Li Chi-kin v. The Queen
Read the full judgment text of CACC 378/1972 on BabelCite. This Court of Appeal judgment.
1. The appellant, who is represented by Mr. Sanguinetti in this case, appeals against the judgment of a magistrate in which, on the 2nd of March 1972, he was found guilty of contravening an order given by police Inspector Boyton, contrary to the provisions of Regulation 4(1)(b) of the Hong Kong Airport Regulations of 1956. The appellant originally appeared before the court on two separate summonses on the 29th of October 1971 upon which day the 7th of December was fixed as the appointed date of
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CACC000378/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 378 OF 1972 -----------------
----------------- Coram : McMullin J. in Court Date of Judgment: 7th November, 1972 ----------------- JUDGMENT ----------------- 1. The appellant, who is represented by Mr. Sanguinetti in this case, appeals against the judgment of a magistrate in which, on the 2nd of March 1972, he was found guilty of contravening an order given by police Inspector Boyton, contrary to the provisions of Regulation 4(1)(b) of the Hong Kong Airport Regulations of 1956. The appellant originally appeared before the court on two separate summonses on the 29th of October 1971 upon which day the 7th of December was fixed as the appointed date of hearing. In one summons the appellant had been charged under Regulation 4(1)(a) with obstructing Mr. Boyton in the execution of a power conferred upon him under Regulation 3, while in the other he was charged with behaving in a disorderly manner. When he appeared before the court on the 7th of December the latter summons was withdrawn and the prosecution applied for leave to amend the charge under the former summons to one of contravening an order given by Mr. Boyton as an authorised person in contravention of the provisions of Regulation 4(1)(b). The court acceded to both these requests and the hearing proceeded. These withdrawals and alterations are not without significance in relation to the case presented before the court showing as they do some hesitation, if not outright confusion, on the part of the prosecution in relation to the precise manner in which the appellant was said to have contravened these regulations. The relevant portion of Regulations 3 and 4 read as follows :
2. The appellant is the manager of the cargo maintenance services department of Pan American Airways which company has a warehouse in the cargo terminal area at Kai Tak Airport. Cargo delivered by Pan American planes to Hong Kong is off-loaded by means of dollies owned and operated by the Hong Kong Air Terminal Services (for convenience hereafter refer to as HATS). These dollies are then either man-handled or dragged by tractor to the customs area staffed and supervised by the D.C. & I. When cleared they are then towed from that area to the warehouse of the particular airline. HATS and its employees perform this office for all airway companies delivering cargo at Kai Tak. 3. On the 30th of September 1971 a condition of extreme congestion had developed in the cargo terminal area and Inspector Boyton, who was in uniform and on patrol in the area, and who is an authorised officer within the meaning of the Regulations, found it necessary to procure the presence of a number of police officers to assist in traffic direction and control in the vicinity of the east road of the Terminal Building. This was at about 2.20 p.m. After he had made this provision he then telephoned the Airport General Manager's office and spoke to the Assistant Airport General Manager, Mr. D.A. Arvidson, about the serious condition of congestion which had developed. He then made a survey around the Cargo Terminal Building and found vehicles piled up and immobilised for about a quarter of a mile and he discovered that the apparent primary cause of the blockage was the fact that three of the HATS' dollies, piled with Pan American cargo, were parked, two of them along the thoroughfare and one in the middle of it, about 50 yards from the Pan American warehouse. Some of the goods from these lorries were actually in the process of being unloaded by workers and placed on pallets to be conveyed to lorries, presumably belonging to the consignees of the goods, which were also parked nearby. Mr. Arvidson arrived a short time later as also did four police officers and an Inspector Hillier and, under Mr. Boyton's supervision, traffic was re-routed so that it could continue to flow about this obstruction. At Mr. Boyton's request Mr. Arvidson spoke to Mr. Lewis KOOK Chung-king, a cargo supervisor of Pan American complaining of the congestion being caused by the dollies with the Pan American freight upon them and told him to get that freight moved to the warehouse. He said that Mr. Kook refused to do this but nothing turns on this point since Mr. Arvidson