Lo Siu-kwong v. The Queen
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CACC000580/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 580 OF 1973 -----------------
----------------- Coram: Hon. Cons J. Date of Judgment: 24 August, 1973 ----------------- JUDGMENT ----------------- 1. In the early hours of one morning in March this year a police patrol stopped a private car for lack of proper rear lights. The appellant was a passenger in that car. He had been involved in a small incident with the same patrol just prior to the stopping and this may have influenced his later conduct, but the facts of that incident are not relevant to this appeal. One constable left the police patrol car to interview the driver of the private car who was the cousin of the defendant. The cousin did not have his driving licence with him and the constable decided to issue the appellate form commanding him to produce it at a police station in due course. By this time the appellant had also alighted from the car and while the constable was engaged in writing out the form the appellant indulged in certain behaviour which finally landed him in Court. The constable was patient, warned the appellant several times. The appellant persisted and at the end the constable decided to arrest him. But when he attempted to do so the appellant resisted violently. As a result he was in due course charged with the two offences of obstructing and resisting a police officer in the execution of his duty. He was acquitted of the former, convicted of the latter. Against that conviction he now appeals. 2. Only general grounds of appeal have been filed but as I understand counsel who appeared for the appellant two points are put forward. First it is said that generally the learned magistrate should not have believed the police and that he failed properly to evaluate their evidence. My attention has been drawn to small contradictions that the magistrate apparently overlooked and to an error that he made with regard to what the appellant had said as to the lights on the car. Other matters were put forward as errors on his part but on further perusal of the evidence I found them not to be so. It was suggested that the suspicions of the learned magistrate should have been aroused by the similarity of the evidence given by each of the three police officers and by the falsity of a radio call made by the sergeant on the way back to the station. I should say that this last matter was carefully considered by the learned magistrate, who declined to draw any adverse inference therefrom. There may perhaps be merit in some of the other submissions but that merit is small, and indeed insignificant when compared with the advantage that the learned magistrate enjoyed over this Court in being able to hear and to see the witnesses. I am not prepared to say that his view of these witnesses was wrong. 3. The behaviour complained of by the police was said to consist of four items. First the appellant criticised the police with words to the effect that the police were good at taking down the particulars of licences but were unable to catch any serious criminals. On hearing this the constable warned the appellant not to disturb him in his business. Then the appellant became abusive and used foul language; the constable advised him he would be charged with obstruction if he continued. Next he interposed himself between the constable and his cousin and with further abuse against the police advised the cousin not to sign the form then being completed by the constable. The constable warned him for the third time. At some stage the appellant also indulged in singing the "lap sap chung" song but the constable apparently ignored this. Finally the appellant tried to snatch the form away as the constable was in the act of handing a copy over to the cousin. As his second point counsel suggests that it was only this final act that provoked the constable to arrest; that as the magistrate expressly declared that he was not satisfied that such snatching in fact took place the foundation for the arrest was therefore removed and the arrest became unlawful; that it is no offence to resist an unlawful arrest. With the first part of this submission I partially agree. It seems likely that the constable would have taken no action had the appellant heeded his third warning. But I do not agree with the conclusion that counsel draws. The final act cannot be divorced from the earlier conduct. If those earlier incidents either severally or totally in fact did amount to obstruction they did not cease to be so merely because the constable chose to give a warning rather than arrest immediately. In the event the magistrate came to the conclusion that they did not. He thought them unreasonable and provocative, and very closely to approach conduct which would amount to obstruction. But he found that they did not do so in that instance. 4. He then went on to consider whether despite that finding he was satisfied the constable had acted on reasonable suspicion and he came to the conclusion that the constable had. It was suggested, that the learned magistrate's decision that no obstruction had taken place ipso facto removed the grounds upon which that suspicion must have been based. For a while I found this an attractive argument and the point has given me considerable anxiety, but I have finally come to the conclusion that this does not necessarily follow. The standard required by the magistrate was proof beyond reasonable doubt. All that was required by the constable was reasonable suspicion, Conduct which fails to satisfy the higher standard may nevertheless be sufficient to satisfy the lower. The learned magistrate expressly directed his mind to this question and although I myself, as far as I am able to judge from the written evidence alone, may perhaps have come to a different conclusion, there was evidence to support his decision, which was again made with the advantage of having observed the witnesses. This appeal must be dismissed. Representation: Mr. Robert Tang (Peter Mo & Co.) for Appellant. Mr. Duffy, c.c. for the Crown. |