Lo Hon Hin v. The Queen

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

CRIMINAL APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 875 OF 1992

(On appeal from South Kowloon Magistracy Case No. SK3807 of 1992 )

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BETWEEN

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Coram : The Hon. Mr. Justice Barnett in Court

Date of Hearing : 14th & 15th April, 1993 and 10th May 1993.

Dates of Delivery of Judgment : 27th May, 1993

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J U D G M E N T

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1. In the Magistrate’s Court, the appellant pleaded not guilty to one offence of wilful obstruction of a police officer in the due execution of his duty, contrary to S.36 (b) of the Offences Against the Person Ordinance Cap. 212. After trial, he was, on 17th September 1992, convicted of the offence and fined $1,000.00 with costs of $4,000.00. Against that conviction the Appellant now appeals.

2. On 27th March 1992 at about 1:10 a.m., a police anti-triad squad team carried out a liquor licence check at the Singalong Member’s Club, 35 Canavon Road. It appears to have been axiomatic that such a check included asking all customers to produce proof of identity. DPC 2660 (PW1) approached a table of five persons and asked for proof of identity. The appellant who was at that table stood up and said, “If I comply with your request, I will lose face”. PW1 again asked the Appellant for his identity card. His evidence continued:

“At that time I saw him folding both of his arms across his chest and say “I’m not going to produce my identity card to you! So what?” At that time judging from his words and acts I began to pay more attention to him and I noticed he was under great influence of alcohol. When I noticed him fold his arms his body swaying side to side a bit and his face was very red. His pronunciation was a bit affected but it was within my understanding. Then we stared at each other for a while and he turned around and added one sentence “You want to take a look at my identity card? OK, if you've got guts follow me!” Then he turned round and walked into a karaoke room.”

3. PW1 and another officer DPC 14612 (PW2) followed the Appellant. The Appellant invited PW1 to take his identity card from his pocket. PW1 again asked the Appellant to take out his identity card himself but the Appellant insisted that PW1 should take it. PW1 approached the Appellant to take out the identity card but, as he was reaching out his hand, the Appellant pushed PW1 away with both hands, saying “who are you to take my things”. The push was not very forceful but PW1 almost fell. A struggle between the two police officers and the Appellant ensued in the course of which PW1 took out the Appellant’s identity card. PW1’s evidence continued:

“Defendant then kept silent. I then handcuffed him and cautioned him for disorderly conduct after drinking and obstructing a police officer in the due execution of his duty. After caution he swore at me. He said “Do not think you are almighty because you are a police officer and that you can search as you like.”

4. The Appellant was taken from the club premises at about 1:38 a.m. to Tsimshatsui Police Station where, about four hours later, he made a complaint to the Duty Officer that he had been assaulted by police officers, a complaint which was referred to CAPO.

5. The evidence of PW2 substantially confirmed that of PW1. In particular, he said that before the Appellant went to the karaoke lounge, the Appellant’s face was very red and the Appellant was swaying to and fro, pointing here and there with his fingers. PW2 said he could smell liquor when the Appellant was speaking.

6. Detective Senior Inspector Leong Shing Fai (PW3) was the officer in charge of the team. During the course of his cross-examination, this passage took place:

“Q.    Did you note a very disagreeable smell of human waste?

A. I smelled strong liquor.

Q. Would you say Defendant was drunk?

A. I can’t say so - what I mean now is he looked to me as though he was drunk.

Q. Did he appear drunk and incapable?

A. Yes.

Q. Eventually that is reason you gave to Defence lawyer for detaining Defendant at police station that he was drunk and incapable?

A. Yes - drunk and incapable to deal with himself.

Q. In fact you told Defendant’s lawyer next day that when he was sent to the hospital he was too drunk to tell the doctor what had happened?

A. Yes.”

7. In re-examination PW3 said:

“By “incapable”, I mean when I saw him he was handcuffed and needed help of my colleagues to stand on own feet. He needed my colleagues to take him out of the lounge as well. Defendant was escorted to hospital for medical treatment after family and solicitor visited him, I believe.”