is not an authorised officer for the purpose of these regulations. He then requested Mr. Kook to fetch Mr. Li, Mr. Kook's superior, the defendant, and Mr. Kook did so. Mr. Arvidson then asked Mr. Li to move the cargo and according to him, Mr. Li replied courteously saying that he was unable to do so because the warehouse was already full. The defendant denies that he gave this as the reason. According to Inspector Boyton, he at that time was standing about 15 yards away from Mr. Arvidson and Mr. Li and heard only snatches of the conversation. Mr. Li is Mr. Kook's immediate superior and in the civinity at that time there was also a Mr. Walker and a Mr. Dick Chun who are respectively the Operations Manager and the Operations Superintendent of HATS. Mr. Walker did not give evidence but according to Mr. Dick Chun, he and Mr. Walker, took part in the conversation between Mr. Arvidson and the defendant. When the defendant was asked by Mr. Arvidson to remove the cargo, according to both the defendant and to Mr. Chun, the defendant appealed to Mr. Walker and asked him to provide the manpower and equipment necessary to move the offending dollies away. The witness said that Mr. Walker answered in the negative apparently for the reason that it was a peak period of the day and it was difficult to get spare equipment and manpower. Mr. Arvidson agreed that Mr. Walker and his assistant were present but could not remember whether the defendant had made this request to Mr. Walker. Although Inspector Boyton does not say that he saw Mr. Walker there at that time he agrees that Mr. Walker was there at a later point of time when he and Mr. Kook rejoined that party. It is perhaps unfortunate that Inspector Boyton did not overhear this conversation since it might have made a material difference to the manner in which he dealt with the situation. According to the Inspector, the conversation of which he heard only snatches between the defendant and Mr. Arvidson, Mr. Walker and Mr. Kook, was one in which the defendant appeared somewhat excited. Inspector Boyton said he was not paying great attention because he was also at the same time endeavouring to keep the traffic under control. At some point, however, in the course of the conversation between the defendant and the others it would appear that the Inspector approached Mr. Kook and asked him if the cargo belonged to Pan American and upon receiving an affirmative reply, asked him if he could move it to his warehouse. According to the Inspector, Mr. Kook replied that he, the Inspector, should get HATS to do it and this reply or possibly the manner of it appears to have induced Inspector Boyton to believe that Mr. Kook was wilfully obstructing him and being unhelpful. It seems very likely from the evidence of all the witnesses that, at this stage, the initial confusion caused in the area by traffic congestion had introduced a certain degree of tension and irritation into the attitudes of all parties concerned and it was perhaps this which caused Inspector Boyton to embark upon a series of steps which escalated a comparatively trivial dispute over responsibility into an incident which the police officer chose regard as involving something like a breach of the peace. Instead of inquiring what HATS had to do with the congestion Inspector Boyton evidently decided to investigate Mr. Kook. He said that he wished to get Mr. Kook's identity and for that purpose asked him to hand over the badge which Mr. Kook like other Pan American employees wears on the outer aspect of his clothing and which shows the photograph of the wearer and gives his name underneath the photograph. Mr. Kook refused to hand it over. Although the Inspector agreed that he already had the name of Mr. Kook he said he wanted him to hand over this badge or card to verify the name, but Mr. Kook refused to do so and put his hand over the card. The Inspector said that he once again asked to see the card and also asked Mr. Kook to remove the dolly. Mr. Kook refused to accede to either of these requests and then the witness took the action which he described himself in the following terms :
He denied the suggestion that he had arrested Mr. Kook for refusing to show the card and said that it was for obstruction in connection with his refusal to remove the dollies. Oddly enough, when one considers the importance of this arrest to what subsequently happened, this entire body of evidence explaining the reason for Mr. Kook's arrest emerged only in cross-examination of Inspector Boyton who did not give, and was not asked in examination-in-chief to give, any explanation for this action. 