The Queen v. Cheung Hay Din and Others

CACC000623/1988

BETWEEN

---------

Coram: Silke, V.-P., Power & Macdougall, JJ.A.

Dates of Hearing: 11, 12, 13 & 14 December 1990 19 and 22 April 1991

Date of Judgment: 30 May 1991

-----------------------

J U D G M E N T

-----------------------

Silke, V.-P.:

1. Cheung Hay Din - "Alan" - (D1), Cheung Hing Sheen - "Iris" - (D2) and Cheung Chiu Din - "Steven" - (D3) appeared for trial before is Honour Judge Cameron in the District Court on a charge sheet containing nine charges. Those were as follows:

2. Both the fourth and the fifth charges related to intimidation uttered in Hong Kong and received outside Hong Kong.

3. Alan and Iris were convicted of charge 1; Alan was convicted of charges 4, 5 and 7; Steven was convicted of charges 6 and 8. They now seek leave to appeal against their convictions and, should it be necessary, their sentences. Those sentences were: first, Alan: charge 1 a fine of $20,000 and 18 months' imprisonment suspended for two years; charge 4 a similar fine and similar period of imprisonment suspended; charge 5 a similar sentence; charge 7 a fine of $10,000 with 6 months' imprisonment suspended for two years; secondly Iris: charge l a fine of $15,000 and 1 year's imprisonment suspended for one year; third, Steven: charge 8 a fine of $l0,000 and 6 months', imprisonment suspended for 18 months; charged a fine of $10,000 and 6 months" imprisonment suspended for a period of 18 months. Those sentences were imposed after reports had been called for on 6th December 1988.

4. The several applications were filed within time but, subsequently, considerable difficulty arise as to the representation. Legal aid had been applied for and initially, refused to Alan on 6th March 1989. It was granted, limited to advice, to Iris and Steven on 21st April 1989.  This was an offer not taken up by Steven. Copies of the full and lengthy transcript were requested but the supply was, for good reasons, delayed. The Director of Legal Aid,  on behalf of the applicants, requested that the hearing of the applications be held over until January 1990. That was done. A very minor amendment to the transcript at page 404 was requested of the trail judge who agreed to it.

5. Eventually, on 5th January 1990 a direction was given that the appeal be listed, the time estimate of the parties of one week having been accepted. It first carne on 13th June 1990 before a differently constituted division of this Court. The applications were adjourned for the then representation to be clarified.

6. Then the Legal Aid Certificates to Alan and Steven were discharged. A firm of solicitors came on record but only in respect of Iris. Alan and Steven renewed  their legal aid applications.

7. On 3rd September 1990 the Court directed that this matter be listed for mention so that the still unclear representation could be clarified. At that hearing it was not. It was then listed on two further occasions.  In the interval there was a request made by one counsel for the matter to be stood over until mid-January of 1991. This was not acceded to. Eventually, the hearing commenced on 11th December and, after four days of submissions we reserved our decision.

8. The representation before us was as follows: Alan represented himself on charge 1. He was represented by Mr. Sanguinetti and Mr. Haynes, instructed by the Director of Legal Aid, on charges 4, 5 and 7 in respect of conviction. On sentence on charge 7 he was represented, but was in person in respect of the sentences on charges 1, 4 and 5.  Iris was represented by Miss Draycott on the instructions of Ip and Willis; Mr. Sanguihetti and Mr. Haynes, instructed by the Director of  Legal Aid represented Steven on convictions on counts 6 and 8 and on sentence on count 8. Steven represented himself on sentence on count 6. Mr. Saw appeared for the Crown.

9. There were further sub-divisions of labour at the hearing of the appeal, Mr. Haynes making submissions in respect of charges 4 and 5 for Alan and charge 6 for Steven, air. Sanguinetti in respect of charges 7 and 8 for Alan and Steven. After the decision had been reserved, and while the judgment was being prepared, Middleweek v. Chief Constable of Merseyside [1990] 3 WLR 481 - decided in 1985 but reported only in 1990 - came to the attention of the court. It was thought proper that counsel should have an opportunity of addressing the court in relation to it. This because it made reference, as will be seen later, to two authorities cited by Mr. Sanguinetti who appeared for Alan on certain charges.

10. The matter was relisted for 19th April 1991 when further submissions were to be heard: it was not reached on that day but on 22nd April Mr. Sanguinetti was heard. Mr. Saw was not called on. All other counsel had indicated that they did not wish to be heard and were not.

11. The background to these multifarious charges was a business dispute between on the one hand the three applicants and on the other airs. Kunz and Mr. Buchser. All of them were connected with the garment trade. Alan and Steven set up a firm Trendsetter Garment Factory - "Trendsetter" - which dealt with a Swiss firm Fabiotex A.G. which was run by Mrs. Kunz with the assistance of Mr. Buchser to whom she had previously been married. They jointly set up in Hong Kong a firm called Team garments Manufacturing Ltd.- incorporated in 1987.  There was also set up by Mrs. Kunz Fabiotex International Trading Company. Iris and Mrs. Kunz were named as partners. Fabric was supplied to Trendsetter who made up garments to the order of Fabiotex International.

12. There came a time when various parties, including the shipper, the supplier and Trendsetter were owed money by Fabiotex International. The dispute between the parties became acrimonious. Mr. Bucnser visited Hong Kong on a number of occasions as did Mrs. Kunz. Mr. Buchser held Mrs. Kunz's power of attorney in Hong Kong.

13. A Mr. Rueff, who had a company in Switzerland and was a customer there for the garments, also came to Hong Kong. Mrs. Kunz was keen to do business with him. In Hong Kong he had dealings with Mrs. Kunz and Iris and was given the impression that Trendsetter was owned by Mrs. Kunz and Mr. Bucnser. Business arrangements were come to.

14. The disputes between these protagonists originated partially from the setting up of Team Garment by Mrs. Kunz and Mr. Buchser and came to the surface in the summer of 1987.   Relations between Iris, Mrs. Kunz and Mr. Buchser soured, as did relations generally between Fabiotex International and Trendsetter.  Iris resigned and was effectively replaced in Fabiotex International by Steve Wong Sning Yan.

15. On l6th September 1987 Mrs. Kunz arrived in Hong Kong, staying in a suite at the Regent Hotel. Her purpose wag to investigate and attempt to resolve the difficulties which had arisen.  By that time Alan, who had been involved in other business, had returned to work in Trendsetter with Steven. There was a meeting on 18th September at the Regent Hotel between Alan, Mrs. Kunz and Mr. Bucnser. Alan was asked to come back on the next day to meet Mr. Rueff.

16. Oh 19th September at the Regent Hotel there were present Alan and Steven, Mrs. Kunz, Mr. Bucnser and Mr. Rueff. While Mr. Rueff's business matters were agreed upon, discussion became heated between Mrs. Kunz and Mr. Buchser and Alan and Steven.  Mr. Bucnser asked Alan and Steven to leave, which they did.

17. It was the evidence of Mr. Buchser that later on that day - and from this arises charge 1 -at about 9.00 p.m., he answered a telephone call to the Hotel. Present then were Mrs. Kunz, Mr. Rueff and a Mr. Sunderam. When the call came through, Mrs. Kunz was close to the phone and she recognised the voice to of the caller as that of Alan. He  was speaking in English and very loudly. This voice identification was supporeted by Mr. Buchser. Alan used abusive, obscene and threatening language the contents of which we do hot think it necessary to repeat.  It was not contested that, if the phone call did take place, the language said to have been used was such as to come within the definition of criminal intimidation.

18. While Alan was speaking there was a good deal of shouting going oh and a woman's voice was heard in the background. The woman said "Give it to her. Give it to her: "per Mrs Kunz - or "give it to her Alan: Give it to her Alan"- per Mr. Buchser. The voice was identified as that of Iris, by both Mrs. Kunz and Mr. Buchser.

19. The result was that Mrs. Kunz became distressed and frightened. She arranged with hotel security that ho further phone calls would be placed to her suite and  security guards were asked to stand guard outside. She booked a flight out of Hong Kong for the next day and departed, being escorted by security guards through the back-door of the hotel. No report was made to the police.

20. Alan in evidence denied making any such phone call and it was the defence case that the reason for Mrs. Kunz's rapid departure from Hong Kong was not fear but in order to avoid her creditors. Iris did not give evidence.

