The Queen v. Lin Sek-keung

HCMA001161/1986

BETWEEN:

Coram: Roberts, C.J.

Date: 12th December, 1986.

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JUDGMENT

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1. This is, in many ways, an unfortunate case and I have sympathy for both the parties who were involved in it.

2. On the morning of 8th August, 1986, two police officers were on duty in uniform in the Pak Tin area, which is a well-known black spot for dangerous drug activities. The police officers observed the defendant, who was by himself, standing there for about ten minutes. They approached him and said that they wanted to search him and no point is taken, very correctly I think, by Mr. Westbrook as to the propriety of the police conduct at that stage.

3. As is not surprising, when a private citizen is stopped and searched by the police, the defendant felt a degree of resentment. Unfortunately, his  resentment reached a point at which he began to shout abuse of a fairly rich nature at the police officers, following by appeals to by standers, saying in effect "Isn't it a disgrace that policemen should search people at random, and I am going to make a complaint about it."

4. According to evidence given by the police officers, which the magistrate accepted, P.W.1 thought that the defendant was trying to stir up the crowd against himself and his colleague, so he told the defendant to stop and warned him that his behaviour amounted to disorderly conduct and that he would be arrested if he persisted.

5. The defendant continued to abuse him and appealed to the crowd. He was warned again. He still shouted and said to the crowd "Don't let them go", whereupon P.W.1 told the defendant that he was arresting him for disorderly conduct and took out his handcuffs, whereupon the defendant pushed him away and ran off but was caught after a short chase, at the end of which the defendant was said to have struck P.W.1.

6. At the conclusion of the prosecution evidence, the magistrate acquitted the defendant on the first charge, of disorderly conduct in a public place, though he subsequently convicted him of the offence of resisting arrest.

7. As Mr. Westbrook has correctly stated, if the arrest was not a lawful one, the defendant was entitled to use reasonable force to resist it and the lawfulness or otherwise of the arrest depends upon whether or not the police officer who sought to arrest him was acting within the powers conferred upon him by the Police Force Ordinance. Section 50 of that Ordinance empowers a police officer to arrest a person whom he reasonably suspects of being guilty of any offence.

8. The crucial question which the magistrate had to decide therefore was whether the police officer, at the time in question, did reasonably suspect the defendant of being guilty of an offence.

9. Towards the end of his Statement of Findings, the magistrate says -

"I was satisfied that the Appellant did not resist that search but that immediately afterwards he drew the attention of the crowd by shouting accusations at PW1 and PW2 and by swearing at them so that a crowd gathered. I was satisfied that the Appellant then shouted at the crowd to evoke their support and that at a certain point he shouted to the crowd 'Don't let them go.'  I was satisfied that at this point PW1 formed the view that a breach of the peace within the meaning of Section 17B(2) of the Public Order Ordinance was likely to occur and accordingly informed the Appellant that he was under arrest for disorderly conduct and produced his handcuffs."

Section 17B(2) of the Public Order Ordinance reads -

"Any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any writing containing threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for 12 months."

10. Neither of the police officers who gave evidence used in their evidence the phrase which the magistrate has adopted in his statement of findings. P.W.1 did not say in terms that he had formed the view that a preach of the peace within the meaning of section 17b(2) was likely to occur.

11. What he did say was that he was apprehensive, and that he did know what the defendant would do next. He added "I was afraid I would be attacked because the defendant was behaving violently."

12. This follows a passage in which he describes how the crowd seemed to be on the side of the defendant, had called him by name, and had formed a circle within about 30 steps from the two police officers.

13. I think that the magistrate was perfectly entitled in the circumstances to come to the conclusion that the police officers had a reasonable suspicion that the conduct of the defendant was such that a breach of the peace was likely to be caused. On the basis of that finding of fact I am satisfied that he was justified in convicting the defendant of the charge of resisting arrest.

Representation:

Mr. S. Westbrook (Alick Au & Massie) for Appellant

Mr. P. Cahill, Senior Assistant Crown Prosecutor, for Respondent