HKSAR v. Yip Fong Fai

HCMA 538/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 538 OF 2012

(ON APPEAL FROM ESCC 1220 OF 2012)

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J U D G M E N T

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1.The appellant was convicted after trial in the Magistracy by Deputy Magistrate Winston Leung of one count of Assaulting a Police Officer in the Execution of his Duty, contrary to s 63 of the Police Force Ordinance, Cap 232 (PFO) and one count of Criminal Damage, contrary to s 60(1) of the Crimes Ordinance, Cap 200. He was sentenced to a Community Service Order of 200 hours on the first charge and on the second charge was fined $2,000 and ordered to pay compensation of $1,200. He appealed against both convictions.

2.The trial lasted two days and four prosecution witnesses gave evidence.  The appellant elected to give evidence, but called no witnesses.  Much of the evidence was not disputed but there were a number of areas where the accounts diverged entirely, or where the basic facts were agreed but the appellant’s degree of involvement was said to be less than the prosecution contended.  The overriding issue was whether the police officers had been acting in execution of their duty when they arrested the appellant for the two offences.

Prosecution case

3.On the night of 9 ‑ 10 March 2012 the appellant and his younger brother had attended a party at which both drank to excess.  By about 5 am the younger brother was comatose and the appellant, who was in a better state than his brother but not entirely sober, took him home in a taxi. He intended to take his brother to his flat and then take the same taxi back to his own address in North Point.

4.According to the taxi driver (PW1) the appellant did not tell him what he planned to do but simply alighted from the taxi carrying his brother.  The taxi driver asked for the fare and the appellant said he would pay, but went into the building without paying any part of the fare.  The taxi driver followed and on viewing the CCTV camera footage with the help of the security guards saw the appellant on the 5^th floor.

5.He went upstairs to check and saw the appellant trying to open the iron grille of Flat 503, which, the appellant believed – wrongly as it happened – to be his brother’s flat.  The younger brother was lying on the ground in front of the door.  The brother’s flat was on the 11^th floor.

6.The taxi driver returned to the ground floor and called the police complaining about the unpaid taxi fare and giving the appellant’s location.  Three police officers, all in uniform, were instructed through the police console to investigate and they went to the 5^th floor arriving at about 5:21 am.  The appellant and his brother were still outside Flat 503 and one officer, PC 53009, who was not a witness at trial, attended to the younger brother who was still on the ground.

7.PC 11939 (PW2) and PC 11155 (PW3) tried to make enquiries of the appellant. Soon afterwards PW1 returned to the 5^th floor lobby and stood behind the officers.  The appellant was alerted to the police presence and PW2 told him that a taxi fare of $103.50 was required to be paid.  The appellant who was described as “emotional” was abusive using foul language to the officers.  He took out his wallet, extracted some bank notes and threw them to the ground.  The appellant gradually moved towards the officers at which point PW2 told him he was a police officer; to calm down and to stop moving towards him.

8.Both PW2 and PW3 stretched their arms out straight and put up their palms as an indication to the appellant to keep his distance.  The apparent purpose of the appellant in moving towards the officers was to enable him to reach PWl, the taxi driver, who was behind the two officers.  PW1 was aware of this and in his evidence the appellant agreed that the taxi driver was his target – he wanted to “reason with him” as he was unhappy about his reporting the matter to the police.

9.Despite PW2’s warning, the appellant continued to approach the officers and again PW2 warned the appellant that they were police officers; told him to calm down and to stop his approach.  The appellant suddenly swept away PW2’s hands and head‑butted his left cheekbone.  He abused PW2 in foul language again, then pulled him to the wall by grabbing the badge on the right shoulder of PW2’s jacket; PW2 was pushed against the wall.  The badge was pulled from his jacket.  It was at this point that PW2 grabbed the appellant’s hands and, helped by PW3, eventually after a struggle subdued the appellant.  PW3 handcuffed the appellant and called for reinforcements.  At 6 am PC 13091 arrived with the reinforcing team and arrested the appellant for the two offences with which he was later charged.

10.PW1, who was watching at a safe distance – about 2 ‑ 3 feet away, confirmed the police account of what had happened.  He saw the officers put out their hands to prevent the appellant from approaching him.  He saw the appellant use his head to hit PW2’s face and thereafter saw pushing and shoving as the officers tried to subdue the appellant.  PW3 gave evidence that supported that of PW2 and PW1.  Both PW2 and PW3 agreed that before reaching the scene they had no preconceived idea of stopping or detaining the appellant.  Indeed it was most improbable that they could have formed any such intention given their scant knowledge of what had happened and of what it was they had to investigate.

11.The officers confirmed that after subduing the appellant they did not formally arrest him.  PW3 explained that he did not arrest the appellant because he knew “for sure” he was involved in the case so he would not be responsible for the arrest [B124 H‑I].

Defence case

12.The appellant claimed he was very drunk at the time and could not stand or walk steadily.  When told by the police to pay the fare he became very emotional and intended to “reason” with the taxi driver, but the taxi driver was standing behind PW2 and PW3 who stopped him from approaching.  He denied that he had thrown the money on the ground, claiming that it fell to the ground for some reason unknown.