21. The saga continued on 25th September, although there had been other contacts between the three applicants and Mr. Buchser and his employees in the interval, when a meeting, not by arrangement, took place at Mr. Buchser's suite in the Peninsula Hotel at about 5:00 p.m. The three applicants were there as were a number of other persons claiming to be creditors of Fabiotex International. Also present were Mr. Buchser and some of his employees. The legal advisors of various parties, including Mrs. Kunz's Hong Kong solicitors arrived later.  It was a very discordant meeting. In the course of it, Alan became very agitated and angry, using abusive and obscene language in both English and Chinese. Alan accepted that he had used such language to relieve his feelings. It was not directed at anyone in particular. The problems were not resolved.

22. After the lawyers had gone Mr. Buchser called the Manager of the hotel.  The applicants and other persons then remaining were asked to leave as visitors were not allowed after 9:00 p.m. They left.

23. It was alleged  that in the course of this meeting, threats had been made directly to Mr. Buchser - charge 3. The evidence in respect of that, given the general discordant, disruptive and acrimonious nature of the meeting, the judge found to be unclear. He further felt that Mr. Buchser, who took no precautions as a result of anything that was said to him, was not a man who "would easily be intimidated or alarmed". For those reasons he acquitted Alan on that charge.

24. We pause to note that he also acquitted Alan on charge 2, which related to threats to the person of Steve Wong Shing Yan on 21st September, because, while he was satisfied that at some time Alan had threatened Steve cony with  injury to his person, he was unclear as to whether that had happened on the particular day alleged

25. Mrs. Kunz's Hong Kong solicitors wrote to iris on 25th September informing her that they were acting for Mrs. Kunz and requesting that all further correspondence be addressed to them. That letter also gave notice of the formal dissolution of a partnership which was said to have existed between Mrs. Kunz and Iris in Fabiotex International. A second letter was sent to Alan and Steven at Trendsetter asking them to effect the delivery of certain goods and to address all furtner correspondence to the solicitors. This request was, unfortunately, not followed.

26. On 15th October 1987 Dr. Rindernecht, who was the  legal advisor of both Mrs. Kunz and Mr. Rueff, received in Switzerland a long distance telephone call from Alan who requested him to assist in seeing that Mrs. kunz cleared-up her businesses in Hong Kong, paid her debts and stopped cheating people. When Dr. Rindernecht replied that he did not consider that Mrs. Kunz was cheating, Alan became  agitated and started to scream and shout, again  using   abusive and obscene language. Alan threatened to come to Switzerland and pay Mrs. Kunz's family a visit they would not forget. He said he would take care of the Kunz's family. He made allegations of bribery against Mrs. Kunz whereupon Dr. Rindernecht told Alan that he was taping the conversation. He, in fact, was not but said this in an attempt to calm Alan down. It failed, for Alan went on to say he would destroy the business reputation of Mr. Rueff in Switzerland. Alan accepted that he had used foul language but denied making any threats.

27. On 6th October Dr. Rindernecht faxed a letter to Trendsetter, and other addressees, advising that all matters concerning Fabiotex International should be referred to the Hong Kong firm of solicitors.

28. On 21st October 1987 - charge 4 -Mrs. Kunz said that she received a telephone call from Alan at her home in Switzerland. On the same day Iris sent a fax to Mr. Rueff's firm asking for Mr. Rueff's assistance in locating both Mrs. Kunz and Mr. Buchser and making reference to the financial difficulties being faced by Fabiotex International. She complained of Mrs. Kunz's failure to attend to them. In the phone call the intimidation of Mrs. Kunz continued as did the abusive and obscene language. This, the judge was satisfied, accepting Mrs. Kunz's evidence, placed her in a state of alarm.

29. By 28th  Decemuer 1987 matters were still unresolved. Alan made another telephone call to Switzerland and faxed a letter, exhibit D8, to Mrs. Kunz. This complained of the lack of progress in the settling of their financial disputes, reminded Mrs. Kunz  to keep in mind what he had said to her on the telephone and made certain demands.  Alan also made reference, stated to be on behalf of himself and Iris, to certain matters including the fact that "12 golden fish had been killed" by the direct action of Mrs. Kunz in failing to pay for the electricity supply to the place where they were kept. He advised tier to arrange for her staff to remove all the dead bodies otherwise the "terrible smell" would attract the landlord. He told her that the dead fish had been floating in the water for the last three weeks and advised her:

"Please remember what you have done to the fishes, you will get the pay back day by day in you or your family. And I surely believe that. Take time will see all."

30. To this Mrs. Kunz faxed a reply, exhibit D7, on 29th December 1987 stating that all the financial settlements would be arranged between 3rd and 5th January 1988 in Hong Kong with Mr. Buchser; that Mrs. Kunz would meet Alan, his accountant and his lawyer - a meeting Alan had requested in his fax - in Switzerland.

31. It has been suggested by Miss Draycott in the course of her submissions, to which we shall come later, that this was a factor which the judge should have borne in mind when considering whether the evidence of Mrs. Kunz, that she had been alarmed by Alan's behaviour, was true.

32. Further faxes were sent by Alan to Mrs. Kunz on 4th and 6tn January 1988 asking her to answer points raised in his fax of 28th December 1987. On 7th January Mrs. Kunz sent a lengthy fax to Alan and Iris with suggestions as to how their problems could be resolved. To this, Alan replied in another fax (Ex.P3) rejecting her proposals in strong terms. On 19th January Dr. Rinderencht wrote to both Alan and Iris making reference to his letter of 16th October and asking them hot to contact various clients of his in Switzerland but to confine their correspondence to him.

33. On 20th January Alan faxed a letter to Dr. Rindernecht, Mr. Rueff, Mrs. Kunz and Mr. Buchser in which he accused Dr. Rihdernecht of threatening and challenging him, made abusive reference to Mr. Rueff and ended by accusing Mrs. Kunz of being the mistress of Mr. Rueff.

34. On the same day a fax letter was sent by Alan to Mr. Buchser, Mrs. Kunz and to her husoand. The first portion of this was, according to the evidence of Alan, drafted and sighed by Iris. In it Iris used abusive and obscene language similar to the language Alan was said to have used oh 19th September.It called Mr. Buchser "a bloody bastard" and Mrs. Kunz "a bloody bitch". It referred to Mr. Kunz as Mrs. Kunz's "innocent puppy".

35. On 21st January Alan and Iris sent another fax to Dr. Rindernecht and to Mrs. Kunz concerning Fabiotex International. It was copied to various firms and to Mr. Rueff in Switzerland.

36. On 28th January Dr. Rindernecht received yet another telephone call from Alan which did not directly concern the business dispute but in which Alan used abusive and obscene language in respect of and to Dr. Rindernecht. It was Dr. Rindernecnt's evidence that Alan said he would  come to Switzerland and kill "that bollody bitch Kunz and her family". He would also destroy Mr. Rueff and tell Mr. Rueff's wife what type of man her husband was.  He threatened to kill Mr. Buchser upon his arrival in Hong Kong. This invective and insult continued for some time until Dr. Rindernecent put down the phone.

37. On the same day Alan faxed a letter (Ex.D33) to Dr. Rindernecht questioning his legal competence.

38. At the end of January there were other communications between Alan and Mrs. Kunz and between Dr. Rindernecht and Alan. It was generally the evidence of Dr Rindernecht that he had, after the 15th October telephone call, advised Mrs. Kunz to notify the Swiss police and that he himself had asked them to assist Mrs. Kunz. Mrs. Kunz did obtain that assistance from the Swiss police who embargoed any visit by Alan to Switzerland. In January 1988 he had advised both Mrs. Kunz and Mr. Buchser not to go to Hong Kong. He contacted solicitors in Hong Kong asking them to take action to put an end to the threats.

39. On 1st February 1988 - charge 6 - the evidence of Steve Wong Shing Yan was that he had left his office in the afternoon to go to a bank. While he was oh his way Steven, accompanied by another man, came up to him. Steven asked if "the fat man", meaning Mr. Buchser, was in Hong Kong to which Steve Wong replied he did hot know. Steven asked him to ring Mr. Buchser but he replied that, as he did not know whether Mr. Buchser was in Hong Kong or not, how could he do that. Steven then replied "Don't cheat me, do you believe I will beat you up". The roan who accompanied Steven said "beat him later" but Steven grabbed him by the collar of his jacket. A number of spectators then scattered. Steven released him but, as he turned to leave, Steven struck him a blow on the back of his head with his arm.  Steven was dragged away by the other man. In his evidence, Steven denied meeting Steve Wong on 1st February but said he had gone to his office that afternoon accompanied by another brother, not before the Court. He had hot seen Steve Wong there nor had he met him in the street.

