HKSAR v. Tam Lap Fai

HCMA 835/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 835 OF 2003

(ON APPEAL FROM KCCC 6681/2003)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 19 August 2004

Date of Judgment: 19 August 2004

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D E C I S I O N

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1.The applicant was convicted after trial in the magistrate’s court of 3 charges and also convicted of one charge of failing to comply with a traffic sign on his own plea.

2.On appeal to the Court of First Instance, the hearing was before me I have allowed his appeal on two of these three charges, and dismissed the appeal in relation to the obstructing a police officer in the due execution of his duty charge.  And that is the matter which have been brought before me for a certificate to the Court of Final Appeal. 

3.The facts as found by the learned Magistrate, were very simply that when the applicant was stopped by the police officer, he was asked to produce his driving licence.  The applicant, who was inside the car at the time, intentionally flicked the licence out of the vehicle and the licence fell onto the ground.

4.The learned Magistrate found that this was an act done wilfully with a view to making it more difficult for PW1 to perform his duty and therefore the applicant was convicted of one charge of obstruction of a police officer.

5.In my judgment, I had adopted the words of the court in Lewis v. Cox [1985] QB 509 which was applied in the Hong Kong case of Chung Chi-cheung v. The Queen, 1987 HKLR 1221 that quite simply says that a “person is guilty of obstructing a police officer in the execution of his duty if he deliberately did an act which in fact, prevented a police constable from carrying out his duty or made it more difficult for him to do so, and if he knew and intended that his conduct would have that effect”.  There is a typo graphical error in the judgment, but, be that as it may, it is quite clear, in any event, that the learned Magistrate has to consider whether a Defendant who had been charged with obstruction had “wilfully obstructed” or whether he deliberately did an act which though not necessarily aimed at or hostile to the police, in fact prevented a constable from carrying out his duty or made it more difficult for him to do so, and that he intended and knew that his conduct would have that effect.

6.This is an expansion of the principle laid down in Hinchcliffe v Sheldon [1955] 3 All ER 406 where it was said that “obstructing” meant making it more difficult for the police to carry out their duties.

7.So, at the end of the day, I had dismissed the appeal against conviction.  Mr Plowman, on behalf of the applicant, in his Notice of Application had submitted two points of law which he considered should be referred to the Court of Final Appeal for their decision. 

8.The first being, when considering an offence of wilfully obstructing a police officer in the due execution of his duty, contrary to section 36 of the Offences against the Person’s Ordinance, whether the word “obstruction” as defined in Hinchcliffe v Sheldon [1955] 3 All ER 406 “making it more difficult for a police officer to carry out his duty” should be qualified to include only such conduct as will result in the creation of problems of real consequence to the police officer in the carrying out of his or her duty. 

9.After considering the submissions of Mr Plowman and the authorities I consider that the law is clear and it is to be decided on the facts of each particular case as to whether the action of a particular Defendant amount to obstruction, and the words need no qualification. 

10.As has been noted in the Canadian case, which Mr Plowman relies on, of the Reg. v Whalen[1],which is in the Alberta Provincial Court Criminal Division.  In that case, the court had stated very clearly that though the judge doubted that the action of that particular defendant in that case, did not amount to obstruction, as in the court’s opinion, the conduct of an accused must have caused the officer to expand “more than trifling additional effort”, it need not have completely thwarted the work of the officer but it must result in more than a “fleeting or momentary diversion or expenditure of effort” and that is common sense.  The judge in that case also concluded with the words that each case will have to be decided on its own facts. 

11.We have a common law jurisdiction.  Our law is a constantly evolving creature and, very often, the words in an Ordinance or a Statute would be expanded or qualified by case law.  It is a question of fact for judges of the facts, each time to consider whether, on the facts before him what was done would amount to obstruction under the law so, therefore, I do not consider that this is a proper question to be certified for the Court of Final Appeal.

12.As for the 2^nd question, Mr Plowman asks whether the current definition as stated in Hinchcliffe v Sheldon already takes into account the degree of extra difficulty caused, so as to exclude conduct that does no more than call the police officer to exert minimal additional effort in the carrying out of his or her duty.

13.Again, I am afraid that that are so many varied circumstances in this type of cases, that it would be wellnigh impossible for the Court of Final Appeal to state with any confidence or lay down any guidelines as to what degree of extra difficulty would have to be caused in order for that conduct to be excluded. 

14.Again, it falls back to the trier of the fact as to what he would consider is the degree of extra difficulty and whether it causes the particular police officer to exert minimal additional effort.  So I am not persuaded that these are points of law that are of general and public importance and which ought to be certified for the determination by the Court of Final Appeal.  So the application is therefore dismissed.

Miss Mary Sin, SADPP, of Department of Justice, for Respondent

Mr Gary Plowman, SC & Mr Derek Chan, instructed by Messrs Lo & Lo, for Applicant

[1]    Whalen 20 WCB (2^nd Edition 501) 143 AR 334