8. The Appellant gave evidence. He said that he had had dinner with friends at which he had four or five glasses of beer. He and his friends then went to the club where he drank tea although his friends ordered alcohol. After about an hour, several tens of people entered the club. Because of their identity tags, the Appellant thought them to be police who had come for the purpose of a liquor licence check. A group of people approached the Appellant’s table, one of whom was a woman police officer. The Appellate took out his identity card and said “Madam, identity card”. The Appellant was told not to be so cocky by a male police officer and was then lifted it up and taken to a karaoke room where he was severely beaten up to the extent that he lost control of his bowels.

9. Four of the Appellant’s friends gave evidence. Their evidence generally supported the Appellant’s account of what occurred in the club.

10. For the Appellant, Mr. Bernacchi argued seven grounds of appeal. The principal ground was ground 4:

“4.     The Learned Magistrate failed to consider or wrongly considered whether the Appellant was capable of forming the mens rea and/or did have the mens rea, to ‘wilfully’ obstruct PW1 in circumstances where he had accepted the evidence of PWsl, 2 and 3 which was that the Appellant had consumed and was under the influence of alcohol to the extent that the Appellant was incapable of standing on his own feet.”

11. In argument, that ground broadened into a complaint that the Magistrate misconceived the definition and meaning of the word “wilfully”. It was not in dispute that “wilfully” in this context means with intent that is, with a specific intention to obstruct a police officer. Such a meaning was explicitly given to the Magistrate by counsel representing the Crown. The Crown had to prove that the Appellant intended to obstruct the police officer.

12. The most helpful explanation of such intent is to be found in Lewis v. Cox (1985) 1QB 509, a decision of the Divisional Court. At page 516 Webster J. said:

“For my part I conclude that, although it may not be unhelpful in certain cases to consider whether the actions of a defendant were aimed at the police, the simple facts which the court has to find are whether the defendant’s conduct in fact prevented the police from carrying out their duty, or made it more difficult for them to do so, and whether the defendant intended that conduct to prevent the police from carrying out their duty or to make it more difficult to do so.”

13. At page 517 Kerr L.J. said:

“The actus reus is the doing of an act which has the effect of making it impossible or more difficult for the police to carry out their duty. The word “wilfully” clearly imports an additional requirement of mens rea. The act must not only have been done deliberately, but with the knowledge and intention that it will have this obstructive effect. But in the absence of a lawful excuse, the defendant’s purpose or reason for doing the act is irrelevant, whether this be directly hostile to, or “aimed at,” the police, or whether he has some other purpose or reason. Indeed, in the majority of cases the intention to obstruct the police will not be simply “anti-police,” but will stem from some underlying reason or objective of the defendant which he can only achieve by an act of intentional obstruction. This may be to assist an offender, which could be termed “hostile” to the police. Equally, the motivation could be public-spirited, for instance, by intervening on behalf of someone whom the defendant believes to be innocent, as in Hills v. Ellis [1983] Q.B. 680. Or it may be for some neutral reason, for instance because the defendant considers that something else should have a higher priority than the duty on which the police officer is immediately engaged. In all such cases, if the defendant intentionally does an act which he realises will, in fact, have the effect of obstructing the police in the sense defined above, he will in my view be guilty of having done so “wilfully,” with the necessary mens rea. In the absence of a lawful excuse, the defendant’s underlying intention, reason or purpose for intentionally obstructing the police is irrelevant, because the intention to obstruct is present at the same time. Willmott v. Atack [1977] Q.B. 498 only went the other way because the defendant’s intention was in fact to assist the police. It is a good illustration of the commission of actus reus without any mens rea.”

14. In his statement of findings, the Magistrate said:

“The Crown case having been closed, Mr. Necholas of Counsel submitted that his client had no case to answer. The basis of his submission was that the Crown has failed to raise a prima facie case that the defendant had acted wilfully given the level of drunkeness alleged by PW3. Miss Lai, Assistant Crown Counsel, replied and opposed such submission on behalf of the Crown. I was of the opinion that wilful “amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing and is a free agent” (per Bowen L.J., Re. Young and Harston 31 Ch. D 174) and that evidence of drunkeness did not in this case negate an inference from the defendant’s actions and words that he acted wilfully. Therefore I found there was a case to answer and ruled accordingly.”

