HKSAR v. Tam Lap Fai

FACC No. 15 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 15 OF 2004 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 835 OF 2003)

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Between

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Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice RibeiroPJ and Sir Anthony Mason NPJ

Date of Hearing: 9 May 2005

Date of Judgment: 26 May 2005

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J U D G M E N T

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Chief Justice Li:

1.I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Bokhary PJ:

2.I agree with the judgment of Mr Justice Chan PJ.

Mr Justice Chan PJ:

Introduction

3.In connection with a traffic offence, the appellant was charged with three other offences, namely, obstructing, assaulting and resisting a police officer in the due execution of his duty, all contrary to s.36(b) of the Offences Against the Person Ordinance, Cap 212.  He was convicted of all charges by a Permanent Magistrate (Mr S H Wong) at the Kowloon City Magistracy.  On appeal to the Court of First Instance (Deputy Judge Toh), the convictions on the assault and resisting charges were quashed, but the conviction on the obstruction charge was upheld.  The appellant had also appealed against his conviction of failure to comply with a traffic sign but then abandoned such appeal.  Leave to appeal to this Court against the remaining conviction was granted by the Appeal Committee on both limbs of s. 32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

The incident

4.The facts of this case are not uncommon.  From time to time, similar situations arise out of encounters between citizens and police officers in the due execution of their duty over minor transgressions of the law or trivial matters when misunderstanding, poor manners, hot temper or prejudice may lead to personal clashes, resulting in either a complaint against the officer for abuse of power or the laying of charges against the citizen for obstruction or other offences.  This is such a case.  It started with a traffic offence and ended with the appellant facing the additional charges mentioned above. 

5.On 5 March 2003, the appellant drove his private car into the container truck loading and unloading area in Ferry Street, Kowloon during the restricted hours of the day and was intercepted by two police officers (PW1 and PW2).  The appellant, admittedly “disgruntled” by the alleged lack of conspicuous signs restricting entry into that area, argued with them.  According to the officers, when PW1 asked him for his driving licence, the appellant flipped it out of the car window, challenging the officer in foul language to book him.  The licence landed on the ground.  PW1 asked the appellant to pick it up.  In response, the appellant got out of the car and picked up the licence.  He then went over to PW1 and, as alleged by the officer, grasped his windbreaker, punched him in the face and inserted the licence inside his windbreaker, continuously uttering foul language.

6.Then followed a scuffle between the appellant and PW1.  PW2 and another officer who was nearby came to assist.  The officers alleged that the appellant assaulted PW1 and resisted their arrest.  He was finally subdued and arrested.  He was later taken to hospital for medical examination.  The appellant’s version is quite different; he alleged that while he was handing over his licence to PW1, it was accidentally dropped when his hand knocked against the window.  He denied having assaulted the officer or having resisted arrest.  It was he who was assaulted by the officers and sustained injuries.

Decisions in the courts below

7.The Magistrate examined all the evidence in meticulous detail. Having considered the discrepancies in the evidence of the three officers who were at the scene of the incident, he took the view that they were not material discrepancies or that there were explanations for the inconsistencies.  He came to the conclusion that these officers were honest and credible witnesses.  He then dealt with the evidence of the appellant, testing it in particular with the evidence of the appellant’s injuries given by the doctor who examined him.  In the end, the Magistrate did not believe the appellant.  He was satisfied that the appellant had obstructed, assaulted and resisted the police officers in the due execution of their duty and he convicted him of all charges.

8.On appeal, the Deputy Judge held that in dealing with the assault and resisting charges, the Magistrate had erred with regard to his views as to complaints which the appellant should have made to the doctor about his injuries during the medical examination. She considered that this error might have influenced the Magistrate’s conclusion on these two charges and so she quashed their convictions.  However, she upheld the conviction on the obstruction charge.  Her reasoning or the lack of it in doing so is criticized by the appellant in submitting that he has suffered substantial and grave injustice. 