40. Inspector Fernyhough gave evidence of becoming involved in all these matters oh 29th January 1988 when a representative of a solicitors firm came to see him with affidavits from "Swiss nationals" which indicated that they were being threatened by business associates in Hong Kong. He was given particulars of the people involved and of the civil actions which had been instituted by both sides. He decided to make enquiries. He contacted Alan by telephone, pretending that he was a friend of Mrs. Kunz who had asked him to approach Alan with a view to calming down the situation. Alan, when contacted, became agitated and referred to the dirty tricks perpetrated against him by people in Switzerland. He admitting the making of threats but said that as long as he did hot carry them out he did not consider that he was committing any offence. When Inspector Fernyhough told him that all that was wanted was to stop the threats and let the case be sorted out in the Court, Alan replied "I can't promise that. I am a very bad tempered man."

41. Inspector Fernyhough intimated that he was a stock broker when Alan asked for his personal details.  Alan refused to meet him until he had confirmation of the identity of his caller.

42. On 30th January Inspector Fernyhough had another telephone conversation with Alan for about an hour. He attempted to record this conversation but the recording equipment was ineffective. He said that Alan used offensive and obscene language in the course of it, at times admitting making threats, at times denying this. Also on that day, Inspector Fernyhough received a complaint from Steve Wong as to threats being made to him by the applicants.

43. On 1st February he asked the solicitors firm in Hong Kong to contact Mrs. Kunz to ask her to provide him with an identity cover. Steve Wong came to the police station that afternoon and laid a complaint as to the assault he said was perpetrated upon him by Steven. On the evening of that day Alan telephoned him and  said he had received confirmation of his identity - this had been arranged through airs. Kunz's solicitors in Hong Kong - and agreed to meet him. No meeting then took place as it was  late.

44. On 2nd February Inspector Fernyhough telephoned Alan to try and arrange a meeting but Alan refused saying he did not trust him. Alan told him that he knew that Mr. Buchser was staying at the Shangri-la Hotel, something of which Inspector Fernyhough was not then aware, and he was warned that he should not involve himself in these business matters. Alan said he knew where Fernyhough lived and where his girlfriend worked.

45. Inspector Fernyhough contacted Mr. Buchser, met him, and was given fuller details of the various matters which concerned all the parties. He contacted Alan, again for the purpose of arranging a meeting. Alan refused out said that he would meet with Mr. Buchser at the Shangri-la later that evening. Inspector Fernyhough made arrangements to be with Mr. Buchser in his room when that meeting took place and for a party of police to be in an adjoining room.

46. While Inspector Fernyhough was with Mr. Buchser in the Shangri-la Alan telephoned and said that he would not meet Mr. Buchser in that hotel  put would in the lobby of the Royal Garden Hotel. Inspector Ferhyriough, having given instructions to the rest of the police party, then went there with Mr. Buchser and saw Mr. Buchser go up to a coffee shop with the person he came to know as Alan. After about 20 minutes, Alan, with Mr. Buchser, came down. Inspector Fernyhough then introduced himself to Alan as the person who had spoken to him on the telephone. He gave him a name card which bore the name of a stock broker's firm. The intention was to get Alan to sit down and have a chat. Alan walked away. Inspector Fernyhough told him to stop. Alan turned around and Inspector Fernyhough produced his police warrant card and informed Alan that he was from the C.I.D. Tsimshatsui. Alan then denied any wrong doing but was told by Inspector Fernyhough that he was "going to arrest" him for threatening Mrs. Kunz and Mr. Bucnser.

47. Mr. Sanguinetti has laid great emphasis oh the phrase "I am going to arrest you." suggesting that it was a promise to act in the future.

48. What happened next was the subject of charge 7 to which we shall come back when dealing with the grounds of appeal.

49. After the arrest of Alan Inspector Fernyhough learned that Iris and Steven were in a nearby car. He went to the place with the police party and found Iris sitting in a Mercedes. The police revealed their identity to her and asked for her identity card. Iris started to walk away but was stopped and told she was under arrest for criminal intimidation. She started to shout and scream. Her conduct resulted in charge 9 but the trial judge found that, while Iris had created a disturbance, it was one from which he did hot think a breach of the peace would have emanated. He therefore found her not guilty.

50. While this was going oh Steven came over to the car and in turn, was asked to produce his identity card. This he did. He was told to put his hands on top of the car and informed that he was under arrest for threatening Mrs. Kunz and Mr. Buchser. At attempt was made to handcuff him. What then occurred led to charge 8 and again, we shall return to it later.

51. Turning now to the grounds of appeal filed on behalf of Alan, Iris and Steven on the charges other than charges 7 and 8. We deal first with Miss Draycott's submissions on behalf of Iris, for a good deal of her attack upon the credibility and veracity of Mr. Buchser and Mrs. Kunz was also pertinent to Alan's application for leave to appeal Against his conviction on charge 1. Indeed, Miss Draycott generously provided Alan with written arguments, which he has adopted, in relation to the credibility point and upon which she herself made submissions on behalf of Iris.

Voice identification

52. One ground, peculiar to Iris, is contained in the document entitled "Applicants' Ground of Appeal Against Conviction", - that document combined Alan's grounds in respect of charges 4, 5 and Iris' ground in respect of charge 1 - the voice identification issue.

53. It is Miss Draycott's submission that the trial judge failed either to give himself or to be seen to give himself any warning as to the possibility of a mistaken aural identification by Mrs. Kunz and Mr. Buchser of the voice of Iris in the background of the telephone conversation of 19th September. It is her further submission that in such circumstances the judge should have given and should have been seen to give himself a Turnbull (R. v. Turnbull [1977] QB 224) warning.

54. This was a point raised but obliquely at trial and upon which counsel then representing iris did not see fit to address the trial judge. The defence was that this telephone call never took place at all. We say "obliquely" because in the context of a passage in the course of cross-examination of Mrs. Kunz at pages 104-105 of the transcript, where she was being questioned on why she had made no mention of the participation of Iris in that phone call in statements made to the police on 5th February and in an affidavit dated 15th February and where she had agreed that her memory improved by the time of trial, the following question was put to her:

55. Miss Draycott makes the valid point that, even though the identification issue was not placed fairly and squarely before the trial judge, this should not debar her now from taking it. She submits that this was a voice in the background of a telephone conversation, the words were few in number, there was the real possibility of mistake and of a mistaken conclusion being arrived at that it was the voice of Iris simply because the other voice was that of Alan. This was a "fleeting hearing" voice identification. She cites in support of her proposition Turnbull itself, R. v. Cnitate (1966) 2 South African Law Reports 690, R. v. E.J. Smith [1984] 1 NSWL 426, R. v. Yeung Kuen Chi & another, Criminal Appeal No.52 of 1985 (unreported)) and R. v. Cheung Tak Chi, (Criminal Appeal No.43 of 1989 (unreported) both on the identification issue and on the duties of a judge in these circumstances. She relies oh Cheung Tak Chi to underline the necessity for a judge sitting alone to indicate in his Reasons for Verdict that he had in mind the risks inherent in relying exclusively on evidence of identification.

56. Iris had been known to Mrs. Kunz for about 7 years and to Mr. Buchser for about the same period. Oh the assumption that the 19th September phone call did take place, a issue to which we shall return when we deal with the credibility of Mrs. Kunz and Mr. Buchser, there is ho doubt that the expressions used were short and concise and that Mrs. Kunz was, to an extent, listening at one remove, the phone being held out to her by Mr. Buchser. In Chitate the appellant had been charged with four counts of arson and one count of assault with intent to do grievous bodily harm, all at night. The issue was the involvement, if any, of the appellant. Proof of that involvemnt had come from the evidence of a witness who well knew the appellant and who said he recognised the appellant's voice. There were twenty or more persons involved but the witness said that he had been addressed by a person with a torch who uttered two sentences to him and then gave the command "Fure" at which point he was assaulted and a fire was struck. He described the appellant as his cousin whom he had known all his life, whom he had reared and whom he had seen often. He was in to doubt that he had recognised the voice.  Quenet, J.P. giving the judgment of the Court of Appeal of Rhodesia said of that evidence (at page 692):

"The complainant's statement that it was the voice of the appellant was a conclusion based upon his past association with the appellant.The trial court had to be satisfied beyond any reasonable doubt the conclusion was correct and it should, in my opinion, have tested its correctness in much the same way as one would test evidence of visual identification, because the danger of false identification exists whether the conclusion is based on visual or upon aural observation."

