Lee Yin Ping v. The Queen
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CACC000624/1979
Coram: Roberts, C.J. Date of Judgment: 1 August 1979 ----------------- JUDGMENT ----------------- INTRODUCTION 1. The appellant, a woman of 36, was convicted in the Magistrate's Court at North Kowloon on the 25th May, 1979 on one charge of resisting arrest and six charges of criminal intimidation. 2. She was sentenced to nine months' imprisonment on each charge, the sentences to be concurrent, and has appealed both against her conviction and sentences. FACTS 3. On the 25th September, 1978, at about 9.40 p.m., a group of officers of the Women and Juveniles Squad, led by Women Inspector of Police Walsh, went to the Kam Yau Cheung Beauty Parlour on the mezzanine floor of 196 Tung Choi Street, Kowloon. 4. Inspector Walsh gave evidence that she and her party entered those premises, "to execute a warrant". She said that she had a general warrant under the Protection of Women and Juveniles Ordinance. 5. The iron gate on the premises was not shut, though a curtain was drawn across the doorway. The Inspector pulled back the curtain and entered the premises with four other police officers. Inside were two men sitting in barber-shop chairs; two girls were next to them, and another man was behind a curtain at the front entrance. 6. The Inspector entered a cubicle in the premises, where she found the appellant lying on a bed. The Inspector informed the appellant that she was under arrest and asked P.C. 17563, Wong to caution the appellant, which he did. He wrote the caution in his notebook but she refused to sign it when asked to do so. 7. The Inspector, who knew that the appellant spoke English, told her what she had been arrested for, asked her to get up and put some clothes on and informed her that she was to be taken to Mongkok Police Station. The appellant ordered the police to get out of her room and started to use abusive language. 8. Inspector Walsh went back to the main part of the premises and told another member of the police party to take the other people who were on the premises into the corridor outside. She then returned to the cubicle and told the appellant to come along, whereupon the appellant pushed past her, ran towards the kitchen and came back holding a chopper in her right-hand swearing and cursing. 9. The appellant moved towards the Inspector, shouting "I am going to kill you, get out and leave me alone". Inspector Walsh ran out of the premises into the corridor, followed by the other two members of the police party. The appellant also ran out of the premises, past the Inspector and down the corridor, screaming abuse at the two members of the police party who had earlier gone there with the other persons found on the premises by the police, threatening them and waving the chopper at them. 10. The Inspector slipped back into the premises, picked up the telephone and phoned the Mongkok Police Station for help. As she was doing this, the appellant came back into the premises through the door, still screaming abuse and shouting that she was going to kill the Inspector. The Inspector dropped the phone and ran into the cubicle, shut the door and bolted it behind her. The appellant hacked at the door with the chopper, screaming that she was going to kill the Inspector if she came out. She hit the door with sufficient force to splinter the wood. 11. Shortly afterwards, two police constables arrived from Mongkok Police Station and succeeded in taking the chopper away from the appellant, who continued to struggle violently and kick at the police as she was handcuffed and carried downstairs to police transport. 12. At the trial the defence put forward was that the appellant had been drinking heavily on the day in question and that she was so affected as not to know what had taken place. She asserted that she "lost her consciousness" and that she only regained it at the police station. She said that she could not remember anything about picking up a chopper and threatening the police officers. 13. The magistrate rejected her defence that she was too drunk to know and appreciate what she was doing, though he accepted that the appellant had taken some drink. The solicitor for the appellant has not sought to challenge this finding of fact by the magistrate. 14. Instead, he has raised a defence which was not raised during the course of the trial to the following effect:
15. I feel obliged to comment that it is not proper for counsel or solicitor appearing on an appeal to raise on the appeal a defence which was available to the defence during the trial and could have been raised there without prejudice to the main defence. In this instance, the challenge to the legality of the entry and arrest could have been raised without affecting the defence of drunkenness. Nevertheless, it has been raised on appeal, and I must deal with it. ENTRY ONTO THE PREMISES 16. The solicitor for the appellant has not questioned the validity of the warrant which was in possession of Inspector Walsh at the time of entry. However, he did challenge the action which was taken in pursuance of that warrant, submitting that a general warrant issued under section 16 of the Protection of Women and Juveniles Ordinance (Cap. 213) could not have justified the purposes for which this police party entered these premises. 17. Section 16 of the Protection of Women and Juveniles Ordinance reads as follows:-
