HKSAR v. Tsui Wing

HCMA000083/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 83/98

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Coram: Deputy Judge Wesley Wong in Court

Date of hearing: 6 March 1998

Date of Judgment: 6 March 1998

Date of handing down reasons for judgment: 12 March 1998

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J U D G M E N T

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1. The Appellant appeared before a magistrate in Eastern Magistrate's Court. He pleaded not guilty to and was convicted for 1 count of resisting arrest and 1 count of criminal damage. He now appeals against those convictions.

FACTS

2. On 16 September 1997 PC48323 went to a public toilet in Southern Centre and found the Appellant and an ambulance man inside a cubicle. The Appellant was fainted or unconscious. He was then taken to the ambulance. In the ambulance PC48323 declared arrest of the Appellant for possession of drugs and suddenly the Appellant put up a fierce struggle. Appellant was handcuffed. On the way to hospital the Appellant sat on the bed, suddenly he put up a fierce struggle and his head hit and damaged the window of the ambulance. He was charged for resisting arrest and criminal damage.

REASONS FOR CONVICTION

3. The learned magistrate concluded that the state of the appellant was as a result of self administered dangerous drugs. He cited Blackstone's Criminal Practice 1997 A.3.9 page 39, concerning voluntary intoxication can only give rise to a defence to crimes of specific rather than basic intent and that resisting a police officer in the execution of his duty is not a crime of specific intent and therefore the defence of automatism due to self administered dangerous drugs must fail. As to criminal damage he said that the Appellant was reckless and was the cause of the damage.

THE EVIDENCE

4. No medical report was produced as to the state of the Appellant. It was not in dispute that during the journey in the ambulance the Appellant muttered incoherent words and that he was in a semiconscious state.

5. The evidence from PC48323 at page 14 of the deposition between P&S is as follows:-

Q: Well, I put it to you that you never were able to make it clear to him that he was under arrest or what he was under arrest for at that time because he was not in a fit state to understand.

A: Agree.

Q: And basically you only were able to get sensible and coherent answers from him after he'd been treated in hospital.

A: Agree.

The evidence from PC34685 who was also in the ambulance during the journey which showed the state of the Appellant is as follows:-

P.17 L-N Q: And at that state he was moving about and muttering incoherently, wasn't he?

A: At that time he was not as agitated as the later part.

Q: Well, he was more comatose, in other words.

A: That's right.

P.18 C-D Q: That means the defendant wasn't awake at the time that your colleague said the words of arrest, is that correct?

A: That's right.

L-M Q: Isn't it a fact that really what was going on here was that he was lapsing in and out of consciousness while he was travelling in the ambulance?

A: That's right.

P.18T to P.19B Q: Yes but what I'm putting to you is that that was inadvertent, it was not done on purpose.

A: (No audible reply)

Q: If you say you're not sure then say you're not sure.

A: Not sure.

From Chung Kin Sang

At P.20 N-O Q: When you found him, what was his level of consciousness?

A: He was in a daze, he was not conscious.

P-R Q: And effectively throughout the period that he was in your control, did he still - although he seemed to wake up partially - would you say in your opinion that he regained full consciousness?

A: He did not regain full consciousness.

6. From the evidence of all the prosecution witnesses it was clear that

1) Police was not able to make it clear to the Appellant that he was under arrest.

2) If he was not agitated he was more comatose.

3) He did not regain full consciousness and police was only able to get sensible and coherent answers from him after receiving treatment from hospital.

7. For the first charge the Appellant could only resist arrest if he knew that he was going to be arrested. However even the arresting officer admitted that he was not able to make it clear to him that he was under arrest. If he did not know he was under arrest then how could he have formed the intention to resist arrest.

8. As to the criminal damage, the evidence is that throughout the journey he was in such a state that he did not know what he was doing. In any event even PC34685 was not sure whether the damage was done inadvertently. From the evidence it was doubtful if he was reckless and the benefit of the doubt should be given to the Defendant.

9. For those reasons it was unsafe to convict on the evidence and the convictions are therefore set aside and appeal allowed in respect of both charges.

Representation:

Mr. Thomas Law, GC, for DPP

Appellant: Tsui Wing, in person