13.He said someone had tried to stop him moving forward by pressing his shoulders and it was for that reason that he tried to ward off the hands.  Because he was drunk he lost his balance and fell forwards.  He had the impression that his head hit against the bodies of the 2 police officers as he fell – thus suggesting accidental contact with PW2, rather than the deliberate head‑butting described by the prosecution witnesses.

14.The appellant produced perfected grounds of appeal as follows:

(i) Ground 1: The learned magistrate failed in his statement of findings page 1‑13 to properly consider and make proper findings upon the points of law raised by the Defence in their final submission supported by a number of authorities;

In particular (a) failed to properly address the law and analyze the evidence surrounding the actions of the two police officers, namely PW2 and PW3, when they sought to stop and detain the defendant against his will and subsequently restrain him without declaring his arrest; as to whether the police from that point onwards were all along acting in execution of their duty.

(b) failed to properly consider, or was wrong to reject the Defence submission that the police officers did not have the requisite powers to stop, detain and restrain the defendant under section 54 of the PFO, Cap 232.

(c) failed to properly consider, or was wrong in determining that the Police had the requisite powers to stop, detain and restrain the defendant under section 50 of the PFO, Cap 232 for failing to pay a taxi fare, when the evidence was that they had no intention to stop or detain him for the purpose of investigating that matter, nor did they declare his arrest for any offence when they restrained and placed him in handcuffs.

(d) failed to properly or make a determination of fact on the issues of self‑defence or the possible justification in law for the defendant’s use of force.  He failed to consider whether the force used by the defendant was reasonably necessary or the subjective belief held by the defendant at the time he used force, and he failed to determine whether the prosecution had successfully disproved self‑defence.

(ii) Ground 2: The learned magistrate demonstrated by his lengthy questioning of the defendant at the end of his cross‑examination that there was real danger of bias and “entering the arena” on the part of the magistrate, in the sense that he had or might have regarded unfairly the case of the defendant; and

(iii) Ground 3: Inall the circumstances of the case, the convictions against the defendant were unsafe and unsatisfactory.

15.The question of whether this incident took place in a “public place”, was raised but was not really relevant.  Granted that the common corridors of the private residential building, where the appellant’s brother lived, was not a public place for the purposes of the PFO, it is quite clear that the police were there in answer to a complaint that had been made by the taxi driver.  PWl, the taxi driver, was there with permission of the security guards who had allowed him into the building and who had later accompanied him to the 5^th floor.

16.The overall ground of complaint was that the police had not been acting in the execution of their duty when the arrest of the appellant took place.  lt was conceded by counsel for the appellant that the police were acting within their powers at the time they arrived to investigate the complaint about the unpaid fare.  They were said to have ceased to act in the execution of their duty at the time they physically stopped the appellant and subdued him, which they were said to have done after they extended their arms to prevent the appellant advancing towards the taxi driver.

17.It was the appellant’s case that by that time he had cooperated with the police enquiries; had complied with the request to pay the fare and had tendered the money; in other words the matter was over.  This was the basis of the appellant’s own account of what had happened which he gave in evidence.  It conflicted with the evidence given by the police and the taxi driver.

18.The chronology of events that was apparent from the prosecution evidence, needed to be considered.

19.Three uniformed police constables arrived at the 5^th floor having been tasked to investigate the complaint.  They had no preconceived ideas about arresting the appellant or anyone else at the time they arrived.  They made their presence known to the appellant.  PW2 and PW3 tried to make enquiries about the unpaid fare and immediately the appellant, who was described by all the witnesses as “emotional” – which rather understated his behaviour – swore at the officers and abused them in foul language.

20.The taxi driver was standing behind the police officers.  The appellant took his wallet from his pocket, took some money from the wallet and threw it to the ground.  He advanced towards the police officers with a view to “reasoning” with the taxi driver.  No doubt the taxi driver was nervous at his approach.  The officers extended their arms to prevent the appellant proceeding further.  The appellant continued his abuse expressing his hatred of police officers.  He also continued to advance towards PW2 and PW3.  He was warned twice to calm down, to stop advancing and to remember that they were police officers.

21.Apparently infuriated by being prevented from “reasoning” with the taxi driver the appellant used his hands to sweep the hands of the officer out of the way and head‑butted PW2 on his left cheek.  He grabbed the badge on the right shoulder of PW2’s uniform windcheater and succeeded in pulling it off.  He pushed PW2 against the wall.

22.It was only at this point that the officers, who had not had any chance to ask questions or make any enquiries, attempted to restrain the appellant and a struggle ensued, described by the taxi driver as “pushing and shoving”.  At its conclusion the officers succeeded in restraining the appellant and he was handcuffed at his back.

23.No words of arrest were spoken at that stage – arguably none were needed as it was self‑evident that the officers were restraining the appellant from attacking anyone else, or possibly preventing him engaging in self‑harm.  It must have been obvious to the appellant that he was being restrained and effectively arrested because of his attack on the officer.

24.Reinforcements were called for – at 6 am the appellant was arrested by another officer for the present offences.  The arrest was not done by PW2 or PW3 because they were likely to be involved with any subsequent case.

