Yeung May Wan and Others v. HKSAR

FAMC No. 62 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 62 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 949 OF 2002)

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Between:

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Date of Hearing: 22 December 2004

Date of Determination: 22 December 2004

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.In connection with a public demonstration which they were holding, the applicants were convicted of two offences concerning obstruction of a public place under the Summary Offences Ordinance, Cap. 228.  

2.Pursuant to their arrest on suspicion of such offences, they were conveyed in police vehicles to a police station.  There they were ordered to alight from those vehicles and enter the police station for processing as persons under arrest.  They all declined to do so.  And some of them physically resisted being removed from those vehicles into the police station.  This conduct led to all of them being convicted of wilfully obstructing a police officer in the due execution of his duty, contrary to s.36(b) of the Offences Against the Person Ordinance, Cap. 212.  It also led to some of them being convicted of assaulting a police officer in the due execution of his duty, contrary to s.63 of the Police Force Ordinance, Cap. 232.

3.While affirming the convictions for obstruction of a police officer in the due execution of his duty and the convictions for assault on a police officer in the due execution of his duty, the Court of Appeal quashed the public place obstruction convictions on various grounds. 

4.Three grounds have been put forward in support of this application for leave to appeal to the Court of Final Appeal against the convictions which the Court of Appeal affirmed.  Shortly stated, they are as follows.  One, that the arrests were unlawful.  Two, that the magistrate’s findings on the public place obstruction charges were so flawed as lacking in balance and understanding of the relevant law that none of his other findings can safely be relied upon.  And, three, that there was unconstitutional delay in the determination of the appeal to the Court of Appeal.  We can dispose of the second ground very briefly.  In our view, it is plain beyond reasonable argument to the contrary that the matters complained of under the second ground have been properly considered and disposed of by the Court of Appeal and do not call for consideration by the Court of Final Appeal.

5.Going to all the convictions is this question.  In what circumstances is a police officer to be regarded as acting in the due execution of his duty when processing a person arrested by police officers on the order of a superior officer who had no reasonable ground for ordering that person’s arrest?  This is a reasonably arguable question of law of great and general importance.  We certify it.  In all the circumstances of the present case, we feel that the open-ended form in which we have certified it is justified. 

6.It is conceivable that if the appeal against the convictions for assault on a police officer in the due execution of his duty were to succeed on that certified question but on it alone, substitution of convictions for common assault may arise for consideration.  The parties’ printed cases should address such substitution.

7.As to delay, which also goes to all the convictions, the argument put forward on the applicants’ behalf is, quoting from their written Application for Leave to Appeal, “that the length of time between the appeal hearing and the handing down of judgment was so great that in itself this constituted a denial of justice such that the convictions should be quashed”.  In all the circumstances, we do not propose to shut out the argument that the time between the hearing of the appeal to the Court of Appeal and the handing down of judgment in that appeal involves delay constituting a denial of justice.  Whether the proper remedy for a denial of justice through delay in a case like this is the quashing of convictions is a question of law of great and general importance that merits the attention of the highest court.  So we certify it as the second question. 

8.We grant leave to appeal to the Court of Final Appeal for the certified questions to be pursued.  And we also grant such leave on the substantial and grave injustice basis because the matters surrounding the certified questions may reasonably lend themselves to being pursued on that basis, too.  One of the questions which we were invited to certify, being a question going only to the convictions for obstruction of a police officer in the due execution of his duty, runs along these lines.  Where demonstrators who have committed no offence are arrested, do they obstruct a police officer in the due execution of his duty if they decline to comply with his order to alight from a police vehicle and enter a police station?  In the course of the argument, Mr Paul Harris for the applicants properly said that if we were to certify the first question, particularly if we were to grant leave on the substantial and grave injustice basis, too, then he would be content even if we did not certify that other question since the Court of Final Appeal could embark upon that question or one like it even in the absence of a certified question directed specifically to it.

Mr Paul Harris (instructed by Messrs Ho, Tse, Wai & Partners) for the applicants

Mr Kevin Zervos SC (of the Department of Justice) for the respondent