also criticized the Magistrate for making the mistake of allowing the prosecution witness to exercise his right against self incrimination; as a result, the legality principle in the rule of law was breached.

59.I do not agree with this argument. The relevant right is fundamentally important to the witness. What the magistrate did was entirely consistent with legal principles. Even if the witness was a public officer and the incident in question was concerned with the execution of his duties, he still enjoyed the privilege against self incrimination when he gave evidence.

Conclusion

60.The appeal is dismissed for lacking in merit.

Mr Edmond Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the respondent.

Mr Douglas Kwok, instructed by M/s Ho Tse Wai, Philip Li & Partners, for the appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung,Barrister-at-law.

[1] Contrary to section 19(b) of the Legislative Council (Powers and Privileges) Ordinance, Cap 382, Laws of Hong Kong.

[2] Staircase number 13 of the Building.

[3] Minor modifications have been made to paragraphs 3-10 of the statement of findings. “Defendant” in the text is the “appellant”.

[4] Based on paragraph 16 of the statement of findings.

[5] Paragraph 28 of the statement of findings.

[6] Exhibit P14. This is the witness statement of Mr Lo. It was produced in court pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong.

[7] Paragraph 3 of exhibit P10, paragraph 2 of exhibit P12 were also produced in court pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong.

[8] Paragraphs 30-35 of the statement of findings with minor modifications made.

[9] The appellant was represented by Mr Johnny Fok in the trial.

[10] See 145 J-S of the appeal bundle.

[11] See section 8(2) of the Legislative Council (Powers and Privileges) Ordinance.

[12] Cap 382A, Laws of Hong Kong.

[13] Other than those attending public sittings of the Council or a committee.

[14] See section 20 of the Legislative Council (Powers and Privileges) Ordinance.

[15] Cap 1, Laws of Hong Kong.

[16] Cap 221, Laws of Hong Kong.

[17] Cross-examination by defence counsel during trial.

[18] Answer the prosecution witness gave.

[19] Defence counsel at the trial.

[20] Prosecuting counsel at the trial, Mr Jonathan Man, Assistant Director of Public Prosecutions.

[21] 145 C-R of the appeal bundle.

[22] CACC 137/2014

[23] Mr Kwok queried in his submission if a public officer had the same privilege.

[24] See HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133.

[25] See page 133-145 of the appeal bundle.

[26] Cap 382, Laws of Hong Kong.

[27] Cap 382A, Laws of Hong Kong.

[28] Section 1 of the Instructions.

[29] Cap 232, Laws of Hong Kong.

[30] See 103M and T of the appeal bundle

[31] Cap 221, Laws of Hong Kong.

[32] Generally relating to the power of arrest a police officer has.

[33] Cap 232, Laws of Hong Kong.

[34] Section 3 of the Interpretation and General Clauses Ordinance, Cap 1, Laws of Hong Kong.

[35] Section 3 of the Instructions.

[36] Section 20 of the Instructions.

[37] Section 20 of the Ordinance.

[38] 114O-R of the appeal bundle.

[39] Paragraphs 32-33 of the statement of findings.