4. Mr. Kook's version of this occurrence was that he was arrested by Inspector Boyton simply for refusing to give him the card which he wore upon his shirt and which he believed the Inspector had no right to take from him. He denied that he had been given any order in connection with the cargo on the dollies and said that when Mr. Arvidson had originally requested him to move the cargo he had told him that he had already requested HATS to do so carlier in the day, but they had not yet taken any action on the matter. Some support for this is to be found in the rather ambiguous reply of Mr. Arvidson when he was asked about this matter in cross-examination and said that earlier when he spoke to a Pan American employee (not the defendant) about the congestion and asked him to move the Pan American cargo. The man said that : "he would not do it or could not do it." It was after this that Mr. Kook went at Mr. Arvidson's request to fetch Mr. Li. There is general agreement on the evidence that what happened after this was that Inspector Boyton, Inspector Hillier and Mr. Kook joined the other party who had been discussing the question of the congestion and that Inspector Boyton announced that he had arrested Mr. Kook and that the defendant then demanded to know why Mr. Kook had been arrested. According to Mr. Arvidson, the defendant at this stage was excitable and arguing in an emotional way with the Inspector who was replying in a manner which Mr. Arvidson described as formal and correct. Mr. Arvidson and Mr. Walker, however, then left the vicinity. Mr. Arvidson was unable to give a precise account of conversation between the defendant and Inspector Boyton other than that the defendant demanded to be told why his subordinate had been arrested. According to the defendant, he asked Inspector why he had wanted Kook's permit and also why he had arrested him. He said that the Inspector shouted at him and said that it was none of his business. The argument went on and in the course of it he gave his name and address and other particulars to the Inspector. Inspector Boyton denies this and says that when he and Mr. Kook rejoined the other group and he announced that he had arrested Mr. Kook, the defendant shook his finger in his face and said that he ought to be careful. Both the defendant and Inspector Boyton agree that in the course of these exchanges the Inspector not only asked the defendant for his name but also for his age and that the defendant thereupon answered with words to the following general effect :
and also that he told the Inspector not to ask stupid questions. At this point, according to Inspector Boyton, a number of coolies who had collected as interested spectators began to laugh. He said that the defendant's manner appeared to him to be agressive and that his voice was loud. It is unnecessary to go in further detail into the exchanges which took place between the defendant and the Inspector but it is of considerable significance that it was Inspector Boyton's own evidence that it was as a result of the sarcastic answer given to him by the defendant that he decided to arrest him and did so by putting his hand upon his arm and saying :
I stress the question of the two arrests before turning to consider the nature of the alleged order given and disobeyed because all the evidence so far discussed makes it abundantly clear that the attitude of the defendant and his subordinate, which was undeniably uncooperative from the police point of view, had come to occupy Inspector Boyton's attention as a primary issue to the detriment of the initial purpose of his inquiries viz : the determination of who had caused the obstruction and what orders it was necessary to give and to whom they should be given to cause it to be removed. 5. I do not propose to describe in detail the evidence concerning what occurred thereafter. Quite clearly an extremely unpleasant scene had resulted from frayed tempers occasioned, it would seem, by everybody involved standing on what he conceived to be his rights. According to the defendant and Mr. Kook the manner of their actual arrest and removal to the police post at the airport in the custody of Inspector Hillier was both rough and undignified. Inspector Boyton cannot, of course, talk about that because immediately after the formal arrest of Mr. Li he instructed Inspector Hillier to take the two men to the police post and he himself departed upon his motor cycle for the same destination. It should be added that Mr. Hillier was not presented to the court to give evidence upon this matter. At the police post a Mr. Gonzales, the superior of both the defendant and Mr. Kook intervened to enquire into the whole matter and there was some talk of apologies and withdrawal of charges and it would appear that Mr. Kook did make some sort of apology and was let go away. The defendant refused to do so however and since he had no money for bail was at first told by Inspector Boyton that he would be detained but later was let go free and warned that he would be served with a summons. A summons was applied for on the same day of 30th of September. 