TAM LAP FAI v. HKSAR

FAMC No. 40 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 40 OF 2004 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 835 OF 2003)

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1. It is helpful both to the constable and to the citizen that the law governing the position when they encounter each other in the streets be as clear as it can be made.  For the purposes of the offence of  wilfully obstructing a police officer in the due execution of his duty, contrary to s.36(b) of the Offences Against the Person Ordinance (Cap. 212), is the concept of obstruction susceptible of helpful judicial explanation and, if so, should it be understood merely as something that makes it more difficult for a police officer to carry out his duties or should it be understood to involve a substantial or some other (and if so what) measure of difficulty?  We certify this as a reasonably arguable question of law of great and general importance involved in this case.  This question could arise even on the whole of the facts found at the trial.  And it certainly can arise on the facts as they appear to be left after the intervention on intermediate appeal.  On the basis of that certified question, we grant leave to appeal to the Court of Final Appeal on “the question of law of great and general importance” ground. 

2. We also grant such leave on the “substantial and grave injustice” ground, doing so for these reasons.  The applicant’s credibility was involved not only in the charges of assaulting and resisting.  It was involved in the obstructing charge, too, since the applicant said that he had accidentally dropped his driver’s licence while endeavouring to produce it to the police officer.  It is reasonably arguable that the intermediate appellate court had departed from accepted norms in taking the view that the trial court’s error affecting the applicant’s credibility is confined to the charges of assaulting and resisting and does not extend to the obstructing charge.

Mr Gary Plowman SC and Mr Derek Chan (instructed by Messrs Lo & Lo) for the applicant

Ms Mary Sin (of the Department of Justice) for the respondent