HKSAR v. Ip Kenneth
Read the full judgment text of HCMA 1161/2005 on BabelCite. This High Court CFI judgment was delivered on 12 April 2006.
1. The appellant was convicted after trial of an offence of assault occasioning actual bodily harm, contrary to common law and section 39 of the Offences Against the Person Ordinance, Cap. 212. The appellant appeals against that conviction.
Cited by 12 cases · Cites 1 case
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HCMA1161/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 1161 OF 2005 (ON APPEAL FROM KCCC 1673 OF 2005) --------------------------- BETWEEN
--------------------- Before : Hon McMahon J in Court Date of Hearing : 28 March 2006 Date of Judgment : 12 April 2006 ----------------------- J U D G M E N T ----------------------- 1.The appellant was convicted after trial of an offence of assault occasioning actual bodily harm, contrary to common law and section 39 of the Offences Against the Person Ordinance, Cap. 212. The appellant appeals against that conviction. 2.The prosecution case at trial was that the appellant had gotten into a residential lift with the victim (PW1), a female office worker who was returning home at 8:30 a.m. after a four-day trip to China. There was no one else in the lift. PW1 pressed the 6/F button for her flat. The appellant pressed the 8/F button. 3.Before the lift arrived at the 6/F, PW1 noticed the appellant, who was behind her, take out a mobile phone camera and bend down and take a photo up her skirt. 4.PW1 became angry and accused the appellant of taking photographs of her. The appellant denied it. The lift then arrived at the 6/F and the doors opened. 5.PW1 then demanded that the appellant get out of the lift at the 6/F “for a chat to explain the matter”. The appellant refused to get out. PW1 then grabbed the appellant's shirt with both hands in an attempt to drag him out of the lift. The appellant then struck PW1 on the arm, near her wrist, three or four times with his mobile phone. PW1 then let go of the appellant and he pushed her out of the lift. 6.The lift doors then closed. The lift continued to the 8/F. PW1 pushed the “down” button in the 6/F lobby and shouted out to her brother, who she knew was home at her flat, to come and help her. He came out into the lobby. When the lift returned to the 6/F, the doors opened and the appellant was still in the lift. 7.PW1 and her brother got into the lift with the appellant and accompanied him to the G/F where the police were called by PW1 and they then arrested the appellant. 8.Mr Christopher Grounds, counsel for the appellant, advances a number of grounds of appeal. They may be summarized as follows :
The unlawful arrest 9.Perhaps Mr Grounds' main complaint is that the magistrate failed to deal with the question as to whether the appellant was entitled to use force so as to release himself from the grasp of PW1 and prevent himself from being dragged out of the lift. 10.He argues in this regard that PW1 was not entitled to use force to pull the appellant out of the lift so as to “chat and explain”. He says that a person may only detain another person lawfully where that detention, commonly called “a citizen's arrest”, occurs within strictly defined parameters. Those parameters are encapsulated in the common law and in sections 101 and 101A of the Criminal Procedure Ordinance, Cap. 221. 11.Those sections, so far as they are relevant, are as follows :
12.Mr Grounds argues that the common law has also imposed limits on a private person's ability to lawfully detain another and that those limits are in no way expanded by the terms of sections 101 and 101A of the Criminal Procedure Ordinance. 13.Before dealing with this aspect of Mr Grounds' argument, it is convenient to summarise PW1's evidence so far as it relates to this ground of appeal :
And later :
And later :
14.Firstly, Mr Grounds says that PW1's attempt to “arrest” the appellant so as to chat to him and have him explain his actions to her was unlawful, even if the appellant had in fact taken a photo up the skirt of PW1 as alleged, because it is never lawful to detain or “arrest” someone for a purpose outside that specified in section 101(5) of the Criminal Procedure Ordinance, i.e. to deliver the detained person to the authorities and that the appellant was therefore entitled to use reasonable force to resist her and to free himself. That is, he raised the defence of self-defence. 15.Going on from that, Mr Grounds asserts that the magistrate never in any event considered the issue of self-defence which was fundamental to the appellant's case and that the conviction was unsafe for that reason alone. 16.As to the latter argument, I think it is plain that the magistrate did in fact have these matters in mind in arriving at his verdict. In his oral reasons for verdict given at the time of conviction, the magistrate said :
