HKSAR v. Yeung May Wan and Others

HCMA 949/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 949 OF 2002

(ON APPEAL FROM WSCC NO. 548 of 2002)

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BETWEEN

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Before : Hon Ma, CJHC, Woo V-P and Stock JA in Court

Date of Hearing : 22 November 2004

Date of Judgment : 22 November 2004

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1.By a judgment dated 10 November 2004 this Court allowed the appeal of sixteen appellants on charges of obstruction contrary to the Summary Offences Ordinance; but in relation to appellants 1, 5, 6, 8, 9, 10, 13 and 16, we dismissed appeals in relation to Charge 3, a conviction for obstructing a police officer in the execution of his or her duty and also in relation to Charges 4 to 7 inclusive which were convictions for assaulting a police officer in the execution of his or her duty, directed variously at appellants 5, 10 and 3 only.  It is in relation to our decision to dismiss the appeals in respect of Charges 3 to 6 that the appellants now seek a certificate pursuant to the provisions of section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  No application is presented on behalf of the 3^rd appellant in relation to Charge 7 because Mr Harris who appears for the others does not represent that appellant, and there is no application by that appellant before us.

2.The certificate which is sought is that there is involved in the decision of this Court a point of law of great and general public importance.  The questions posed for certification are as follows:

“The 1^st, 5^th, 6^th, 8^th, 9^th, 10^th, 13^th and 16^th Appellants be granted a certificate under Section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484), that the following points of law of great and general public importance are involved in the decision of the Court of Final Appeal, dated 10 November 2004, namely:-

(1)     Where a police officer who instructs another officer to make an arrest had no reasonable grounds for giving that instruction, whether, and if so in what circumstances, the second officer may nevertheless be acting lawfully in carrying out the arrest on the instruction of the first officer;

(2)     Whether, in this context, the applicable law is the same in cases involving summary offences such as obstruction as it is in cases involving more serious offences such as murder with which the House of Lords was concerned in O’Hara v Chief Constable of the R.U.C. [1997] AC 286 which, unlike obstruction, cannot be dealt with by way of summons as an alternative to arrest;

(3)     Whether in this context the law applies differently in cases where the arrest has the effect of curtailing the exercise of one or more of the following Basic Law rights of the person arrested: the freedom of assembly and/or of procession and/or of demonstration under BL Article 27; and/or the right of peaceful assembly under Article 21 of the Bill of Rights and BL Article 39, in view of the need to ensure that the free exercise of these rights is adequately protected.”

3.The route by which this Court concluded that these particular appeals must be dismissed differed in the case of each judgment to the extent that we shall, very broadly, here explain.

4.The decision of the Chief Judge on the question of acting in the due execution of duty proceeded in the first instance on the basis that the officer who gave instructions for the arrest action, namely Superintendent Chiu, himself reasonably suspected the commission of the public place obstruction offences.  So it is difficult to see upon that basis, and in the absence of a challenge to that conclusion, how the suggested first point of law is involved in that decision.

5.The judgment of the Vice-President is silent on the question whether the Superintendent did or did not hold the requisite belief, but concentrated instead upon the fact that the officers were obstructed or assaulted, as the case may be, at a stage some time after their arrest, and well away from the scene of the arrest, and that the duty upon which they were respectively engaged at the time of these assaults was not the duty of effecting an arrest but other duties altogether, so that in his view the question did not depend at all upon the belief held by the officer who imparted the original instruction to effect arrests or upon the legality of the arrests themselves. 

6.It seems to us that the questions posed can only be said obviously to arise on the approach adopted by the third judge, Stock JA, for it is only he who expressed the view that it was not established that the supervising officer who called for arrest action, Superintendent Chiu, himself reasonably believed that a public place obstruction offence had been committed.

7.It may in the circumstances be doubtful whether a point of law may, for the purpose of a certificate, accurately be said to be involved in the decision of the court where the point in truth is evident only on the basis of one of the judgments; but in this particular case it is not necessary to determine that issue, for it is not in any event, for the reasons we now provide, a case for a certificate from this Court.

8.As the skeleton argument in support of this application shows, the application is predicated on the basis that the arrests themselves carried out by the officers named in Charges 3 to 6 were necessarily unlawful because the officer who called for arrest action did not himself house the requisite belief, and being unlawful, the subsequent detention in the van and at the police station was also unlawful, and therefore amenable to resistance.  The contention that an instruction to arrest based on insufficient grounds necessarily vitiates an arrest by a subordinate, even though the facts may show that information before the subordinate may constitute in his case reasonable belief, is in our judgment an unsustainable contention and clearly so, and indeed it seems from the submissions made to us orally by Mr Harris this morning that, as a general principle, he accepts that.  So too it is not possible reasonably to argue that because the officer who calls for arrest action has himself insufficient basis for belief that an offence has been committed, another officer who effects the arrest cannot reasonably carry such a belief.  It must, so it seems to us, always be a question of fact and it appears to us to be beyond argument that an officer who himself reasonably believes that an offence has been committed, is acting in due execution of his duty if, because of that belief, he effects an arrest.  Whether there is reasonable belief or not is a question of fact.  On the facts found by Stock JA, there was such reasonable belief on the part of arresting officers, not merely because of an instruction and no more but rather because of a combination of matters known to the arresting officers; matters rehearsed in his judgment.  That being so, the first question, in so far as it is based on a case of mere instruction and no more, does not arise; and in so far as it is based on the contention that a lack of reasonable belief in one officer necessarily taints the legality of an arrest by another is also not reasonably arguable.  Therefore, in our judgment, a certificate should be refused as to the first question posed.  It is worth adding that Mr Harris seems to acknowledge that the issues which he raises are tied to the facts, and he appears to contend that the approach to the facts by this Court did not properly recognise the full facts and the context in which the events took place.  On this basis it seems to us that his remedy is under the other limb of section 32(2) of the Ordinance.  That limb is not a matter for us.  If Mr Harris were to succeed before the Court of Final Appeal in drawing a certificate on the second limb, then no doubt the applicable law will be canvassed at the substantive hearing.  It would be odd for us though to grant a certificate on one limb, divorced from the facts found by this Court. 

9.Furthermore, we fail to see how this analysis can be affected by the considerations raised in the proposed Question 2 and 3; and we would therefore also refuse a certificate on those points.

10.Accordingly the application for a certificate is refused.

Mr Kevin Zervos SC, SADPP of the Department of Justice for HKSAR/Respondent

Mr Paul Harris instructed by Messrs Ho, Tse & Wai for the 1^st, 5^th, 6^th, 8^th, 9^th, 10^th, 13^th and 16^th Appellants