HKSAR v. Lau Ka Tung

HCMA 137/2020

[2021] HKCFI 1101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLETE JURISDICTION

Certificate of Application to the Court of Final Appeal for Leave to Appeal

MAGISTRACY APPEAL NO 137 OF 2020

(ON APPEAL FROM FLCC 3419 OF 2019)

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Before: Hon Wong J in Court

Date of Hearing: 23 April 2021

Date of Decision: 23 April 2021

Date of Reasons for Decision: 26 April 2021

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R E A S O N S   F O R   D E C I S I O N

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1.The applicant was convicted by Principal Magistrate Mr Don So for a charge of Obstructing a Police Officer in the Due Execution of His Duty[1] and sentenced to 1 year’s imprisonment.  He appealed against both conviction and sentence.  I dismissed the appeal against conviction, and allowed the appeal against sentence reducing it to 8 months’ imprisonment.  He applied for certification of points of law of great and general importance.

2.The hearings of the case had been conducted in Chinese.  Hearing of this application was conducted in English as it was consensus of parties.  The Reasons for Decision is therefore also prepared in English.

3.At the hearing, having considered written submissions filed by parties[2], and having heard further from Counsel, I refused to certify any of the questions raised.  These are reasons for my decision.

BACKGROUND

4.The case took place during a demonstration in Yuen Long where episodes of violence occurred.  In gist, after a period of confrontation, and as advice and warning to the crowd to leave yielded no result, the police decided to take steps to disperse them.  In the process, the applicant, who was a social worker, stood in front of the slowly advancing police line and urged the police to give the crowd more time.  It was alleged that a police officer, who was amongst the police line, was obstructed by what the applicant did.

POINTS OF LAW RAISED

5.The applicant, who was represented by Mr Robert Pang, SC, together with Mr Billy Li and Ms Noel Chan, raised the following points of law:

(1)  In considering whether the actions of an accused obstructed one police officer named in the charge, can or should the court consider possible obstruction to other police officers at the scene but unnamed in the charge? If so, to what extent?

(2)  What is the ambit of the kind of conduct which “would not normally be regarded as obstructing the officer in the due execution of his duty because it is neither the type of criminal conduct contemplated by the statutory provision nor is it wilful in the sense that it is deliberate and without lawful excuse”.  In particular –

(a)  When and how (if ever) would conduct of the kind described exceptionally amount to “wilful obstruction” of an officer?

(b)  To what extent is the motive of the accused relevant in identifying his conduct with conduct of the kind described?

(3)  In deciding the appropriate sentence for an offence of wilful obstruction in the course of an unlawful assembly, to what extent can or should the court take into account sentencing principles and levels of sentences for other unrelated offences, such as unlawful assembly?

DISCUSSION AND CONSIDERATION

6.When there is an application for certification, the court should consider:

(1)  Whether a point of law is involved in the decision;

(2)  If yes, whether the point of law is of great and general importance[3]; and

(3)  Whether the question is reasonably arguable[4].

Question 1

7.I was of the view that this question was an attempt to frame a finding of fact as a question of law.  In any case, there is clear authority that in consideration of the offence, the court is entitled to take into account the overall circumstances of the case.[5] In the present case, the overall circumstances involved the named officer being a member of the police officers taking action together in an advancing line.

8.Mr Pang, SC, submitted that the question was raised to seek clarification of the parameters of the circumstances[6] the court is entitled to take into account in this nature of cases.  I did not find a point of law of great and general importance had been involved in the decision, and in any case I did not find the question reasonably arguable.

Question 2(a)

9.Though the applicant did not testify at the trial, it was his case that what he was doing was an attempt to reason with the officer and to persuade him that the police had made a mistake by charging forward.  Further, it was said that the applicant was only trying to bargain with the officer for more time for the protesters behind him to retreat safely.  This was reiterated at the appeal.

10.Mr Pang highlighted that when Chan PJ gave the judgment in HKSAR v Tam Lap Fai[7], His Lordship mentioned that some conducts “would not normally be regarded as obstructing a police officer in due execution of his duty because it is neither the type of criminal conduct contemplated by the statutory provision nor is it wilful in the sense that it is deliberate and without lawful excuse”[8] and again submitted that the question is raised to clarify the parameter of the conducts prohibited under the present offence.

11.His Lordship, having said what is quoted in the previous paragraph, immediately added that “whether particular conduct amounts to wilful obstruction of an officer in the due execution of his duty is always a matter of fact and degree”[9].  Outcome of the present case primarily involved finding of facts, namely whether or not the conduct of the applicant amounted to wilful obstruction in the circumstances of the case.  In the process, the court had considered, inter alia, whether or not:

(1)  the applicant did his acts wilfully[10];

(2)  his acts amount to obstruction;

(3)  he had the genuine belief that the officer was not in due execution of his duty[11]; and

(4)  there had been any lawful excuse for the applicant to have done what he was found to have done[12].

12.I affirmed the findings of the Principal Magistrate.  Again I did not find a point of law of great and general importance had been involved in the decision, and in any case I did not find the question reasonably arguable.

Question 2(b)

13.It was the contention of Mr William Siu, Senior Assistant Director of Public Prosecutions (Ag) that the issues of the correct interpretation of the mens rea required for the offence and the relevance of the motive of the accused had been well-settled in a long line of authorities, citing Willmott v Atack[13], Moore v Green[14], Hills v Ellis[15], Lewis v Cox[16], Chung Chi Keung v R[17] and Lo Hon Hin v R[18].

14.I agreed to the view of Mr Siu and therefore did not consider certification of the question justified and appropriate.  In any case, why the applicant did what he had done had been examined in the context of the issues mentioned in paragraph 11 above.

Question 3

15.By quoting some precedents of sentencing in cases of Unlawful Assembly in my judgment, the purpose was to identify sentencing factors relevant to the present case in the light that the offence was committed in the context of public demonstration.  There had been no direct adoption of the sentencing principles and levels of sentences for other unrelated offences as alleged.[19]

16.As accepted rightly by Mr Siu, the court should not take into account the sentencing principles and levels of sentence for other unrelated offences.  This did not occur in the present case.  In any case, I did not consider there is a question of law of great and general importance for the Court of Final Appeal to answer.  I therefore declined to certify this question.

REMARKS

16.     According to Practice Direction 2.2, an application for a certificate that the decision involves a point of law of great and general importance should be made immediately after the judgment is given from which the appeal is to be brought.  Judgment of the appeal was handed down on 23 February 2021, the Notice of Motion to apply for certification was only filed on 23 March 2021 with indication of dates on which Counsel will be available.  Compliance of the Practice Direction is important.  There are good reasons behind the Practice Direction and non-compliance may result in significant consequence.

Mr Robert Pang, SC, instructed by Ho Tse Wai & Partners, assigned by Director of Legal Aid, and Ms Noel Chan, instructed by Ho Tse Wai & Partners, on a pro bono basis, for the applicant

Mr William Siu, SADPP (Ag), and Miss Cherry Chong, PP, of Department of Justice, for HKSAR