17.It may seem that was a somewhat brief disposal of the issue by the magistrate, but the brevity of the magistrate's reasons in this regard are understandable in the context of the approach of defence counsel at trial. During counsel's submissions for the appellant at trial, the magistrate had this exchange with counsel :
18.It can be seen from that exchange between the magistrate and the appellant's counsel that the focus of the appellant's submissions was directed to the simple assertion that PW1's attempt to drag the appellant from the lift was unlawful because the appellant had not in fact committed the offence alleged, that is, photographing up PW1's skirt. No submission at all was made in respect of the alternative situation which is the basis of this ground of appeal that the attempted arrest of the appellant was in any event unlawful as PW1 was seeking to detain him so as to merely have him explain himself. 19.I cannot see that the magistrate's relatively brief reference to and dismissal of the defence of self-defence can be criticised in those circumstances. Once the magistrate found that the appellant had attempted to photograph inside PW1's skirt, there was no reason for him to go on to deal in detail with PW1's reasons for attempting to detain the appellant by dragging him out of the lift. Counsel had, after all, submitted “that the court doesn't have to concern itself too much about that”. 20.But even if the magistrate made sufficient reference to the issue, was he right in concluding that PW1's efforts to detain the appellant were not unlawful? 21.This aspect of Mr Grounds' argument revolves around the evidence of PW1 that she attempted to drag the appellant out of the lift so he could explain himself, rather than to deliver him to the police. But that must be placed in context. It was also PW1's evidence that she had in fact eventually called the police. That was done when she and her brother had accompanied the appellant to the G/F lobby of their building. 22.The terms of section 101(2) of the Criminal Procedure Ordinance are reasonably plain, though the word “may” in the phrase “may reasonably suspect” seems somewhat otiose. In my judgment, it is an objective test. On the facts found by the magistrate, the requirements of section 101(2) have plainly been met. 23.It is worthy of note that section 101(2) does not require in its terms that the arrest be made for the purpose of delivering the person arrested to a police officer or magistrate. The provision dealing with the handing over of an arrested person to the authorities is in section 101(5) and it deals with the actual handling of the arrested person in that regard rather than the purposes of the arresting person. 24.Mr Grounds has referred me to a number of authorities which he relies upon. Those authorities deal with the common law requirements for a lawful arrest by a private person. The primary requirements which Mr Grounds says were breached by PW1's attempted detention of the appellant were, firstly, that she did not seek to arrest him for the purposes of handing him over to the police, but merely to have him explain his actions and, secondly, that she did not inform him as to why she was trying to arrest him. 25.I accept that the common law requirements are not excluded by section 101(2) or (5) and must be applicable in determining the rights of the arrested person and the obligations of the arresting person. In any event, the second of those common law rights is entrenched in Article 5(2) of the Hong Kong Bill of Rights in these terms :
26.In R. v. Chan King Hei [1995] 1 HKCLR 288, at 293, Mortimer JA said :
With that I respectfully agree. The common law requirements adequately protect the rights of an arrested person, and there is nothing added by the Bill of Rights in this regard. 27.I turn now to Mr Grounds' reliance on the appellant's rights at common law which he says were breached. 28.There can be no doubt that PW1 was entitled to attempt to arrest the appellant pursuant to the provisions of section 101(2) of the Ordinance. Nor in my view was there any use of excessive force by her. She simply attempted to pull the appellant from the lift. She struck no blows, and she inflicted no injuries upon him. In my view, her use of force was reasonable in the circumstances. Those findings no doubt underlie the magistrate's own conclusions. 29.According to PW1's evidence, she did not tell the appellant why she was attempting to arrest him. She simply asked him to step out of the lift and explain himself. But it must be the case, in my view, on the evidence as a whole, that the appellant knew why PW1 was attempting to detain him. It was because he had committed what he must have realized was an offence of some description (though he may not have been aware it was an offence of loitering or of breaching the peace). 30.It seems to me that the common law cannot require someone to inform another person of something the other person already knows. In Christie v. Leachinsky (1947) AC 573, Viscount Simon summarized the law in the following propositions :