6. The first point made upon the appeal by Mr. Sanguinetti is that on the evidence as a whole the magistrate was unreasonable to find that any order had been given in fact to the defendant by Inspector Boyton. He points out that of all the persons present and in a position to have overheard the order being given, viz : Mr. Arvidson, Mr. Kook, Mr. Dick Chun and the defendant himself, the latter three, giving evidence for the defence denied that any such order was given, while Mr. Arvidson for the prosecution is in material conflict with Inspector Boyton inasmuch as his evidence covers the point of time at which, according to Inspector Boyton, the order was given and yet Mr. Arvidson heard no such order and told the court that what he heard was Mr. Li objecting to his subordinate being arrested. He said that he left the scene after that and it could of course be that Inspector Boyton's alleged order was then given, but this seems unlikely since Mr. Arvidson on his own showing was still present when the defendant made the brusque reply to the Inspector's query as to his age and, on Inspector Boyton's evidence, it was immediately thereafter that the defendant was arrested. This very considerable body of testimony favouring the defence case was dismissed by the learned magistrate in his judgment in the following words which relate to the testimony of the defence witnesses: -
He makes no mention of Mr. Arvidson's evidence in this connection. I keep it in mind, as Mr. Duckett asks me to do, that the magistrate had an opportunity of observing the demeanour of the witnesses in forming an estimate of their quality which is denied to this court. However, to deal with this formidable body of testimony in so peremptory and cursory a fashion without advancing reasons for disbelieving it wears with respect an appearance of caprice rather than of solid deliberation more especially when one remembers that one of the witnesses, Mr. Arvidson called by the prosecution was a witness whom the magistrate himself regarded as being truthful and another - Mr. Dick Chun though a defence witness - was one who by no means stood to gain by misrepresenting the facts and whose interests on the contrary were somewhat in collision with those of the defendant. It cannot in my view be safely concluded that the magistrate in accepting Mr. Boyton's evidence on the matter, so formidably controverted as it was, had kept sufficiently in mind the necessity of proof beyond reasonable doubt. There was plenty to suggest a doubt and one would have expected some brief discussion of the factors which led him to accept the police officer's evidence in preference to that of the other witnesses. Moreover, the finding thus quoted from the judgment itself and repeated at paragraph 10 of the magistrate's statement of findings dated 15th of March 1972 is at variance with the actual testimony of Inspector Boyton. That testimony to which reference has not yet been made but which is the kernel of the prosecution case against the defendant appears at page 13 of the record (page 9 of the original typescript) where the Inspector is recorded as having said the following :
The request, in other words, related to the dollies and not the cargo. This point is no quibble for it exposes the very nerve of the difficulty which confronted Inspector Boyton at that moment and which, no doubt because of the heightened atmosphere of tension induced by the previous exchanges, seems not to have been appreciated by him. As an authorised officer under the regulations he was empowered to order the cargo upon the dollies to be moved and any such order must needs be obeyed, under penalty, by any person to whom it was directed provided only that the order was a lawful order. It was a moment which called for caution and inquiry. It is common ground that there was in any event no right to order the removal of the dollies themselves since they are vehicles which are expressly excluded from the definition of "article" in Regulation 3(a)(2). The situation called not only for caution and inquiry but also for tact and for close attention to the necessity (a) to make an order and (b) to determine who was the proper person to give it to and (c) to frame it so that it was within the powers conferred by the regulation. If the dollies had been empty of cargo and the Inspector had said in peremptory terms :
