HKSAR v. Ibarra Oliva Fernandez

HCMA119/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.119 OF 2004

(ON APPEAL FROM ESCC2917 OF 2003)

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BETWEEN

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Before : Hon Burrell J in Court

Date of Hearing : 24 November 2004

Date of Judgment : 24 November 2004

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J U D G M E N T

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1.This is an appeal by Ibarra Oliva Fernandez.  On 18 December 2003, she was convicted after trial before a permanent magistrate Ms Julia Livesey of two offences : firstly, of obstructing a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap.212; and, secondly, of assaulting a police officer, contrary to section 63 of the Police Force Ordinance, Cap.232.  She was sentenced to seven days’ imprisonment on each charge to run concurrently.  She was granted bail pending appeal and now seeks leave to appeal both convictions and sentence.

2.The prosecution case on the first charge was that the appellant had refused to produce her identity card when asked to do so in the Neptune II Pub & Disco at about 3:40 a.m. on 12 July 2003.  The police officer who made the request said in evidence that the appellant refused, saying that the police officer had no right to ask because it was a private place.  The police officer, over a period of about five minutes, told her he had the right to ask and the appellant continued to refuse and raised her voice when refusing.  Later, she did take her identity card out of her bag, but held it on her wallet and still refused to hand it over for inspection.  She was arrested and taken to the Wanchai Police Station because of her refusal.

3.The prosecution case in relation to the second charge was that whilst at the police station she was offered a cup of water in a paper cup.  Instead of accepting it, she pushed it towards the police officer, causing the water to spill out over the officer’s face and shirt.

4.In her defence, she said that she believed that the Neptune Disco was a private place and that the officer had no right to request to see her identity card.  Accordingly, she refused.  However, later she did produce it and although she did not hand it over to the police officer, he could have taken it from her and she had therefore complied with his request and had not obstructed him.

5.As to the assault, she said that it was an accident.  She said she had not realised that the water was in a paper cup and when she picked it up, the contents spilt over the police officer.

6.The learned magistrate, having seen and heard the three police officers who gave evidence for the prosecution and the appellant, together with one defence witness, made certain findings of fact.  Before doing so, she correctly set out in her Statement of Findings the legal principles which were applicable to this case.  She found that there had been a deliberate refusal by the appellant to handover her identity card.

7.The appellant’s submission which has been repeated in this court on appeal is that because she eventually did get out her identity card, there was no positive act of obstruction.  The learned magistrate was right to reject this argument.  Her findings, properly made, are entirely consistent with an act of obstruction.  The incident must be looked at as a whole.  The act of production after five minutes’ refusal was merely too little too late.  A number of refusals had already occurred and in any event, the final act of production did not amount to a proper compliance with the officer’s lawful request, because details of her identity were still withheld.  The whole incident was a clear case of obstruction which the learned magistrate correctly found proved.

8.There is another ground of appeal which Mr Mughal for the appellant described as a fall back ground.  The appellant maintained that she held an honest and reasonable belief that the police officer had no authority to ask her for her identity card because she was in a private place.  This fall back ground is also without merit.

9.The learned magistrate was alive to the following points which all support a decision to reject this argument :

(1)     The incident actually occurred close to the pavement of Jaffe Road, just inside the doorway of the club, at the top of a flight of stairs.

(2)     The police officer correctly informed the appellant on a number of occasions that he did have the authority to ask for her identity card and that it was not in a private place, which the appellant ignored.

(3)     The appellant’s mistaken belief even if honestly held was a mistake of law and not fact.

(4)     The appellant later did get out her identity card which is consistent with her acceptance that her belief had been mistaken.

(5)     In any event, it was plainly a public place and any belief to the contrary was not a reasonable belief.

10.The authorities relied on in support by Mr Mughal, in particular R. v. Sizto Yuk Hing (1985) 1 HKC 138 and R. v. Lau Yin Kum, HCMA15/1997, which were specifically referred to in the course of argument did not take the matter any further because based on her factual findings, properly made, on the evidence before her, the appellant’s conduct clearly amounted to a deliberate, wilful, positive refusal to comply with a lawful request made by a police officer and, as a direct result, the execution of his duty was plainly obstructed.

11.Charge 2 depends on the learned magistrate’s findings in relation to the defence of accident.  She found the defence of accident had been disproved.  She believed and relied on the evidence of the three police officers.  In short, she found that the scene at the police station was one in which the appellant had continued to be obstreperous and that the appellant in fact pushed the cup of water deliberately towards the police officer, causing the contents to spill over his face and shirt.

12.The learned magistrate rightly noted the improbability of all the water falling on the police officer’s face and shirt as stated by him in evidence if all she had done was picked up the paper cup carelessly not realising it was made of paper, causing it to crush in her hand.  She rejected this explanation as being untrue.  There are no grounds for this court to interfere with such a finding in all the circumstances of this case.

13.The final ground of appeal is not related to the evidence or the facts of the case.  Mr Mughal submits that there was a material irregularity and that such irregularity constituted unfairness to the appellant.  The facts are briefly as follows : originally, the appellant had formally elected to have the trial conducted in English.  However, after an interview with a lawyer on or before 8 December 2003, she decided that she would request a Tagalog interpreter for the proceedings.  The trial was scheduled to start on 12 December 2003.  On 8 December 2003 the Duty Lawyer Scheme wrote a letter to Eastern Magistracy which included the following paragraph :

“The above named defendant indicates to us that she elects to speak Tagalog dialect at trial.  I should therefore be grateful if arrangement could be made for a Tagalog Interpreter to attend court at the hearing of this case.”