31.Though those propositions are expressed to apply to a policeman arresting without warrant, they must apply also to a private person in arresting another individual. Those propositions, in my view, remain good law and are sufficient in the present case to answer the appellant's complaint that he was not told why he was arrested. 32.Firstly, proposition (3) applies. The appellant must have known at the time PW1 tried to take him from the lift why he was being arrested. It was because he had photographed up PW1's skirt and he must have been aware that was an offence even if he did not know precisely what sort of an offence it was. There was no need for PW1 to tell him why she was trying to detain him. The appellant already knew. 33.Secondly, proposition (5) applies. PW1 had attempted unsuccessfully to detain the appellant at the time she sustained her injuries. He had vigourously resisted her attempts at detention and had done so successfully. From a realistic perspective, PW1 had no reasonable opportunity to tell the appellant during that struggle why she was attempting to detain him. 34.In short, in my view, on the evidence accepted by the magistrate, the failure of PW1 to tell the appellant expressly what she was attempting to arrest him for did not render her attempted arrest unlawful. 35.Mr Grounds' other complaint in this regard is that PW1 was attempting to detain the appellant for an unlawful purpose. That is, to “chat” with him and have him explain his actions. But her evidence in this regard should not be taken in isolation. It is plain from the context of the events as a whole that when PW1 (and her brother) did successfully detain the appellant, they in fact handed him over to the police as soon as they reasonably could. 36.It may well have been the case that when PW1 was attempting to take the appellant out of the lift, she intended to let the appellant have an opportunity to explain himself before she took the matter further. But I do not think that intention renders the arrest unlawful. 37.It cannot be if an arrest is made by a private citizen on reasonable grounds and in compliance with section 101(2) of the Criminal Procedure Ordinance that the arrest is rendered unlawful by the intention of that person to make certain before handing the arrested individual over to the police that there is no innocent explanation for the circumstances which had provided reasonable grounds for the arrest. 38.In John Lewis & Co. Ltd v. Tims [1952] AC 676 HL, store detectives had arrested a mother and daughter for shoplifting. Instead of immediately handing over the arrestees to the authorities, both were taken to the store managers' office where the decision was made to call the police. In the course of their judgments, Lord Porter approved this statement of the law :
39.And indeed in John Lewis, the court saw nothing wrong with the arrested persons being brought before the manger of the store for the purpose of a decision being made as to whether to release them or prosecute them. 40.Of course, there is no common law power to detain an individual simply to make enquiries as to whether there are any grounds sufficient to arrest him. But once there are reasonable grounds known to the arresting person, then the arrest is lawful even if the arresting person wishes to make further enquiries of the arrested individual before deciding whether to take matters further and turn him over to the police. 41.In the present case, in my view, once PW1 had seen the appellant photograph up her skirt (as was accepted by the magistrate), she was entitled to attempt to detain him. That attempt was lawful. It was not rendered unlawful either by her not contemporaneously stating why she was attempting to detain the appellant or by her having an intent to give the appellant an opportunity to explain himself. It is obvious from all of the evidence that her ultimate intention, in the absence of any satisfactory explanation, was to hand the appellant over to the police, as she did. 42.This ground of appeal must fail. The admissibility of the appellant's statement 43.Once the police arrived at the scene, they made some preliminary enquiries. There were three police officers, one was a woman (PW2). 44.PW2 spoke firstly to PW1. There is nothing in the papers to indicate what PW1 said to PW2, but I accept a working assumption is that she told PW2 broadly what had happened. PW2 then spoke to the appellant. She made general enquiries of him. She had asked him why he was in the building and he, after initially not answering, had then told her he had thought PW1 was a prostitute and he was going to enquire as to her prices. 45.Mr Grounds makes this complaint in his written submissions :