18. Mr. Haldane conceded that this warrant would have entitled the police party to enter the premises if Inspector Walsh had had reason to believe that the premises were being used as a lodging house for prostitutes or as a brothel or in connection with the commission of an offence under this Ordinance. However, he argued that the Inspector had made it clear in evidence that she had entered the premises because she suspected that an unlawful massage parlour was operating in the premises. An unlawful massage parlour, Mr. Haldane continued, does not necessarily involve the use of prostitutes, though he agreed that it might do. 19. Counsel for the Crown replied that Inspector Walsh did not say that she had entered those premises because she suspected that an unlawful massage parlour was operating there; merely that the warrant gave her a chance to enter premises where she suspected that an unlawful massage parlour was being operated. This would, I think, be a strained interpretation of her evidence. In any event, there are no grounds on which I could upset the magistrate's conclusion that the police squad was "in the process of executing a warrant under the Protection of Women and Juveniles Ordinance, in respect of the operation of an unlawful massage parlour". 20. I therefore find that the Crown did not establish that the original entry of the police party was lawful, as being in accordance with the warrant issued under section 16 of Cap. 213. It may well be that, had the Inspector been asked the appropriate questions at the trial, she could have shown that the warrant was properly executed. That she did not do so was not her fault, since there was no hint, at any stage during the trial, that the legality of the entry or the presence of the police party on the premises was challenged. LEGALITY OF ARREST 21. Accepting that the original entry of the police was illegal, does this necessarily mean that the arrest of the appellant was also illegal? 22. I see no difficulty in answering this question in the negative. If a police officer enters premises unlawfully, but finds on those premises evidence of an offence, he is then entitled, and indeed under a duty, to take whatever action is proper for a police officer in whose presence an offence is committed. This clearly includes the power of arrest. The evidence given by Police Inspector Walsh is that she found two men sitting in barber-shop chairs with two girls next to them and a man behind a curtain at the front entrance. The police constables with her questioned the two men. 23. In cross-examination, the Inspector added there were "customers and girls in premises". At page 13 of the record, the Inspector commented that "the defendant was cautioned and arrested for massage parlour offence". I find nothing in the record to support the contention that there was no evidence on which the Inspector could reasonably have suspected that an offence had been committed by the appellant. Having decided to arrest the appellant Inspector Walsh told her why she had been arrested and asked her to accompany the police to Mongkok Police Station. Thus I find that the arrest of the appellant inside the premises was lawful under section 50(1) of the Police Force Ordinance. Furthermore, even if the original arrest (on the ground that she was running an unlicensed massage establishment) had been unlawful, her arrest would have been entirely justified when the appellant ran amok with a chopper, uttering abuse and threats and waving the dangerous weapon. At that point, it became not only proper for, but incumbent upon, the police officers to arrest her for conduct likely to cause a breach of the peace, at the very least. USE OF FORCE BY THE APPELLANT 24. The defendant had been charged and cautioned, before she came out of the cubicle, by P.C. Wong. Therefore, before she began her assaults on the police party, she knew that she was under arrest and the reason for it. 25. Consequently, when she launched a stream of abuse against Constable Wong, not only was she was resisting a police officer acting in the due execution of his duty (his duty being to arrest her in accordance with the instructions of the Inspector) but she knew that she was doing so. 26. Similarly, there can be no doubt, as indeed her solicitor conceded, that her conduct in relation to the other police officers amounted to criminal intimidation against them, unless the appellant could justify her conduct on the ground that she was seeking to eject trespassers from her premises. 27. Having found that the arrest was not illegal, it is unnecessary for me to consider whether she was using more force than was justified for the removal of trespassers from her premises. 28. Had I been called upon to do so, I would have had little difficulty in concluding that her reaction far exceeded what was necessary or reasonable for the removal of trespassers. SENTENCE 29. It has been submitted that the sentence imposed on the appellant was excessive, in view of the fact that no injuries were inflicted on any of the police party. 30. The picture emerges of a woman infuriated by being raided by the police, losing control of her temper, screaming treats at the police and reinforcing these threats by waving a dangerous weapon at them. 31. I cannot disagree with the view of the magistrate, as reflected in the sentence which he imposed, that these were serious offences. Police officers carrying out lawful arrests must be protected against violence and intimidation of this nature. Indeed, had a somewhat heavier sentence been imposed, I should not have interfered with it. 32. The appellant has been convicted on four previous occasions, two of them for keeping an unlicensed massage establishment, though the magistrate took into account in her favour the fact that none of the previous convictions contains any evidence of violence or threats. 33. For the reasons given above, I dismiss the appeal against both conviction and sentence. Representation: Haldane of (Haldane & Co.) for appellant Longley for crown/respondent |