15. With the greatest respect to the Magistrate, I cannot understand why he should have gone to the trouble of unearthing some 19th century Chancery case to guide him as to the meaning of “wilful”, when there was no dispute as to what the Crown had to prove and when, if research was required, there is ample modern criminal jurisprudence.

16. For the benefit of magistrates generally, I would strongly discourage the practice of private research where the parties are represented unless a magistrate feels that he has been misled or is in some doubt about the law. In either case, he should afford the parties the opportunity of addressing him further about any new authority upon which he proposes to rely or as to any point of law about which he is unclear.

17. What the Magistrate had to consider was whether or not the Crown had shown that the Appellant intended to decline to produce his identity card; and knew and intended that this would have an obstructive effect upon the police. Assuming he appreciated that, he had to consider not whether the Appellant was capable of forming the necessary intent but whether in fact he did form the necessary intent: see Fung Chun Wai v. The Queen (1982) HKLR 302.

18. Mr. Bernacchi’s enquiry was how the Appellant could be capable of having any mens rea wilfully to obstruct if the Magistrate had correctly directed himself. He said that the Appellant’s condition was incompatible with the existence of a mens rea to obstruct and that no reasonable Court should have convicted the Appellant, there being at least an inherent defect or weakness in the Crown’s case.

19. The ability of a person to form an intent when under the influence of alcohol is not, as I have ready said, what a Magistrate has to address. The question is whether the intent was actually formed. Nonetheless, there was not, I think, any real doubt as to the issue being raised by the Appellant, and the degree of the Appellant’s drunkenness was a matter which the Magistrate could properly have had in mind in resolving that issue.

20. Pertinent to this ground of appeal, therefore, is the level of intoxication of the Appellant at the time. It was Mr. Bernacchi’s complaint that this matter was never properly examined and analyzed by the Magistrate. He submitted that there was a material discrepancy between the evidence of PW1 and 2 and that of PW3. The evidence of PW1 and 2, which I have set out earlier, was to the effect that the Appellant although he had drink taken was thought by PW1 to be still sufficiently in command of his faculties to permit him to be cautioned and indeed to respond in a relevant manner. PW3’s evidence, however, was to the effect that the Appellant was totally drunk and incapable or to use the vernacular ‘legless’. Mr. Bernacchi asked how, without having resolved this discrepancy, the Magistrate could properly have addressed the question of whether or not the Appellant formed the necessary intent.

21. For the Crown, Mr. Bailey argued that any inconsistency between these witnesses was a minor one. He said that the evidence of all three witnesses was to the effect that the Appellant was drunk or affected strongly by drink. He pointed out that PW1 arrested the Appellant not only for obstruction but for being disorderly after drinking. He accepted that in re-examination PW3 stated that the Appellant needed help to stand up and to be taken out of the lounge. He argued, however, that a person who has been drinking and who has been handcuffed behind his back, as was the Appellant, would in any event need help to stand up and walk because he would not have his arms available to keep his balance. He pointed out that neither PW1 nor PW2 made reference to, nor were asked about, the Appellant needing assistance.

22. The trial and counsel’s speeches concluded on 7th September. The Magistrate adjourned until 17th September, when he delivered a judgement which has been reduced into writing. In that judgement he said:

“Much was made of DST Leong’s assessment of your state of drunkenness, but I do not find that to be untrue or inconsistent with the evidence of PW1 and PW2.”

23. Whilst it is true that there is no reference to this point in the Magistrate’s formal statement of findings, it is plain to me that he was aware of, analyzed and resolved the apparent discrepancy.

24. Mr. Bernacchi complained that, in any event, the Magistrate did not appreciate or did not show he appreciated the 2 intents required. He pointed out that, in his judgment on 17 September, the Magistrate said :

“I find from your acts that the only inference that can be drawn is that you acted wilfully and that these acts amounted to an obstruction of PW1 who was acting in due execution of his duty.”

25. That, argued Mr. Bernacchi, suggests the Magistrate appreciated that the act of obstruction required an intent but did not also realize that that act had to be intended to obstruct as opposed to causing obstruction simpliciter. Thus, in his statement of findings, the Magistrate said:

“Therefore having believed and accepted the evidence of the prosecution witnesses I was satisfied beyond all reasonable doubt that the defendant acted as alleged. Further I found that in so acting he wilfully obstructed the police officer who at the time was acting in the due execution of his duty.”

