Case Document

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CACC001147/1977

IN THE COURT OF APPEAL	1977 No. 1147
	(Criminal)

BETWEEN:
	YUEN Tai Bu	Appellant
	and
	THE QUEEN	Respondent

Coram: Briggs, C.J., Huggins & Pickering, JJ.A.

Date of Judgment: 15th March, 1978.

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JUDGMENT

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1. This appeal was referred to the Court by order of a Judge of the High Court before whom it came on appeal from a Magistrates Court.

2. The appellant and his wife were jointly charged with obstructing a public officer contrary to the provisions of section 27 of the Gambling Ordinance, 1977. The appellant was found guilty and was sentenced to a fine of $1,000. He appeals against his conviction and sentence.

3. The facts are simple. Armed with a written authorisation under section 23 of the Gambling Ordinance a party of police officers led by Inspector Lau To-sang arrived outside the door of the flat of the appellant. The entrance to the flat consisted of a wooden door and an iron grille. When the police party arrived the wooden door was open but the iron grille was locked. The intention of the police was to search the flat to see if it was being used an off-course betting centre.

4. The police were in plain clothes. The Inspector pressed the bell of the flat and the appellant answered it. He asked who they were and he was asked to open the door. The Inspector then showed the appellant his authorisation to search and his police warrant card. Another police officer also showed his warrant card. Both the warrant cards and the authorisation were printed in English and Chinese. The Inspector explained who the police party were and why they wished to enter the premises.

5. After the police had shown the appellant the documents the wife of the appellant closed the wooden door. The police party heard sounds coming from the inside of the flat which they took to indicate that persons were "pushing things" about. About five minutes later the police heard cries of "Robbery" also coming from the flat. Thereupon the appellant opened the wooden door and the iron grille and allowed the police to enter.

6. The defence was that the police party did not explain who they were and did not explain the authorisation: and that the documents were only shown to the appellant from a distance, if at all. The appellant said he did not open the door because he thought that the persons he saw outside his flat were robbers. This defence was rejected by the magistrate. He disbelieved the appellant and his wife and accepted the evidence of the police witnesses as being the truth of what occurred.

7. The question at issue is whether the conduct of the appellant amounted to obstruction under the Gambling Ordinance. Section 27 of the Ordinance reads as follows (there is no definition of "obstruction" in the Ordinance):-

"27. Any person who obstructs a police officer in the exercise of the powers conferred on him by this Ordinance commits an offence and is liable on conviction to a fine of $10,000 and to imprisonment for 3 months."

8. The leading case is Hinchliffe v. Sheldon⁽¹⁾. The headnote of that case reads as follows:-

"	H., the son of the licensee of a hotel, returned to the hotel one night after permitted licensing hours and, seeing that police were watching the premises, knocked at the door and shouted warnings to his parents that the police were about. A police constable immediately knocked at the door but some ten minutes elapsed before the licensee admitted him to the premises. No licensing offence was proved against the licensee, but H. was charged with obstructing the police in the execution of their duty, contrary to section 2 of the Prevention of Crimes Amendment Act, 1885, and convicted -
	HELD, that the police had a right, under section 151 of the Licensing Act, 1953, to enter licensed premises at any time to see whether or not offences were being committed, and to detain them from so doing, as H. had done by giving a warning, obviously amounted to obstruction of the police in the execution of their duty and, therefore, justices were entitled to convict H."

9. Lord Goddard, C.J. had this to say:-

"For these reasons, I think that the police, in the execution of their duty, intended to get into this hotel and that they wanted to get in there before anybody in the house had an opportunity of putting things away. If the police knocked at the door and the licensee did not open it for several minutes, the justices could have found that the licensee was obstructing the police. Obstructing, for the present purpose, means making it more difficult for the police to carry out their duties. It is obvious that the defendant here was detaining the police by giving a warning; he was making it more difficult for the police to get certain entry into the premises, and the justices were entitled to find as they did, and therefore the appeal is dismissed."

This dictum of Lord Goddard was approved in the case of Rice v. Connolly⁽²⁾, a case with rather different facts.

10. It was suggested that in the present case the appellant had the right not to unlock the grille on the basis that a man's home is his castle. In my view that principle only applies where persons have no right to enter. If a person, be he a police officer or not has no right to enter, a householder may refuse to open the door of his house. But in the present case the police party did have a right to enter and that was explained to the appellant. In such a case there is a duty on the householder not to make it more difficult for the police party to do their duty, not to obstruct the police party. And this is so whether the obstruction takes the form of warnings as in Hinchliffe v. Sheldon⁽¹⁾ or is merely inaction, the refusal to unlock the door as was the case here.

11. The appeal against conviction must be dismissed.

12. The appellant also appealed against his sentence, a fine of $1,000. Having heard argument we allow the appeal to the extent of reducing the fine from $1,000 to $100.