57. No proper test of the witness by way of investigation had been carried out in the course of his evidence. At the conclusion of that evidence the lower Court had conducted a voice test at the request of the appellant himself. As the voice test had taken place so long after the incident, the Court considered it to have been unreliable. The appeal was allowed.

58. In E.J. Smith it was held that evidence that the Voice of a person present at the time of a crime was the voice of the accused can only amount to positive identification where the witness is familar with the voice before the hearing of it at the crime, or where the voice heard at the crime was a very distinctive one.

59. Mr. Justice O'Brien, Chief Justice of the Criminal Division, at p.446 of his judgment, said that which was said in Davies and Kody v. The King (1937) 57 CLR 170, which is on the lines of Turnbull, on visual identification, was also apposite to identification by voice. He cited a lengthy passage from that judgment which concluded:

"As the responsibility of convicting must rest with the jury their appreciation of the question is an important consideration, and in a case where the method of identification  is open to the objections we have discussed, they should be clearly warned of the dangers, which, according to the accepted view, do exist."

60. While we agree with Miss Draycott that because little was made of this issue at trail it should not now be held against Iris, nevertheless that was a factor which must have played its part in the judge's consideration of the evidence - and Iris herself gave no evidence.We do not consider this to have been a true "fleeting voice" identification. Iris was well known both to Mrs. kunz and to Mr. Buchser.  Their identification of the voice as that of Iris, and as the encourager of Alan, is not diminisned by the contents of the fax of 20th January to which we have referred - even though that was four months later.

61. It would have been preferable had the trial judge been seen to give himself a Turnbull warning, but here that might well be considered a counsel of perfection. He was not, as was the judge in Cheung Tat Chi, relying exclusively upon the evidence of voice identification. He had for consideration the whole of the evidence and once he found that the telephone call had been made he could, properly in our view, draw the inevitable inference that the background voice was that of Iris.

Credibility

62. The submissions in respect of creidibility related to various differences in the evidence given by Mr. Buchser and Mrs. Kunz on the business dispute and on their participation in the various firms. Miss Draycott emphasizes the failure by Mrs. Kunz to make any identification of Iris as a participant in Alan's threats in either her statement to the police on 5th February or in her affidavit, made for the purposes of civil proceedings, of 15th February. Miss Draycott has drawn our attention to the passage at p.6 in the Reasons for Verdict by which she submits the trial judge effectively dismissed considerations of this aspect of the credibility issue from his mind. Having set out of the history of the dispute and of the relationships between the various companies and the various personalities, the trial judge said this:

''Although the problems were aired extensively in evidence, I do not consider that it is necessary for me to go into the rights and wrongs and the whys and wherefores. These problems are, I understand, the subject matter of pending civil actions and will be considered in another Court or Courts. Clearly by September 1987 D2 (Iris) and Trendsetter Garment Factory were aligned in being seriously at odds with PW1 (Mrs. Kunz) and PW3 (Mr. Buchser)."

This, says Miss Draycott, ignores the many matters to which she has drawn our attention in the transcript which showed at the least a shading, at the highest inconsistencies, between the evidence of Mr. Buchser and Mrs. Kunz. There were contradictory answers from them as to their involvement in the various businesses. She has asked us to consider what she terms Mr. Buchser's evasive answers when questioned about documents showing the repayment of $100,000 and whether these would have an effect on the pending civil proceedings relation to Fabiotex International. Farther there was, she says, a direct conflict on the matter of a service fee which Mr. Buchser claimed for his services and of which he said Mrs. Kunz knew. Mrs. Kunz said that she did not know of any such arrangement.

63. Miss Draycott suggests that these, among others, could well lead to a suspicion of fabrication of the events, at least of the 19th of September. Abusive and obscene language was used by Alan later, and this gave the two writnesses the idea, with the purpose of cementing the case generally against the applicants and with particular reference to the civil proceedings, of making everything so very much worse.

64. Alan has suggested to us that there was no evidence of his knowledge of the presence of Mrs. Kunz in the suite at the time he was said to have telephoned on the 19th. When he spoke to Mr. Buchser his words were no more than, as he put it, an "outburst of spleen". He suggests that no alarm could have been caused to Mrs. Kunz and that the judge, in so finding, was wrong. The judge did not give sufficient consideration to Mrs. Kunz's invitation, extended in the fax of 29th December, to Alan to meet her in Switzerland. If she had really been alarmed, he suggests, no such invitation would have been issued.

65. These were all matters of which the trial judge was, and was seen to be, fully aware. He set out in detail the evidence which was before him in relation to the various incidents, including the invitation of 29th December to Alan to visit Switzerland. What took place on 19th September must be placed in the context of the admissions made by Alan to Inspector Fernyhough which, if believed - and the judge did believe them - admitted the making of threats.  The judge accepted the evidence of the prosecution witnesses, rejected that of Alan and stated himself "on consideration of all the evidence, to be satisfied beyond reasonable doubt that Alan was guilty on charge 1".

66. This was a lengthy and convoluted trial with protracted cross-examination of all the witnesses involved and which resulted in a very full Reasons for Verdict. It might have been preferable, as a counsel of perfection, if the trial judge had been seen to direct his mind specifically, rather than generally, to the variations on the theme as they appeared in the peripheral evidence given by Mrs. Kunz and Mr. Buchser. But it is quite clear from his findings that he had no doubt at all that abusive language and threats were used by Alan, they had been used in the phone call of 19th September, that that phone call had taken place and that Iris was, as he put it, "encouraging her brother D1 and supported what he said".

67. As to Iris, we are not persuaded that the trial judge was wrong to bear in mind the fax of 20th January even though that date was some considerable time after the making of the phone call. It was all part of the matrix of facts. He was entitled to believe the prosecution evidence relating to charge 1 and he was justified, once that belief was properly come to, in coming to the conclusions he did.

Criminal intimidation uttered in one country and received in another

68. Mr. Haynes on charges 4 and 5 argues two grounds. The first is that:

"the learned judge erred in law in ruling that the offence of criminal intimidation, committed over the telephone, when the receiving party was in another country, was triable in Hong Kong."

69. For this proposition he relies on Treacy v. Director of Public Prosecutions (on appeal from R. v. Treacy) [1971] AC 537.

70. Treacy had posted, in the Isle of Wight, a letter written by him and addressed to a Mrs. X in Germany demanding money with menaces. She received it there Treacy was charged with blackmail. At trial he raised the  issue of the jurisdiction of the Court on the basis that the offence had been committed outside England. When the objection did not succeed he changed his plea to one of guilty. He appealed his conviction on the basis that ruling of the trial judge was wrong and the English Court of Appeal, in dismissing the appeal, gave a certificate on a point of law of general public importance namely (p:545):

"Whether when a person with a view to gain for himself or with intent to cause loss to another, makes an unwarranted demand with menaces by letter posted in England and received by the intended victim in West Germany, the person can be tried in England on a charge under section 21 of the Theft Act, 1968."

and granted leave to appeal to the House of Lords.

71. The House by a majority, Lord Hodson, Lord Guest and Lord Diplock, with Lord Reid and Lord Morris of Borth-y-Gest dissenting, dismissed the appeal holding that the offence of blackmail had been committed in that the appellant had made a demand when he had written and posted, in the United Kingdom, the letter to Mrs. X.

72. It is Mr. Haynes' submission that, while Lord Hodson in Treacy said that there was no requirement for the offence to be communicated and that as soon as the demand is made the offence is complete, this cannot cover a charge under s.24 (1) (a) of the Crimes Ordinance, Cap.200, the opening words of which are "Any person who threatens any other person".  He submits that unless the other person is directly affected by the threat, and this in Hong Kong, there can be no offence.  An empty threat is not an effective one. A threat to a person far from Hong Kong cannot cause alarm - an essential element - in its target.  The target here was of course in Switzerland. Mr. Haynes suggests that that which was said by Lord Diplock in his judgment in Treacy at pages 561 and 562 is obiter and is therefore not binding upon this Court.