26. Mr. Bernacchi said that passage is equally vague.

27. Accepting that the Magistrate’s reference to an old Chancery case in connection with a criminal matter is unusual, Mr. Bailey said that the reference is nonetheless explicable. In the passage complained of, the Magistrate was giving reasons for rejecting an earlier submission of “no case”. That submission appeared in somewhat attenuated form in the notes of proceedings. Counsel apparently said that wilful means with a conscious will but, in the light of PW3’s evidence, any act was of a man drunk and incapable, a condition inconsistent with wilfully doing something. On the authority of Lewis, Mr. Bailey said that the mens rea required consists of first, a deliberate act and second, knowledge and intention that the act will obstruct. He said that counsel’s submission was aimed at the first of those requirements and it was with that requirement alone that the Magistrate was dealing in the passage complained of in his statement of findings.

28. Mr. Bailey pointed out that, in her reply to the submission of no case, counsel for the Crown had informed the Magistrate that “wilfully means with intent to obstruct a police officer”.

29. Mr. Bailey submitted, and I accept, that if the Magistrate had mistakenly thought that mere obstruction of a police officer is sufficient, there would have been no reason for him to have gone on to say “further I found ...”. He said that this demonstrates the Magistrate’s awareness of a requirement of a specific intention to obstruct.

30. I am satisfied that by his reference to re Young and Harston the Magistrate was no more than indicating that there must first be a deliberate conscious act by a person charged with wilful obstruction. I am also satisfied that the Magistrate was aware that, the deliberate act having been established, it had to be demonstrated that it was done with knowledge and intent to obstruct a police officer, hence his use of “willfully” to qualify “obstructed”. Further the Magistrate was alive to the possibility that alcohol might have prevented the Appellant forming the necessary intent but rejected it. I am satisfied that there is nothing in this ground of appeal.

31. By ground 2, Mr. Bernacchi asserted that PW1 was not acting in the due execution of his duty in demanding identity documents from the Appellant. He said that the police were enabled to enter the club premises by Regulation 31 of the Dutiable Commodities (Liquor) Regulations made under the Dutiable Commodities Ordinance, Cap. 109. Regulation 31 reads:

“Any police officer may enter at any hour of the day or night, every part of any premises or place in respect of which a liquor licence is in force.”

32. Mr. Bernacchi said that, having gained entry to the club, the only duty of the police at that time was and must have been in connection with the Dutiable Commodities Ordinance. That duty would have been confined to checking whether the club had a current licence, whether any licence conditions were being observed and generally whether the club was being run in a proper manner. That duty did not entitle the police indiscriminately to require members in the club to produce proof of identity or an identity card. He said that there must be a proper reason for requiring proof of identity, for example, a doubt as to whether a person in the club was over the age of 18, a doubt (which I accept) could not have arisen in relation to the Appellant.

33. Mr. Bernacchi said that an excuse given by one of the police witnesses about checking criminal records is not a concern of the Dutiable Commodities Ordinance and, in any event, there was no evidence that any such checking was ever done. He rejected an attempt by PW1 to rely upon the Immigration Ordinance, an attempt which was only forthcoming in re-examination when PW1 was apparently asked upon what authority he required the production of an identity card. He pointed out that the Appellant had not been charged with the comparatively minor offence of failing to produce proof of his identity under S.17C(3) of the Immigration Ordinance.

34. Even if the Immigration Ordinance gives power and authority to the police to ask for proof of identity once they were lawfully upon private premises, Mr. Bernacchi further argued that exercising that power without any apparent reason to do so did not amount to due execution of duty.

