R. v. KWOK CHOR TAK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 540 OF 1996

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J U D G M E N T

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1. This is an appeal against conviction. The appellant was convicted by a magistrate of assaulting a police officer in the due execution of his duty. The facts arise out of a traffic accident on 13th June 1995. The appellant was driving in a westerly direction along Hennessy Road. He came to an intersection. A police officer was on his motor cycle but driving along Hennessy Road in the opposition direction. At the intersection is a set of traffic lights. The officer contends that the appellant did not stop at the lights, so he the officer indicated to him to stop. The appellant turned right at the intersection and then right again into Lockhart Road and stopped at the side of the road, by some shops. The officer came to a halt on the same side of the road, but slightly in front of the appellant's car. All that is common ground, save that the appellant denies that he disobeyed the traffic signal.

2. From this point on, however, the accounts of events part ways. The prosecution evidence, that of the police officer, was that he spoke to the defendant about the traffic offence and the defendant said that as he, the officer, had not been following him, how could he book him, and then he said that if he booked him, he, the appellant, would hit him with his car. The officer ignored him, issued a ticket and moved back to his cycle. The appellant thereupon drove abreast of the cycle about 1 foot away from it and said that if the officer started he, the appellant, would bump him. The officer told him to go away but the appellant did not. The officer said he then started off and the defendant then accelerated, and the next thing the officer knew was that his vehicle had been bumped and he fell to the road. He then went to a nearby shop and the appellant shouted to the shopkeeper not to let him use the phone and called other police. The defendant said, although it is not quite clear at what stage, that he, the officer, had fallen on his own. The motor cycle was damaged. It was suggested that the left front bumper of the defendant's vehicle was damaged, and the exhaust pipe of the cycle was damaged.

3. Another officer gave evidence. He had taken measurements. His evidence is of suggested significance to this appeal, and relates to the measurements which he took of the height of the bumper of the appellant's vehicle and the height of the exhaust pipe. The pipe was 0.3 metres from the ground. The bumper at its lower edge was 0.4 metres from the ground.

4. The appellant was interviewed by the police. The record of what he said to them at the scene of the incident and the record of interview which followed later at the police station was put into evidence by agreement. At the scene of the incident he said that he believed that the driver of the motorcycle bumped into his car with his motorcycle intentionally, and then released the cycle and let it go. He was asked at the police station which part of the cycle hit which part of the car. He said he believed that the front bumper of his car was hit. Before the accident both vehicles were in motion; but in answer to a latter question, he suggested that his car did not move at all.

5. The appellant gave evidence at the trial. He was a person with no previous convictions. He agreed that he had been stopped on an accusation which he did not accept as valid. But he said that he did not threaten the officer. He merely said he would make a complaint to CAPO and explain to the judge what had happened. The officer then started the cycle and the cycle then fell down. Both vehicles were then stationary and there was no contact between the two. He had not even moved up to the cycle as suggested. That was his evidence.

6. The magistrate convicted the appellant. It seems accepted by all that what the defendant did, if the police officer's account was true, constituted an assault. The record shows some of the comments made by the magistrate at the time of conviction. He referred to the defendant's good record, pointed out that the defendant's account contrasted with his cautioned statement, and he accepted the officer's evidence but rejected the appellant's.

7. In his Statement of Findings, the magistrate says that he directed himself about the appellant's clear record. He points to the fact that the appellant's evidence was full of inconsistencies; suggested that the defendant appeared to be the sort of person who was easily nervous, by which in my judgment no doubt he meant excitable. He accepted the officer's evidence and convicted the appellant.

8. The grounds of appeal complain of several matters. It is said that the magistrate had ignored the defendant's reaction immediately after the accident, namely, his assertion that the police officer had fallen down himself. That was a self serving comment, not an admission against interest, and could carry little weight, in my judgment, if any.

9. Then it is said that there is some disparity in the magistrate's assessment of the appellant, in that at one stage the magistrate said that he did not accept that the defendant was nervous and confused, yet he said also that the defendant was of the type who could get nervous quite easily. In my judgment, the magistrate was talking about two different things. He was in the first instance talking about the defendant's claim in the witness box in respect of inconsistencies, that he was nervous and confused. The magistrate did not believe that. In the second instance, the magistrate was talking about excitability at the scene.

10. Then it is said that the magistrate failed to give proper consideration to the appellant's good character. It is true that he referred to it at the time of the hearing as well as in the Statement of Findings, but he has not, Ms Remedios complains, said to what end he has taken that into account. He should have made it clear, she said, that it was relevant both as to the credibility of the defendant and to his propensity to commit the crime. I do not think it always necessary to spell out the full formula. It is a formula which must now be very well known to magistrates, and it is inconceivable that when the magistrate said in this case that he had given himself a good character direction that he was addressing himself to the wrong considerations.

11. The point, in the event, upon which this appeal turns, is this. It is contended that the magistrate failed to have due regard to the impossibility established, it is said, by the measurements of the bumper's height from the ground, and of the exhaust pipe, of the two coming into contact. The magistrate said in his original findings, namely those delivered at court, that the measurement did not establish the impossibility of the impact suggested. It is said that that is not good enough, for it ignores what is clearly demonstrated by the measurements, and it places the burden of establishing an important matter on the defendant.

12. In the Statement of Findings the magistrate has said that despite the measurements it was still possible for the impact to occur. It seems to me that the magistrate was saying that despite the measurements he was satisfied with the officer's evidence that the two vehicles collided. A very notable feature of the argument as presented before the magistrate and before me this morning in relation to these measurements, is that it would appear at first glance to ignore the defendant's own contention to the police soon after his arrest that the two vehicles collided. With that in mind, I was minded in the light of that conclusion and the comments which I have made as to the other grounds of appeal, to disallow the appeal. However, it is said that it is not at all clear in the circumstances or in the record of interview, that the defendant knew or had heard that the vehicles in fact collided. A compliant had at that stage, been made that there had been a collision and it is said, and the Crown endorses this view, that it may just as well be that the defendant was prepared in the circumstances to assume that there had been such contact. There is no reference to the sound of collision, and the point, it is suggested, which the defendant might well have been making was that he believed that such bump as had occurred was the fault or the deliberate tactic of the officer. These comments it is said, do not wipe away the fact that measurements were taken by the Crown and that they were obviously taken in order to test the officer's story. These measurements and the suggested impossibility which arises from them was not information in the appellant's hands when he was interviewed by the police and it is noteworthy that the appellant goes on in his statement to say that his car moved not an inch.

13. Ms Remedios' central complaint is that it remains the fact that the two could not have bumped as suggested. Furthermore she relies on the established fact established by the photographs and the sketches that when the defendant's vehicle was seen after the accident, it was facing in a direction away from the cycle, which was inconsistent with the evidence of the first prosecution witness. And she suggests that these difficulties have not been adequately addressed by the magistrate. These are factors which point, she says, to the inherent improbabilities of the matter and which the Crown has not negated.

14. I have to say that it is with considerable hesitation that I allow this appeal. I have been moved to do so by the attitude of the Crown who say that this appeal should be allowed. They say that the measurements in fact do go to the inherent improbability of the prosecution witness' account and that the matter has not been satisfactorily addressed. In those circumstances, it seems to me that it would be an exceptional course for me to go against both arguments and to ignore measurements and nevertheless to dismiss the appeal. I would only make this comment, that if that is the view taken of the effect of the measurements and the tests which the police conducted immediately after this incident, one is bound to ask why the Crown instituted these proceedings in the first place.

15. Accordingly I shall allow this appeal, set aside the conviction and quash the fines which were imposed and the order for costs, if any.