46.It was never suggested at trial by counsel that there was anything which might have thrown doubt on the voluntariness of the appellant's statement to PW2. The evidence was plain that there was no question of involuntariness. But Mr Grounds says that the magistrate, as a result of the suggested breach of Rule II of the Secretary for Security's Rules and Directions for the Questioning of Suspects had a discretion to refuse to admit the evidence of what the appellant said, and that he did not address or deal with the question of exercising that discretion in any way. 47.During submissions, another exchange occurred between the magistrate and defence counsel :
48.Once again, counsel had made it perfectly clear that he placed no particular reliance on this aspect of the case, and it is not surprising therefore that the magistrate made no particular reference to it in his Statement of Findings. But his references to the matter made it plain that he was aware he had a discretion to exercise should he have found that there had been a breach of Rule II. No doubt it would have been better for him to have expressly dealt with the matter in his Statement of Findings, which he did not, but this is clearly not a case where the magistrate can be shown to have failed to have considered a principle of law he should have considered. 49.Indeed the contrary applies. The magistrate was aware he should consider any breach of the Rules. It was obviously not a fundamental issue at trial and in the context of counsel's comments, the magistrate did not incorporate it as an issue into his Statement of Findings. But in my judgment, he plainly considered the matter. 50.That being so, is there any basis to say that in allowing the statement into evidence, the magistrate wrongly exercised his discretion? The appellant's statement came in reply to a general question from PW2 as to what he was doing in the premises. The question was asked, as is plain from the evidence, in the course of PW2 conducting preliminary enquiries at the scene. It is true that prior to speaking to the appellant, PW2 had spoken to PW1 and must be taken to have been aware of the allegations against him. But at the time of speaking to the appellant, PW2 had yet to see the CCTV tapes which she no doubt thought would show what had transpired in the lift (apparently each lift in the premises was fitted with a CCTV camera). In those circumstances, PW2 had not yet seen an important part of the evidence, she no doubt thought would throw light on PW1's allegations, though as it transpired no CCTV recording was made. 51.Nevertheless, a police officer is required to caution a suspect on the basis of a suspicion grounded on evidence. I accept in this case that there may have been a breach of Rule II because PW2 had spoken to PW1 and must have been aware that, according to PW1, the appellant had committed an offence and that PW1 had witnessed it. In those circumstances, it would have been appropriate for PW1 to have cautioned the appellant before making any enquiry of him concerning the facts of the alleged offence. 52.But in my view, the magistrate was quite right to have allowed the statement into evidence regardless of the breach of Rule II. 53.Firstly, there was obviously no mala fides on the part of PW2 in not cautioning the appellant. She was still in the process of gathering a basic understanding of what the evidence in the case consisted of. It was no doubt an oversight on her part rather than an attempt to take any unfair advantage of the appellant. 54.Secondly, the appellant was an experienced securities and futures commission investigator. It is highly unlikely he was ignorant of his right to silence. Indeed, before deciding to answer PW2's question, he had initially exercised that right and had remained silent. 55.Thirdly, there was nothing intrinsically incriminating in the statement. It made no admission as to the offence PW1 said had been committed by the appellant. Its purpose at the time of admission was no doubt designed to explain why the appellant was in the building and had dealings with PW1, though subsequently after the appellant elected to give evidence, it served also as a prior statement made by him inconsistent with his statement at trial. 56.In that latter regard the challenged statement was not alone, as the appellant had, according to his own witness, DW2 at trial, previously made a statement to her with some similarity to that he had made to PW2. 