It would not have been a lawful order because, firstly, he had no power under the provisions of Regulation 3(a)(2) to direct the removal of a vehicle as distinct from an article; and secondly, because the order, to be lawful, must necessarily be addressed to a person whose right and duty it was to move the vehicle and the vehicle in this instance, by common agreement, was neither the property nor the responsibility of Pan American or its employees. The actual situation however was that the dollies were piled high with Pan American cargo and if the order allegedly given by Inspector Boyton, although somewhat carelessly worded, is to be interpreted in a broad and common sense way as meaning that the defendant should cause the cargo to be moved back to the warehouse then it was incumbent upon the Inspector to determine on the spot whether such an order was in all the circumstances a reasonable and feasible one to direct to that particular person. There was evidence that each of these dollies weighs about one ton and they were by common assent heavily laden with goods which must have increased their weight considerably beyond that. Clearly, however one regards the words allegedly used by the Inspector, they cannot have been intended as an order to Mr. Li personally to move any one of the dollies. It was pointed out in the argument of counsel under a different section of this same ground of appeal that, although the learned magistrate made reference to the fact that there were 28 employees who worked under the defendant, there was no evidence to show whether any and if so how many of those employees were then and there available. Even if the words so framed might be interpreted as an order to Mr. Li to get his employees to do the job it could not be lawful unless reasonable and it could not be reasonable unless the Inspector had satisfied himself that the means were available to Mr. Li or at any rate that that Mr. Li's refusal was unreasonable in view of circumstances generally. He could scarcely be satisfied as to those circumstances until, following the abrupt refusal by Mr. Li to co-operate he had by further inquiry, whether from Mr. Li or from other interested parties, established that there were no just grounds for that refusal and that Mr. Li was then and there in a position to do as he was ordered. Again one must stress the great importance of employing tact and common sense in implementing the very wide provisions of these regulations which could, as counsel had pointed out, if interpreted strictly according to the wording of some of them, be pushed to absurd limits. 7. On these two associated grounds under the first head of appeal alone I am satisfied that the appeal should be allowed firstly, because the magistrate does not appear to have attended sufficiently to the very real conflict between Inspector Boyton's evidence and that of both prosecution and defence witnesses as to what Inspector Boyton said to Mr. Li, and secondly because, even if Inspector Boyton's evidence is correct, the words allegedly used did not in the circumstances amount to a lawful order. Indeed as it seems to me there is yet a further and more fundamental reason associated with this ground of appeal upon which, although not specifically canvassed by counsel, the appellant should succeed. It is this : The form of words which Inspector Boyton says he used, in the context of the circumstances scarcely amounted to an order at all. Rather it was a request and as such a reasonable request and it is a pity that it was not reasonably received, though no doubt that was because of what had gone before. Indeed to make such a request was precisely what one would expect a responsible police officer to do as a preliminary to employing the wide and strong powers given to him by the regulations. Assuming that Inspector Boyton did use the words which he said he used, one would have expected him to be doing so in order to clear the way for any more peremptory action which might later have to be taken. If indeed he asked Mr. Li to : "arrange to have these dollies moved back to your warehouse" then when Mr. Li said that he would not do so i.e. would not make any such arrangement the point had come at which it was incumbent upon Inspector Boyton to decide whether to make an explicit order and if so what order he should make and to whom directed. It is I think not too much to ask of an experienced police officer equipped with such wide powers that he should be meticulous in using them and that he should choose carefully both the words of his order and its proper recipient. This was the point at which an inquiry into the effective cause of the obstruction was called for. Thereafter the tangled relationships between HATS and Pan American and possibly the consignees of the goods would have required some investigation and discussion, however cursory, before he decided to use his powers to the extent of securing compliance by every lawful means even including arrest and detention. His proper course upon Mr. Li's uncooperative reply was to have said (provided he had satisfied himself that Mr. Li had the manpower available and had otherwise no good reason for refusal) :