73. With respect to him we do not agree, Lord Diplock was clearly there setting out the general principles of law which apply. We accept, of course, that Treacy was concerned with an offence of a different nature. It is the issuing of the threats with intent to alarm which is the offence here. Lord Diplock said at page 561H:

"There is no rule of comity to prevent Parliament from prohibiting under pain of punishment persons who are present in the United Kingdom, and so owe local obedience to our law, from doing physical Acts in England, notwithstanding that the consequences of those acts take effect outside the United Kingdom. Indeed, where the prohibited acts are of a kind calculated to cause harm to private individuals it would savour of chauvinism rather than comity to treat them as excusable merely on the ground that the victim was not in the United Kingdom itself but in some other State."

74. Once he found the necessary intent to exist, the trial judge did not err in law in rejecting the jurisdiction submission which we also reject.

75. Mr. Hayne's second ground has, in effect, been dealt with when we considered Miss Draycott's submissions as to the invitation of 29th December 1987 from Mrs. Kunz to Alan to come to Switzerland showing that no alarm was caused to Mrs. Kunz. The trial judge made reference to this fax and stated it did not in any way disturb his view that there had been intimidation of Mrs. Kunz. We think he was right.

Conflict in verdict

76. It is suggested that the acquittal of Alan on charge 2 and Steven's conviction on charge 6 are in conflict. On charge 2, as we have indicated, the judge stated himself to be unsure whether or not the intimidation of Steve Wong Shing Yan had taken place on the date specified in the charge. There was confusion in the evidence. But this was, with respect, far from indicating that he disbelieved Steve Wong Shing Yan to the extent that he should have carried that disbelief over into his evidence of the assault upon him by Steven.  The trail judge was perfectly entitled to accept from the evidence of Steve Wong, if he believed it, that an assault, carried out by Steven, had taken place upon him - and this despite the acquittal of Alan on charge 2. In so doing he bore in mind, but rejected, the evidence of Steven that it had not taken place. On the evidence, he was fully entitled to come to the conclusions he did.

Charges 7 and 8: Resisting a police office in the execution of his duty: Alan and Steven

77. We now come to the matter which took the majority of the time both at trial and at the hearing of this appeal and which led to the resumed hearing for further argument.

78. It is Mr. Sanguinetti's contention, forcibly made, that the convictions of both Alan and Steven on the charges of resisting a police officer in the execution of his duty are unsafe and unsatisfactory. He recites in his grounds eleven particulars which he has urged on us in furtherance of his main contention. He alleges, in that portion lettered "B", that the trail judge failed to give any or any adequate consideration to the inconsistencies and contradictions, over and above those already set out, in the evidence of the police witnesses, that is Inspector Fernyhough, PW7 and PW9.

79. In that portion lettered "C", he alleges that in the light of the matters set out in the portions lettered "A" and "B" the only "finding" made by the trial judge cannot be supported. He says that this finding, which he placed in inverted commas through his submissions, is to be found on the final page of the Reasons for Verdict where the judge said:

"On the 7th charge in which D1 was charged with the Resisting a Police Officer in the due execution of his duty and on the 8th charge in which D3 was charged with Resisting a Police Officer in the due execution of his duty, I was satisfied that the account given by PW6 and other Police Officers as to what happened when D1 and D3 were intercepted by them was a truthful account. I did not believe the account given by D1 and D3. PW6 in particular give (sic) his evidence clearly and well and was not discredited in what was a lengthy and searching cross-examination. I accordingly found D1 Guilty on charge 7 and D3 Guilty on charge 8."

80. It is Mr. sanguinetti's submission that the trail judge failed totally to make any findings of fact on which to base, and which would have justified, the conclusions to which he came.

81. In that portion of his grounds lettered "D", it is alleged that, in the light of the matters particularised in part "A", taken with the reasons given in evidence by Inspector Fernyghough for opposing the grant of bail to Alan and Steven, the Inspector's denial - a denial the trial judge by implication accepted that - he had not acted "unfairly, oppressively, and illegally," towards both the applicants cannot be supported.

82. In that portion lettered "E", Mr. Sanguinetti, in eight further particulars, makes first an allegation that what he calls a "wall search" on Alan was unlawful because no good reason was given by the Inspector to Alan for conducting that search - this is based on the assumption that a search did take place for Alan denied any such search; second: that the "wall search" of Steven was unlawful, again as no reason was given by the Inspector for conducting it - Steven had stated that he voluntarily submitted to a search but it is Mr. Sanguinetti's contention that he could not in law do so, the search itself being unlawful -; third: that the trial judge erred in law in holding there was a case to answer on charges 7 and 8 in the light of the two matters just referred to; fourth: that the judge nowhere in his Reasons for Verdict in respect of the two charges made any finding as to whether Alan had acted in self defence or had had reasonable grounds to resist any search or arrest; fifth: he complains that the judge did not separately consider the two charges; sixth: he complains that the judge did not make any specific finding that Inspector Fernyhough was acting in the due execution of his duty; seventh: he complains that the Judge failed to consider under what power, if any, the Inspector was acting at the relevant time in order to conduct public "wall searches" -or, for that matter, any other kind of search, on the applicants - in particular, whether section 54 of the Police Force Ordinance, Cap.232 would have enabled him to do so; eighth: he complains that the Judge failed to make any finding as to whether Alan was already under arrest before the "wall search" was attempted - this has relevance to Mr. Sanguinetti's view of the phrase "I am going to arrest you."

83. At the commencement of the hearing, Mr. Sanguinetti sougnt to introduce fresh evidence relating to the credibility of Inspector Fernyhough. There were then no papers before us adequate to permit us to consider any application under section 83V of the Criminal Procedure Ordinance. The matter was adjourned to the second day of the hearing to enable proper Notices of Motion and affidavits to be filed.

84. The history of this matter was: in the course of the trial it was put to the Inspector in cross-examination that he had used, in neutral terms, bad language to Mr. Willis who was a solicitor representing the applicants. This happened in the police station at a time when the solicitor was being seen by the Inspector. In evidence the Inspector at first denied the use of such language. When confronted with a tape recording of the conversation he could do nothing other than accept that he had. The language was abusively obscene. A great deal was made both here and below on whether the Inspector was inconsistent in his evidence when he referred on one occasion to "foul" and on another occasion to "filthy" language. Nothing in our view turns on that. It is clear that the Inspector lied, and Mr. Saw who appears for the Crown in this Court, accepted that that was so. The judge was fully aware of this.

85. Then, subsequent to trial, disciplinary charges were brought against the inspector and to which he pleaded guilty.  In the course of those proceedings he also admitted, though he had expressly denied this at trial, having committing an assault upon the solicitor. That assault consisted of throwing that which is described as a roll of cellophane, but which it is accepted meant a roll of scotch tape, at Mr. Willis. This was the fresh evidence.

86. It was, of course, quite wrong for the Inspector to behave in this way but, that having been said, we have no doubt that he felt himself provoked by sarcastic remarks made to him by Mr. Willis which were, with respect, juvenile and inappropriate while acting in his professional capacity. Nevertheless, the Inspector should not have given in to that provocation.

87. In addition Mr. Sanguinetti has sought to persuade us that he was stopped by the trial judge from elaborating upon this assault aspect. However Mr. Sanguinetti may have interpreted the judge's ruling at the time, the record at page 404 makes it quite clear that this is not the case.

88. What happened was that a police witness was tendered for cross-examination by the prosecution, presumably at the request of Mr. Sanguinetti. He gave evidence of the meeting between Mr. Willis and-the Inspector in Tsimshatsui Police Station. He got to the point where he agreed that a dispute had taken place between them. The judge then asked why the witness had been called and Mr. Sanguinetti replied that it was to examine him on an assault oh Mr. Willis and further oh the conversation between the constable and Mr. Willis after the Inspector had left. Counsel then appearing for the Crown accepted the propriety of calling the witness oh the first but objected on the second issue. The Court made the following ruling:

"I would allow Mr. Sanguinetti to proceed but re D2 only with reference to conversation between the witness and Mr. Willis."

89. The cross-examination then continued only in respect of that conversation. Whatever misunderstanding there may have been we thought it right, ex debito justitiae, to accept the fresh evidence to permit us to be informed of the Inspector's admission to an assault upon Mr. Willis.