25.Given that the scenario outlined above was what the magistrate found in his statement of findings there is no validity in the lengthy complaints set out in the submissions by the appellant’s counsel based on alleged breaches of s 54 or s 50 of the PFO.  If the magistrate found that the evidence given by the prosecution witnesses was credible it is clear that there was no question of the appellant acting in lawful self‑defence as he endeavoured to argue.  It was he who was the aggressor both verbally and physically – and, if anything, it was PW2 who could have justified acting in self‑defence.

26.It might well be that the officers on arrival did not intend to arrest the appellant for theft under the Theft Ordinance, or may have been considering a charge of making off without payment under the same ordinance.  They were at that stage acting in the execution of their duty to investigate a complaint.

27.However, given the precipitate action of the appellant in approaching the officers, despite being warned not to and then head‑butting PW2, the officers had no opportunity to investigate the matter of, or to consider any possible charge relating to, the non‑payment of the taxi fare.

28.Instead the appellant proceeded to commit two offences, assaulting PW2 and damaging his clothing.

29.In PGA 1(d) counsel for the appellant complains that the magistrate failed to consider that the appellant’s use of force raised the issue of self‑defence and that it became an issue that the magistrate had to decide.

30.There is no substance in this submission.  The magistrate’s finding was that self‑defence did not arise because he accepted the prosecution evidence given by PW1, PW2 and PW3.  In particular he rejected the appellant’s evidence that the head‑butting arose from an accidental fall.  On the evidence before him he was entitled to do so.

Ground 2

31.This ground was a complaint about the magistrate asking questions of the appellant at the conclusion of the prosecutor’s cross‑examination of the appellant.  It was submitted that the magistrate entered into the arena to the extent that he might be said to be questioning the appellant not for clarification, but with a view to inculpating him in the offences.

32.I examined the questions in light of what the appellant had said in his evidence and against the background matters that were put to the prosecution witnesses.  The appellant’s evidence was somewhat inconsistent and not convincing.  He was obviously anxious to impress on the court how badly he was affected by alcohol, while at the same time giving detailed evidence about matters of which, if he had been as badly affected by alcohol as he claimed, he was unlikely to have had any awareness or memory.

33.His description of his drunken state was countered by that of the prosecution witnesses and if the prosecution evidence was accepted, it appeared the appellant was exaggerating his condition.

34.At B154 I‑M he described what he was trying to do:

“. . . although the taxi driver did not say anything, in my mind or in my consciousness I was still thinking that it was the taxi driver who called the police, so in my mind or my consciousness I wanted to approach him and get to know to get a better understanding of why he would call the police to the scene. Although it was the police officer or officers who said why did I not pay for the fare, but in my mind I was still thinking the cause, that the taxi driver called the police to the scene.”

35.He claimed he could not remember whether he abused the officers – nor could he recall whether he had dropped or thrown the money, but conceded that both were possible.

36.I do not consider that the questions complained of reveal an attempt by the magistrate to inculpate the appellant.  Rather they were an attempt to clarify matters that had arisen in the appellant’s evidence because of inconsistencies in his answers.

37.It might have been more appropriate for these questions to have been put through the prosecutor if they needed to be asked at all, but I note that defence counsel did not ask any questions arising from those questions put by the magistrate, nor at the time did he object to the questions.

Consideration

38.The duties of a police officer are set out in s 10 of the PFO – that list is not exhaustive.  The duties that pertain to this case are s 10(b) and s 10(c).

39.S 50(1)(a) of the PFO insofar as it is relevant states as follows:

“50. Arrest, detention and bail of suspected persons and seizure of suspected property

(1) It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of-

(a) any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment;

. . .

(1A) A police officer may exercise the power to apprehend a person under subsection (1) without any warrant for that purpose and whether or not he has seen any offence committed. (Added 57 of 1992 s 2)

. . .

(2)     If any person who may lawfully be apprehended under subsection (1) or (1B) forcibly resists the endeavour to arrest him or attempts to evade the arrest, a police officer or other person may use all means necessary to effect the arrest. (Replaced 57 of 1992 s 2)”

40.The appellant from the evidence was clearly upset and angry with the taxi driver for having called the police.  He did not verbally direct his abuse at the taxi driver, although from the evidence of PW1 and that of the appellant himself, the immediate target with whom he wished to “reason” was PW1.  Annoyed and angry at the efforts of PW2 and PW3 to ward him off, he launched an unjustified attack on PW2.  At that stage the power to arrest came into play and it was only after that assault and the damaging of PW2’s jacket that the officers subdued and restrained the appellant.

Conclusion

41.I am satisfied that the magistrate was aware of the issues he had to decide, that he considered the evidence properly and that his findings show that he had a proper basis for concluding that the police officers were acting in the proper execution of their duty and for convicting the appellant.

42.The grounds of appeal advanced by the appellant have not been made out and accordingly the appeal against conviction is dismissed.

Mr David Yim, PP of Department of Justice, for HKSAR

Mr Duncan Percy and Ms Michelle Chong Ching‑man, instructed by Ivan Tang & Co, for the appellant