The Queen v. Cheng Cheuk Ming
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MAGISTRACY APPEAL NO. 553 OF 1993 ------------------ HEADNOTE ------------------ Assaulting a public officer with intent to resist lawful apprehension, contrary to s.36(c) of the Offences Against the Person Ordinance, Cap.212 - necessary to prove officer was conducting lawful apprehension - USD officers assaulted by hawker - failure to prove officers were authorised in writing to arrest - conviction set aside. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION MAGISTRACY APPEAL NO.553 OF 1993 ------------------- BETWEEN
------------------ Coram : Hon Patrick Chan, J. in Court Date of hearing : 5th October 1993 Date of delivery of judgment : 5th October 1993 ----------------------- J U D G M E N T ----------------------- 1. The appellant was convicted after trial of the offence of assaulting a public officer, contrary to s.36(c) of the Offences Against the Person Ordinance, Cap.212. 2. On 19th February 1983, the appellant was found hawking in a subway leading to the Hong Kong Coliseum, in Hung Hom, Kowloon and causing an obstruction at that public place. Some officers from the Urban Services Department arrested him and purported to take him to the Yau Ma Tei Police Station in a government van. When the van arrived at the police station, as soon as the appellant alighted, he started to run away. Several officers of the Urban Services Department gave chase after him. One of the officers caught up with him and tried to grab his right shoulder. The appellant then turned round and swung his arm towards the officer, hitting the officer in the face and the eye. They both fell onto the ground and a struggle ensued. Finally the other officers also arrived and he was then subdued. He was later charged with obstruction, hawking without a licence, the present offence and criminal damage (which charge alleged that he had damaged a window in a government building). He pleaded guilty to the obstruction and hawking offences. He was convicted of the assault but acquitted of the criminal damage charge. He now appeals against the conviction on the assault charge. 3. Having read the notes of proceedings, I think the learned magistrate was quite right in holding that there was overwhelming evidence of the assault by the appellant on the officer of the Urban Services Department. There is absolutely no merit on the evidence in this appeal. In fact counsel for the appellant did not seek to attack the finding of fact by the learned magistrate. The only ground of appeal was a technical one. Counsel argued that there was no evidence that the officer who was assaulted had any power to arrest the appellant and that in the circumstances the appellant was entitled to resist the officer’s apprehension. The learned magistrate, counsel submitted, therefore erred in finding that the arrest of the appellant was lawful. 4. The charge was based on s.36(c) of the Offences Against the Person Ordinance. Counsel pointed out that there was a discrepancy in the particulars of the offence appearing in the charge sheet. The particulars were as following :-
5. The particulars were in fact in line with s.23 of the Summary Offences Ordinance but not with s.36(c) which is as follows:-
6. Notwithstanding the defect in the particulars of the offence, counsel said he was not taking this point since the principle would be the same whether it was s.30 of the Summary Offences Ordinance or s.36(c) of the Offences Against the Person Ordinance. He submitted that one of the ingredients of the offence under s.36(c) was that there must be evidence of a lawful apprehension or detainer. There was none in the present case. Counsel relied upon the case of R. v. Shum Kwan-chee, (1987) HKLR 740. The facts of that case were very similar to the present one. The defendant in that case also resisted two officers of the Urban Services Department and she was charged with and convicted of resisting a public officer in the execution of his duty, contrary to s.23 of the Summary Offences Ordinance. In that case, Addison, J. held that the power of arrest of the two officers was based on s.84 of the Public Health and Municipal Services Ordinance, Cap.132 which reads as follows :-
The learned judge there found that there was no evidence as to any authority in writing to arrest without a warrant. He held that proof of such power was necessary and if the officer had no such power then the hawker’s conduct could not amount to resisting the officer in the execution of his duty. Counsel argued that the same reasoning should apply to the present case and that the appellant should have been acquitted. 7. Counsel for the Crown accepted that there was no evidence of any written authorisation to arrest. However, he submitted that the appellant had pleaded guilty to two other offences. It was for these two offences that the appellant was brought back to the police station. The appellant knew that the officers were there to arrest him. It could not be disputed that one of the officers was indeed assaulted by the appellant. Counsel submitted that the learned magistrate was entitled to convict him on the evidence. 8. Under s.84(1) of the Public Health and Municipal Services Ordinance, only those public officers who are authorised in writing by the authority may arrest people suspected of having committed or in the course of committing offences under that Ordinance. Only these officers can carry out lawful apprehension or detention for such offences. For an offence under s.23 of the Summary Offences Ordinance, the Crown must prove that a defendant has assaulted a public officer and that the public officer was at the material time in the execution of his duty. Conducting a lawful apprehension is clearly an execution of his duty. Hence I think Addison, J. in Shum Kwan-chee’s case was right in holding that without proving that the apprehension was lawful, it could not be said that the officer was in the execution of his duty. It follows that it is necessary under s.23 of the Summary Offences Ordinance to show that the officer has been authorised in writing to make the arrest. 9. Section 36(c) of the Offences Against the Person Ordinance is different in wording. Should the same principle apply? 10. In my view, to substantiate a charge under s.36(c), it is necessary to prove firstly that there was an assault on the officer, and secondly that the assailant had the intention to resist or prevent lawful apprehension or detention. It may be argued that all that is required is proof of an intent on the part of the assailant to resist or prevent the lawful apprehension and that it is not necessary to prove that the apprehension is lawful. I think the distinction is artificial. The section clearly aims at punishing a person for assaulting an officer who is carrying out a lawful arrest. If the officer is not doing this duty, he is in the same position as any ordinary citizen. And if a person assaults him, this would be an ordinary common assault which is a less serious offence. It would be contrary to the intention of the legislation to convict a person of an offence under s.36(c) for assaulting an officer with an intent to resist lawful apprehension, if the officer is not making a lawful arrest at the time of the assault. If it is not an offence under this section to assault the officer who is not carrying out a lawful apprehension, it should not make any difference simply because the assailant had the intent to resist a lawful apprehension. In my view, therefore, it is also an ingredient of an offence under s.36(c) of the Offences Against the Person Ordinance that there must be a lawful apprehension by the officer and that the assailant had the intention to resist such lawful apprehension. I share the view of the learned authors of Archbold on this issue. In para.19-255 and 258, the book deals with a similar provision under the Offences Against the Person Act, 1861. It says that for such an offence, “it must be proved that the person assaulted had the right to apprehend or detain the defendant for any offence.” 11. Although I am quite satisfied that the appellant in the present case had indeed assaulted the officer for which he should be responsible, it had not been proved that the officer had the right to arrest him. The fact that the appellant had pleaded guilty to two hawking offences is neither here nor there. This is far from saying that he had admitted that the officer had the proper authority to arrest him Not every officer in the Urban Services Department has the proper authority to do so. It follows that the Crown had failed to prove an essential ingredient of the offence. So on this rather technical point, I would allow his appeal. The conviction would be set aside and the fine refunded to the appellant.
Mr P.K. Madigan, Senior Crown Counsel, for Crown Mr S.M. Chan, inst’d by Messrs Pang, Kung & Co., for Appellant |