HKSAR v. Christina Leung

[English translation - 英譯本]
HCMA 582/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 582 OF 2015

(ON APPEAL FROM ESCC NO 1109/2015)

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REASONS FOR JUDGMENT

1.The appellant was originally charged with two counts of “wilfully obstructing a police officer in the due execution of duty”, contrary to section 36(b), Offences against the Person Ordinance, Cap 212 of Laws of Hong Kong. The appellant pleaded not guilty to both charges, and after trial, she was acquitted of Charge 1 but found guilty of Charge 2 by Mr. Jason Wan, a Magistrate sitting at the Eastern Magistrates’ Court. She was fined $3,000 in respect of Charge 2. The appellant had applied to the magistrate for costs in respect of Charge 1 but that application was refused. The appellant appealed against the conviction of Charge 2 and the magistrate’s order of refusing her costs.

2.After hearing, I dismissed the appeals.  Here are my reasons.

Facts of the case

3.The magistrate in his statement of findings recounted the facts of the present case, which I adopt as follows:

“Prosecution case

2. At the trial, the prosecution called two witnesses in total, who were women police constables attached to different police districts. On the day in question, they were both assigned to the scene to assist the handling of a large scale public event. At about 3 am, PW1 arrived at Tamar Park in Central, near Lung Wo Road, and about 500 people had already gathered there by that time. PW1 was instructed to form a cordon line with other colleagues and disperse the people gathered there.

3. PW1 and her colleagues formed a cordon line, and after that they began to move towards the crowd in order to disperse them. At the same time, the commander kept on giving warnings to the people, telling them that they were taking part in an unlawful assembly and requiring them to leave immediately.

4. At that time, PW1 was in the first row of the cordon line. In the course of pushing forward, PW1 saw that the defendant who was at the front kept on shouting and scolding the police, uttering words to the effect that it was the police who were indeed assembling unlawfully and she would not leave and so on. When PW1 moved forward and became right in front of the defendant, the defendant appeared to be agitated and flung her legs and arms. PW1 warned the defendant repeatedly, telling her to leave, but the defendant just ignored her. PW1 thus grasped the defendant’s arm in order to take her away from the scene and pass her to another colleague for arrest. In the course of it, the defendant kept on trying to free herself from PW1’s grip and scolding PW1. Eventually, PW1 managed to put the defendant under control, and PW2 who came to reinforce took her away and arrested her. While PW2 was arresting the defendant for the offence of unlawful assembly, the latter kept on shaking her body and waving her arms, and so PW2 could not lock her hands with a plastic strap (which was supposedly used for making arrests). Finally, it took PW2 about 5 minutes before she could successfully lock the defendant with the plastic strap and take her away from the scene.

Defence case

5. The defendant elected not to give evidence or call any witness.”

The magistrate’s findings

4.The magistrate made the following findings:

“Analysis and assessment of evidence

6. The court bears in mind that the burden of proof rests on the prosecution who have to prove their case beyond all reasonable doubts. The defendant has no duty to prove her innocence. The defendant has elected not to give evidence, which is her right, and the court will not make any adverse inference against her for this.

7. The court has carefully considered the evidence of PW1 and PW2, which are found to be clear and direct. They were sincere and straightforward in giving evidence, and were not shaken under cross-examination. Their testimonies bear nothing unreasonable and are consistent with the video footage produced by the prosecution. Their testimonies, although not matching 100%, do support each other as a whole. After making careful consideration, the court is satisfied that they have told the truth and that they are honest and reliable witnesses, and accept their evidence.

8. The defendant has elected not to give evidence, which is her right.

9. First, the court finds that both PW1 and PW2 were undoubtedly police officers in due execution of duties at the material time. In both the video recordings of what happened at the scene and the evidence given by PW1 and PW2, both of them were dealing with the people gathered at the scene at the material time. There could not be any doubt that the two witnesses were then in the due execution of their police duties.

