The Queen v. Chiu Yu-to

CACC000535/1983

BETWEEN

Coram: Hon. Cons, J.A., sitting as an additional Judge of the High Court

Date: 8th June, 1983.

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JUDGMENT

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1. This is an appeal against conviction on two counts, one of disorderly conduct contrary to Sec. 17B(2) of the Public Order Ordinance Cap. 245 and the other for resisting arrest contrary to Sec. 36(b) of the Offences Against the Person Ordinance Cap. 212. The appellant was originally charged on the first count together with four others all of whom were acquitted at the trial. It is necessary to set out the substance of the evidence.

2. For the prosecution it was said that on a certain evening in February this year two constables were on patrol in uniform. Shortly after 9:00 p.m., they saw a group of five young men, one of whom was the appellant, standing apart and among a number of parked lorries. That circumstance, coupled with the fact that that particular area is a black spot for robbery and snatching, raised suspicions in their minds that the men might be in possession of offensive weapons. The constables accordingly approached and required the men to let themselves be searched. The men refused, at the same time resorting to foul and abusive language. Seeing themselves outnumbered the first constable thought A wiser to radio for help.  As the constable's waited for the help the five men continued their abuse of the police and in addition addressed their remark's to a crowd, generally estimated at around fifty persons, which had by then gathered and was tending to side noisily with the young men against the police.

3. As soon as the first of the reinforcements arrived the first constable warned the men not to make any more noise, because of the crowd, but his warning was ignored. Indeed the men aggravated the situation, by hooting and jeering at the police. At this stage the constable declared the men to be under arrest and he put his hand on the shoulder of the appellant, telling him to squat. The appellant immediately pushed him away with both hands, causing him to fall on the ground. There was a short struggle, but the appellant was quickly overpowered with the help of other officers.

4. Both constables told the same story. Cross-examination elicited no change, but it may be noted that in the course of cross-examination by the solicitor for the appellant, the first constable emphasized that all the five men were uncooperative. He also denied the suggestion that on their initial approach the police ordered the men immediately and without explanation to step aside and squat down. The second constable, in answer to questions from other defendants,  denied that the crowd only gathered in the later stages of the incident. He was supported in his denial by a third constable, one of the first reinforcements, who said that the crowd was already there when he arrived.

5. I think it would be fair to say from that evidence that the Crown relied upon the conduct up to and including the arrival of the reinforcements to establish the disorderly conduct and the subsequent pushing of the constable to establish the resisting of arrest. This is confirmed by the particulars added to the charge of disorderly conduct, namely "by shouting and swearing at the police officers".

6. The appellant's evidence gave a different slant to the situation. After explaining bow he and his friends came to be at that particular place, he said that they were just standing chatting when the police came up asked where they lived and what they were doing. None of them answered and as it was then drizzling with rain the police took them under a verandah and told them to squat down. The appellant personally did not do so because - I think this is the interpretation he would wish to be put upon his actual words - he felt he. was not included in that particular order. Thereupon the constable repeated the order to him and became abusive, the appellant answering back and the constable replying in kind. That was the extent of the conversation, if that be the correct description of what he said occurred. It was then that the constable radioed for help. Before it came there were only a couple of persons who passed by and entered the building.

7. The appellant continued that when the other officers arrived the first constable told the remaining four to squat down, which they did, but in the case of the appellant he was told to turn round and put his hands against the wall, whereupon he was searched. The constable then took the view that the appellant had not placed his feet sufficiently far apart and kicked them saying "wider!".  The constable then kicked his feet again as a result of which he fell to the ground.. As he did so he noticed that the constable was not on his feet either. Thereafter the appellant was kicked further by the police and was eventually handcuffed.

8. His story was generally supported by the evidence of the other four young men.

9. The Magistrate's reasons for his decision are as follows: -

"From the evidence viewed as a whole I was satisfied that PWsl, 2 & 3 were truthful and reliable witnesses. The picture their evidence presented was one of a group of youths being generally difficult and abusive, but a group from which the conduct of the accused could be singled out as being unusually abusive and recalcitrant. The police officers corroborated each other in so far as they were describing the same events. I was satisfied that it was the accused who was the primary factor in causing the crowd to gather, by his refusal to squat when ordered, and by his abusive exchange with the police. I accepted that it was he who started that exchange and not the police. His conduct was disorderly.

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The co-accused were acquitted because I considered on the evidence that the central figure in the incident was the present accused; that words and actions could specifically be attributed to him; and that the evidence against the others was altogether too general to support a conviction against all."

11. With every respect to the learned Magistrate it cannot be correct that from the evidence of the prosecution the appellant could be "singled out as being unusually abusive and recalcitrant". None of the police officers singled him out in any way whatsoever until after the arrest had been declared. The matters on which the Magistrate relies are drawn exclusively from the appellant's own evidence. It was only he who said that there was an initial order to squat down. The police evidence is that the order was given later and at a stage when the crowd had long since gathered. It was only the appellant who mentioned anything at all which could be described as an "abusive exchange", and in doing so he specifically ascribed the start of it to the constable.

12. Counsel for the Crown points out that a magistrate is not bound to accept or reject the evidence of a defendant in toto. He may accept parts and reject others, and in this instance the Magistrate only expressly rejected the appellant's account of how the constable made him fall. I accept the validity of his point but it cannot be safe and satisfactory to convict one defendant out of five, who are all said by the prosecution to be acting in much the same way, solely upon two particular items taken from his own evidence when one of those items is flatly contradicted by the prosecution evidence and the other is more in the defendant's favour than against. In the particular circumstances of this case it would not be unreasonable, pasticulasly in view of the appellant's subsequent conduct, to speculate that he was in fact the ringleader of the group. But in my view there was nothing in the evidence to show that, until his arrest, he went any further than the others.

13. The point of appeal with regard to resisting arrest is simply this, that in requiring the appellant to squat the constable went beyond what was reasonably necessary in the execution of his duty. While it is conceded that there may be occasions when it is proper to require an arrested person to squat down, as for example, at the time of a riot when there may be few police but many suspects, it was totally unnecessary in the present instance where there were present by that stage at least as many uniformed and armed police as there were persons under arrest.

14. No relevant authority has been quoted to me but I think I may safely take it without authority that the constable should not, in the course of making the arrest, have gone beyond what was reasonably necessary. Had he done so it would follow for present purposes that the pressure on the shoulder of the appellant was an assault that the appellant was entitled to resist.

15. It is easy to understand the objection to an order to squat. It is an affront to human dignity far greater than the mere fact of the arrest itself. On the other hand it is a useful tactic for law enforcement authorities. It establishes beyond doubt the fact of the arrest and reduces the chances of escape. In circumstances like those we are now concerned with it would be a good psychological counter to the men's aggressive behaviour. Unfortunately the question of whether it was reasonably necessary in the particular circumstances was not canvassed at the trial, for the appellant's defence, as I have already indicated, was along lines that did not admit of an order to squat after arrest. We do not therefore know for certain what considerations actuated the constable. But two likely factors spring immediately to mind apart from those which I have already mentioned. The first is that there would probably be a need to wait for transport to take the five men to the appropriate police station, and the second that the officers would want the men safely and quietly out of the way while they dispersed what was probably by then quite a difficult crowd. In all the circumstances I conclude that the order was reasonably necessary.

16. For these reasons I allow the appeal with respect to the disorderly conduct and set aside the conviction and fine. I dismiss the appeal in respect of resisting arrest.

Representation:

Mr. Francis Yim of (M/S Francis Yim & Co.) for the appellant.

Mr. B.E.D. de Speville, D.P. Crown Counsel for respondent.