35. In R. v. Clarke (Ediakpo) (1985) 1 A.C. 1037, a police officer while investigating another matter asked the respondent questions as to whether the respondent was unlawfully in the country. The respondent gave false answers and was prosecuted pursuant to S.26(1)(c) Immigration Act 1971 for making to a police officer acting in execution of the Act a statement that he knew to be false. The respondent, having been convicted, appealed. In dismissing the appeal, the House of Lords held:

“That the words in section 26(1)(c) of the Immigration Act 1971 “other person lawfully acting in the execution of this Act” did not, on their true construction, include a police officer investigating a suspected offence under the Act and an offence under section 26(1)(c) was committed only if the relevant falsehood was addressed to a person in the course of a specific procedure under the Act in which that person’s statutory function involved the obtaining or receipt of information relevant to the performance of that function.”

36. In his speech at page 1053, Lord Brightman said:

“Although I would not regard the wider construction of the paragraph advocated by the appellant as oppressive in the context of immigration laws, nor accept that the wider construction would leave the door open to officious action by members of the public, nevertheless the narrower construction is more consistent with the wording of paragraph (c) and if there were any ambiguity is the construction which should be adopted in a penal section of this kind.”

37. Mr. Bernacchi said that as a matter of fact the police were only in the club to check the liquor licence and that fact was all that the Appellant knew. As a matter of law, the police could not go beyond the power and authority conferred upon them by the Dutiable Commodities Ordinance and Regulations made thereunder. The police were not, therefore, entitled to carry out an indiscriminate identity check, whether for the purpose of ascertaining if any offence had been committed under S.17C of the Immigration Ordinance, or in the hope of, uncovering some wanted person.

38. In Lindley v. Rutter (1980) 3 W.L.R. 660, Donaldson L.J. sitting in the Divisional Court said at page 663:

“Police constables of all ranks derive their authority from the law and only from the law. If they exceed that authority, however slightly, technically they cease to be acting in the execution of their duty and have no more rights than any other citizen. This is a most salutary principle upon which all our liberties depend and it is not to be eroded merely because, as in this case, the limits of the constable’s authority may not have been clearly defined and W.P.C. Fry was acting in the bona fide belief that she was authorized to act as she did. These considerations may well provide an answer to criticism of the officer concerned. They do not deprive the aggrieved citizen of any of her rights.”

39. In R. v. Waterfield and another (1964) 1 Q.B. 164, Ashworth J. said at page 170:

“In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.”

40. That statement was cited with approval by Widgery L.C.J. in Hoffman v. Thomas (1974) (2) All E.R. 233. In reliance upon that Mr. Bernacchi argued that even if PW1 had the power under the Immigration Ordinance or the Police Force Ordinance to require the Appellant to produce proof of identity, the issue was whether exercise of that power was justifiable.

41. Finally, Wilcox v. Muckle (1951) 2 K.B. 844 involved the National Registration Act 1939 which empowered the police to require a subject to produce his identity card. A 7-man court held that a police officer had power under the Act to require production of an identity card for purposes other than security. The Court was of the opinion, however, that it was wholly unreasonable to require production of identity cards as a matter of routine. Lord Goddard C.J. said at p. 851 :

“Because the police may have powers, it does not follow that they ought to exercise them on all occasions or as a matter of routine."

42. Mr. Bernacchi submitted that if the exercise by a police officer of a power is not called for, the police officer cannot then be acting in the due execution of his duty. Although this proposition is unsupported by authority Mr. Bernacchi said that it is a legitimate extension of the decision in Wilcox v. Muckle. If a police officer lacks a reason for exercising the power then the execution of that power is not a due one.

43. With respect, I do not think that this argument is tenable. In the latter case, the Court was dealing with an appeal from a Magistrate’s Court which had found the police officer to have power under the Act but, in the absence of a real reason for the demand for production of the identity card, had granted the defendant an absolute discharge a course of which the appellate court fully approved. It seems to me that if the act of the police officer was sufficient to justify a conviction, albeit on a charge which should not have been preferred, plainly the police officer was acting lawfully as otherwise the charge must surely had been dismissed. And if the officer was acting lawfully, I do not see how it can be argued that he was acting otherwise than in due execution of his duty.

