HKSAR v. SO KAM LOK

1999, No. MA 58

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 58 OF 1999

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J U D G M E N T

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1. This Appellant faced one charge of assaulting a police officer acting in an execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap. 232. He was tried before Peter Law, Esquire in the Magistrate's Court at Fanling. On 15th December 1998 the Magistrate convicted him and sentenced him to three months' imprisonment. He now appeals against conviction and sentence.

2. The particulars of offence read:

"SO Kam-lok, you are charged that on the 5th day of August, 1998 at Room 220, Tai Po Police Station, No. 4, On Po Lane, Tai Po, NT North, in Hong Kong, you assaulted detective constable 50441 LEUNG Wai-hung, a police officer acting in the execution of his duty."

3. At the trial, the prosecution called two witnesses, namely the officer whom it alleged was assaulted and another detective police constable who was with him at the time. The Appellant gave evidence himself and called one witness, a doctor. In his Statement of Findings, the Magistrate summarised each witness's evidence. Dealing with the evidence of the officer who said that he was assaulted by the Appellant, the Magistrate said:

"PW1, DPC 50441, stated that the Defendant was at the material times a detainee in Tai Po Police Station. On 5th August, 1998 at about 11:57 a.m., he was instructed together with PW2 to take the Defendant out from the cell of the report room for fingerprinting. The Defendant had been detained for some time for another case and after fingerprinting, the Defendant would be released on police bail. When PW1 together with PW2 took the Defendant out from the report room, the Defendant shouted in foul language that he had been detained for 48 hours and why not released him. PW1 handcuffed the Defendant on both of his hands in his front and took him to room 220 for fingerprinting. The Defendant swore at the police officers and while PW1 released the handcuff from the Defendant's left hand (his right hand still had the handcuff on), the Defendant suddenly lost control, used his left elbow to elbow on PW1's chest once. PW1 told him to calm down and said it amount to assault police officer. On hearing this, the Defendant shouted loudly "You want to frame me for assaulting police officer?" There was a wooden chair nearby and PW1 then grabbed the Defendant, trying to make him to sit on the chair, the Defendant put up a struggle and they both fallen onto the floor. The Defendant kept on putting up a struggle by swinging his right hand with the handcuff was still on and kicking. The Defendant put up a vigorous struggle and at some stage, PW1 was on top of the Defendant and finally with the assistance of PW2, the Defendant was finally subdued. Defendant shouted "Police assault people". PW1 suffered injuries.

In cross examination, PW1 was asked in details of the struggle and also the reason given to the report room for taking the Defendant out for. The reason given was "for fingerprinting" and the entry in the book was "for interview.""

Summarising the other officer's evidence, the Magistrate said:

"PW2, DPC 11981, assisted PW1 to escort the Defendant to room 202 for fingerprinting. In the report room, the Defendant shouted that he had been detained for 48 hours and he had not been identified and why not released him in foul language. In room 202, when it was just about to take the fingerprint, while PW1 released the handcuff of the Defendant's left hand, the Defendant became crazy and shouted. The Defendant then used his left elbow to elbow PW1 on his upper abdomen. PW1 then used his left hand to grab hold of Defendant's left hand, told him to calm down saying it amount to assault police officer. The Defendant's response was they wanted to frame him up for assaulting police officer. PW1 tried to grab hold of the Defendant, made him to sit down on a chair but both lost balance and fallen onto the floor, the Defendant still kept on struggling, PW2 walked from the side of the table to help PW1 to subdue the Defendant. PW2 tried to grab hold of the Defendant's leg but being kicked by the Defendant. That space there was limited with only 2' in width and the Defendant and PW1 and PW2 managed to handcuff Defendant's left hand. The Defendant shouted loud for "Police assault people".

In cross-examination, PW2 was intensively cross-examined about the details of the struggle and the reason given to duty officer for signing the Defendant out. PW2's reply was during the struggle, while the Defendant was on the floor, his body was turning and at some stage, PW1 was on top of the Defendant. PW2 was the one who notified the duty officer and the reason given was for further inquiry and fingerprinting."