9.Apart from relying on this ground, the appellant also asks this Court to elaborate on the test to be applied in deciding whether there was any obstruction of the officer.  This constitutes the point of law of great and general importance.

The point of law

10.Section 36(b) of the Offences Against the Person Ordinance provides that any person who wilfully obstructs any police officer in the due execution of his duty shall be guilty of an offence.  This offence consists of three elements: there must be an obstruction of the officer; the officer must at that time have been performing his duty; and the person obstructing the officer must have done so wilfully.  In this case, we are only concerned with what amounts to obstruction and whether the appellant’s conduct constituted an obstruction.

11.It is common ground that the applicable test in deciding whether there was an obstruction of the officer in the due execution of his duty is that propounded by Lord Goddard CJ in Hinchliffe v. Sheldon [1955] 1 WLR 1207 when he said: “obstructing, for the present purpose, means making it more difficult for the police to carry out their duties”.  It is not disputed that this was the test which the Magistrate had purported to apply in this case.  The first issue raised by the appellant is whether this test is sufficiently clear or whether it needs further elaboration and if so, what guidance should be given.

12.Mr Plowman SC, leading Mr Derek Chan for the appellant, submits that while Lord Goddard’s test is adequate in most cases, it is not sufficiently specific in borderline cases such as the present.  It is argued that this test fails to indicate the degree of extra difficulty caused to the police officer required before categorizing the conduct in question as an offence of obstruction.  So long as the officer is required as a result of a person’s conduct to exert additional effort however minimal in carrying out his duty, his job is made more difficult and that person may be guilty of obstruction.  Counsel refers to a number of authorities in other common law jurisdictions which explained the meaning of obstruction in similar statutory provisions.

The authorities

13.In Plunkett v. Kroemer [1934] SASR 124, the Supreme Court of South Australia had to deal with the offence of “hindering” a police constable in the execution of his duty.  For the purpose of the present discussion, it is accepted that there is no difference between “hinder” and “obstruct” whose ordinary dictionary meanings are, as noted by Yong Pung How CJ in Foo Siang Wah Frederick v. Public Prosecutor [2000] 2 SLR 405, 423, the same.  In Plunkett v. Kroemer, the defendant stood in the doorway of a hotel delaying entry by the police officer and gave warning to the people inside when the officers were waiting to enter in order to conduct a licensing inspection.  Napier J took the view that the prosecution must prove an actual hindrance, in the sense of some appreciable obstruction to, or interference with, the performance by the constable of his duty and that a constable is hindered by any obstruction or interference that makes his duty substantially more difficult. 

14.This case was followed in another South Australian case Leonard v. Morris [1975] SASR 528, 531 where the defendant stood between an officer and a witness and interrupted several times mentioning irrelevant matters and using foul language when the officer was making enquiry into an assault case.  The defendant was found to have substantially distracted the officer’s enquiry.  The issue was whether it was necessary to prove that the defendant knew or believed that the person hindered was a police officer engaged in the execution of his duty.  It is interesting to note that one of the judges, Walters J took the view that the word “hinder” should not be given such a vague or notional meaning as would comprehend some trivial or ineffective impediment or obstruction.

15.Plunkett v. Kroemer was also cited with approval in the Singaporean case of Foo Siang Wah Frederick v. Public Prosecutor.  It was a case in which the obstruction took the form of suggesting to a suspect to destroy potentially incriminating evidence.

16.These cases suggested that a relatively high threshold is required before it can be held that the officer had been obstructed in the execution of his duty.  While this is certainly the effect of these decisions, it must be noted that on the facts, there was no question but that the obstruction which occurred in each of these cases was indeed substantial.

17.In the Canadian case of R v. Whalen (1993) 143 AR 234, the defendant gave the wrong name and date of birth when he was stopped in connection of a traffic offence.  The falsity of the information was revealed by a routine check which had to be carried out in any event.  The wrong information resulted in a slightly longer conversation between the officer and the defendant.  In holding that there was no obstruction, Judge Fradsham accepted Lord Goddard’s test as the law but went on to say (in paragraph 19) that to constitute the offence of obstructing a peace officer in the execution of his duty, the conduct in question must be something which “affected the work of the police officer” and that “[i]t must have caused the officer to expend 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.  Each case will be decided on its own facts.” 