44. Mr. Bernacchi addressed further arguments to me as to whether the Immigration Ordinance and in particular Section 17C applies to private premises; and whether R v.  Fung Chi-wood (1991) 1 H.K.L.R. 654 was rightly decided in that Section 17C can be used by the police for purposes unconnected with investigations into immigration offences. He also suggested, somewhat faintly, that Section 17C might be inconsistent with the Bill of Rights Ordinance and therefore repealed by Section 3 thereof. For the latter submission, Mr. Bernacchi relied upon Article 8 which relates to liberty of movement; and Article 14 which relates to protection of privacy, family home, correspondence, honour and reputation. For my part, I am at a loss to understand how Section 17C impinges upon these particular rights and I have no hesitation in rejecting that argument. As to the earlier arguments, I do not feel it necessary to resolve them in all the circumstances.

45. For the Crown, Mr. Bailey said that considerable surprise would be occasioned to the police force if it were to be found that police officers could not demand proof of identity under Section 17C. He pointed out that the power as Bewley J. found in Fung Chi-wood, is an unambiguous power which, unlike many police powers, does not have any statutory trigger such as “reasonable belief”. He said that Fung Chi-wood was rightly decided and that both in a public place and in private premises to which he has gained lawful entry, a police officer is fully entitled to require proof of identity. If the power is too sweeping, he said that it should be curbed by the legislature and not by judicial intervention.

46. In my judgment, the issue admits of a much more simple solution and does not need the jurisprudential erudition which has been displayed. In his evidence in chief, PW1 said:

“The purpose was to conduct a liquor licence check. Upon entry each of us performed our duty. We asked the customers to produce proof of identity.”

47. I am quite satisfied that in the conduct of a liquor licence check it is lawful for and indeed the duty of the police to check who is in the premises. This will       enable them to establish that the regulations themselves and any licence conditions are being complied with and that the premises are being properly run. In particular, it must be proper to establish that only proper members and persons over the age of 18 are in the premises. To establish that, as Mr. Baily suggested, a combination of membership card and identity card will, in many circumstances, be necessary. A membership card establishes only that the person named in the card is a member. It does not, unless verified against an identity card or some other proof of identity, establish that the person who produces the membership card is necessarily the person named therein. I can see no reason why a bona fide member should take exception to such a check. Indeed it would be to his advantage to know that the club is being properly run for the benefit of members. A person not being a member of the club could have no objection if he was ejected following such a check.

48. I accept that there was no evidence that the plice were checking membership cards. I did, however, say “proper members.” No one could properly be admitted to membership without production of an identity card. It seems elementary to me that such a fundamental requirement should be verified.

49. It is clear to me that whatever authority PW1 or PW3 might have thought they were using to carry out the identity check, they were clothed with authority under the Dutiable Commodities Ordinance and Regulations thereunder. There was no reason that I can see to invoke either the Immigration Ordinance or the Police Force Ordinance but, in any event, it would in the circumstances have been proper to rely upon the former. Accordingly, I see nothing in this ground of appeal.

50. In his evidence, the Appellant said that he had produced his identity card to a woman police officer. It was admitted that there were two WPCs on the premises at the time but only one gave evidence at the trial. As ground 3, Mr. Bernacchi argued that the prosecution had failed to adduce proper evidence to disprove the Appellant’s contention that he had, in fact, produced his identity card.

51. I indicated to Mr. Bernacchi that I did not think that this point really constituted a free standing ground of appeal. I suggested that it might be more material to one of his more general grounds. I do not now resile from that view. I agree with Mr. Bailey that it is not for the defence to dictate which witnesses the Crown shall call. By not calling a relevant witness, the Crown takes the risk that it will not prove its case. In any event, it was open to the Appellant at least to have asked the Crown to tender her for cross-examination, a request with which the Crown would no doubt have complied. In my view, it is now too late for the Appellant to complain and I find nothing in this ground of appeal.

52. Grounds 5 and 6, although separate, were argued together by Mr. Bernacchi under the general heading “the Magistrate’s approach to the evidence”. It was not in dispute that a definitive statement of what a magistrate should do is that by O’Connor J. in R v. Chong Kam-sau  Magistracy Appeal No. 859 of 1985 (unreported) where in his judgment dated 31st October, 1985 the judge said :

“The reasons for verdict should, in a manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case. The magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore will enable an appellate court to perform its duty.”