10. The court considers that the issue in this case is whether the defendant’s behaviour at the material time has made it substantially more difficult to PW 1 and PW2 in their execution of duties. For PW1, her duty at that time was to disperse the crowd. If the defendant refused to leave, and PW1 thought that she was taking part in an unlawfully assembly, PW1 might arrest her for such offence. The court finds that by refusing to leave, the defendant might commit another offence but did not make it more difficult for PW1 to enforce the law. Moreover, apart from refusing to leave and flinging her arms and legs, the defendant did not act in any other way so that it was difficult for PW1 to deal with her. At that time, PW1 did not declare arrest on the defendant, nor did she intend to do so. Her duty at that moment was only to take the defendant away from the scene and pass her to another colleague for arrest. In fact, the defendant did follow PW1’s instructions, and she was taken away from the scene and passed to PW2 for further disposal. Therefore, in the court’s view, although the defendant has adopted an uncooperative attitude and brought some inconvenience to PW1’s work, her behaviour has not caused actual obstruction to PW1 in carrying out her duty.

11. On the other hand, according to PW2’s evidence, the defendant’s behaviour has caused her actual obstruction in enforcing the law. PW2, while going up to deal with the defendant, had already given a warning that she would be arrested if she did not leave. On the defendant’s refusal to leave, PW2 warned her again that a plastic strap would be applied if she further resisted. At that time, the defendant kept on struggling and thus PW2 could not successfully lock her with a plastic strap so as to complete the arrest procedures. In the court’s view, the defendant still kept on struggling after PW2 had made clear that she would be arrested, and so PW2 had to take a few more minutes before she could successfully lock the defendant with a plastic strap, in such case, the defendant’s behaviour had not only brought inconvenience to PW2’s work, but had obviously made it more difficult for PW2 to carry out her duty.

12. In the light of the above analysis, the court is not satisfied that that the prosecution has proved Charge 1 beyond all reasonable doubt and therefore finds the defendant not guilty of the charge.  On the other hand, the court is satisfied that the prosecution has successfully proved Charge 2, and therefore the defendant is convicted of the charge.”

Grounds of appeal (conviction)

5.Mr Randy Shek of counsel for the appellant put forward three grounds of appeal:

(1) the magistrate erred in finding PW2 was in the due execution of duty;

(2) the magistrate erred in finding that the appellant’s behaviour had obviously made it more difficult for PW2 to carry out her duty; and

(3) the magistrate erred in accepting that PW2 was an honest and reliable witness.

Ground of appeal (1)

6.The appellant essentially contended that when PW1 “grasped” the appellant’s arm, she was unlawfully detaining the appellant, and hence when PW2 assisted PW1 to control the appellant and lock her with a plastic strap, PW2 was assisting an unlawful detention, which was not due execution of duty. Moreover, it was after PW2 had successfully subdued the appellant that the arrest was declared.

7.The appellant referred to PW1’s testimony, arguing that when she grasped the appellant, she was not exercising the right to arrest and had no intention to arrest the appellant.  Mr Shek said that upon seeing the defendant refusing to leave even though the police cordon line had gone past her, PW1 should have only “pushed” away, rather than “grasped”, the appellant with her hand.

8.Mr Shek cited the cases of Collins v Wilcock [1]and Yeung May Wan & Ors v HKSAR [2]and some other English precedents to support his argument.

Ground of appeal (2)

9.The main concern of the submissions made for the appellant was: did the appellant’s behaviour at that time make it more difficult for PW2 to carry out her duty?

10.The appellant contended that since the magistrate found the appellant had not made law enforcement more difficult for PW1, it would be self-contradictory that he on the other hand found the appellant had made it more difficult for PW2 to carry out her duty when she was dealing with the struggling appellant.

11.The appellant suggested that the appellant’s behaviour did not amount to causing obstruction to PW2 in carrying out her duty having regard to the meaning of “obstruction” in Tam Lap Fai [3].

Ground of appeal (3)

12.The appellant referred to the testimonies of PW1 and PW2, suggesting that there was discrepancy in respect of the location where they “grasped” the defendant: was it inside or outside Tamar Park?  It was argued that since the magistrate had not made any assessment in respect of this material discrepancy, nor had he explained how he reconciled them, the conviction of the appellant on Charge 2 in reliance of PW2’s testimony is unsafe and unsatisfactory.