4. Having summarised the prosecution's evidence, the Magistrate turned to the defence evidence. He summarised the Appellant's evidence as follows:

"The Defendant elected to give evidence, his evidence was at the material time, he was told he could bail out and 3 CID officers, including PW1 and PW2 went down to take him to the 2nd floor. He was hooded. In the room, 3 to 4 people already sitting there, one claimed to be a chief inspector. The CIP told the Defendant to pray to God for nothing wrong with the victim, if the victim had any harm, the Defendant would be responsible. The Defendant made a reply that how could he guarantee that as he did not know what the matter was. The CIP then threw a file at the Defendant, accusing the Defendant for being rude, PW1 dashed over and accused the Defendant for being impolite to his boss. Then several people dashed over and assaulted the Defendant. He was assaulted for 3 to 4 minutes. After the assault, he was taken down to the report room and he made a complaint to the duty officer and the duty officer took some photographs of him (exh. D1)."

As for the evidence of the doctor called by the defence, the Magistrate said:

"The Defendant called Dr. CHOW as his defence witness. Dr. CHOW examined the Defendant and he produced a medical report of the Defendant (exh. D2). The bruises in photo D1A and B could be caused by hard blunt object or vigorous rubbing but it was more likely to be caused by hard object. The injuries on the back (near right shoulder) was more likely be caused by hard blunt object. There were injuries in both inner wrist and left upper arm near the armpit. The injuries on both wrist could be caused by a person with handcuff on with vigorous activities, but not likely because if caused by the handcuff, the handcuff would usually caused injuries to outer part of the wrist, not the inner part."

5. After assessing all the evidence, the Magistrate made the following findings:

"1. The Defendant did as alleged by PW1 and PW2.

2. The Defendant did elbow PW1 in the manner as described.

3. The Defendant then put up a vigorous struggle and finally being subdued in the manner as described.

4. The injuries sustained by PW1 and PW2 were caused during the struggle.

5. The injuries sustained by the Defendant were caused during the struggle and subdue, and not caused by any assaulted by the police.

6. It was not an accident, the Defendant did it deliberately.

7. PW1 and PW2 were in due execution of their duties at the material time."

On those findings, the Magistrate said:

"I was satisfied the incident happened as alleged by PW1 and PW2 and it was not an accident. I was satisfied the Defendant did deliberately assault PW1. I was satisfied the prosecution could prove each and every ingredient of the offence and therefore I convicted the Defendant accordingly."

I do not propose to set out the various points made on the Appellant's behalf by his counsel. It suffices to say that they all go to the facts and that, in my view, there was evidence to convict and the Magistrate's approach to the evidence is not flawed. Accordingly, the appeal against conviction is dismissed.

6. As to sentence, it is appropriate to set out the Magistrate's Reasons for Sentence in full. These were as follows:

"The Defendant did not offer any mitigation. He mentioned his personal background in brief when he gave evidence. He is 31, with 8 previous criminal record and breach of a court bind over order imposed on him on 22nd May 1998. Having been convicted of this offence, there is no reason why I should not order him to pay the $5,000.00.

Assaulting a police officer while in police detention was very serious. The Defendant was ordered to bind over on 22nd May 1998, and this offence happened in less than 3 months later. The Defendant was convicted after a full trial and in the course of the trial, I could not see he had any sense of remorse. I took into account of the minor injuries of PW1 and PW2 and the Defendant also had injuries in this incident, I come to a conclusion that a short term of imprisonment was appropriate and 3 months was the starting point and I could not see any reason for any discount and I also took the view that immediate custodial sentence was appropriate."

7. It is contended on the Appellant's behalf that the sentence of three months' imprisonment is manifestly excessive having regard to all the circumstances of this case. Complaint was also made about what the Magistrate had said in his Reasons for Sentence about the Appellant's lack of any sense of remorse in the course of the trial. I do not think that he increased the sentence for lack of remorse. He merely noted that there was no remorse on which he could reduce the sentence. I have already set out what the Magistrate had said in his Reasons for Sentence and the same shows that his approach was a carefully balanced one. So, in my view, was the result which he reached. I do not feel able to disturb the sentence which he passed.

8. In the result, the appeal against sentence is also dismissed.