or something to the like effect. The very fact that what Mr. Boyton alleges is something in the nature of a request concerning the dollies rather than an express order concerning the cargo may be some indication that Mr. Boyton himself was at that moment aware that the distinction though nice was nevertheless real for in fact the evidence was that the cargo was at that point being removed to lorries belonging to the consignees and even if an order had been given in the form which I suggest was appropriate it would in effect have been in process of receiving compliance. It is an astonishing fact that nowhere in the course of the evidence did anyone say, nor was any witness invited to say, why it was that the vehicles admittedly owned and operated by HATS had been permitted by HATS to be driven to a point on the public highway between the customs area and the Pan American warehouse and there left for the purpose of off-loading to consignees. That Pan American can have had no interest in maintaining this obstruction seems to be shown by the fact that the defendant himself had earlier in the day taken photographs to show how bad the situation was generally in the area. Certainly, there was no evidence that the leaving of the dollies in this position was done at the request of Pan American and whether that was so or not one must assume that the primary duty of seeing that this quite illegal method of employing a public thoroughfare was an act which it was the duty of HATS not to perform in the first place and if performed to rectify as soon as it was brought to its attention. Yet because of the way in which the event progressed no single word of inquiry, request or rebuke, let alone any order or direction was ever addressed by any authorised officer to any employee of HATS the position of whose vehicle was the root of the disturbance. It would be unreasonable to suggest that because the goods were Pan American delivered and because Pan American were bailees of those goods until the consignees should take possession of them that this fact would in some way render Pan American and its employees directly and primarily responsible for the operations of HATS and its employees yet the matter was dealt from the outset with as though that had been the position. There was evidence that it was the duty of HATS to move cargo on their dollies from the customs area to the warehouses. They had chosen not to do so in this instance and, for reasons which do not appear upon the record, had stopped in the middle of a public road. Two senior officials of the HATS Company were present and available at the very time that Inspector Boyton had become embroiled with what he conceived to be the unbecoming conduct of a person responsible for the cargo. 8. Mr. Duckett in a last minute endeavour to persuade me that there was power apart from these Regulations to cause the defendant to move these dollies cited to me Regulation 1(60) of the Road Traffic (Construction and Use) Regulations which obliges an owner or driver or person in control of a vehicle to move or secure removal of such vehicle when required to do so by a police officer if the vehicle is causing danger to persons using the road or interfering with its use. That is an order which, in the circumstances, could not have been directed to Mr. Li or Mr. Kook but it could very well have been directed either to Mr. Dick Chun or Mr. Walker. For these reasons the appeal is allowed and the conviction is set aside. The fine will be refunded to Mr. Li. I should not however part from this matter without remarking that in my view Inspector Boyton, although confronted with a situation of some difficulty and confusion and receiving scant help from the several companies concerned or for that matter anyone else in the vicinity, was distinctly injudicious in employing his powers of arrest without further inquiry and consultation with the various responsible officials then present. However, it may have seemed to him at the time the arrest of Mr. Kook is difficult to justify even on the grounds which he gave since he made no endeavour either to ascertain why the HATS officials whose vehicle was the major cause of the confusion had chosen to leave it there or to see that they took steps to remove it. It is difficult to avoid the impression, from what appears upon the record of the evidence as a whole that Mr. Kook was arrested because he was somewhat rude and unhelpful and that Mr. Li was arrested because he vehemently protested the arrest of Mr. Kook. I would not be understood as making any obeisance in the direction of the cult of studied insolence or public incivility, popular nowadays in some circles, as a manner of proving the freedom of the individual in the face of officialdom or, as it is sometimes called, of confronting the Establishment, but nothing of that sort appears here and the day is I hope still far distant when it will be treated as a matter of course that a difference of opinion in public concerning disputed responsibilities and resulting in nothing worse than warm words can lay the citizen open to arrest for affronting the dignity of the law.
Representation: Sanguinetti instructed by H.H. Lau and W.S. Lo for appellant. Duckett S.C.C. for respondent. |