14.Unfortunately, that letter was never sent.  On the morning of the trial, accordingly, there was no Tagalog interpreter present.  Before the trial commenced, the duty lawyer made the following request :

“I have one more housekeeping matter.  My client needs a Tagalog interpreter and, apparently, my Duty Lawyer Office has told me that he has requested one but the interpreter is not here.”

The learned magistrate pointed out that as far as the court was concerned, all along, the election had been for the proceedings to be conducted in English.  After another brief exchange, to which I shall refer in a moment, the trial proceeded in English.

15.In the afternoon whilst the matter was part heard, a Tagalog interpreter did arrive and remained for the conclusion of the trial.  At lunch time, the prosecution witnesses had given their evidence but the defendant and her witness had yet to give their evidence.

16.On appeal, submission is made that the learned magistrate should not have started the trial until a Tagalog interpreter was present in court.  I am satisfied that no material irregularity took place and that there was no unfairness to the appellant.  I have taken into account the following matters in reaching that decision :

(1)     It is not suggested that the appellant does not speak good English, or that she does not understand English.

(2)     During the incident itself, on 12 July, all parties spoke in English.  The police officer spoke to her in English and the appellant replied in English.  There was no issue at the time of any language problem.  English was also the language used in the course of the incident which continued at the police station.

(3)     The appellant elected English as the language for trial on 15 September.  She was in court that day and the proceedings were in English.  She was also in court on 22 October for another short hearing, again in English.  She is married to a English speaking expatriate who has been her partner since 1997.  They having married in 2001.

(4)     On the morning of 12 December, the date of trial, before the trial commenced, the appellant’s lawyer made a number of remarks :

		“She wanted to do it in English but my instruction is just that now she wants -- she will do the evidence in English … but I think she wants the interpreter to be here.”
	and a little later :
		“She’s quite good in her English but I think the reason why she made this request in such last stage because she just want the interpreter to be here for security reason.”
	It was then pointed out that there was not in fact any Tagalog interpreter available at the time, and her lawyer concluded the matter by saying this :
		“I was just informed by the Duty Lawyer Officer that this application has not been put into the court but let’s not waste time on this now.”

(5)     The learned magistrate was fully aware of all the facts and at 2:30 p.m., she was informed of what had happened about the appellant’s earlier request to have a Tagalog interpreter present.  Her lawyer informed the court in the following terms :

“Your Worship, there are a couple of housekeeping matters.  First of all, I am instructed by my client to inform the court about the interpreter incident this morning.  Apparently what happened was that they did request a Tagalog interpreter after they had a conference with the previous duty lawyer, who is named, and then apparently they did call the Duty Lawyer Scheme and there was some mistake on the Duty Lawyer’s part.  There was an application form being filled out but for some reason was just never processed, so my client asked me to clarify that to the court.”

The duty lawyer did not make any new applications after the arrival of the Tagalog interpreter and the trial proceeded.

This court can be confident that the learned magistrate, who is a very experienced magistrate, would not have permitted a trial to commence had she thought that the defendant, who was represented by the Duty Lawyer Scheme, was under any disadvantage by the absence of a Tagalog interpreter, in light of all the circumstances which were known to her, and which I have outlined above.

17.For all these reasons, I have come to the conclusion that there was no material irregularity in the proceedings nor was there any unfairness to the appellant.

18.Mr Gavin Shiu for the respondent points out that article 11(2) of the Hong Kong Bill of Rights Ordinance, Cap.383 upon which the appellant relies does not arise.  Article 11(2)(f) gives an accused the right to “the free assistance of an interpreter if he cannot understand or speak the language of the court”.  It is plain that in this case, the learned magistrate concluded that the defendant before her did understand the English language, did speak the English language and from 12 July until about 8 December had given no indication that she required the proceedings to be in anything other than English.

19.I therefore reject this ground of appeal and the appeals against conviction are dismissed.  I turn now to the appeal against sentence.

20.The learned magistrate sentenced the appellant to seven days’ imprisonment concurrent on each charge.  In the Reasons for Sentence, she said as follows :

“The two offences are not of themselves of the most serious.  However the two offences together show a course of unlawful and disruptive conduct over a period of time.  Outside the disco a crowd gathered which could have got out of control.  At the police station she was being totally unco-operative ending in the assault on a police officer.  I adjourned sentence for Community Service Order reports.  She was found unsuitable for the reasons contained therein.  Charge 1 is an excepted offence where suspended sentences are not permitted.  Having considered the whole conduct of the Appellant that day I considered that an immediate term of imprisonment was appropriate.  I therefore sentenced her to an immediate term of imprisonment for 7 days on each charge both of which were to run concurrently.”

21.In my judgment, her reasoning cannot be faulted.  Any assault on a police officer is a very serious matter.  Throwing a cup of water over a police officer is inexcusable.  The prison sentence was not wrong in principle.  The learned magistrate rightly looked at the incident as a whole, and decided the overall conduct merited a short period of imprisonment.  She did this after first calling for and considering a Community Service Order report.  Community Service Orders are designed to be an alternative to imprisonment.  The report concluded that she was not suitable for such an order.  The appeal against sentence therefore is also dismissed.

Mr Gavin Shiu, SADPP of the Department of Justice, for the Respondent

Mr Hanif M. Mughal, instructed by Messrs Tsangs (assigned by the Legal Aid Department), for the Appellant