Attorney General v. Kong Chung-shing

CACC000261/1980

-----------------

Coram: Huggins and Leonard, JJ.A., and Addison, J.

Date of Judgment: 25th July 1980.

-----------------

JUDGMENT

-----------------

Huggins, J.A.:

1. The Attorney General appeals by way of case stated against the dismissal of an information charging the Respondent, inter alia, with resisting a police officer in the execution of his duty contrary to s. 63 of the Police Force Ordinance. The appeal comes before this court upon a reference by the single judge of the Supreme Court.

2. The magistrate ruled that there was no case for the Respondent to answer and the facts which he thought might properly be found upon the evidence were as follows:

On this evidence it was contended on behalf of the Respondent, and held by the learned magistrate, that the officer was not acting lawfully in taking the Respondent into custody. The following reasons were given by the magistrate for so holding:

In addition the magistrate said that it was his impression that the officer would not, in any event, have thought it necessary to inform the Respondent of the reason for his arrest. The relevance of this is not apparent.

3. It must first be observed that para. (d) of the evidence so stated is obscure in that it refers to "packets of substance". In the light of the magistrate's reasons we take it that the phrase was intended to mean "packets which were not insubstantial". The packets were not exhibited to the Case Stated, and we are told that they have in fact been destroyed.

4. The argument on behalf of the Attorney General is that upon that evidence the officer had power to arrest the Respondent under either s. 52 of the Dangerous Drugs Ordinance or s. 54 of the Police Force Ordinance and that therefore he was acting in the execution of his duty: in so far as the magistrate appears to have held that there was insufficient ground for an arrest at Common Law that was irrelevant. Section 54 of the Police Force Ordinance provides:

"It shall be lawful for any police officer to stop and search and if necessary to arrest and detain for further inquiries any person whom he may find 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 or whom he may suspect of having committed or of being about to commit or of intending to commit, any offence."

Counsel conceded that on the evidence the Respondent was not acting in a suspicious manner, but he submitted that the Respondent was suspected of having committed, or of being about to commit, or of intending to commit, an offence: it was not necessary to show that such suspicion was reasonable and the magistrate must be assumed to have been prepared to find that when the officer said he believed the seized packets contained dangerous drugs he was telling the truth.

5. The initial difficulty, as it seems to us, is that, once it was conceded that the Respondent was not acting in a suspicious manner, it was wrong to assume that the officer did suspect the Respondent of having committed, or of being about to commit, or of intending to commit, an offence. Not only was there no apparent ground for suspicion but there was no evidence that the officer did so suspect. When he stopped and searched the Respondent, the officer did not know that the packets existed. However tempting it might be to hold otherwise, it does not follow that because he stopped and searched the Respondent he must have had the required suspicion, although we accept that the test under s. 54 is a purely subjective one whereas under s. 52 of the Dangerous Drugs Ordinance the officer must be able to assign a reason for his suspicion. The difference in wording between the two provisions must have been intended and the officer who has an intuitive suspicion may lawfully stop and search under s. 54, although he may arrest and detain only where that is "necessary". We are not persuaded that in respect of dangerous drugs offences s. 54 of the Police Force Ordinance has been impliedly repealed by s. 52 of the Dangerous Drugs Ordinance.

6. However, whether or not there was lawful cause for stopping and searching the Respondent, when the packets were found there is no doubt that the officer did suspect that the Respondent had committed an offence: there was evidence to that effect and he immediately arrested him "for possession of dangerous drugs". As we see it, although that arrest could not be justified under s. 54 of the Police Force Ordinance, it could be justified under s. 50, provided that the suspicion was reasonable. Section 50(1) reads in part:

The magistrate took the view that there was no evidence which could reasonably have aroused such a suspicion and it is really upon this that the case turns. The argument addressed to us in relation to s. 54 proceeded on the assumption that there was no such evidence. We do not know what the packets found in the Respondent's hand looked like. Had we seen them, it might have been possible to say that there was reasonable ground for suspecting that the Respondent had committed the offence for which he was arrested, particularly having regard to the time and place at which he was found and the fact that the packets were concealed in his hand, but on the facts set out in the Case Stated we think there was no sufficient evidence and we cannot say that the magistrate was wrong.

7. It was conceded before us that the officer had no opportunity, by reason of the assault, to inform the Respondent of the reason for the resistance, but that seems to be immaterial.

8. The questions put to the court were unhappily phrased and we would answer as follows:

The third question is answered by what we have said in answer to the second.

25th July 1980.

Representation:

Egan for Crown/Appellant.

P. Yu & A. Huggins (D.L.A.) for Respondent.