Wong Kui Ping v. The Queen

CACC001019/1977

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1019 OF 1977

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Coram: O'Connor, J. in Court

Date of Judgment:

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JUDGMENT

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1. The appellant was tried by a magistrate on two charges of obstructing the road contrary to section 4 of the Fixed Penalty (Traffic Contraventions) Ordinance Cap 237 and one charge of obstructing a police officer in the execution of his duty contrary to section 36(b) of the Offences against the Person Ordinance Cap 212. The appellant was convicted of the charge of obstructing the officer and he appeals against conviction and sentence. The learned magistrate dismissed the charges of obstructing the road because they were bad. The appellant was not in jeopardy on those charges.

2. A magistrate is required by section 34 of the Magistrates Ordinance Cap 227 to take a full minute of the evidence. He may take this minute in narrative form and may use appropriate abbreviations. However the minute is not just the magistrates personal note for his own use, it is the official record of the case and as such will be required if there is an appeal. I am conscious of the pressures under which magistrates may at times have to perform their duties, but those pressures do not relieve them of their responsibility for keeping a record which will be easily understood and present a clear picture of the evidence to anyone who consults it. A magistrate has a duty to record the evidence in a manner that conveys the real sense of what the witness said and should in so far as he can do so, clear up ambiguities in language and ensure that the evidence given is recorded in an intelligable form. In the instant case, due to the manner in which the evidence has been recorded it has been with considerable difficulty that I have ascertained its meaning. Crown counsel tells me he has had similar difficulty. I give one example from the record.

"Saw same from Star Ferry footwalk, pick up one female, stop same place. Traffic condition : very congested. Between this car, there were 5-6 other cars. His left no cars."

Eventually I have managed to form a clear picture of the evidence. The magistrate found that the appellant drove a private motor car to Connaught Place where he dropped one passenger and waited to pick up another. He stopped there in the middle of the road for a couple of minutes while traffic formed a queue behind him and drivers commenced to sound their horns. He was in a no parking, no waiting area. A police officer went over and gave him a fixed penalty ticket for obstructing the road. The appellant said he would plead not guilty and lay a complaint against the officer whereupon the officer told him to leave the scene and not obstruct other cars. The appellant shouted and said that he had a contact with a police superintendent. This was clearly intended to intimidate the officer. A crowd gathered and traffic became further congested. The officer told appellant to drive away and not obstruct the traffic, that any complaint he had he could make to the police station. The appellant refused and argued in a heated manner saying he was in no hurry. A crowd had gathered. The officer warned appellant that he was obstructing him in the execution of his duty, but the appellant continued arguing and refusing to move so the officer took him into custody. The appellant gave a somewhat different version of the facts though he admitted that he argued with the officer. The magistrate believed the version given by the prosecution witness and that was a decision that was open to him.

3. There are certain duties laid on police officers by the Police Force Ordinance Cap. 232 including under section 10(g) a duty to take lawful measures to control traffic upon public thoroughfares and remove obstructions therefrom. The police officer when ordering the appellant to move on was in execution of his duty under that section. The remaining question is whether by not obeying the order the appellant was obstructing the officer in that duty. When a police officer takes action against a person or orders him to do something the person may lawfully seek in a reasonable manner to persuade the officer that his action or orders are uncalled for or based upon a misapprehension. What is a reasonable manner will depend upon the circumstances. As was said by Davey C.J. in Reg. v. Long [1970] 1 Canadian Criminal Cases 313

"An exercise of that right cannot be converted into obstruction unless it be intemperate, unduly persistent, irrelevant or made in an unreasonable manner."

4. On the evidence accepted by the magistrate the appellant's behaviour was intemperate, unduly persistent, irrelevant and unreasonable in the circumstances and I consider the magistrate was correct in finding it a wilful obstruction of the officer in the execution of his duty.

5. The magistrate fined the appellant $300/- and ordered him to pay $100/- costs. In my view the penalty is not excessive. Appeals dismissed.

Representation: