HKSAR v. CHU FRANKLY

Press Summary (English)

Press Summary (Chinese)

HCMA 70/2018

[2018] HKCFI 2072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 70 OF 2018

(ON APPEAL FROM ESCC 1912 OF 2017)

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J U D G M E N T

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1.  The Appellant, a serving Superintendent of Police at the material time, was charged with one charge of Assault Occasioning Actual Bodily Harm (“AOABH”).[1] He appeared in the Eastern Magistracy and pleaded not guilty.[2]  After trial, the Principal Magistrate[3] found him guilty as charged and sentenced him to three months’ imprisonment.  He appeals against the conviction and sentence.

Appeal against conviction

Prosecution Case

2.  On 26 November 2014, which was the 60^th day of the Occupy Central Movement, the Appellant was deployed as the Company Commander in charge of Tier II New Territories South Company to conduct crowd control at Argyle Street, Mong Kok.

3.  It was alleged that, when the Appellant was discharging his duty, he hit with his baton a man (PW1) who was one of the persons in the crowd which the Police sought to control at the material time.

Defence Case

4.  At trial, there was no dispute that PW1 had been hit by the Appellant with his baton though whether actual bodily harm had been caused as alleged was in dispute.  The thrust of the defence case was that the action of the Appellant was conducted as a means to control the crowd and for prevention of crime.  He did not have the mens rea required for the offence and in any case he was exempted from liability by operation of certain statutory provisions.

Evidence at the trial

5.  At trial, the Prosecution called the man who was hit, PW1, and the doctor who attended to him, PW2.  The Applicant also testified.  There were two sets of Admitted Facts and exhibits were produced. Some evidence was adduced under section 65B of the Criminal Procedure Ordinance[4]. Exhibits produced included video footages produced both by the prosecution and the defence, namely: DBC video and the Ming Pao Video (exhibit P1), Apple Daily YouTube video (exhibit P2), TVB News video (exhibit D1), and Now TV video (exhibit D2).[5] These video footages were produced under relevant admitted facts.  The act of the Appellant on PW1 and what happened immediately before the incident can be seen in the DBC video and the Apple Daily YouTube video.

Prosecution witnesses

6.  It suffices at this stage merely to outline the evidence of PW1 and PW2.

7.  PW1 said when he was on the way to Admiralty on the MTR Tsuen Wan line, he received a call from a friend Miss Ma.  Knowing that she was in Mong Kok, he was worried about her safety.  He told Miss Ma that he would keep her company.  He met Miss Ma at the Mong Kok MTR Station at around 10pm and they went out to Sai Yeung Choi Street.  They then proceeded along Argyle Street and stopped near Shanghai Commercial Bank (“SCB”) as there were people gathering at the junction of Nathan Road and Argyle Street.  Out of curiosity, they stayed there for about five minutes and then walked back by the original route.  On the way, he saw police officers chasing a crowd of people who subsequently dispersed.  The two of them were pressed closer to the wall of the Bank.  At that time, he noticed he had injuries to his shin and right elbow. Then he felt a blow of medium to hard force on the back of his neck by a rod. That was the strike by the Appellant.

8.  PW2 prepared a medical report on his examination of PW1 in which he said, inter alia, that “there was a patch of soft tissue swelling with tenderness over his left neck region near hairline that measured around 1 x 4 cm in dimension”.  When he testified, he said it was erythema – redness on a patch on that part.[6]

Defence evidence

9.  The Appellant elected to testify after an unsuccessful no case submission.  He described some background information, described what happened on the day, and disclosed the defence as mentioned in paragraph 4 above.  His testimony may be summarized as follows.[7]

10.  He had been on duty on the night of 25 November 2014, one day prior to the incident.  Prior to going on duty he had watched the news and learned of the huge difficulties encountered in the clearance operation that day.

11.  He described the night as being highly volatile with crowds gathered at different places trying to re-occupy the roads that had been re-opened by the Police.  Many in the crowds were masked, hooded and in protective gear.  Some were equipped with homemade shields.  Warnings had repeatedly been issued by the Police but to no avail.  Force had to be used to restore public order.  Police officers were exhausted.

12.  In the morning of 26 November 2014, there were still a lot of disturbance during the clearance operation and some arrests resulted.

13.  He came on duty again in the evening and received a briefing at 7pm before going to the scene.  His duty was to defend the junction of Argyle Street and Nathan Road to ensure the flow of traffic and prevent re‑occupation of the junction.

14.  He was equipped with a gun, a helmet, pepper spray and an extendable baton.  One has to be trained to use the baton for its various purposes.  It might be used for “the check drill” to combat the situation when the crowd approached with hands held up in a passive manner for pushing the officers back.  Its use depends on the officer’s knowledge of the baton and his confidence and skill.

15.  When he arrived at the scene at 7:45pm, crowds had already gathered.  There were clashes which required heavy police presence. Force was required to resume law and order.

16.  One of his main duties as a commander at the scene was to monitor crowd dynamics.  He described the crowd as hostile and organized.  He said that apart from the hostile crowd, there were pedestrians and passers‑by around some of whom eventually took part in charging the police.  He viewed them as a whole and did not distinguish them from the hostile crowd.  According to his training and taking into account that there had been warnings through the public media, he considered that genuine passers‑by would not hang around at or even go to that area.

17.  At about 10:30pm, shortly before the incident occurred, he was informed by a subordinate that something had happened outside the SCB.  He turned and saw a large crowd across the road.  He led his men to offer reinforcement.  Officers took out batons, waved and used them spontaneously.  He believed they were concerned about their own safety.

18.  He also took out his own baton as a precaution, believing that the crowd was in “active aggression”.  He described the scene as noisy and chaotic.  He thought using the baton was the only effective way to combat the situation.  He considered the crowds had committed various offences such as disorderly conduct, obstructing a police officer, unlawful assembly and a breach of the peace.  His assessment was that use of force was the only way to disperse the crowds.

19.  He therefore exercised the power pursuant to section 45 of the Police Force Ordinance[8] and section 101A of the Criminal Procedure Ordinance[9] to prevent crime happening.

20.  A video footage showed he hit PW1 with his baton and he was the 4^th person hitting with a baton (only the Appellant hit on PW1, other officers hit other persons, the Appellant had also done so) during the duration shown.  He described the people, including PW1, as almost unwilling to walk.  His opinion was that they were reluctant and resisting to disperse or not complying with police orders.  He described what he was doing as “posturing”, applying pressure so that the people would leave as soon as possible.  He said it was necessary to use force to compel compliance.  He described the way the baton was used as whipping, and only a small part of the top of the baton came into contact with the person.  It was use of a very mild force.

21.  He said[10] he saw PW1 doing an aggressive act towards one of his colleagues nearby (he demonstrated the action), in his judgement, PW1 was aggressive to his colleague, and also challenging as well as being non-compliant.  He therefore decided to use force to compel compliance of PW1.  As there were people around PW1, he could only strike downwards, as shown in the video footage.  He described the force he used as medium force, the baton would stop as soon as it came into contact.

22.  He said he hit the back of PW1.  He accepted that intentional strike on the neck would be lethal force.  He used minimum force and would not take the risk of hitting someone on the neck as his baton is a rigid truncheon.

23.  He thought he was discharging his duties by doing what he did.

Findings of facts of the Magistrate

24.  The Magistrate found PW1 an honest and credible witness and accepted his testimony in its entirety.[11]

25.  On the other hand, she said the Appellant did not strike her as a witness of the truth and did not believe him.[12]

26.  She found that[13] when PW1 was hit by the Appellant with the baton, he was amongst a group of pedestrians walking along as directed by the police officers.  He did not do anything that could be described as hostile that would cause a police officer or the Appellant to hit him with a baton.

27.  She also found that the injury on the back of the neck of PW1, ie, swelling and pain, amounted to actual bodily harm.[14]

28.  She found the force used by the Appellant by hitting PW1 with his baton considerable and cannot be classified as minimal.  She further found that such a blow did cause actual bodily harm to PW1.[15]

29.  She then considered whether the use of such force in the circumstances justified under the statutes referred to by the defence, bearing in mind that the statutes only empower a police officer to use force where necessary and in any case the degree of force shall not be greater than is reasonably necessary for that purpose.[16]

30.  She considered the matter in the light of her findings that at the material time PW1 was entitled to be there, he was leaving the area with Miss Ma, he was complying with police orders, and was walking steadily without exhibiting any hostility towards any police officers and had walked past the Appellant when he was hit.[17]

31.  Her finding is that there was nothing to warrant the Appellant hitting PW1 with the baton.[18]

32.  She found that she was satisfied beyond reasonable doubt that the Appellant did assault PW1, thereby occasioning actual bodily harm to him, and that there was no justification for him so assaulting PW1.[19]

33.  On this basis, she found the Appellant guilty of the charge.

34.  She did not consider sections 46(3) and 53 of the Public Order Ordinance[20] shielded the Appellant from the conviction.  She said section 46 is not applicable as exercise of the power by the Appellant fell outside the scope of his duty and / or the act was an abuse of power and it was not done in good faith.  She was of the view that section 53 concerned only with civil liability.[21]

Grounds of Appeal

35.  On appeal, the Appellant was represented by Ms Charlotte Draycott SC,[22] leading Mr Peter Pannu and Mr Benson Tsoi.  The grounds of appeal put forward on his behalf are:

(1) The Magistrate erred in relation to the mens rea of the Appellant.

(2) She failed to adequately consider whether the Appellant was mistaken as to the factual situation.

(3) She erred in her finding of fact impacting on her assessment of the Appellant’s honest belief in the necessity and lawfulness of his conduct.

(4) She wrongly accepted PW1’s evidence in its entirety.

(5) She erred in finding that the Appellant’s blow caused the injury.

(6) She erred in her assessment as to whether the strike was justified.

36.  Relying on these grounds, Ms Draycott SC submitted that the conviction of the Appellant of the offence of AOABH was wrong and not supported by evidence.  She further submitted that for the same reasons, the alternative offence of Common Assault could not be established.

Application to adduce new evidence

37.  Before the hearing, the Appellant filed a Notice of Motion seeking leave to adduce additional evidence which is a CD-rom containing a video footage purported to be downloaded from YouTube, apparently published by Apple Daily, depicting events that occurred in Mong Kok on 26 November 2014, the day of the incident.

38.  The application was objected by the Respondent on the ground that the conditions as set out in the Court of Final Appeal decision of Mahabobur Rahman[23] have not been satisfied.

39.  According to the Affirmation of a legal clerk of the solicitors firm acting for the Appellant, the video footage is an uncut version of the footage produced by the Prosecution at trial (exhibit P2).  It was further affirmed that:

(1) He had found the footage on the internet before the Amended Perfected Grounds of Appeal was filed, but it was without sound recording.

(2) After the Perfected Grounds had been filed, the Respondent was contacted to see if there was consent to produce the evidence.

(3) After that, and before the Respondent replied, further search on the internet revealed the present version which is with sound recording.

(4) Subsequently the Respondent replied and objected to the fresh evidence.

(5) Even if the footage had been published before the trial, the Appellant failed to find it (it seems the Prosecution also did not find it).

(6) The new footage is important as it shows the uninterrupted sequence of events in the minutes leading up to the strike with the baton, it shows, inter alia, the prosecution case that the strike was done long after the charge at SCB of the crowd towards police officers was wrong and that the Principal Magistrate had been misled.

40.  In his objection to the application, Counsel for the Respondent, Mr Daniel Marash SC[24], submitted that the Appellant had failed to:

(1) Provide a reasonable explanation as to why the new footage was not produced at trial.

(2) Demonstrate its relevance as it does not show what the Appellant claims and in any case does not demonstrate PW1 was actively involved in any protest action before he was struck.

(3) Produce any evidence that the new footage is unedited in support of the claimed length of the incident from the time the Appellant became involved until the time he struck PW1.  Even if the Appellant can prove the prima facie authenticity of the new footage, it cannot be used to prove that the time gap was indeed 32 seconds as there is no evidence that the footage was uncut and was in sequential order.

41.  Section 118(1)(b) of the Magistrates Ordinance[25] provides:

“… If the judge thinks additional evidence to be necessary he may receive such evidence, and for that purpose shall have the like powers under subsections (1) and (6) to (17) of section 83V of the Criminal Procedure Ordinance (Cap. 221) that the Court of Appeal would have had if the appeal had been an appeal to which that section applied, …”

42.  For the present purpose, it may only be necessary to quote section 83V(1)(a) of the Criminal Procedure Ordinance, which provides:

“(1) … the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice—

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case”.

43.  In Mahabobur Rahman, the case relied upon by Mr Marash SC, the Court of Final Appeal examined its power to receive new evidence under section 17(2) of the Hong Kong Court of Final Appeal Ordinance[26] which provides that “the Court may exercise any powers of the court which the appeal lies”.  In that case, before the case reached the Court of Final Appeal, the Court of Appeal dismissed an appeal against the decision of a District Judge.  The power in question therefore is that provided for in the Criminal Procedure Ordinance.  It follows that the criteria as set out in section 83V(2) apply.

44.  Section 83V(2) of the Criminal Procedure Ordinance provides:

“(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if—

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b)   it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”

45.  It is noted that section 83V(2) is not mentioned in section 118(1)(b) of the Magistrates Ordinance.  In my judgment, it is not necessary as it is only a provision to set out the criteria to fulfil when the court is to exercise its power under section 118(1)(b) and not an enabling provision.

46.  A question arose is whether a court hearing an appeal from a magistrate can only receive new evidence when the criteria in section 83V(2) are satisfied.  In Mahabobur Rahman, the Court of Final Appeal said that “the conditions to be satisfied before receiving such evidence are provided in section 83V(2).”  Ms Draycott SC cited a much earlier case of R v Tam Chung Shing[27] where the following approach was adopted by the Court of Appeal:

“subsection (2) imposes a duty upon the court to receive further evidence, if the condition of the subsection is met, but, of itself does not restrict the discretionary power of the court under subsection (1) to receive further evidence if the interests of justice require. The conditions in subsection (2) are not imported into subsection (1) but a court should, in the exercise of its discretion, have regard to them without treating them as decisive in that exercise. The court will not receive inadmissible evidence nor will it receive evidence under subsection (1) if it is satisfied that it ‘would not afford any ground for allowing the appeal’ or it is unlikely to be credible for there must be some curb on the reception of fresh evidence to avoid the indefinite prolongation of the legal process.”

47.  She also cited HKSAR v Lam Hoi,[28] which was not reported, where the Court of Appeal held:

“48. We are satisfied that we should receive the new evidence under section 83V(1) of the Criminal Procedure Ordinance, Cap 221 notwithstanding that it was available at the sentencing hearing and that no reasonable explanation has been advanced as to why it was not adduced at that hearing. The latter condition is contained in section 83V(2) but it does not limit our discretion under section 83V(1) once we conclude that it is necessary or expedient in the interests of justice to receive the evidence, that the evidence is admissible and that it would afford a ground for allowing the appeal.”

48.  In Mahabobur Rahman, the Court of Final Appeal was dealing with an appeal from a District Judge, the present case concerns an appeal from a magistrate.

49.  In any case, section 83V(2), Mahabobur Rahman, Tam Chung Shing and Lam Hoi provide good guidance when I am to decide whether the proposed new evidence should be received.  Section 83V(2) states that it is mandatory to receive the evidence if the criteria (a) and (b) are met unless it would not afford any ground for allowing the appeal.  It does not say it provides for an exhaustive list of situations to receive new evidence on appeal.  In any case, if production of the proposed new evidence would not afford any ground for allowing the appeal, or it is unlikely to be credible, there can unlikely be sufficient ground for me to think such evidence “to be necessary” as stipulated in section 118(1)(b) of the Magistrates Ordinance.

50.  It was part of the contention of Mr Marash SC that the criteria had not been met in particular that the application relied on “bare assertion” as stated in the Affirmation.  Whilst commenting the content of the Affirmation as “bare assertion”, Mr Marash SC confirmed that the Respondent did not intend to cross examine the deponent of the affirmation and would invite the court to consider the matter based on the information disclosed in the affirmation.  It of course did not amount to accepting the affirmation but the basis of the court’s decision as to whether there is a reasonable explanation for the failure to adduce it at the trial has to be confined to an assessment of what deposed in the affirmation.  At the appeal hearing, the deponent of the affirmation was not called.

51.  A point relied upon by Ms Draycott SC is that the prosecution, who must have exercised diligence in identifying relevant recording on the internet, was not able to discover this footage earlier.

52.  I am persuaded to accept the explanation for the failure to adduce the evidence in question at the time of the trial as reasonable.

53.  I am also of the view that the evidence would have been admissible at the trial.

54.  The primary test of admissibility of this sort of evidence is whether there is prima facie evidence that it is authentic, the most important concern is whether it has been tampered with.

55.  In Choi Kit Kau v R,[29] Roberts CJ said:

“The best method of proving that … recording produced in court is authentic is to show that it has been, since the time it was recorded, continuously in the custody of persons who assert that it was not tampered with. This is a course which should be followed if the authenticity of a tape is challenged and is desirable even if it is not.”

56.  Authenticity may, however, be proved circumstantially.  The Court of Final Appeal cited with approval in HKSAR v Yeung Ka Ho[30] the following passage in R v Murphy:[31]

“Authenticity, in our view, like most facts may be proved circumstantially. In the case of a video film, the direct way is to call the cameraman who took it and the court will normally expect him to be called. But if he is not available, he need not be called; other evidence will suffice if it is logically probative that the video was authentic. That evidence may be adduced in other ways and from other sources.”

57.  The proposed new evidence shows what purported to happen during a very short duration earlier than that shown in the Apple Daily YouTube video (“the exhibit”).  It captures objects (distinctly the bus No 37) also shown in the exhibit.  What shown appears to be smooth and continuous.  I am satisfied that the authenticity requirement is met.

58.  As to whether it is credible, Mr Marash SC, relying on HKSAR v Lee Chi Fai[32], submitted that although the images captured may accurately show the activities which had transpired, they may not be in their true sequence due to the cutting of the original film.  Therefore, even if a prima facie authenticity of the new video footage can be proved, it cannot be used to prove the actual time span unless there is evidence that the footage was uncut and was filmed in sequential order.

59.  Ms Draycott SC pointed out that a slightly shorter version of the Apple Daily footage had indeed been produced by the prosecution at trial and at that time Mr Marash SC stated expressly that “it appears to be sequential” and in any case did not take issue with it being sequential.  She submitted that the court should look at the matter from the viewpoint of common sense and practical reality having regard to any circumstantial evidence, as the trial judge in R v Murphy did.

60.  She also cited the Victoria Court of Criminal Appeal decision in R v Chen[33]which was also quoted with approval by the Court of Final Appeal:[34]

“… The test is whether there is sufficient material before the court to allow the tribunal of fact acting reasonably to conclude that the recorded sounds reproduce those originally made by the persons identified by the evidence. … Admissibility does not depend on the party tendering the tapes having removed absolutely any chance that they are inaccurate.”

61.  In the circumstances of the case, it is a matter of weight and in my judgment the proposed new evidence cannot be said to be incredible so that it should be excluded from being received as evidence.

62.  I have considered whether overall it is necessary to receive the evidence.  Having viewed the video footage in question and considered submission, as submitted by Ms Draycott SC what shown is relevant in deciding the circumstances surrounding the incident and in turn the mens rea issue, in particular as it shows the relevant episode which led to the strike lasted just about 32 seconds (not 1½ minutes as estimated by the Appellant when he testified) and it was a split second decision of the Appellant under a perception and belief of the situation.[35]

63.  Having considered submission, perused the video footage in question, and regard to the whole circumstances, in my judgment, the proposed new evidence, though should have been received at trial, if available and if a party had sought to adduce it, would not afford any ground for allowing the appeal (as what shown in the video footage does not have the effect of altering the result).  I therefore refuse to receive it since it is not necessary.

Discussion and Consideration of the Grounds of Appeal

Grounds 1 - 3

64.  These three grounds relate to the mens rea required for the offence and whether the Magistrate had erred in her approach.  As consideration of the issues involved is inter-related, I consider these three grounds at one go.

65.  The term “assault” is frequently used to include both assault and battery.  In the present case, the allegation against the Appellant is indeed one of battery.  Battery is an intentional or reckless act of the accused by which he applies unlawful force to another person.  There are circumstances in which force may be applied to another person lawfully. Obvious examples are self-defence, prevention of crime or where the other person consents to the force applied to him.  If lawfulness is a live issue, it is for the prosecution to prove the unlawfulness.  The mental element to be proved is an intent to apply unlawful force.

66.  In the context of the present case, Mr Marash SC confirmed that there is no dispute that the requisite mens rea is, as suggested by Ms Draycott SC, an intent to apply unlawful force.

67.  The issue has been conclusively decided by the Court of Final Appeal in HKSAR v Lau Shing Chung Simon[36].

68.  It is for the prosecution to prove all the elements of the offence including the mens rea and unlawfulness.  In deciding the issues, as held in R v Gladstone Williams,[37] if there is credible evidence which shows that the Appellant might have been laboring under a mistake of facts, he was to be judged according to his mistaken view of the facts, whether or not that mistake was, on an objective view, reasonable or not.  The Lord Chief Justice said:

“The jury should be directed first of all that the prosecution have the burden or duty of proving the unlawfulness of the defendant’s actions; secondly, if the defendant may have been laboring under a mistake as to the facts, he must be judged according to his mistaken view of the facts; thirdly, that is so whether the mistake was, on an objective view, a reasonable mistake or not.

In a case … where … self defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case.”

69.  His Lordship stated that reasonableness is a factor in deciding whether the alleged belief is to be accepted or not, but stressed that “if the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there.  It is irrelevant.”[38]

70.  It was also held in R v Kimber[39] that if the defendant might have been laboring under a mistake as to the facts, he must be judged according to his mistaken view of the facts.

71.  The thrust of the submission of Ms Draycott SC was that the Principal Magistrate had not decided the issue of the required intent adequately or at all.  She contended that in deciding the issue, there should have been a proper consideration of the chronology of events which she had set out in some details in the written submission.  She further stressed that the matter should be considered from the perspective of the Appellant.  She criticized the Principal Magistrate for failing to place herself in the Appellant’s shoes when she judged him, or to recognize that:

(1) at the material time he was attempting to discharge his duty after having been engaged for some hours in very difficult situation; and

(2) the alleged assault was a single strike delivered on PW1 in the course of dispersing the crowd.

72.  She submitted that an assessment of the subjective intent of the Appellant was particularly pertinent in this case and had to be conducted in the context of his role as an experienced senior police officer of hitherto good character, whose task was to keep that area clear of protestors and to keep the roads open.  The court must take into account that at the material time the Appellant was attempting to discharge his duty after having been engaged for some hours in very difficult situation, and the alleged assault was a single strike delivered on PW1 in the course of dispersing the crowd, at a time a High Court injunction was in force.

73.  She also submitted that in dismissing the Appellant’s evidence of an honestly held belief in the lawfulness of his action, the Principal Magistrate mistook the actions of the crowd and placed disproportionate reliance on PW1’s evidence and the video recordings of his conduct in the seconds before the blow.[40] By so doing she failed to make the assessment from the perspective of the Appellant and judging his subjective belief against the whole circumstances.  The Principal Magistrate was also criticized for not having given any, or sufficient, reasons for rejecting the evidence of the Appellant.

74.  Ms Draycott SC brought to the attention of the court, inter alia, that the evidence of the Appellant revealed what had happened between 10pm and 10:30pm around which the incident took place:

(1) at 10pm the junction was blocked and cordoned by the police and pedestrians were not permitted to cross, the arrangement was made clear by loudhailers;

(2) after the cordoning off, emotion of the crowd was heightened and three large crowds gathered at various places nearby and had attempted to push onto the road against the police;

(3) minutes before 10:30pm, there was a simultaneous uproar or commotion from the three crowds, people were gathering at SCB where there was the presence of only a few police officers;

(4) at 10:30pm, the Appellant was told that something was wrong at SCB;

(5) seeing that a big crowd of 500 to 600 people charging a single line of officers and succeeded in going on to the carriageway, he led about 20 officers to go there to provide reinforcement;

(6) eventually the majority of the crowd dispersed quickly but there were some who lingered, including PW1.

75.  It was the evidence of the Appellant that in such a situation these people who lingered were not really complying with the dispersal order.  Based on his training, even if an individual had been a pedestrian originally, he might be influenced and effectively encouraged by the situation and those surrounding him into doing something which he would not normally countenance, and in his view many of those who were originally mere bystanders had joined the mob and taken part in the charging.  He thought the people were one integrated group and one could not distinguish between them. It was in the midst of this chaotic situation he decided to do what he did.

76.  Ms Draycott SC stressed that the court must consider whether there had been a mistake by the Appellant as to the dynamics of the factual situation, and the Principal Magistrate had not considered this matter adequately.

77.  She submitted that before the required intent could be inferred, all hypotheses consistent with innocence had to be excluded, which included:

(1) the Appellant’s strike was an error of judgment in all the circumstances;

(2) he acted under the mistaken belief that the strike was required to keep the peace and to restore law and order; and

(3) he acted under the mistaken belief that PW1 was actively engaged in the protest, was uncooperative, obstructive and verbally abusive to a fellow officer engaged in the clearance.

78.  Her submission was that such exclusion was not possible on the evidence.

79.  She criticized the Principal Magistrate for not having judged the Appellant’s state of mind against the accurate and full circumstances leading to his use of force before concluding that he did not hold any honest belief in the necessity or lawfulness of his actions.  She submitted that the Principal Magistrate misjudged the situation in which the Appellant found himself.  In this regard, she submitted that the new evidence as shown in the video footage sought to be adduced at the appeal enabled a better comprehension of the situation.  She stressed that the new video footage revealed that the time between the sudden charge of the disorderly crowd and the strike on PW1 was only 32 seconds and in such a situation it was the Appellant’s belief that it was necessary for him to act as he did to restore and maintain order and to clear the junction.  She pointed out that at trial, without the benefit of the new video footage, the Principal Magistrate might have been led to form an erroneous view of the situation, in particular as the Appellant thought the time gap was 1.5 minutes, which is now proved wrong by the new video footage.

80.  She also criticized the Principal Magistrate for failing to take into account sufficiently what had happened in the area over the previous days in particular the number of people gathered and the violence displayed, the importance of keeping the junction open pursuant to a High Court injunction, the involvement of PW1 in the various incidents on those days, the Police overall strategy to contain the protest, the presence of “passive aggressive” protestors, the appearance of disorderly crowd of which PW1 was said to form a part at the time of the incident, and the perception and belief of the Appellant in such a situation.

81.  Ms Draycott SC submitted that an examination of the events leading to the actions taken by the police was necessary for a proper understanding of the dynamics of that night, and criticized the Principal Magistrate for refusing to countenance this exercise.  Probably as a result of this, the Principal Magistrate never truly appreciated the Appellant’s case.

82.  She submitted that the Principal Magistrate also failed to take into account the following matters sufficiently if at all:

(1) the Appellant did not know PW1;

(2) the strike was not premeditated, as she accepted;

(3) the Appellant knew that he was being filmed;

(4) in a split second, in particular as PW1 did say something to a police officer and did move towards that officer (as shown in the new video footage), he perceived that PW1 was doing something hostile to another officer and thought he was being aggressive towards his colleagues, the Appellant made an instant decision to use force on PW1; and

(5) the act was done in chaotic circumstances and yet the Appellant was careful of the force he used which was calculated so as not to cause injury.

83.  She also quoted Palmer v R[41] in which Lord Morris said:

“If there has been an attack so that defence is reasonably necessary it will be recognized that a person cannot weigh to a nicety the exact measure of his necessary defence action … If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only defensive action had been taken.”

84.  It was incumbent of the Principal Magistrate to provide reasoned analysis of how she could come to the irresistible conclusion that the Appellant had an intent to apply unlawful force on PW1 and the submission was that she failed to do so.

85.  Ms Draycott SC also submitted that the Principal Magistrate’s erroneous conclusion of her assessment of the credibility of PW1 tainted her consideration of the whole case in particular in the mens rea issue as her acceptance of the evidence of PW1 “in its entirety” would have a bearing on her assessment of the belief asserted by the Appellant.

86.  It was the contention of Ms Draycott SC that the Principal Magistrate never dealt with the issue of mistake of fact or error of judgment.  At the end, she erred in her consideration of this matter, in particular as she failed to recognize that even if she rejected the assertion of the Appellant of his honest belief, it was not determinative of the issue of the required intent.  She commented that the Principal Magistrate did not decide the issue of an intention to apply unlawful force adequately or at all. She did not discuss it, nor did she show how she came to that conclusion if indeed she did.

87.  As part of her contention that the Principal Magistrate erred in her consideration, Ms Draycott SC quoted exchanges between the Principal Magistrate and Defence Counsel at the trial[42] which she said tended to show that the Principal Magistrate erred in her understanding of some of the evidence, failed to comprehend the crust of the defence case, and hindered the full and proper presentation of the defence evidence.

88.  It is apparent that the Principal Magistrate did err, at least in the course of the trial, to say that there was a crowd charging from the other side towards SCB, however, I do not consider such slip so material that it has a substantial impact on her consideration of the case.  It is obvious to me that the Principal Magistrate was fully aware of the overall situation and that the Appellant was in an extremely difficult crowd control situation.

89.  As regards the other criticism on this front raised by Ms Draycott SC, having considered the exchanges which she brought to my attention, I do not find anything which caused me to have concern about the fairness of the trial.  Despite the comment, it was not demonstrated that the defence had been unable to present any specific evidence which is of substantial importance to the decision of the case as a result of what the Principal Magistrate had said.  The Principal Magistrate had a case management duty to ensure that a trial was properly and coherently conducted.  There was no submission to the extent that there had been undue intervention by the Principal Magistrate.

90.  Ms Draycott SC also pointed out that the Principal Magistrate unfairly criticized the evidence of the Appellant as being repetitive and quite contrived.  The Principal Magistrate only said so in relation to the evidence of the Appellant regarding the statutes he thought to be relevant.  There is nothing in this point which caused me concern.

91.  The key question is whether the Principal Magistrate’s approach and consideration of the evidence in her decision of the relevant issues were proper or erroneous.

92.  The Appellant gave detailed evidence[43] as to his perception and belief which the Principal Magistrate summarized as follows:

“He said he saw PW1 doing an aggressive act towards one of his colleagues nearby. The Appellant demonstrated the act he saw, namely, the upper body moving to the right. He formed the view that PW1 was aggressive to his colleague and challenging and being non-compliant and decided to use force to compel the compliance of PW1. Because of people around him, he could only strike downwards, as he is seen doing on the video footage.”[44]

93.  The above is only the gist of the evidence of the Appellant.  It, together with what the Principal Magistrate said in her Statement of Findings (as set out in paragraphs 10 – 23 above) show that she had a good comprehension of the defence case.  For the sake of examination, I will now set out in more details the relevant part of his testimony.  He said when he was handling the situation on the other side of the road, there was a sudden uproar behind him, at the SCB side, he therefore led officers to run over there to give support.  He said, having assessed the situation, he made the decision to disperse them.[45] He thought the goal of lawful dispersal would not be achieved if he did not resort to use force.[46]  Officers including himself took out batons.  He went to the front to do sweeping.  He was the most senior officer and he had to keep assessing the dispersal momentum to ensure its completion.  People dispersed quickly.[47]  When he returned, he saw the first group of people, amongst whom was PW1, as if they almost did not walk.[48]  There were police officers behind them but they were walking slowly when officers dispersed them with force.  They were walking slowly as what happened an hour ago (which created a chaos).[49]  His assessment was that they were not really complying with orders.[50]  A person in black (not PW1) was resisting in the sense that he displayed very aggressive non-compliance.[51]  When he turned around he saw PW1 doing an aggressive act towards a police officer.[52]  He said it was a sudden act but that was his perception from his angle or from his point of view of his facial expression and body language.  He thought he was challenging police officers and his decision was to use force to compel his compliance.[53]  Since there were people around he could only give the strike with the motion of from up to downwards.[54]  It was a kind of force where it would stop as soon as it came into contact with the object.[55]

94.  Mr Marash SC argued that the Principal Magistrate did not err in her consideration.  He stressed it was the finding of the Principal Magistrate that the facts immediately preceding the assault was not as alleged by the Appellant.  She found that the Appellant was not a witness of truth, she did not believe the Appellant on crucial matters including his claim that he believed PW1 being actively aggressive to his colleagues and force had to be used to compel PW1’s compliance.[56]  He submitted that the findings were supported by evidence and was a reasonable one so that it is not a finding that an appellate court should interfere.

95.  In Gladstone Williams, the Lord Chief Justice said:

“The reasonableness or unreasonableness of the appellant’s belief was material to the question whether the belief was held by him at all. … If however the defendant’s alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.”

96.  I have perused the Statement of Findings in my examination as to whether or not the Principal Magistrate had addressed the right issues, and whether or not her consideration and decision were proper.

97.  I have the following observations:

(1) The Principal Magistrate was fully aware that the Appellant sought to justify his actions as a means to control the crowd and for the prevention of crime.[57]

(2) She was fully aware of the role played by the Appellant and the duty and task he had at the material time.

(3) She was fully aware of the difficult situation the Appellant was in and facing.

(4) She was aware of the inconsistencies in the evidence between PW1 and the doctor and the issue arising from the evidence whether the injury found by the doctor was a result of the blow by the Appellant.[58]

(5) She demonstrated that she had examined the evidence of the Appellant, the only defence witness, and provided reasons for her major observations,[59] in doing so she had taken into account what the Appellant said under caution in an interview.[60]

(6) She noted that PW1 had been supportive of the Occupy movement and had involvement in the activities in the area the night before.[61]

(7) She took note that the defendant had a clear criminal record and gave herself a good character direction.[62]

(8) She demonstrated she had examined with care the video footages and the still captures produced by the prosecution and the defence respectively.[63]

98.  The Principal Magistrate had the following observations:

(1) PW1 did turn his head to the right saying to someone perhaps a police officer (this was what the Appellant described as the hostile or aggressive act).[64]

(2) PW1 was already being compliant when he was hit.[65]

(3) Evidence does not support the allegation that PW1 was an active member of the unruly crowd that had tried to break police lines and cordon.[66]

99.  She made specific findings of facts including the followings:

(1) “At the time PW1 was hit, he was amongst a group of pedestrians walking along as directed to by the police there … he did not do anything that could be described as hostile that would give cause to the other police officers or the Appellant to hit him with a baton.”[67]

(2) “The force applied by the Appellant on PW1 with his baton was neither technical nor trivial and the accompanying pain which (PW1) said he suffered was neither trifling nor transitory.”[68]

(3) “… at the material time, PW1 was entitled to be where he was outside the Shanghai Commercial Bank.  He was leaving the area with Miss Ma … complying with the police orders and walking steadily … and had walked past the Appellant when he was hit by the Appellant.  PW1 had not exhibited any hostility towards the Appellant or any of his colleagues to warrant the Appellant hitting him with the baton … PW1 was already being compliant.  There was no need to make him compliant.”[69]

100.  Ms Draycott SC submitted that the Principal Magistrate erred in her assessment of the credibility of PW1.  My consideration of this matter is set out later at paragraphs 136 ‑ 154.  It suffices to say now that I do not consider there are sufficient grounds for me to interfere with the finding of the Principal Magistrate in this regard.

101.  The question at present is: did the Principal Magistrate fall into error in her consideration of the mens rea required in the offence, in particular whether or not she failed to consider the issue having sufficient regard to the perception and belief of the Appellant to the situation, and whether her assessment of the state of mind of the Appellant was flaw as a result of her error in fact finding of the relevant circumstances.

102.  The Principal Magistrate said: “I was satisfied beyond all reasonable doubt that the Appellant did not honestly believe that PW1 was being actively aggressive to his colleagues.”[70]

103.  Mr Marash SC sought to support the decision of the Principal Magistrate submitting that it was sufficiently supported by evidence.  He also submitted that the Principal Magistrate had given due and sufficient consideration of the issue of intention to apply unlawful force taking into account the relevant circumstances and the final triggering event.

104.  Obviously, the Principal Magistrate was aware that the Appellant was a senior police officer and his role and duties in the difficult time.  She must have considered the case on the basis that, at the material time, the Appellant was in the course of discharging his duties in extremely difficult and harsh situation.  There is no reason to doubt that she was not aware that it was just a single strike by the Appellant.  She made a finding in relation to the force applied which in my judgment is a finding she is entitled to make on the evidence.  The Appellant raised the baton high and struck it at PW1.  The trunk of the baton landed on an area at the upper back of PW1.  Whether the tip of the baton had come into contact with PW1 is not clear from the prosecution evidence but when the Appellant testified he did say only a small part of the top of the baton came into contact with PW1.  Though the resulted injury was minor and Ms Draycott SC argued strongly that it was an indication that the force used was far from being heavy, having regard to the fact that a thick clothing was placed at where the baton landed, the indication is not as convincing as she urged me to accept.  Strength of the strike apart, which part of the body it aimed at could not be ignored.

105.  The Principal Magistrate was entitled to take into account reasonableness in deciding whether to believe what the Appellant claimed his perception and belief were.[71]

106.  There was criticism that the Principal Magistrate mistook the actions of the crowd and placed disproportionate reliance on PW1’s evidence and video of his conduct just seconds before the blow.  What the Principal Magistrate could do was to decide the relevant issue by assessing the evidence adduced before her.  The video footages, despite short, show a situation consistent with the finding of the Principal Magistrate.  I do not consider there is sufficient reason for me to interfere with the finding of the Principal Magistrate.  The relevant state of mind of the Appellant is what he had at the time he struck his baton and shortly before that.  In some situation the circumstances earlier in time may be relevant, however, in the present case, the focus should be on what the Appellant perceived and believed at the immediate short duration preceding the time he decided to inflict the blow.

107.  It is trite law that an appellate court would only depart from the finding of facts of the trial court, in particular when such finding depends on a witness’s credibility, if it is plainly wrong in the sense that material matters had been wrongly considered or evaluated, or that consideration or evaluation of such matter had been omitted.

108.  I have perused the evidence, in particular the video footages parties invited me to view, including the proposed new evidence.  The Principal Magistrate has given a summary of what shown in the video footages.[72]  The DBC video and the Apple Daily YouTube video show the incident.  The footages show some officers using batons to ensure the crowd keep moving forward.  The Appellant was shown also using his baton.  The way he used the baton was not the same.  The difference was even more significant when he applied his baton on PW1.  I have to stress that the action was not conclusive by itself as what the court has to do is firstly to decide whether the Appellant had the intent to apply unlawful force in the light of the perception and belief he genuinely held.  The court has to consider the whole of the relevant circumstances and what I have just said are what the court may take into account.

