The Queen v. Chan Sai Leong and Another

HCMA001697/1988

1988, No. 1697

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H E A D N O T E

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BEFORE A POLICE OFFICER CARRIES OUT A PERSONAL SEARCH ON A SUSPECT HE MUST SATISFY HIMSELF THAT WHAT GAVE REASONABLE GROUNDS FOR APPREHENDING THE SUSPECT IN THE FIRST PLACE STILL PERSISTS, OTHERWISE HE MAY WELL ACT OUTWITH THE SCOPE OF HIS LAWFUL AUTHORITY.

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BETWEEN

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Coram: Hon. Duffy J. in Court

Date of hearing: 15 March 1989

Date of delivery of judgment: 23 March 1989

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J U D G M E N T

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1. This is an appeal against the conviction of the 1st Appellant for obstructing a police officer in the due execution of his duty and against the 2nd Appellant for the same offence and two other offences of assaulting, a police officer. Mr Ismail on the appeal indicated to me that while originally the appeal was also against sentence, he was only instructed to argue the appeal against conviction.

2. This case proceeded by way, at least partly, of agreed facts. The facts agreed were that a party of police officers, led by Woman Inspector, Yin Lai Wan, went to the Fortune Villa on the 11th Floor of Block A, 60 Leighton Road, to execute a Women and Juveniles Warrant. The defendants had rented a room there for the night of the 2nd May 1988. The woman inspector knocked at the door, indentified the party as police officers and then heard the sound of a toilet flushing, but still the door was not opened She knocked at the door for more than two minutes and kept on ordering the opening of the door but still nobody opened the door until eventually, after explanation, the 2nd Appellant opened the door and the police party entered the room. When they entered, they found the 1st Appellant inside the toilet. It is also an agreed fact that as she became suspicious that the defendants might be in possession of dangerous drugs, the woman inspector executed a dangerous drugs raid on the premises. Thereafter, the woman inspector ordered a body search of each of the Appellants, who refused, claiming that they were not satisfied that the police party were indeed police officers. They made 999 calls several times before other police officers arrived. The appellants then requested to be searched in the police station, and all parties went to Happy Valley Police Station. On arrival at Happy Valley Police Station, the Appellants refused to be searched. The duty officer then explained to them, on more than one occasion, that the search should be conducted and why, but the appellants still refused. Both of them were arrested for obstructing a police officer, and it was while the 2nd Appellant was being forceably searched that the assaults that were alleged took place.

3. Mr Ismail, who appeared both in the appeal and in the court below made a submission of no case to answer on the grounds that the police officers were not acting in the execution of their duties or, in other words, were not acting within the limits of their lawful authority. The learned magistrate ruled that there was a case to answer. There was no defence evidence and the learned magistrate after hearing final submissions convicted both appellants as charged.

4. One of the principle matters to which the learned magistrate had to address his mind, both at case to answer stage and at the end of the case, was whether or not the police officers, who entered the Villa, had reasonable grounds for suspecting that there were drugs inside the room occupied by the appellants. It was claimed that such reasonable grounds existed because the appellants failed to open the room door when the police first sought entry and also because the officers heard the sound of a toilet flushing at the tune when they were waiting to gain entry. In finding that there was a case to answer, the learned magistrate said this:-

"My ruling is that once police entered premises having heard a toilet flush inside and then entry having been delayed by two minutes it is reasonable in Hong Kong to suspect dangerous drums were on the premises. The team leader having formed that suspicion it is his or her suspicion which was relevant from thereon. Having formed that suspicion she is entitled to execute a dangerous drugs raid and her powers are as set out in the Dangerous Drugs Ordinance. The fact that they went to the premises with a W & J warrant is no longer relevant.

Having set in motion a Dangerous Drugs raid her powers included both the search of the premises and the occupants particularly as the original suspicion must have been formed as a result of the actions of the occupants i.e. flushing a toilet and delaying an entry. There is abundant evidence from the Agreed Facts that the police inspector suspected dangerous drugs. That suspicion was more than reasonable and it follows as night follows day that in such circumstances a personal search of the defendants was called for and that the police inspector had addressed her mind accordingly."