90. On the Inspector's credibility and the effect of his proven lies Mr. Sanguinetti has referred us to Meek v. Fleming [1961] 2 QB 366. That was a civil action where a phographer claimed damages against a person, stated to be Chief Inspector F of the Metropolitan Police, for alleged assault and wrongful imprisonment. The plaintiff's evidence was virtually unsupported on the assault aspect and on the other was in direct conflict with that of the "Chief Inspector" whose evidence was supported by other uniformed police officers. The writ was issued in November 1958, the trial took place in October 1960. Between those two dates the "Chief Inspector" had been reduced in rank, by a disciplinary board, to station sergeant for being party to an arrangement to practise a deception on a court of law in the course of his duty as a senior police officer. That was known to his legal advisors but it was not made known to the court and deliberate steps to that end weretaken to prevent its being known to the defence. The plaintiff's Notice of Motion to the Court of Appeal was to adduce fresh evidence relating to the "Chief Inspector's" demotion and, on appeal, he asked for a new trial. It was held, allowing both the application and the appeal, that to allow the defendant "Chief Inspector" to retain the judgment thus unfairly obtained would be a miscarriage of justice.

91. Mr. Sanguinetti argues, by analogy, that here it would be equally. unfair to allow the Inspector to retain these convictions when he has been shown to lie on what is described as a material particular. It would equally well be a miscarriage of justice.

92. We do not agree. It is doubtful if what happened to Mr. Willis in Tsimshatsui Police Station would have been admissible at trial for it went solely to the credit of the Inspector.  But be that as it may, the Court was fully aware of the lie told by the Inspector in relation to the bad language. The extra lie as to the very technical assault, and this whether the roll of scotch tape hit or missed Mr. willis, was not something which was material in the sense that Mr. Sanguinetti would have it. We very much doubt if it would have influenced the trial judge in any way had he been aware of it. This is in no way to diminish the impropriety of the Inspector's conduct.

93. The evidence relating to the apprehension of both Alan and Steven came principally from, as we have indicted, the Inspector (PW6), from PW7, DPC12631 - this specifically to the arrest of Steven - and PW9 DPC19148 - this in relation to the arrest of Alan. Both Alan and Steven themselves gave evidence.

94. We have set out earlier how the Inspector first became involved with the applicants and the sequence of events thereafter. Having told Alan he was going to arrest him he, according to his evidence, directed Alan to turn  around and place his hands against one of the nearby stone pillars. He then commenced to search him.

95. We would interpolate here that it is clear beyond peradventure that, in informing Alan that he was to be arrested, the Inspector was acting in the due execution of his duty, having good grounds to suspect the commission of a criminal offence by Alan. It was not a promise of future action but a declaration of that which was then and there taking place. It was quite unnecessary for the judge to make a specific finding to this effect. It is implicit in his finding that Alan was guilty oh the charge as framed.

96. The Inspector's evidence then went on:

"As I was searching him he turned around and punched my arms away.I pushed him back towards wall and continued to search him. He again spun round and again pushed me away. At that point, 2 of officers who had been outside rah inside, DPCs 12631 and 10473. They had warrant cards displayed.   They said to Alan Cheung they were police officers. Between three of us we turned him towards wall. When he spun round and pushed hands of officers away I grabbed him. We both fell to the ground. He began struggling violently at this stage and he was screaming help me in Cantonese. The two police officers grabbed his arms and tried to pull them behind his back. He was face down on the floor. He was resisting very strongly and at some stage DPC 19148 joined us and eventually we were able to handcuff him. Thing quite chaotic. People in lobby had come across. Hotel  security had come across. Tourists taking picture. We took him out of hotel to raise as little inconvenience. He was still struggling. We pushed him against a wall and things started to calm down. He stopped struggling."

97. The Inspector was cross-examined in detail about his evidence of these events and he was referred to the Police Manual and its reference to searches and the manner in which they should be carried out. He said that he had been unable to actually conduct a search upon Alan before resistance was offered. He agreed that a wall search is used where it is strongly suspected that a person may attempt to use violence. It was suggested to him that his evidence of falling down was not accurate. It is also of interest that it was put to him, which was Alan's evidence when he came to give it, that the only time Alan was searched was at the nearby Police Unit. When he was asked whether, as Alan was handcuffed and there were police officers around him, he still had to be pushed against a wall the Inspector answered "Yes." When it was put to him that this was for the purpose of searching him, he said it was principally to restrict Alan's movements.

98. DPC 19148 in his evidence said that he had seen Alan at the exit of the lobby close to the Mody Road area of the Royal Garden Hotel with the Inspector. He saw the Inspector show his warrant card to Alan. He then saw Alan moving his arms up and down and his body from side to side. He ran into the lobby with DPC 10473 and DPC 12631 (PW7). He went up and showed Alan his warrant card and said loudly that he was a policeman. At this point he heard the Inspector telling Alan that he wanted to search him and that he was going to arrest him in connection with a case of criminal. intimidation. PW7 UPC 12631 also heard this. At this time Alan was still moving his arms up and down and was crying out loudly. The Inspector instructed the constable to arrest him immediately whereupon DPC 19148 took out handcuffs.   Alan was still yelling, moving his arms up and down, his body from side to side and would not allow the constable to handcuff him. The constable tried to catch hold of Alan's hands but was unable to do so and then he and Alan fell to the ground. He did not remember what happened to the Inspector but did remember both himself and Alan  being on the ground. It is suggested that this "double fall" was one of the contradictions to which the trial judge should have paid attention.

99. DPC 19148 and the other police constables then caught hold of Alan's hands and managed to handcuff him. The Detective Inspector was also helping to hold Alan. Alan was taken out of the lobby to a pillar outside and the , constable told him he was arresting him for being connected with the case of criminal intimidation. Alan was still moving his body and yelling. The constable searched him and from his waistband seized a pager.

100. In cross-examination he denied that, before any question of arrest took place, there had been an attempt to search. He described the search outside the hotel as being "armpit, waistband and his legs to see if any weapon".

101. Alan in evidence described the incident as follows: The Inspector had approached him in the hotel, shown him a card which declared him to be stockbroker and asked if he were Alan Cheung. When Alan tried look at the card the. Inspector put it back into his pocket and took out another card and announced that he was a police officer and that he was going to arrest him. Alan said he could not see that card clearly. The Inspector then put his right hand on Alan's neck whereupon in reaction Alan struggled because he did not know the Inspector's true identity. Then several people came from behind and held Alan down on the ground. He denied that they had said that they were police. He asked a nearby security guard for help and to make a report to the police, but the security guard was stopped from walking up to Alan by the Inspector. At that time Alan was handcuffed with his hands behind his back.  He was then made to stand up and the Inspector ordered the other persons to drag him out of the hotel. He said he only knew that the persons were police officers after he had been handcuffed. He then put up no further resistance whatsoever. He was taken outside the hotel and pushed face towards a wall.  He was bumped against the wall by the police. He told them he was not feeling well because a heart condition.

102. After a while he was taken to the Report Centre at Tsimshatsui East. One of the officers asked him where his  brother and sister were and he told them that they were waiting in a Mercedes car in the vicinity. A short while later Iris and Steven were brought in. He had been searched and all his personal property taken while in the police unit at Tsimshatsui East. No search had been carried out upon him before then.

103. In cross-examination he specifically denied that he had been told that he was going to be arrested for threatening Mr. Buchser and Mrs. Kung or that any of the police had revealed their identity or that he had resisted arrest.

104. In relation to Steven, it was the Inspector's evidence that he and DPC 12631 walked to Mody Square where they there saw a Mercedes car with Iris sitting in the front seat. She was told they were police officers and they showed their warrant cards. When she asked what they were doing there it was explained for the second time that they were police officers and they wished to check her identity card. She got out of the car, was told to stop and informed that she was under arrest for criminal intimidation - this was said by the Inspector in English which Iris pretended.. not to understand. She began to shout and cause a disturbance. When the Inspector held her arms she began to scream "indecent assault" in Cantonese. At that point Steven came up and asked what was going on. Iris, on being asked who he was,said he was just a friend and told him to go away. The police suspected that he was Steven and he was stopped. Iris was taken to one side while one of the constables guarded Steven. The reason for the arrest was explained to Iris, this time in Cantonese. A woman police constable arrived and Iris calmed down. The Inspector went from Iris to Steven. Steven said he wanted something out of the car and they went to it. Then he was asked for his identity card and was told to place his hands on top of the car and that he was under arrest. Handcuffs were produced. As the Inspector tried to handcuff him he was pushed away. The pair were in a space with little room so the Inspector grabbed Steven and pulled him out. He struggled. The Detective Inspector with the assistance of two constables subdued Steven and handcuffed him. Steven was still yelling, screaming and struggling. A quick body search took place.

