The Queen v. Chan Oi Lin
Read the full judgment text of HCMA 107/1984 on BabelCite. This High Court CFI judgment.
1. At about 5:30 p.m. on 3rd March, last year, one Mr. Liu Kin-wah parked his car outside 126-128 Woosung Street, Kowloon. He later found that the bonnet of the car was dented apparently by a brick. He tried to make enquiries from occupants of that building but was refused entry. He telephoned the police. Shortly afterwards two uniform constable arrived to make enquiries and they suspected that the brick could have fallen from the flower pot structure of one of the units in the building. They sa
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CACC000107/1984 IN THE SUPREME COURT OF HONG KONG
BETWEEN
Coram: Deputy Judge Wong in Court Date: 13th April, 1984 ___________ JUDGMENT ___________ 1. At about 5:30 p.m. on 3rd March, last year, one Mr. Liu Kin-wah parked his car outside 126-128 Woosung Street, Kowloon. He later found that the bonnet of the car was dented apparently by a brick. He tried to make enquiries from occupants of that building but was refused entry. He telephoned the police. Shortly afterwards two uniform constable arrived to make enquiries and they suspected that the brick could have fallen from the flower pot structure of one of the units in the building. They saw the appellant at the gate of the building and told her that they wanted to go upstairs to investigate. The appellant said she was the secretary of the registered association of that building and refused the two policemen admission. She was warned that she might be arrested for obstruction. She still refused to admit the officers and this went on for several minutes. This is basically the case for the prosecution and she was subsequently summonsed for obstructing a police officer in the due execution of his duty. 2. The appellant gave evidence and stated that she merely requested to see their warrant cards to verify their identity and as a result the officers became annoyed. Having satisfied herself she invited the officers to come in but four unknown men followed the officers into the building and it was at that juncture that she said only police officers could come in and not the others. Her husband arrived and told her to let all of them in. By then the police officers refused to go in. She said she did not obstruct the officers intentionally. 3. She was convicted and fined $250 and ordered to pay $500 by way of costs. 4. She now appeals against this conviction. Three grounds of appeal were argued before me. 5. The first ground is that the magistrate was wrong, even by way of comment to state in his reason's that no suggestion could be made as to why, if that had been all, she should have been summonsed. This remark is quite unfortunate, unnecessary and uncalled for and it only gives rise to misunderstanding and criticism. It is tantamount to saying that a defendant must be guilty otherwise he would not have been charged. It is wholly wrong, in my view, for the magistrate to proceed with his reasoning process on this basis. If it was said by way of comment, it should not have been said at all. 6. The second ground is that the police officers had no right to insist on entering the premises without a search warrant. Mr. Fitzpatrick for the Crown submitted that the officers were acting under a reasonable belief or suspicion that an offence had been committed by someone inside that building. He said that Section 50 subsections 1 and 3 of the Police Ordinance, Cap. 232 empowered the officers to enter without a search warrant. 7. Section 50(l) states:
8. At that stage, I think it is right to say that the officers had not had a clue who had committed the offence. From the evidence, the brick which dented the car if it was a brick at all could have been thrown by someone from the street or come from somewhere else. Surely, the officers could not have contemplated any arrest at that point of time and the purpose that they wanted to enter the building was to make very preliminary enquiries. In my opinion, this section has no application to the situation where police officers simply intend to enter into private premises to make investigations. 9. The third ground of appeal is:
10. Mens rea is an ingredient and an important ingredient for the offence of obstructing a police officer in the due execution of his duty. The obstruction must be wilful. The word "obstruct" means the doing of any act which made it more difficult for the police to carry out their duty and the obstruction must be wilful which means not only intentional but without lawful excuse: Rice v. Connolly(1). 11. Mr. Fitzpatrick relied on the decision in Hills v. Ellis(2). It was held in that case that a private citizen could never have a lawful excuse for interfering with an arrest by a police officer which was lawful. That decision clearly has a much narrower compass of application and is distinguishable from a situation when a citizen tries to prevent police officers from entering his home without a warrant. (1) (1966) 2 Q.B.D. 414 (2) (1983) 1 All E.R. 667 12. Towards the end of his brief reasons, the magistrate said this:-
13. The correct test is not she refused police entry, it is whether she wilfully obstructed the officers in the sense that she did so intentionally and without any lawful excuse. The magistrate has failed to apply the proper test. 14. I am satisfied that the conviction cannot be allowed to stand and must be quashed. The fine and order for costs be set aside and if paid to be refunded to the appellant.
Representation: Mr. Fitzpatrick, Crown Counsel for respondent Mr. P. Ho, Gallant Y.T. Ho & Co. for appellant |