53. I only venture to observe that a magistrate, of course, is required to provide a statement of findings.

54. It was also not in dispute that an appellate court may not only consider the findings of fact of a magistrate but may go behind those findings and consider the evidence upon which they are based : see R. v. Lo Kee (1966) H.K.L.R. 601. Authorities such as Lo Kee, however, must be approached with some caution. The appellate courts in the earlier authorities were dealing essentially with simple findings of fact by magistrates who did not analyse and evaluate the evidence in the way in which magistrates now do. Where a magistrate has conducted a proper analysis of the case, there is much less room for an appellate court to manoeuvre.

55. Mr. Bernacchi’s principal complaint was that the magistrate failed to grapple with the major inconsistency in the Crown’s evidence, namely the degree of drunkenness of the Appellant. I have already dealt with this.

56. Next, Mr. Bernacchi complained that although there were very likely to have been a number of civilian witnesses in the club at the time, the Crown only called police officers to give evidence. As I have already remarked, it is not for the Court or anyone else to dictate to the Crown which witnesses should be called. Further, the Appellant gave evidence and could, if he had wished, have called anyone else who was in the club that night. There was nothing to suggest that inquiries had been made and witnesses had been found reluctant to testify. The Appellant after all, did call 4 friends to give evidence on his behalf. At the end of the day, it was for the magistrate to adjudicate upon the evidence which had been called, not to speculate on what other witnesses might have been called and what evidence they might have given.

57. It must by now be evident that a great deal has been made of what even PW3 admitted to be a trivial offence. There is, however, a considerable background to the trial. The Appellant, as I have said, made a formal complaint within 4 hours of his arrest, a complaint which has been taken up by CAPO. About 3 weeks after his arrest, the Appellant reported to Tsimshatsui Police Station in accordance with his bail. There, the officer in charge of the case, i.e. PW3, offered the Appellant the opportunity to be bound over, a course which would have avoided the Appellant being charged. The Appellant declined the offer. He was charged with the offence now under appeal.

58. From this background, Mr. Bernacchi makes 2 points. First, the inference is to be drawn that the police were in effect endeavouring to buy off the Appellant in the hope that he would withdraw his complaint against them. When the Appellant failed to take this course, a more serious charge was preferred against him than might otherwise have been the case. Second, PW1, 2 and 3 had everything to gain by ensuring a conviction which would necessarily militate in their favour in any CAPO investigation. The magistrate should have reminded himself of this and should have demonstrated in his statement of findings that he was alive to this point.

59. Mr. Bailey termed as “outrageous” the suggestion that the police had tried to buy off the Appellant. He said from the bar (and I accept this because it was apparently recorded in writing in representations made by the Appellant’s solicitors to the Attorney General to have the charge reconsidered) that the Appellant when he answered to his bail was told, first, that he was to be charged under the Offences against the Person Ordinance but second, that he was to be given the opportunity to agree to be bound over, in which case the charge would not be preferred. In those circumstance, he said, there could be no question of any vindictiveness on the part of the police who had acted quite properly in accordance with usual practice. I agree. In the absence of any positive evidence, I reject any idea of “suspicious manoeuvering” on the part of the police.

60. It would, however, be to the advantage of the police officers if the Appellant was convicted. Given the force with which the defence was conducted and the nature of the allegations being made against the police, this is a matter which the magistrate should have shown he had in mind. I accept, as Mr. Bailey pointed out, that no medical evidence was called on behalf of the Appellant in spite of the very severe beating which he said he had suffered. Mr. Bailey said that the police officers had nothing to hide and had no need to temper their evidence because they knew that the Appellant was not in a position to call any medical evidence because nothing of the sort had occurred. The fact is, however, that a criminal trial does not always result happily for the police and, had the Appellant been acquitted for whatever reason, any investigation into the conduct of the police officers might well have intensified.

61. Finally, Mr. Bernacchi complained that the magistrate found that because of the similarity between the evidence of the Appellant and that of his witnesses, it must have been by a prior design to put together an account that was not true. With the very greatest respect, that is to be very selective in reading the magistrate’s statement of findings. It simply is not justified and I say no more about it.