109.  I bore in mind the observation of Ms Draycott SC in this regard, in particular that PW1 did stop his movement in the course of moving, turn his head to the right shouting something (the only evidence of the content came from PW1 who said it was something along the line “we are only pedestrians walking past, don’t hit us”; on the other hand the Appellant said he thought this was an aggressive act and he did not say what he heard) and he and Miss Ma were amongst the last in the group to move forward.

110.  In relation to these observations, Mr Marash SC pointed out that the video footages show the followings which must also be noted and taken into account:

(1) PW1 was together with a woman (PW1 said she was Miss Ma) displaying actions in protecting her.

(2) They were close to the wall.

(3) The movement of them and a few people nearby were hindered by the crowd at the front.

(4) Some of these people in front were hit by police officers (not with heavy force) with a view to urge them on.

(5) A man fell onto the ground upon being pushed.

(6) The actions of some officers might have made people feel that it was not desirable to move forward at that very moment.

(7) PW1 claimed what he said to the officer was they were just passers-by (the only evidence of what had been said came from PW1), this is worth believing as it was reasonable in the circumstances.

(8) It was only a very brief pause of PW1.

(9) PW1 and Miss Ma were already moving forward together with others at the time he was struck.

(10) They were almost at the end of the crowd (it was probably because it was their original position, there is no evidence showing that it was a result of their having moved backward) – and thus there was nobody else to clear.

111.  Mr Marash SC stressed that there was nothing in the conduct of PW1 which would have caused any one to think that he was aggressive. What shown in the video footages is telling.

112.  Ms Draycott SC criticized the assessment of the Principal Magistrate of the credibility of PW1 and submitted that the erroneous conclusion tainted her consideration of the mens rea issue.  The Principal Magistrate said “the prosecution (relied) on the evidence of PW1 as well as the video footages to prove that PW1 had been hit by the Appellant with his baton at the material time and place”.  PW1 testified according to what he recalled had happened.  The video footages were objective presentation of what had happened.  I have no doubt that the Principal Magistrate had the precise comprehension of what had happened and the surrounding circumstances.

113.  In any case, the law is not that if a person believes, or may be believing, that the situation is required for him to use force, he can use whatever force to achieve the aim, say as in the present case, to prevent crime.  Excessive force cannot be used.  As Collins J said in Nimrod Owino,[73] otherwise it would justify shooting of someone who was merely threatening to throw a punch.

114.  Whether the force used is excessive has to be gauged in the light of what that person believes the circumstances to be.

115.  In John Scarlett,[74] Beldam LJ said:

“… the accused is not to be found guilty merely because he intentionally or recklessly used force which they consider to have been excessive. They ought not to convict ‘him unless they are satisfied that the degree of force used was plainly more than was called for by the circumstances as he believed them to be. and. provided he believed the circumstances called for the degree of force used. he is not to be convicted even if his belief was unreasonable. …”

116.  John Scarlett was considered by another division of the England Court of Appeal in Nimrod Owino,[75] in which Collins J warned against taking this passage out of context.  It was held that:

“In the context of an issue of self-defence or reasonable restraint, … a person would not be guilty of an assault unless the force used was excessive; and judging whether the force used was excessive, the jury had to take into account of the circumstances as he believed them to be. …

… in judging what he believed the circumstances to be, the jury are not to decide on the basis of what was objectively reasonable; and that even if he, the defendant, was unreasonable in his belief, if it was an honest belief and honestly held, that he is not to be judged by reference to the true circumstances.”

117.  The following passage in Williams[76] was cited with approval:

“In a case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If however the defendant’s alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

Even if the jury come to the conclusion that the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it.

We have read the recommendations of the Criminal Law Revision Committee, …: ‘The common law defence of self-defence should be replaced by a statutory defence providing that a person may use such force as is reasonable in the circumstances as he believes them to be in the defence of himself or any other person.’ … In the view of this Court that represents the law …”

118.  Even if there was contrary submission of Ms Draycott SC, I am of the view that Nimrod Owino represents the law.

119.  In all the circumstances, I do not consider the Principal Magistrate can be said to have erred in saying:

“I was satisfied beyond all reasonable doubt that the Appellant did not honestly believe that PW1 was being actively aggressive to his colleague. Even if the Appellant did so believe, I am satisfied beyond all reasonable doubt that the Appellant was not justified in all the circumstances in hitting PW1 from behind with his baton as he was seen to do.”[77]

120.  Ms Draycott SC submitted that the hit was not from behind.  PW1 was hit on his back.  As I viewed the video footage, PW1 was clearly in the course of moving forward, having walked past, or was passing, the position where the Appellant was.  This matter does not bother me.

121.  Ms Draycott SC criticized the Principal Magistrate for not providing an analysed reason for rejecting the evidence of the Appellant.

122.  The Principal Magistrate did not devote an itemized part in her Statement of Findings to account for her assessment on this matter.  However, I do not consider the criticism justified.

123.  The Principal Magistrate had these to say:[78]

(1) “The Appellant said he hit PW1 to make him compliant.  But PW1 was already being compliant.”

(2) “The Appellant said he considered PW1 was an active member of the unruly crowd that had tried to break police lines and cordons but there was no evidence to suggest he was.  The Appellant himself said he did not recognize PW1 from having seen him earlier amongst the unruly crowd and when he saw him, PW1 was amongst the pedestrians that were walking along the wall of SCB.”

(3) “The Appellant said PW1 had exhibited hostility to one of his colleagues.  All that PW1 did, as one can see on the video footage shown, is that he turned his head towards his right.”

124.  She also took into account that PW1 was walking steadily and had walked past the Appellant when he was hit, the crowd had almost dispersed and PW1 was totally unarmed.  She was entitled to do so as these can be seen on the video footages independent of the testimony of PW1.

125.  As shown in the video footages, PW1 cannot objectively be said to be aggressive or not complying with order.  As regards the state of mind of the Appellant, I agree with the Principal Magistrate that it was not reasonable for the Appellant to have the perception and belief he alleged to have.  There is no sufficient reason for me to interfere with the finding of rejecting the asserted perception and belief of the Appellant.  As held in Gladstone Williams, the issue is whether or not the defendant held the belief, not whether the belief is reasonable or not, however, reasonableness can be a factor in deciding whether the defendant did have the belief.

126.  I do not accept that the Principal Magistrate had not considered the relevant issue having regard to the subjective perspective of the Appellant or failed to have considered any relevant surrounding circumstances.

127.  There is no reason to suspect that she was not aware of the proper test to apply as both parties had spelled it out during final submission.

128.  Having considered carefully, I see no reason to interfere with the decision of the Principal Magistrate of rejecting the alleged perception and belief of the Appellant.

129.  Having rejected the assertion of the Appellant of his perception and belief, it is not the end of the matter.  The Principal Magistrate should go on to consider whether the evidence is sufficient for her to be sure that the Appellant intended to apply unlawful force to PW1.

130.  Ms Draycott SC pointed out that there is nothing in the Statement of Findings which shows a finding of the required intent.  All the Principal Magistrate had said was “the Appellant was not justified in all the circumstances in hitting PW1 from behind with the baton as he was seen to do”.[79] The question was not whether the conduct was justified, there has to be an intent to do an unlawful act before one can be convicted for this offence.  Rejection of the evidence of the Appellant is not sufficient, the court has to be sure that the Appellant had the required intent before finding him guilty.  Moreover, finding the conduct unjustified indicated that the Principal Magistrate had erroneously adopted the objective test, which again was wrong.

131.  I totally agree that the court has to be sure that the Appellant had the required intent.  The Principal Magistrate did say she “was satisfied that the prosecution had proved each element of the charge beyond reasonable doubt”.[80] As said, both counsel had set out clearly in their submissions the elements of the offence highlighting the mens rea is an “intention to apply unlawful force” and that whether the Appellant honestly believed at the time that it was lawful for him to assault PW1 in the way he did was an issue the court had to decide.

132.  Mr Marash SC submitted that a finding of the required intent was inevitable on the evidence.

133.  In my judgment, the Principal Magistrate was entitled to find the required intent being the only reasonable inference supported by the whole of the evidence.

