HKSAR v. Cheng Chor Yam

HCMA30/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.30 OF 2005

(ON APPEAL FROM KTCC 7362 OF 2004)

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Before : Hon Burrell J in Court

Date of Hearing : 3 March 2005

Date of Judgment : 3 March 2005

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J U D G M E N T

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1.This is an appeal against two convictions imposed after trial before a magistrate, Ms Amanda Woodcock, at the Kwun Tong Magistrates’ Courts on 3 December 2004.  The convictions were for obstructing a police officer in the execution of his duty and for resisting arrest.

2.There was no significant dispute as to the material facts of the case which are fully set out in the comprehensive and clear Statement of Findings provided by the learned magistrate.

3.The case concerned the appellant’s refusal to show his identification card to a police officer and his subsequent arrest for the refusal which was the basis of the obstruction charge.

4.The two grounds of appeal are that firstly, the learned magistrate erred in finding that the police officer was entitled to seek proof of identity and that the appellant was obliged to provide it, and secondly, as there was no right to ask for identification the appellant was entitled to resist being arrested for his alleged refusal because the arrest was unlawful.

5.The facts as found by the learned magistrate were uncomplicated.

6.The police were carrying out an authorized licence check at the Kam Tim Amusement Centre.  They were in uniform.

7.Inside the Amusement Centre is a glass cashier kiosk which, for obvious security reasons, it being a cashier kiosk, can be locked.

8.Whilst PW1, a police officer, was talking to the cashier inside the kiosk and whilst he was checking the Centre’s Business Registration Certificate, the appellant suddenly walked into the kiosk.  PW1 made enquries of the cashier.  The cashier said the person who had walked in was not a member of the staff and she did not say whether she knew him or not.  It is this moment which must be analysed because it is this moment when PW1 first asked the appellant for proof of identity, which he refused on this and many subsequent occasions.

9.The learned magistrate, in her Statement of Findings, addressed all the key issues properly and she cannot be faulted for her decision.  She made the following findings :

10.(i) The police were lawfully at the Centre and PW1 was in the course of his duty at the material time.  (ii) The appellant had suddenly entered a secure area, within the Centre, where the cash was kept.  He was not a member of staff.  (iii) The cashier did not say whether he was known to her or not.  (iv) The officer at that moment had reasonable grounds to be suspicious about the appellant’s presence in such a location.  (v) Section 49 of the Public Order Ordinance, to which the learned magistrate referred, empowers a police officer to request proof of identity in precisely circumstances such as these.  (vi) On this ground alone he was entitled to ask for proof of identification.

11.The fact that the appellant was inside a lockable cash kiosk is neither here nor there.  It is still on the premises where the officer was lawfully in the course of carrying out his duty.  The issue of whether it was a public or private place does not arise under section 49 of the Public Order Ordinance.  It is simply a bad point.

12.From the moment of the first request, the appellant adopted an aggressive and arrogant stance in his consistent and repeated refusal to show his identity card (which in fact he always had in his possession).

13.The learned magistrate found that the refusal was unlawful and constituted an obstruction of the police officer’s duty.  She cannot be faulted for so finding.  The arrest was lawful and the resisting of arrest was clearly proved by the largely unchallenged evidence which followed.

14.The appellant was violent when arrested.  There were two attempts to arrest him.  Firstly, three officers entered the kiosk but were thwarted by his violence.  They retreated.  The appellant locked himself in.  Reinforcement arrived and a key to the kiosk became available and a second attempt to arrest was made — this time successfully, albeit after a further struggle.  Access to the kiosk was never refused to the police.  When PW1 first got there to check the Business Registration Certificate it was unlocked.   On the second attempt to arrest after the appellant had locked it and it had subsequently been unlocked.  There was no suggestion made that the police were or would have been refused entry.

15.In all the circumstances the learned magistrate’s decisions that firstly, the police officer was within his right to request proof of identification and secondly, that the appellant was not within his right to refuse it cannot be faulted.  This appeal must fail.

Ms Winsome Chan, SGC of the Department of Justice, for the Respondent

Mr Oliver H. Davies, instructed by Messrs Paul Chan & Co., for the Appellant