The respondent’s response

Ground of appeal (1)

13.Mr Ned Lai, Acting Senior Assistant Director of Public Prosecutions, for the respondent, recounted the evidence, saying that before the police moved the cordon line forward, the appellant had been yelling and scolding the police, saying explicitly that she would not leave.  After the police cordon line had gone past the appellant, she insisted on not leaving, and even having been repeatedly warned by police officers that she would be arrested for “unlawful assembly” if she remained there, she still refused to leave.  The appellant became agitated and kept on “moving” her body, and that was why PW1 grasped her arm to keep her under control.  PW2 came very soon to assist and warned the appellant that she would arrest her for “unlawful assembly” if she did not leave, however she still refused to leave and just kept on shaking her body.  PW2 hence warned the appellant again that if she resisted anymore, she would be locked with a plastic strap.  The appellant still kept on shaking her body and gripped the plastic strap with her fingers, making PW2 be not able to lock the plastic strap.  PW1 assisted PW2 and eventually the plastic strap got locked, and PW2 then arrested the appellant for the offences of “unlawful assembly” and “obstructing a police officer in the execution of duty”.

14.The respondent cited the cases of HKSAR v Chiu Hin Chung [4] and R (Laporte) v Chief Constable of Gloucestershire [5], stating that the two prosecution witnesses had actually in their evidence shown that by that time they had had reasonable apprehension that the appellant’s resistance would provoke an imminent “breach of the peace”, and if no necessary and reasonable step was taken promptly to restrain or control the appellant, she would cause the two prosecution witnesses or other people by the side to imminently occasion actual bodily harm or become very likely to be harmed.

15.The two prosecution witnesses had detained the appellant lawfully, which was a proper exercise of their common law power of preventing an imminent “breach of the peace”.  They were both at that time in the due execution of their duties.

Ground of appeal (2)

16.The respondent recounted the two prosecution witnesses’ testimonies, in particular that of PW2, submitting that the resistance put up by the appellant had made it more difficult for PW2 to carry out her duties, and not only caused mere inconvenience to PW2’s work or required her to expend trifling additional effort, and therefore the appellant’s resistance fulfilled the requirements in the test in law for “obstruction” (from Tam Lap Fai in the Court of Final Appeal).

Ground of appeal (3)

17.The respondent, by referring to the two prosecution witnesses’ evidence on their locations in Tamar Park, ie there were movements when they had contact with the appellant, and the police video recordings which had been produced (exhibit P2), ie the appellant’s location and her location as indicated by PW1, submitted that even if the  two prosecution described the location in question in different ways, after the undisputed video recordings was taken into account together, the evidence on such locations became immaterial and there was no significant discrepancy.

My considerations

18.Magistracy appeals are carried out by way of “rehearing” on the material before the magistrate supplemented by any fresh evidence which the appellate court may admit: see Chou Shih Bin v HKSAR[6]. In my view, in respect of the facts of a case, the appellate tribunal has to recognize that trial magistrate does enjoy the advantage of observing and hearing the witnesses giving evidence, and the appellate court cannot rely on the transcripts on paper to determine if a witness is trustworthy and reliable: see Raymond Chen v HKSAR[7]. The credibility and reliability of any particular witness is solely within the assessment of the magistrate.  However, when the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or that the magistrate has misquoted, or omitted, or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.

Ground of appeal (1)

19.Mr Shek accepted that while the police were carrying out the task of clearing the venue, they were in the due execution of duties. His contention was that the appellant was only yelling and refused to leave, for which PW2 had no right to arrest her.  As PW1 did not intend to make any arrest and so was not in the due execution of her duty, then PW2 who assisted PW1 should also not be in the due execution of her duty.

20.I do not agree with this argument put by the appellant.  The facts of the two cases cited by Mr Shek were quite different from those of the present case and were not helpful.