105. Both Iris and Steven were then taken to the Police Unit where Alan already was and they were later taken to Tsimshatsui Police Station. At the police station Steven continued to behave violently for some time. The assistance of Alan and Iris was enlisted td help calm him. He complained of the handcuffs being too tight. They were loosened but, as he continued to be violent, they were not removed. It was the Inspector's evidence that the handcuffs were eventually removed, "probably after midnight". Again Mr Sanguinetti laid great stress on the evidence of a constable who said they had been removed at about 10:00 p.m. - this to illustrate the contradictions in the Inspector's evidence.

106. PW7 DPC 12631 supported the evidence of the Inspector as to the arrest of Iris and the disturbance she caused. He went on to refer to his revealing his identity to Steven who refused to produce any form of identity. He said he told him he was making enquiries into a case of criminal intimidation and that he suspected Steven was involved. At that point Steven agreed to produce his identity bard but said he wished to get something from the nearby Mercedes. At the Mercedes the identity card was produced and Steven was told he would be arrested. When the constable tried to arrest him, Steven  en pushed him away. The Inspector, standing at the car, took out a pair of handcuffs but Steven pushed his hand away. The Inspector pulled Steven out from the space in which they were standing and the constable assisted in subduing Steven who was "resisting very strongly to be handcuffed." The situation was quite chaotic. It was this witness who said that he had released Steven from the handcuffs while in the police station at about 10 p.m.

107. PW8 said that he had seen the Inspector and PW7 explaining his arrest to Steven.

108. Steven in evidence said that he had seen persons, whom he did not know at that time to be police officers, speaking to his sister. He had a conversation with one of them, his sister saying nothing. Another man came and stated for the first time that the persons were police officers. Steven was asked for his identity card and he wanted to know the reason for the request. He produced the identity card after a further short argument, and having produced it, a constable went up to the man who Steven now knows, but did not then, to be the Inspector. He did not hear what was said. The constable came back and told Steven that he was going to arrest him but did not tell him why. When asked for the reason for the arrest the constable said that they had to go back to the police station before they talked about it. The Inspector came up and started to scold Steven in foul language both in Chinese and English. Steven said he was very surprised. As the Inspector approached Steven and pointed at his nose with his finger Steven retreated and kept retreating. This retreat took him to the car where the Inspector ordered someone to search him. Steven said "Alright, you don't have td be so angry. If you want to search me go ahead", but when he asked riot to be searched in public, his request was ignored. He then turned around and put his hands oh top of the car without being asked to do so and was searched. After the search he was handcuffed, an action which he said did not resist and he further denied having resisted any searhc. At no time had he peen told why he was being arrested. He denied any  struggle between himself and the police.

109. On the way back to the police station he was assaulted on his chest and pack about eight to ten times. Counsel for Steven, in his final address, submitted that, although Steven might have exaggerated those assaults, the judge nevertheless should bear them in mind.

110. Steven also alleged that, at the police station, he was further assaulted in a thoroughly unpleasant way. He denied any violent behaviour by himself in the police station or elsewhere.

111. Let it be said at once that these incidents had nothing to do with a stop and search operation. Section 54 of the Police Force Ordinance, which deals with that operation, has no relevance. It is Mr. Sanguinetti's argument that the searches of Alan and of Steven were illegal because neither was told the reason for them - this taints with illegality the whole matter of arrest. He further submits that events which took place later reinforces this illegality and should have brought the trial judge, and how this Court, to find that the Inspector acted so "unfairly, oppressively and illegally" towards the applicants that ho conviction on these charges should ever have been come to or be upheld.

112. These later events are the matters generally set out in that part of the grounds lettered "A".  It is accepted that Alan and Steven were prevented, from the evening of their arrest to the evening of the day following, from contacting either their legal representatives or their families. They were however seen by their legal representatives on the evening of 3rd February. Mr. Sanguinetti said this 'should not have happened and that it shows on the part of the Inspector either an attempt to prevent minor injuries which were apparent on the persons of the applicants from being seen by persons other than the police themselves or it was part of a sinister conspiracy aimed at the applicants by the parties to the civil action and in which the Inspector had joined.

113. It is also accepted that Alan and Steven were not brought before a Court until 5th February. This delay, it is suggested, underlines the oppressive and harsh treatment meted out to them by the Inspector.

114. Mr. Saw has stigmatised these matters as errors of judgment on the part of the Inspector. The Inspector had given explanations for what had happened. Those lay for the consideration of the trial judge - and this includes the matter of bail. Certainly, the Inspector erred. It was wrong to deny the applicants' access to legal representatives or to their families. But the issue of his credibility is not directly affected by these events for the Inspector admitted quite frankly that they had taken place. They can only go to Mr. Sanguinetti's point, as he put it in answer-to a question from this Court, that the evidence of the Inspector was "perverse"

115. It is his submission, as we understand it, that because of this the arrest is so tainted that the convictions should not be upheld.

116. In addition Mr. Sanguinetti complains of the handcuffing of Alan, and in particular that of Steven, at the police station. He complains that the Inspector had referred to himself as a "well tempered person" when he was  nothing of the kind. He complains that the reason - the possibility of his having a weapon - for the "wall search on Alan was, given that Alan had been in the company of Mr. Buchser unguarded for some little time prior to arrest, nonsense and could not possibly justify any search. He complains that there was no valid reason for the search of Steven . He complains that the reasons given by the Inspector for so public an arrest being made of these men, whose names, place of work, telephone numbers and residence he already knew, is specious. He complains of some form of nefarious association between the Inspector and the lawyers who approached him on behalf of Mrs. Kunz and Mr. Buchser.

117. The injuries were in fact seen by a doctor on the evening of 3rd February when both Alan and Steven were taken for a medical examination. Medical reports were before the trial judge: Alan had complained of back pain and pain in both wrists as the result of an assault. He had a contusion on the back and irregular red marks on his wrists, there were multiple small red areas over the back and a red mark on both wrists.  Steven complained of pain over his face, left shoulder and left side. A bruised swelling was found over his left face and on his left wrist.

118. For the swelling on Steven's face a somewhat dubious explanation was given by the police. While in the police station and handcuffed, he had an itch near his eye, had rubbed his face against a nearby table and it was from that action that the redness and swelling came. But be that as it may these injuries were minor and - given the circumstances of their arrest, if the evidence of the police is to be believed - as it was by the trial judge - understandable.

119. We do not consider that these complaints by themselves are such as to give us cause for concern as to the safe and satisfactory nature of these convictions. They were all dwelt upon at length before the trial judge who could not but nave been aware of them. We do not think there is anything sinister in the alleged association between the inspector and the lawyer who was acting on behalf of Mr. Buchser and Mrs. Kunz.

120. AS to the suggested inconsistencies set out in that portion of the grounds lettered B, clearly the situation of both arrests was difficult and chaotic. Who fell-over with whom in the arrest of Alan comes down to the differing views given by different participants in the same event. It must be borne in mind that this was a continuing incident.

121. On the question of the legality of searches generally, Mr. Sanguinetti has drawn our attention to Lindley v. Rutter [1981] QB 128, and Brazil v. Chief Constable of Surrey- 11983] 1 WLR 1155, both of which were followed in tnis Jurisdiction by puffy J. in R. v. Chan Sai leong & Another [1989] 1 HKLR 385.

122. Lindley v. Rutter, and Brazil which approved and applied Lindley v. Rutter, were authorities which emphasised, as Donaldson, L.J. (as he then was) put it in the former case at pages 134 and 135:

"It is the duty of the courts to be ever zealous to protect the personal freedom, privacy and dignity of all who live in these ,islands. Any claim to be entitled to take action which infringes these rights is to be examined with very great care. But such rights are not absolute.They have to be weighed against the rignts and duties of police officers, acting on behalf of society as a whole."

123. These are sentiments which we would respectfully adopt and enthusiastically endorse.

124. There must be good grounds upon which to order a search.

125. In Brazil, Robert Goff L.J. (as he then was) at p.1162 said this:

"In my judgment, to require a person to submit to a personal search is to impose on that person a restraint on his freedom.Generally speaking, a person should not be required to submit to that restraint unless he knows in substance the reason why that restraint is being imposed."