18.Similarly, in another Canadian case, LeGrandeur PCJ in R v. Robinson (2000) 287 AR 79 said (in paragraph 15) that it was not sufficient to show simply that the officer has been inconvenienced and that the conduct in question “must be more than trifling or de minimus in nature”.

19.The courts in the English cases which have been cited to us seemed to be content to simply follow Lord Goddard’s test.  They did not find it necessary to expand or elaborate on it because that was not in issue in those cases. In Rice v. Connolly [1966] 2 QB 414, the defendant was seen walking along a street in the small hours of the morning and when asked by a police officer, he refused to give his name and address or to go to a nearby police box. The court accepted that the defendant was making it more difficult for the police to carry out their duties.  The issue in that case was whether the defendant’s conduct was wilful in that it was not only done intentionally but also without a lawful excuse.

20.In Lewis v. Cox [1985] 1 QB 509, the defendant’s friend was arrested for disorderly conduct and put in a police van.  The defendant, despite an earlier warning, tried to open the door of the van in order to ask his friend where he was being taken to.  The defendant was charged with obstructing the police in the execution of their duty.  The issue was whether it was necessary to show that his conduct was aimed at or hostile to the police to constitute an obstruction.  Applying Lord Goddard’s test, the Divisional Court considered that the defendant’s conduct was obstruction.

What amounts to obstruction

21.Mr Plowman invites this Court to follow the South Australian cases and to adopt a standard requiring conduct which makes the officers’ work substantially more difficult before such conduct can be regarded as obstruction.  Alternatively, he submits that we should follow the Canadian cases by requiring the prosecution to show that the conduct has caused more than a trifling additional effort to the police.

22.Mr Reading SC, leading Mr David Leung, for the prosecution accepts that obstruction should exclude conduct which causes mere inconvenience or results in only trifling additional effort on the part of the officer.  However, he takes two points.  First, he submits that this “de minimus” exclusion must be implicit in Lord Goddard’s test and need not be made explicit.  Secondly, he submits that the standard should not be set too high: this would unnecessarily hinder the work of the police in the detection of crimes; and this was also not the intention of the legislation.

23.Police officers have an onerous duty to discharge in the detection of crimes and the making of enquiries.  Private citizens have a moral or social duty to assist them.  After all, police officers are there to protect the safety and property of private citizens.  There are however bound to be situations where co-operation is not readily forthcoming from a private citizen to a police officer doing his duty: the citizen may wish to exercise his right of silence; or he may wish to seek clarification from the officer as to what the matter concerns or what it is that is expected or required of him, or he may wish to reason with the officer and to try to persuade the officer that he has made a mistake, or he may wish to protect or advise a relative or close friend who is being questioned by the police, or he may have other more urgent matters to attend to for the time being.  Conduct of this kind would not normally be regarded as obstructing the officer in the due execution of his duty because it is neither the type of criminal conduct contemplated by the statutory provision nor is it wilful in the sense that it is deliberate and without lawful excuse. 

24.Whether particular conduct amounts to wilful obstruction of an officer in the due execution of his duty is always a matter of fact and degree.  It is important to look at all the circumstances of each case, including what the person has done and how it is done, what the officer is doing, and the effect of what the person has done on what the officer is doing. As LeGrandeur PCJ pointed out in R v. Robinson, (paragraph 13), “what may be an obstruction in one set of circumstances may not be in another, even though the act undertaken is the same in both instances.” 

