THE QUEEN v. WU HING KAI

HCMA000548/1985

	No. 548 of 1985
	(Magistracy Criminal Appeal)

HEADNOTE

                Police Officer acting in execution of his duty, position of Police Officer as trespasser.

IN THE SUPREME COURT OF HONG MEG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 548 OF 1985

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BETWEEN

	THE QUEEN	Respondent
	AND
	WU HING KAI	Appellant
	____________

Coram: Deputy Judge Eddis, Q.C. in Court

Date of hearing: 8th August 1955

Date of delivery of judgment: 8th August 1985

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JUDGHENT

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1. I do not want to be over critical of the Police Officer concerned in this case. He may well have found himself in a difficult situation, as always is the case when coming upon what was, as here, a domestic quarrel. Essentially it was a domestic quarrel over a lady's handbag. Although the complainant wife said it was stolen, when the Police Officer entered the matrimonial home, it was clear that the handbag, far from being stolen, was on the top of a wardrobe, presumably out of reach of the wife.

2. Once these facts had been established the Police Officer, in a private individuals premises, without a search warrant, was no more than a trespasser. Any further act he took could no longer be termed to be acts taken "in the execution of his duty". The judgment of Lord Hewart, C.J. in the case of Davis v. Lisle[1936] 2 K. B. 434 is so much on all fours with the view I take in the present case that it would be otiose for me to repeat them. I am of the view that the learned Magistrate misdirected himself in his Conclusion (c) on page 13 of the record and that one essential element of the crime alleged - "in the execution of his duty" - was an element very definitely not proven, and not even present.

3. Order that conviction be quashed and sentence set aside.

(F.A.L. Eddis, Q.C.) Deputy Judge of the High Court

Representation:

Peter Nguyen (D.L.A.) for Appellant

J. Bessell, C.C. for the Crown