21.“Occupy Central” was then taking place, and almost 500 people were gathering at Tamar Park near Lung Wo Road at the material time.  It was PW1’s duty to form a cordon line with her colleagues to disperse the people at the scene.  PW2’s duty was to make arrest in case any protestors went beyond the cordon line and refused to leave.

22.The evidence showed that the appellant had refused to leave, and even after PW1 and other police officers had warned her and after the police cordon line had moved forward and gone past her, she still refused to leave.

23.The appellant not only refused to leave, but also got emotionally agitated and kept on shaking her body.  In all the circumstances at that time, the appellant’s behaviour might arouse the emotion of other people at the scene and instigate acts which were more vigorous.

24.I accept the respondent’s submissions.  Under the circumstances at that time, PW1 had reasonable apprehension that the appellant’s behaviour would provoke an imminent “breach of the peace”, and what she did was only taking the necessary reasonable force to control the appellant (by grasping the appellant’s arm with medium force).  I wholly disagree with Mr Shek’s suggestion that PW1 should only “push” the appellant instead of grasping her. Whether or not PW1 had been assigned to make any arrest beforehand was immaterial, what she did at that time was in the due execution of her duty.

25.It was PW2’s duty to make arrest when necessary.  The appellant refused to leave after the police cordon line had gone past, and even insisted on staying behind after being verbally warned.  PW2 when making the arrest was definitely in the due execution of her duty.

26.This ground of appeal is not established.

Ground of appeal (2)

27.The Court of Final Appeal has laid down in Tam Lap Fai the legal test on “obstruction”:

“(1) Whether a particular conduct amounted to willful obstruction of an officer in the due execution of his duty was always a matter of fact and degree. It was important to look at all the circumstances of each case, including what the person had done and how it was done, what the officer was doing, and the effect of what the person had done on what the officer was doing.

(2) However, the test did not include conduct which might cause mere inconvenience to the officer or require him to expend only trifling additional effort. On the other hand, it was not necessary for the prosecution to prove that the conduct in question made the officer’s work substantially more difficult. This was to set too high a standard and if such test was applied too strictly, it might hamper the work of the police. Such a test was neither appropriate nor necessary.”

28.I wholly agree with the magistrate’s view on Charge 2.  PW2 gave specific warning to the appellant that she would be arrested if she did not leave.  The appellant ignored the warning completely and continued to yell and shake her body.  Her behaviour had made it difficult for PW2 to carry out her duty (ie controlling the appellant and making arrest) and not only caused mere inconvenience to the work of PW2.

29.The appellant submitted that since the magistrate found the appellant had only brought some inconvenience instead of causing actual obstruction to PW1 in the execution of her duty while PW1 and PW2 had acted in similar ways, controlling the appellant at the same time and locking her with the plastic strap, therefore the appellant’s behaviour should also have only brought inconvenience to PW2 in the execution of her duty.

30.The magistrate appeared to have made a clear-cut distinction between the duties of PW1 and PW2: PW1 was responsible for dispersing the crowd and PW2 for making arrest.  The magistrate found that the appellant’s behaviour had not made it difficult for PW1 to carry out her duty (ie dispersing the crowd).  PW1’s duty was only to bring the appellant away from the scene and pass her to another colleague for making arrest.  In fact, the appellant was eventually brought away from the scene and passed to PW2 for disposal.  Therefore the appellant’s behaviour has not caused actual obstruction to PW1 in the execution of her duty.  It appeared that the magistrate did not take into account the fact that PW1 and PW2 had worked together to control the appellant so that PW2 could make the arrest.

31.In my view, even if PW1 had only been briefed to disperse the crowd with no need to make any arrests, and that there were other officers to make any arrest, and finally the appellant “was” taken away from the scene, it did not mean that while PW1 and PW2 were controlling her together for PW2 to make the arrest, the appellant’s behaviour did not cause any obstruction to PW1 in carrying out her duties.  Nevertheless, since the prosecution has not applied for “case stated” in respect of the verdict of Charge 1, I am not going to give any further comment.