25.Lord Goddard’s test, as conceded by Mr Plowman, works quite adequately in the great majority of cases in deciding whether certain conduct is or is not wilful obstruction of the officer in the due execution of his duty.  When common sense is applied, and I think it is important that common sense is applied, in this type of case, it is quite clear that the test does not intend to include conduct which may cause mere inconvenience to the officer or require him to expend only trifling additional effort.  It is not the intention of the legislation to punish such conduct.  On the other hand, I do not think it is necessary for the prosecution to prove that the conduct in question makes the officer’s work substantially more difficult.  This is to set too high a standard and if such test is applied too strictly, it may hamper the work of the police.  Such a test is neither appropriate nor necessary.

Whether appellant’s conduct was obstruction

26.Applying Lord Goddard’s test as clarified or modified, Mr Plowman submits that the appellant’s conduct in this case, even if the officers’ version is accepted, would not amount to wilful obstruction.  The act of flipping his driver’s licence out of the car window onto the ground would have only necessitated PW1 to bend down and pick up the licence.  This, he submits, would only have caused the officer the minimal additional effort.  In any event, it was the appellant who picked up the licence and handed it to the officer.  That would have been the end of the matter as far as the obstruction charge was concerned. What happened after that was the subject matter of the other two charges.

27.I do not agree with this analysis of the incident.  As Mr Reading quite rightly pointed out, the entire sequence of events has to be looked at.  If the police officer was right, what the appellant did was to pick up the licence from the ground and to walk over to the officer to punch him and to thrust the licence at him in the way he did.  When the whole circumstances are considered, such conduct, if accepted by the court, could not be regarded as causing the officer mere inconvenience or trifling additional effort.  But whether the appellant is guilty of the obstruction charge depends on the correctness of the Magistrate’s assessment of the evidence adduced before him.  And this relates to the substantial and grave injustice ground of appeal.

Deputy Judge’s reasoning in quashing the other two convictions

28.In order to appreciate why it is submitted that the appellant has suffered substantial and grave injustice, it is necessary to consider the reasons why the Deputy Judge quashed the convictions on the assault and resisting charges but upheld the obstruction charge.

29.I would start with the Magistrate’s Statement of Findings. In paragraph 24, the Magistrate analyzed the appellant’s evidence and came to the conclusion that his version of the events was “very unlikely”.  The major part of the Magistrate’s reasoning was based on his assessment of the appellant’s evidence on what happened during the scuffle in the light of the injuries which were alleged to have been sustained by him.  He considered that the alleged injuries were not consistent with what the appellant said since some of them were not mentioned in the medical report, implying that if the appellant had really suffered those injuries, he would not have failed to disclose them to the doctor who examined him.  The Magistrate then made the following comment:

“It is impossible that the Appellant was not aware that the doctor was a powerful and independent witness to prove his innocence.”

30.The Deputy Judge accepted counsel’s submission that this statement was incorrect.  She said:

“Had the Appellant told the doctor about the alleged beating, his complaint to the doctor in law cannot be used as corroboration that there was in fact a beating of him.  It is merely evidence of consistency so the doctor’s evidence of the Appellant’s complaint if there was one would not have been able to “prove”  the innocence of the Appellant.”  (para. 18 of her judgment)

31.She was obviously troubled by the possible effect of the Magistrate’s error on his assessment of the appellant’s evidence as a whole which in turn might affect his conclusion of the appellant’s guilt in relation to the assault and resisting charges.  She said:

“	24.	The question then arises whether the learned Magistrate had allowed this error to cloud his judgment when he was assessing the evidence of the Appellant when he found the Appellant's evidence to be incredible.
	25.	After reading the Statement of Findings, I cannot say to what extent this error may have clouded the learned Magistrate’s judgment but it obviously had an effect.  Next question is had the learned Magistrate not been in error on this point, would he still have found the Defendant’s evidence incredible and to that question I must say that I am not sure.  This error would therefore have a deleterious effect on the learned Magistrate’s ultimate conclusion as to the guilt of the Defendant on charges 3 and 4.
	26.	At the end of the day, I am therefore left with a lurking doubt and the doubt has to be resolved in favour of the Appellant.”