62. In his statement of findings, the magistrate did not just rehearse the evidence and say he found the Appellant guilty. He explained why he disbelieved the Appellant and his witnesses and why he accepted the evidence of the police officers. It might have been better if he had mentioned the possible pressure on the police officers to secure a conviction. Such a failure does not, however, in my judgment, vitiate what is otherwise a proper analysis and evaluation of the evidence. I find nothing in this ground of appeal.

63. Ground 1 as amended was that the Magistrate erred in refusing to dismiss the case at the close of the prosecution evidence. In support of this ground, Mr. Bernacchi relied upon the background to the case, the serious nature of the charge in relation to what was accepted as a trivial incident, the discrepancies between the police officers and the fact that no independent witnesses were called by the Crown. In my view, none of these matters, except the question of an inconsistency between the prosecution witnesses, have any relevance to whether or not there was a case to answer. It was for the magistrate to determine whether the evidence led by the Crown disclosed a prima facie case against the Appellant as charged. The only matter which may have fallen for his consideration at that stage was the discrepancy. I am satisfied, however, that it was a discrepancy which fell to be resolved at the end of the trial. The discrepancy was not such that the Magistrate must have been impelled to find that the Crown case was fatally undermined.

64. Ground 7, the final ground, was that in all the circumstances the conviction was unsafe and unsatisfactory. A useful summary of the Court’s approach in relation to such a ground of appeal was given by Deputy Judge Cruden in Young Chung-kai v. R., Magistracy Appeal No. 782 of 1984 where he said:

“Where an appeal is limited to this ground, it is necessary on appeal to review the whole of the evidence in depth. For at the end of the day the appellate determination is both exceptionally and necessarily subjective rather than objective. The classic statement of the appellate function in an appeal of this nature is contained in the judgment of Widgery L.J. in J. v.  Cooper (1968) 53 Cr.App.R. 82, 86, where he declared:

“That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it.”

I am mindful of the fact that this ground of appeal does not invest an appellate court with an unlimited charter. In particular our own Court of Appeal in R. v. Tang Wai-tong (1979) H.K.L.R. 479, 486, has emphasized in the judgment of the Chief Justice that:

“... the lurking doubt formula must be applied with great caution. An appellate court, reading papers and not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have the advantage of seeing the witnesses and assessing their credibility. In our view, “lurking doubt” means not an insubstantial doubt but a substantial remaining doubt.”

65. More pertinently, in The Queen v. Au-Yeung Choi, Magistracy Appeal No. 941 of 1987 Bewley J. said:

“However, as I said at the outset, this is an unusual case. I am persuaded to interfere, firstly because I think the magistrate may not have given sufficient thought to the possibility that, given the appellant’s circumstances and character, the defence might reasonably be true. Secondly the magistrate may have been influenced by the inadmissible evidence. Thirdly there is a possibility of a grave miscarriage of justice. In other words, I have a lurking doubt.”

66. I have already rejected the other 6 grounds of appeal and the factors upon which they were based. Re-appraising them all, as I now do, neither in isolation nor collectively do they give me any concern as to the propriety of the conviction. Mr. Bailey, however, in the interests of fairness pointed out that the Appellant is a businessman of good character. That, he said, should be contrasted with the unusual features of the case. He conceded that perhaps the Magistrate should have referred to the Appellant’s clear record. Mr. Bernacchi gratefully adopted and emphasized this point.

67. Ideally, perhaps, the Magistrate should have mentioned this point. The Magistrate, however, like all permanent magistrates in Hong Kong, is legally qualified and has appropriate experience before appointment. In my view, it is proper for an appellate court to have regard to the professional status of a permanent magistrate and, provided that he has shown a proper appreciation of the case and how to approach and analyze evidence, to assume that he has had in mind fundamental matters of general application. I have no doubt that the Magistrate had in mind the circumstances of the Appellant and the nature of the case. The sad fact of the matter is, however, that persons do behave like the Appellant did on this occasion, particularly when they have taken drink. I am satisfied, therefore, that there is nothing in this ground of appeal.

68. Accordingly, the appeal is dismissed.

Mr. S.R. Bailey, Sr. Assist. Crown Prosecutor for Crown Prosecutor.

Mr. Brook Bernacchi, Q.C. and Mr. Simon K.C. Lam for the appellant.