57.Accordingly, considering the circumstances in which the uncautioned statement was made by the appellant, the use made of the statement at trial and the nature and contents of the statement, I cannot see any sufficient basis, on the evidence before the magistrate, for him to have exercised his discretion to exclude this otherwise admissible evidence. 58.Such a discretion should be exercised only in relatively rare circumstances : R. v. Lam Yip Ying [1984] HKLR 419; R.. v. Chan King Hei [1995] 1 HKCLR 288 and Secretary for Justice v. Lam Tat Ming [2000] 2 HKLRD 431. No such circumstances exist in the present case. The appellant's trial was not rendered unfair by way of the admission of the evidence. This ground also must fail. The lack of a lies direction 59.The same statement of the appellant made to PW2 attracts a further complaint. Mr Grounds argues that if the statement was used to contradict the testimony of the appellant and to undermine his credibility at trial, then the magistrate should have given himself a “lies” direction in the sense that he should have reminded himself that the appellant may have lied out of panic or confusion when spoken to by the police. 60.I do not think there was any need for the magistrate to do so. The magistrate made no finding that the appellant had lied in his statement to the police officer (or in his statement to DW2). On the contrary, what the appellant had said on previous occasions to the police and DW2 was simply given weight by the magistrate so far as those statements were inconsistent with the appellant's evidence. The statement was not used by the magistrate as evidence supportive of the prosecution case. 61.There was no requirement in those circumstances for anything approaching a formal “lies” direction to be given. There is no merit in this ground. The magistrate's approach to the evidence 62.A primary complaint made by the appellant in this regard is that the magistrate should have considered the danger of relying on the unsupported evidence of PW1. 63.The magistrate was obviously aware that the case before him was in large part a matter of the credibility of witnesses. So far as PW1 was concerned, before accepting her as a credible witness, he examined her evidence very carefully. The injuries she suffered were consistent with her version of events as was the undisputed fact that after the struggle on the 6/F the lift carrying the appellant then went to the 8/F of the building before returning to the 6/F where PW1 had pressed the lift button. That was entirely consistent with PW1's version of events. 64.There was no suggestion that the appellant was known to PW1 or that she was motivated by some form of malice to give evidence against the appellant. Indeed, the defence case had been that these events arose out of a simple misunderstanding. So the case was decided on issues which are very common in criminal trials. I can see no special circumstance which would require the magistrate to have given himself a particular warning that PW1's evidence required support or corroboration. As I say, he was aware of the important issue of PW1's credibility and examined her evidence carefully before accepting it. 65.Mr Grounds also complains that in dealing with the evidence in his Statement of Findings, the magistrate simply repeated that evidence without giving adequate reasons for his findings. 66.I disagree. It is true that the magistrate set out the evidence in some detail. As I say, that was no doubt because the magistrate was aware that the credibility of PW1 and the appellant were issues fundamental to the resolution of the case. The magistrate's given reasons for rejecting the appellant's evidence as of any credit and for accepting that of PW1's were sufficient. The central part of those reasons as set out in his Statement of Findings were as follows :
The magistrate's findings as to the credibility of PW1 and the appellant were sufficiently reasoned. 67.Other aspects of the magistrate's approach to the evidence were also challenged by Mr Grounds, but they were mainly concerned with collateral aspects of the case which, in my view, the magistrate was not required to refer to expressly in his Statement of Findings. 68.So far as the important aspects of the evidence were concerned, whether they were inconsistencies in PW1's evidence or matters in the evidence which supported the appellant's case, the magistrate dealt properly with them in his Statement of Findings. 69.This ground must also fail and the appeal is dismissed.
Miss Mary Sin, SADPP of the Department of Justice, for HKSAR Mr Christopher Grounds, instructed by Messrs Lo, Chan & Leung, for the Appellant Application for leave to appeal to Court of Final Appeal refused: see FAMC20/2006 dated 27 September 2006 |
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