HKSAR v. Tang Tin Ying

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 80 OF 1991

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Dates of Hearing: 9^th & 11^th April 1991

Date of Delivery of Judgment: 28 MAY 1991

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JUDGMENT

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1.  The appellant was convicted after trial in the Magistrate’s Court on a charge of obstructing a police officer in the due execution of his duty contrary to section 36(b) of the offences Against the Person Ordinance, Cap.212.

2.  He was conditionally discharged on entering into his own recognizance in the sum of $750.00, to be of good behavior and to come up for sentence if called upon within 12 months from the date of the order, i.e. 11^th December 1990. He was also ordered to pay $500.00 costs. He now appeals against the conviction.

3.  The evidence for the prosecution was that a Station Sergeant in plain clothes was patrolling in the area of the Yau Oi Estate at about 7.20 p.m. on the 30^th October, 1990, when he saw the appellant near an optical shop in the estate “paying attention to the park where people were seated”. The Sergeant said that he “felt suspicious about him” so he approached and showed him his “identification card”. He went on to say, in his evidence, that the first time he showed the appellant the card it was “not clear to him” so he showed it to him again. The appellant’s response on this occasion was that he did not believe that the witness was a policeman The Sergeant said that he then called over a superior officer, a Senior Inspector, who was also in plain clothes. The Senior Inspetor produced his warrant card and showed it to the appellant. The appellant said that he could not see it clearly so the Inspector removed the card from his wallet, held it in his hand, showed it to the appellant and told the appellant that he was a policeman. The appellant studied it for some time and said that he could not see it clearly. The Inspector then put the card on the ledge of a wall to enable the appellant to read it for himself. After the appellant had studied the card for some time, the Inspector said “you have seen it for five minutes, I believe you have seen it clearly” and retrieved the card and put it back in his wallet. The Inspector told the appellant his rank and his place of duty in the police force and told the appellant that the Sergeant was also a policeman. The Sergeant then asked the appellant to produce his identity card and the appellant complied with that request. The Sergeant then asked the appellant a question about his place of residence, but the appellant refused to answer. The Sergeant noticed that the appellant was carrying a plastic bag which was attached to his person and asked him what was inside it. The appellant said that he would not let the Sergeant see it, and that if the Sergeant wished to see it, the appellant wished to be searched in a police station. The Sergeant agreed to this and then he said that for the sake of safety he first had to check whether the appellant had any offensive weapon on him.

4.  In cross-examination he said that he told the appellant this before he began to frisk him. As he was about to “check briefly whether he had an offensive weapon on him”, the defendant elbowed him. The Inspector then assisted the Sergeant in removing the appellant to a police station. It is this elbowing incident which formed the basis of the charge on which the appellant was eventually found guilty.

5.  In his appeal against the conviction, the appellant relies on a number of grounds. The first ground reads “PW1 (i.e., the Sergeant) had not or had not sufficiently identified himself to be a police officer at the scene at all material times. He was in plain clothes and he merely showed the defendant his identification card’. There was no inquiry into, or evidence of, the nature and content of such document.”

6.  The evidence, of course, was that, although PW1 was in plain clothes, he did tell the appellant that he was a policeman and showed an identification card. Although the document described by the witness may not have been a police warrant card, nevertheless when the appellant refused to accept that card as identification of PW1 as a policeman, PW1 called the Inspector. There was no doubt on the evidence that what the Inspector showed the appellant was a police warrant card identifying the Inspector as a police officer. That identified police officer informed the appellant that PW1 was also a police officer. That evidence demonstrated sufficient identification of PW1 as a police officer.

7.  The second ground reads “there was no act done by the appellant to justify the initial stop and proposed search by PW1 at the scene at the time.”

8.  PW1 said he was suspicious of the appellant because of the way he saw him acting in a public park. He did not give any details of the appellant’s conduct which aroused his suspicion, but the learned magistrate found that PW1 had been genuinely suspicious. Section 54 of the Police Force Ordinance empowers a police officer to stop and search any person he finds in any public place acting in a suspicious manner. PW1 was therefore authorized by the law to stop and seach the appellant. It has been held in Attorney General v. Kong Chung Shing [1980] HKLR 533 that the test for determining whether PW1 had the necessary degree of suspicion to authorize stopping and searching the appellant is purely subjective. The English cases to which I was referred by Mr. Yip, on behalf of the appellant, are not helpful in a case such as this because the power given to a police officer under section 54 are much wider than those available to a police officer acting solely under the authority of the Common Law.

9.  The third ground reads “PW1 never informed then appellant of the reason for the initial stop and proposed search.”

10.  The prosecution evidence was that when the appellant accepted that PW1 and the Inspector were policemen, he requested that the search be done at a police station and the police officers agreed with him. The appellant’s own evidence was in agreement with the prosecution evidence that he did agree to be searched at the police station.

11.  In support of this ground, Mr. Yip relied on McBean v. Parker ([1983] Crim. L.R. 399). That case, however, is distinguishable because there the conduct of the police was unlawful because the accosted person was not told the reason for the search and he did not agree to it. Here although the appellant was not told the reason for the search he, nevertheless, did agree to be searched. Consequently, there was nothing unlawful about the police conduct in agreeing to take him to the police station for the purpose of search and nothing unlawful about frisking him for safety reasons to see if he had an offensive weapon on him before taking him through public thoroughfares to the police station.

12.  Ground four reads “PW1’s preliminary search for an offensive weapon on the appellant at the scene was merely incidental to the proposed search which PW1 agreed to be conducted at the police station. Since the proposed search was unlawful per se, the incidental preliminary search was accordingly also unlawful.”

13.  There is nothing in this ground because, as I have mentioned earlier, both the proposal to search the appellant a the police station and the act of frisking him for the purpose of seeing whether he had any offensive weapon on him before setting off to the police station were lawful acts.

14.  Ground five reads “the preliminary search was purely based on ‘internal orders’ of police without reference to the surrounding circumstances.”

15.  This ground owes its origin to decisions in Lindley v. Rutter (1981) 72 Cr. Ap. R. 1 and Brazil v. Chief Constable of Surrey ([1983] 1 WLR 1155). The effect of those decisions is that if it is unlawful for a police officer to search a prisoner if the only purpose in conducting the search is to follow “general orders”. What those cases decided is that if a police officer searches a prisoner simply because he believes that general orders require him to make a search and he makes a search without directing his mind to the circumstances of the particular case then the resulting search is unlawful.

16.  In this case, although the Sergeant was following general orders, what he was in effect doing was acting on the advice contained in those general orders which indicated to him in the circumstances of this case that for the purposes of safety he should frisk the appellant to see if he had any offensive weapon on him before beginning the journey through public thoroughtfares back to a police station. His search was a search conducted having regard to the circumstances of the appellant’s case. It was not unlawful in terms of the principles enunciated in those two cases.

17.  In the result, I find no merit in any of the grounds of appeal, and the appeal must, therefore, be dismissed.

Mr. S.R. Bailey, Senior Crown Counsel for the Respondent

Mr. Eddie Yip instructed by Fairbairn Catley Low & Kong for the Appellant.