32.All in all, it was obvious that how the appellant behaved to PW2 was wilfully obstructing PW2 who was in the due execution of her duties.

33.This ground of appeal is not established.

Ground of appeal (3)

34.I wholly agree with the respondent’s contention that whether the appellant was inside or outside Tamar Park when she was being subdued and arrested was not the key issue of the case.  The undisputed video recordings showed that the appellant was in fact at the scene and acted in the way as described by PW1.  PW1 and PW2 detailed how the appellant behaved after the cordon line had gone past her.  The appellant did not dispute her presence at the scene or suggest any misidentification on the part of the prosecution witnesses and so on.

35.I do not find the discrepancy concerned material.

36.This ground of appeal is not established.

Conclusion

37.In the light of the above reasons, there was nothing wrong with the conviction of Charge 2, and the appeal against the conviction of Charge 2 was dismissed.

Reasons for refusal of application for costs

38.The magistrate refused the application for costs on the following grounds:

“13.  After the court has acquitted the defendant of Charge 1, the defence applies to the court for the costs in relation to Charge 1 on the ground that the defendant’s behaviour in the case had not brought any suspicion on herself, and therefore she should be awarded costs upon an acquittal.

14.  The court finds that the defendant’s behaviour in the case has brought suspicion on herself in that when PW1 was dealing with her, she did put up struggle and scold PW1. The court does not think that the defendant has not obstructed PW1 in carrying out her duties, but just finds that the defendant’s behaviour has brought mere inconvenience to PW1 and was not such as to have caused her actual difficulty in carrying out law enforcement duties. In any event, the defendant’s uncooperative behaviour has definitely brought suspicion on herself directly, which forms the basis of Charge 1.

15.  Furthermore, it is the court’s view that PW1’s evidence would still be indispensible even if only Charge 2 was to be proved, and hence no matter the defendant was charged with both charges or only Charge 2, the time to be spent on and the number of witnesses to be called at the trial would just be completely the same. Even though the court has acquitted the defendant of Charge 1, since she still has been found guilty of Charge 2, she has incurred no extra costs because of Charge 1.

16.  In view of the above reasons, the court finds that the application for costs in respect of Charge 1 is unreasonable, and hence the application is refused.”

Appeal against costs order

Ground of appeal

39.The appellant’s main argument was that her acts had only brought mere inconvenience to PW1 and not caused any substantial obstruction, the magistrate hence contradicted himself by saying that the appellant’s behaviour had brought suspicion on herself.  In addition, since the appellant had been found not guilty of Charge 1, the magistrate should have exercised his discretion and awarded partial costs to the appellant.

The respondent’s reply

40.The respondent in reply said that the magistrate did not contradict himself although on the one hand he found that the appellant’s behaviour had yet “substantially obstructed” PW1 in carrying out her duties, whereas he on the other hand found that the appellant had behaved in an uncooperative way and brought suspicion on herself.  In reaching such findings, the magistrate did not adopt a factual basis obviously different from the one which the guilty verdict of Charge 1 had relied upon, and moreover, Charge 2 was in fact the only main charge on the charge sheet, and there was therefore no reason to criticize the magistrate for making the order of refusing to award costs.

My considerations

41.I wholly agree with the respondent’s argument in that the magistrate had properly found the appellant had brought suspicion on herself.  The magistrate said that even if the appellant had been charged with only Charge 2, the time to be spent on and number of witnesses to be called in the trial would have been completely the same, which is correct.

42.Although in preparing the trial, the appellant would have spent additional time and money in respect of Charge 1, after considering the circumstances as a whole, in particular that the appellant had brought suspicion on herself, the magistrate was correct to exercise his discretion and refuse to award costs to the appellant.

43.In dealing with the present appeal by way of “rehearing”, similarly, I would not award costs of the trial to the appellant.

Conclusion

44.In the light of the above reasons, the appeal against the costs order is dismissed.

Mr Randy Shek, instructed by Messrs Vidler & Co, assigned by the Director of Legal Aid, for the Appellant

Mr Ned Lai, SADPP (Acting), of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law