134.  Grounds 1 ‑ 3 fails.

Ground 4

135.  This ground relates to the assessment of the Principal Magistrate in relation to the credibility of PW1.

136.  Ms Draycott SC criticized the Principal Magistrate for wrongly accepting PW1’s evidence “in its entirety” as she had ignored numerous implausible elements of the narrative and placed disproportionate reliance on his demeanour.  She submitted that the Principal Magistrate had given no consideration to the objective indications that he might have lied or why he might have done so.

137.  In particular, Ms Draycott SC set out more than 20 matters which she alleged the Principal Magistrate had failed to recognize.  These matters may be summarized into the following areas:

(1) None of the injuries found on PW1 was at the part of the body where PW1 said he was hit or as shown by the video footage.

(2) His claim that he had been assaulted by other police officers before was not credible, and if true it tended to show that he was not just a mere passer-by.

(3) He only went to see a doctor two days after the incident and it was peculiar for him to ask the doctor to take a photograph of the injury found.

(4) The assertion of PW1 that there was swelling on his neck as well as pain with stiffness lasting a month was contrary to other evidence, besides, he did not mention about the pain when he saw PW2.

(5) The evidence of PW1 that other officers had assaulted his shin on the previous night and earlier on the night of the present incident was relevant as to two issues: whether he was a mere passer-by as he claimed and whether other officers held the same belief as the Appellant claimed he did have.

(6) Indeed the doctor (PW2) was of the opinion that the injury to the shin of PW1 had been caused at an earlier time than claimed by him.

(7) His description of the injuries was clear exaggeration at the least.

(8) The evidence of PW1 about the scene in particular the behavior of the people was contradicted by what shown in the video footage.

(9) Evidence of the participation and conduct of PW1 during the Occupy Movement in particular his presence at the scene of unrest on the previous night cast a light on whether he was a mere passer-by at the material time.

(10) Evidence, including evidence of what he himself posted on the internet, shows that he was more active in the Occupy Movement than he asserted and his hostility towards the police.

(11) The reason he gave for his presence, ie to protect Miss Ma, an acquaintance from a long ago part time job who happened to call him when he was passing Mong Kok on the MTR was implausible, so was the route he said he took when he was together with Miss Ma, as well as his returning to the scene to look for the assailant after having parted with Miss Ma, Ms Draycott SC suggested that it was only a design to conceal the fact that he was present there as a protestor.

(12) PW1 refused to give the police the contact details of Miss Ma.

(13) The reason PW1 gave for not doing so was that he did not want to involve Miss Ma as her boyfriend did not know of her presence but in fact Miss Ma had posted the fact on her social media.

(14) When he made the report, he refused to show his injuries and said unprompted that Miss Ma would not be a witness.

(15) His testimony that he was cooperative at the time just before the strike was inconsistent with what shown in the video footage: he had paused while others had continued to move forward and he had at the same time turned to the officers and shouted.

138.  Ms Draycott SC submitted that these illustrate that when the Principal Magistrate said “his answers were on the whole consistent and inherently probable”,[81] she erred.  Such finding was inconsistent with evidence in particular as video footage shows the behavior of PW1 which at least might have caused the Appellant to have the belief he asserted.

139.  She further submitted that the error in finding PW1 credible and reliable tainted the final decision of the Principal Magistrate as she based on this finding in assessing whether she was to accept or reject the assertion of the Appellant of his perception and belief, and ultimately her final decision on the verdict.

140.  She argued that the problem was compounded as the Principal Magistrate did not account for her finding that the Appellant did not have the belief he claimed.  For this subject alone, I have dealt with it in paragraphs 121 – 123.

141.  In the present case, there is no dispute that the Appellant did strike his baton on PW1.  However, it does not mean credibility of PW1 is not relevant.  It is relevant at least on the following matters which are crucial to the determination of the guilt or otherwise of the offence laid against the Appellant:

(1) What PW1 had been doing prior to the strike.

(2) What were the circumstances in which the strike took place.

(3) Did the strike cause actual bodily harm?

142.  The first two matters are relevant to the mens rea of the Appellant and the third is relevant to the actus reus.

143.  Mr Marash SC urged the court not to interfere with the assessment of credibility of PW1 stressing the following matters:

(1) That the back of PW1’s neck was hit by the baton was supported by video footages and the still captures.

(2) The doctor’s evidence is not inconsistent with PW1’s testimony as to the location of his injury and its cause.

(3) The fact that PW1 did not mention feeling pain to the doctor had been considered by the Principal Magistrate and she did so in a proper manner.

(4) Whether PW1 was a protestor or a passer-by could not be determined by the injuries which PW1 said were inflicted earlier by other police officers.

(5) Whether PW1 was trying to distance himself from the Occupy Movement is not material to the consideration of the case.

(6) The Principal Magistrate did consider the case on the basis that PW1 was supportive of the Occupy Movement and had been in Mong Kok the night before (from the Statement of Findings, it appears to me what the Principal Magistrate said is that PW1 admitted to be supportive of the Occupy Movement and even if he had been in Mong Kok the night before, she found “he was amongst a group of pedestrians walking along as directed by the police there … and he did not do anything that could be described as hostile”).[82]

(7) Whether or not PW1 was actually there to accompany Miss Ma is not material.

(8) As the Appellant had not seen PW1 until a short moment prior to the strike he was not in position to distinguish whether PW1 was a protestor or a passer-by.

(9) The focus should be what occurred at the location around the time of the offence.

(10) The Principal Magistrate had ample time to view PW1 when he testified and assessed his credibility.

(11) The portion of PW1’s evidence concerning the few seconds he was in sight of the Appellant was fully supported by the video evidence and this was the crucial period.

144.  He also pointed out that whilst the Principal Magistrate said she accepted the testimony of PW1 “in its entirety”, reading the next passage in the Statement of Findings at once shows that this expression was not aptly used, as she said, with reasons, “PW1 was mistaken when he said he was hit on the right side of the back of the neck”.[83]

145.  There is sense in this submission.  In any case, it appears to me that there was sufficient evidence, in particular that of the video footages, for the Principal Magistrate to make the crucial parts of her findings without relying on the testimony of PW1.

146.  As to the first two matters I mentioned in paragraph 141 above, which relate to the mens rea, the Principal Magistrate had these to say in relation to these matters respectively:

(1) “On the Apple YouTube Video, PW1 first appears at counter 23, moving by the wall of the Shanghai Commercial Bank, and he is amongst what appears to be a group of pedestrians at that part of the pavement.”[84]

(2) “… things were chaotic in Mongkok that evening, requiring a police presence to control the crowds there, … PW1 as being with his female friend and walking amongst the group near the wall of the Shanghai Commercial Bank … .”[85]

(3) “Even if PW1 had been in the Mongkok area the night before and, as he himself said, was supportive of the Occupy movement and a blogger, at the material time, …, he was amongst a group of pedestrians walking along as directed to by the police there.”[86]

(4) She noted the evidence of a MTR staff that no first aid post had been set up in the Mong Kok Station and there was no reports of anyone having been injured whilst PW1 said he had been offered some assistance there and she did not find this had material impact on her assessment of the credibility of PW1.[87]

(5) The evidence of PC 10038 said the crowd walked slowly and some people even were standing.  Repeated urge to move was required and he described the crowd as being reluctant to move.  The Principal Magistrate found it inconsistent with what is shown in the video footage.[88]

147.  Findings (1) ‑ (3) are supported by evidence.  In relation to (4) and (5), if there was inconsistency between evidence, the Principal Magistrate did not find it material enough to affect her assessment.  I do not find flaw in her approach.

148.  The Principal Magistrate did find PW1 was together with a female friend.  Ms Draycott SC submitted that the account of PW1 as to how they came to be together was incredible.  I agree with Mr Marash SC that it is not material, in the context of the present case, what were the circumstances they met.  What happened immediately before the strike is obviously what had to be focused on in consideration, rather than what happened much earlier in time, in particular as those matters had no bearing on the perception and belief of the Appellant.