32.In essence, the Deputy Judge took the view that the Magistrate’s process of evaluating the appellant’s credibility was flawed.  If he had not committed this error, it was not possible to tell whether the Magistrate would have considered that the appellant’s evidence regarding the assault and resisting charges was true or might be true, thus giving rise to a reasonable doubt in the prosecution case. 

Substantial and grave injustice

33.In submitting that the appellant has suffered substantial and grave injustice, Mr Plowman argues that the Deputy Judge’s reasoning in quashing the two other convictions should equally apply to the conviction on the obstruction charge and that she should have quashed that conviction as well.  On the other hand, it is contended by Mr Reading that first, the Magistrate’s erroneous comment was made only in relation to the assault and resisting charges and not to the obstruction charge; secondly, that was not the only matter considered by the Magistrate in deciding to reject the appellant’s evidence, and thirdly, the factual basis for the obstruction charge was different, ending with the appellant handing over his licence to PW1.

34.In respect of the obstruction charge, the Deputy Judge’s reason for upholding the conviction was contained in paragraph 27:

“… As for charge 2, the learned Magistrate had properly convicted the Appellant of that charge and so the appeal against conviction in relation to charge 2 is dismissed.”

35.With respect, this is no more than a bare statement of conclusion unsupported by any statement of reasons.  One is left wondering what the basis for the Deputy Judge coming to that conclusion was and in particular whether she had considered the effect of the Magistrate’s error on the obstruction charge.  

36.This is a case where the appellant and the officers gave quite different versions as to what the appellant did after he was intercepted, who started the scuffle and how it happened.  In my view, the credibility of these persons is of critical importance.  If the Magistrate had approached the appellant’s evidence in the proper way, one cannot be sure whether he would still have accepted the prosecution evidence or would not have found a reasonable doubt.  It is true that the Magistrate is entitled to accept part of the evidence and reject the other parts of it.  But in this case, the appellant’s credibility was not only important in relation to the assault and resisting charges.  It also went to obstruction charge.  First, although different charges were laid against the appellant and they must be considered separately, what happened was one single incident, one event leading to another, ending up in the scuffle.  Secondly, and more importantly, one of the ingredients of the offence is that the obstruction must be wilful.  If, as alleged by PW1, the appellant had deliberately flipped his licence out of the window, this would go to show that the obstruction was wilful.  The appellant said in evidence that it was an accident.  If what he said is true or may be true, there would be a doubt as to whether what he did was wilful and he would be entitled to an acquittal. 

37.The flaw in the Magistrate’s credibility evaluation process might have infected his conclusion that there was wilful obstruction on the part of the appellant.  That being the case, one cannot be sure that had the Magistrate adopted the correct approach, he must still have convicted the appellant.  Unfortunately, we do not have the benefit of the Deputy Judge’s reason for upholding this conviction.  But on the facts of this case, once it was considered that the appellant’s credibility had been wrongly assessed in relation to the other two charges, it would be difficult, in my view, to resist the conclusion that the same should apply to the remaining charge as well.

38.The Magistrate’s error and the Deputy Judge’s failure to give any reason for upholding the conviction amount, in my view, to a departure from accepted norms so serious as to have resulted in the appellant having suffered substantial and grave injustice.

Conclusion

39.For these reasons, I would allow the appeal, quash the obstruction conviction and set aside the sentence.  The prosecution does not object to paying the costs of this appeal and those in the courts below in case the appeal is successful.  I would also make an order for costs accordingly. 

Mr Justice Ribeiro PJ:

40.I agree with the judgment of Mr Justice Chan PJ.

Sir Anthony Mason NPJ:

41.I agree with the judgment of Mr Justice Chan PJ.

Chief Justice Li:

42.The Court unanimously allows the appeal, quashes the conviction on the obstruction charge, sets aside the sentence and orders that the appellant do have his costs here and in the courts below.

Mr Gary Plowman, SC and Mr Derek Chan (instructed by Messrs Lo & Lo) for the appellant

Mr John Reading, SC & Mr David Leung (of the Department of Justice) for the respondent