5. It is undoubtedly true to say that a police officer who has reason to suspect that dangerous drugs are present, has the right to search either the place in which he suspects the drugs to be or any person in that place who he suspects or has good reason to suspect may have drugs in his or her possession. It is however, also true, that in the present case there was no evidence that the police had any reason suspect that drugs were inside the room occupied by the appellants until they knocked at the Villa room door. The evidence was that it was the delay in the door being opened together with the noise of a flushing toilet, that led the police inspector to suspect that dangerous drugs might be present. Even if that suspicion was then justified, and I am not at all sure that it was, that did not permit the inspector to proceed with the drug raid, whatever that involved, and a personal search of the appellants, unless there were continuing grounds for that suspicion to exist. What happened after the police party gained entry to the room, according to the agreed facts, was that the police inspector "executed (a) dangerous drugs raid therein" and then instructed a personal search of the appellants. While we assume that he police party searched the room when they entered it, there is nothing in the agreed facts that explicitly sets that out. The precise meaning of "dangerous drugs raid" is nowhere set out. There is certainly no evidence that following a search of the premises, which we assume to have been unsuccessful, the appellants were questioned, and that it was only thereafter in light of the circumstances which then prevailed the police inspector addressed her mind to the need for personal searches of the appellants.

6. In the case of Lindley v. Rutter [1981] 1 QB 128, to which I was referred by Mr Ismail, Donaldson L. J. had this to say at p.134:

"It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute. They have to be weighed against the rights and duties of police officers, acting on behalf of society as a whole. It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive but it is sufficient for present purposes. What measures ire reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be Justified is the adoption of any particular measures without regard to all the circumstances of the particular case. (My emphasis)

This is not to say that there can be no standing instructions. Although there may always be special features in any individual case, the circumstances in which people are taken into custody are capable of being categorised and experience may show that certain measures, including searches, are prima facie reasonable and necessary in a particular category of case. The fruits of this experience may be passed on to officers in form of standing instructs But the officer having custody of the prisoner must always consider, and he allowed and encouraged to consider, whether the special circumstances of the particular case justify or demand a departure from the standard procedure either by omitting what would otherwise be done or by taking additional measures. So far searches are concerned he should appreciate that they involve an affront to the dignity and privacy of the individual. Furthermore, there are degrees of affront involved in such a search. clearly going through someone's pockets or handbag is less of an affront than a body search. In every case a police officer ordering a search or depriving a prisoner of property should have a very good reason for doing so. (My emphasis)

7. In the later case of Brazil v. Chief Constable of Surrey [1983]3 All E. R. 537, Robert Goff L.J. adopted and followed the principles stated in that passage from Lindley v. Rutter.

8. It seems to me that these principles can be readily applied to the instant case in that their seems to have been no attempt by the police inspector, there is certainly no evidence of it to evaluate the circumstances following the police party's entry to the room and their apparently unsuccessful search for anything incriminating. At that stage suspicion that drugs were still present must have been significantly allayed, and this would be so especially as the flushing of the toilet would indicate the disposal of whatever drugs the appellants may have had. A demand at that stage for a personal search begins to assume the appearance of frustration and almost vindictiveness, on the part of the police inspector, whose expectations of finding drugs, so recently excited, had been dashed.

9. In the absence of any evidence that the police inspector was not simply pursuing lines of enquiry laid down by police procedure, but was assessing the situation as it developed, and the need for further action I am not satisfied that she even considered whether her suspicions were still reasonable when she ordered the searches.

10. I am bound to say hat on the evidence available I do not think that she was justified in ordering the appellants to be searched because by that stage there were no sufficient grounds for doing so.

11. It follows that without the need to consider other matters urged on appeal I do not find that the police officers were acting within the limits of their lawful authority or in the execution of their duty so that neither appellant can be guilty of either obstruction or assault, so as I am satisfied, which I am, having regard to the fact that a personal search was being demanded, that the 2nd appellant's use of force was not excessive.

12. These appeals are allowed, the convictions are quashed and the sentences set aside.

Representation:

Mr Stephen Wong, (Crown Prosecutor) for Crown

Mr A. Ismail, (John Ku, Tam & Ho) for Appellants.