126. Lindley v. Rutter concerned a woman who had been arrested for disorderly behaviour while drunk and had been taken to a police station and there lodged in a cell. She refused to be searched by a police woman. She resisted. Eventually with the assistance of another police woman she was forcibly searched and her brassiere removed. The police thought themselves to be acting in accordance with standing instructions. Even if so acting they were still under a duty to consider whether the search was necessary for any lawful purpose and whether, in that case, the removal of the woman's brassiere was necessary for her protection.  It was held that the police had not applied their minds to these matters and a conviction for unlawfully assaulting a police constable in the execution of her duty was overturned, the woman being entitled to use reasonable force to resist as the constable was not acting in the course of her duty.

127. Brazil was a case where the police formed a reasonable suspicion that a woman, who had been arrested for behaviour likely to cause a breach of the peace and who had been brought to a police station where she assaulted a police woman, was in possession of prohibited drugs. She was not told of this when the officer in charge of the police station informed her she had to be searched.  She was forcibly searched being held down by police officers, had her boots removed, her jeans taken down to her thighs and her jumper raised to allow a visual check of her brassiere. In the course of the search she assaulted another police woman. She was charged with and convicted of two assaults on a police constable in the execution of her duty.

128. On appeal against these convictions the court held, as to the first assault, that there was no general rule that everyone brought into a police station had to be searched for their own safety.  Therefore the police were not entitled to carry out a personal search without regard to the circumstances of the particular case and that, since the police woman had not addressed her mind to the circumstances existing there, this meant that she had not been acting in the execution of her duty. The first conviction was quashed.

129. On the second conviction: it was held that, unless the circumstances rendered the giving of reason for a search unnecessary or impractical, a personal search by police officers, which imposed a restraint on a person's freedom to which he should not be required to submit, should not be carried out unless he knew in substance the reason for it That not being the situation in Brazil the second conviction was also quashed.

130. Chan Sai Leong, which as we have indicated applied Lindley v. Rutter and made reference to Brazil, concerned  two appellants: one was charged with obstruction and the other also with obstruction and with two offences of assaulting a police officer. A party of police had attempted to execute a warrant under the Women and Juveniles Ordinance. When they reached the premises concerned and identified themselves the door was not opened. They heard the sound of a flushing toilet. The police knocked repeatedly on the door and over a period of some moments verbally ordered it to be opened. Eventually it was and the police entered the room. Being by then suspicious that there were dangerous drugs on the premises they carried out that which was described as a "dangerous drug raid". In the agreed facts at trial, which were accepted in the appeal, what a "dangerous drug raid" entailed was not described nor was there any mention of questions being asked of the appellants about drugs.

131. The police wished to carry out body searches on those in the room as their general search had been unproductive. The appellants refused at first because they would not accept that the police really were police. When they were finally satisfied of this, and other members of the police force had arrived on the scene, they asked that any search be carried out in a police station. They were then taken to Happy Valley Police Station and on arrival refused to be searched. It was fully explained to them the reasons for the police desire to search but the appellants still refused. They were arrested for obstruction and, while the second appellant was being forcibly searched, the assaults by him took place.

132. At trial the magistrate had rejected a submission of no case and no defence evidence was subsequently called.

133. In allowing the appeals Duffy, J. seems to have based his decision on there being no reasonable suspicion in the minds of the police as to the possibility of drugs being found that would justify a personal search.

134. We view this decision as being very much confined to its own facts and not of general application or of assistance to us here.

135. Middleweek - the authority upon which Mr. Sanyuinetti addressed us after an opportunity was afforded to him to do so - was a case where the solicitor plaintiff had been arrested at court on suspicion of theft of a confidential police document relating to one of his clients.  He was taken to a police station and detained in a cell for one hour.

136. He brought an action for wrongful arrest, false imprisonment and trespass to the person.   The trial judge held as a matter of law that the arrest was lawful and then left certain questions to the jury. The jury found that it had been reasonable to search the plaintiff and to take away his possessions, that the period of his detention had not been unreasonably long but that it had not been reasonable to detain him in a cell.  He was awarded ?00 aggravated damages.

137. The defendant appealed and the plaintiff cross appealed on the issue of reasonableness of the search and the length of the detention. The defendant's appeal was allowed and the plaintiff's cross appeal was dismissed.

138. Ackner, L.J. (as he then was) giving the judgment of the court at p.488 made reference in the course of dealing with the cross appeal to Lindley v. Rutter - and at p.490 to Brazil. The court rejected the suggestion made by counsel for the plaintiff, based on his construction of Lindley v. Rutter, that if there is a standing instruction or standard procedure which is followed without first giving consideration to the particular circumstances of each case, it must follow that a search cannot be justified, is unlawful and that the tort of trespass to the person has been committed. The court took the view that what Lindley v. Rutter held was that the faithful following of standing instructions or an established procedure was in itself no conclusive answer to the complaint that the search was unlawful. If the legality of the search is challenged then it is for the police to establish that the search and the way in which it was carried out were justified in the circumstances of the particular case.

139. Ackner, L.J. described both Lindley v. Rutter and Brazil as extreme cases and did not consider that Brazil added any support to the suggestion that had been rejected.

140. Mr. Sanguinetti did not seriously attempt to show that, so far as it goes in relation to these applications, Ackner, L.J.'s view of Lindley v. Rutter should not be adopted by this court. He did suggest that Middleweek was distinguishable on its facts - which it clearly is. But that does not detract from the view expressed by Ackner, L.J. to which we have referred and which we, respectfully, do adopt.

141. There can be no doubt that the arrests of both Alan and Steven were, on the facts then known to the police, justified. The reason for them was made known to each. If the police evidence was to be believed- and the trail judge accepted it - then the resistance of both the applicants started at the time when the arrests took place. The subsequent attempts to search - and that on Alan was said to be intended primarily to restrict his movements after the strong resistance he had offered to the police - were not in our judgment without cause. We accept that the actions of the police were heavy handed but we equally accept that there was no practical opportunity to go into explanations as to why they thought a search to be necessary. It must be remembered, of course, that, if. the. evidence of Alan and Steven were to be accepted - which the trial judge did not - then Alan was not searched at all and Steven fully agreed to be searched.

142. Despite the flaws in the Inspector's testimony we are not persuaded that the trial judge was wrong to treat  him as a credible witness on the essential matters in issue. We do not consider that his evidence could be described as "perverse".

143. That the three applicants upon arrest were denied access to friends, relatives or lawyers for the best part of 24 hours should not have happened.  Such actions readily gives rise to allegations of vindictiveness even though it may not have been intended. Moreover the applicants should have been brougnt before a magistrate at the earliest opportunity. This was not done. But we do not consider that these matters of themselves render the convictions unsafe or unsatisfactory.

144. Section 101A(1) of the Criminal Procedure Ordinance, Cap. 221 - subsection (2) of which specifically states that the section replaces the common law rules on when force used for the purpose of arrest is justified - reads:

"A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.. (Emphasis supplied) ''

145. The actions of both Alan and Steven justified the use of force in effecting their arrest. The decision to search was one which, in all the circumstances, the  Inspector and the rest of the police party were entitled to take.  The whole incident and that which in the course of it when effecting the arrest and subduing Alan and Steven was a continuous episode. It was a difficult and public situation. We do not consider that the actions overall of the police were either so oppressive or unfair as to render these convictions unsafe or unsatisfactory.

146. We emphasise that we say this without intending in any way to derogate from the duty that lies in the courts to be zealous in their protection of personal freedom.

147. The trail judge did, and was seen to, consider carefully a11 the evidence which was placed before him in a lengthy trial.  The finding on charges 7 and 8, which has been so heavily criticised by Mr. Sanguinetti, comes at the end of that consideration. It was unnecessary for the judge to reiterate the evidence in relation to charges 7 and 8 in the course of that ultimate finding. In our judgment,  bearing in mind all the portions of the transcript to which we have been referred and having given anxious consideration to the many submissions made to us, his finding was justified. It was in itself concise, accurate and to the point. The convictions were properly come to. The applications of Alan and Steven against their convictions on charges 7 and 8 are refused.

148. Their applications in respect of their convictions on the other charges - and of Iris on charge 1 - are refused.

Representation:

D1 - in person - on charge 1 in respect of conviction and sentence

Dl - in person - on charges 4 and 5 in respect of sentence

Miss C. Draycott (Ip & Willis) for D2 on charge 1 in respect of conviction and sentence

D3 - in person - on charge 6 in respect of sentence