149.  PW1 asserted that the injuries on his shin were inflicted by other police officers on the previous night.  There were indeed injuries on the shin.  It was for the Magistrate to consider whether to accept or reject the allegation of PW1, having regard to the evidence of the doctor, which she did.  Even accepting the allegation is true for the sake of consideration of point (2) above raised by Ms Draycott SC[89], if the Magistrate found such matter did not affect her finding of what PW1 was doing at the material time, it does not cause me concern.  Firstly, what PW1 did on the previous night does not have much bearing on what he did on the night in question, in particular as what he was doing during the episode of the struck can be seen from the video footages.  Secondly, the belief of other police officer(s) on the previous night does not have much bearing on the perception and belief of the Appellant on the night in question.

150.  As to the third matter I mentioned in paragraph 141 above, which relates to the actus rea of the offence, the Principal Magistrate demonstrated that she had given careful thought to the evidence, including the discrepancies revealed (and her observation):

(1) The discrepancies between the evidence of PW1 and the doctor[90] :

(a) When was the first time the doctor saw PW1 – the Principal Magistrate observed that it was a minor discrepancy.

(b) The doctor did observe an injury to the neck of PW1 (erythema, redness in a patch) but having seen the video footage showing the strike, he was of the view that the injury might not have been caused by the strike as the injury he found appeared quite superficial compared with the strike he saw – as PW1 had a sweater around his neck it was difficult to see where the strike actually landed and after having seen the reaction of PW1 to the strike, what the doctor ultimately said was he was unsure if the injury was caused by the strike.[91]

(c) PW1 said the neck injury was painful, it was swelling and caused restriction in movement, whilst the doctor said when he saw PW1, he walked normally and did not appear to have any restriction to the movement of neck when examined, and PW1 did not mention pain to him.[92]

(2) The immediate reaction of PW1 when he was hit, as shown in the video footage.[93]

(3) She noticed that when PW1 testified he said he was hit on the right side of the back of his neck, whilst, in his witness statements, as well as the medical report, the reference is to the left side”.[94]  She considered PW1 only mistaken taking into account the three years’ lapse between the time PW1 gave evidence and the incident.

(4) The baton was a rigid instrument, video footage showed the Appellant raised the baton to a considerable height before lowering it to hit PW1, and the Appellant said he did apply medium force.[95]

(5) As regards the testimony of PW1 that he was pressed to the wall when police officers gave chase to a crowd and he noticed injuries to his shin and on his right elbow, she said “I ignored what PW1 said about the assault on his shin and his elbow as I was only concerned with the assault to the back of PW1’s neck and the injury as a result of the assault”[96], showing she did not allow other injuries to distract her from focusing on the injury allegedly resulted from the strike of the baton.

151.  The fact that PW1 did not complain pain to the doctor was a matter the Principal Magistrate had to take into account.  That she did not find this matter cause her concern was not unreasonable.  The evidence of PW1 that the pain lasted about a month is not necessarily contradicted by the evidence of the doctor, as was submitted by Mr Marash SC, the doctor had only seen PW1 for one time and pain is a subjective feeling.

152.  Although the response of PW1 at the time of the strike is not conclusive proof that he did suffer actual bodily harm as a result of the strike, his reaction when hit was a matter the Principal Magistrate was entitled to take into account to decide whether or not PW1 was in fact hit at the part of the body he alleged and the force applied in the strike.  PW1 can be seen grabbing the back of his neck on his left.  It was the submission of Ms Draycott SC that since there was a limit as to where a person could reach by stretching his arm backward, this action cannot be proof of the part of the body PW1 was hit.  The action of PW1 took place as soon as the strike was applied, it was for the Principal Magistrate to decide what was the use and weight of such evidence.

153.  It was argued that this evidence of reaction (touching the upper left back) indeed disclosed another discrepancy of PW1’s testimony with other evidence as when he testified he said the right side of his neck was hit.  The Principal Magistrate found PW1 was only mistaken when he testified, taking into account the lapse of three years.  It has to be noted that in his two witness statements which PW1 gave shortly after the incident, he said the strike landed on the left side of his neck.  Photographs taken by the doctor also shows redness on the left side of the neck.[97]  The Principal Magistrate was entitled to make the finding she did on this aspect.

154.  What the Principal Magistrate had considered and taken into account were what she should, and were entitled to, take into account.  As the Court of Final Appeal recognized in Chou Shih Bin v HKSAR,[98] the appellate court does not enjoy the advantage, as the trial court does, the advantage of having received the evidence at first hand.  Despite so, I have the duty to examine whether either the assessment or judgment of the Principal Magistrate is erroneous.  There is no sufficient reason for me to find that she had erred in accepting the evidence of PW1 in particular the part of his evidence which is material to her decision on what the Prosecution had to prove.

Ground 5

155.  The Principal Magistrate found that PW1 had suffered actual bodily harm and this was caused by the strike with the baton by the Appellant.

156.  Ms Draycott SC submitted that this finding was not justified in particular having regard to the following matters:

(1) Video footages, evidence from the doctor and photographs depicting the injuries on PW1 show no visible injury at where the strike of the baton landed.

(2) PW1 alleged he was hit on the neck whilst video footage shows the strike landed on his back.

(3) The strike was delivered through a thick pullover slung around the shoulder of PW1.

(4) The opinion of the doctor is inconsistent with what PW1 alleged.

(5) The Principal Magistrate had placed disproportionate weight on the evidence of PW1 which was flawed as stated in the relevant passages cited under the consideration of Ground 4.

157.  Ms Draycott SC further submitted that, even if the strike did occasion PW1 actual bodily harm, the Principal Magistrate failed to apply the law correctly as she failed to find there was unlawful assault on the basis either due to the existence of some sinister or improper motive for the Appellant to use his baton as he did or he had intended to cause PW1 unlawful violence.

158.  I have already found the Principal Magistrate was entitled to draw the only reasonable inference that the Appellant had the required intent.  It was not necessary for the Principal Magistrate to find that the Appellant had some sinister or improper motive.

159.  As regards whether or not the strike did land on the body of PW1 and if so at which part of his body, in deciding whether to believe the evidence of PW1, as said earlier, the Principal Magistrate was entitled to take into account what shown in the video footage, as well as the reaction of PW1 although it cannot be conclusive proof.  Indeed, quite contrary to the submission that there is inconsistent medical evidence, the doctor found tenderness near the position which PW1 grabbed at the time the strike was hit. The doctor described in his report what he found as “a patch of soft tissue swelling with tenderness over his left neck region near hairline that measured around 1 x 4 centimeters in dimension.”[99] When the doctor testified, he described what he observed on PW1’s neck as erythema, ie redness in a patch.[100]  The photograph taken by the doctor shows redness on the left side of the neck of PW1.[101]

160.  The doctor said the swelling in question was horizontal, not vertical.[102]  Ms Draycott SC argued that this was inconsistent with the blow as shown in the video footage which should produce a vertical injury.  Mr Marash SC submitted that it is not necessarily an inconsistency.  He urged the court to find by viewing the video footage that the strike was not exactly vertical but angled.  He also argued that this might have been a result of the possible cushion effect of the clothing put on the shoulders.  I agree that this does not amount to material inconsistency.  Besides, as said, the evidence is unclear whether any other part of the baton, for instance its tip, might have come into contact with the body of PW1.  The reaction of PW1 can be an indication that this had happened.

161.  The doctor of course was not in a position to tell how the injury found was caused.  The Principal Magistrate found the evidence of PW1 credible, the video footages provide support to the finding.  As submitted by Mr Marash SC the opinion of the doctor did not go to the extent of discrediting or contradicting the evidence of PW1.

162.  I have no reason to doubt that the Principal Magistrate had not given sufficient consideration to the whole of the relevant circumstances including what Ms Draycott SC set out in her submission.  I do not find the Principal Magistrate erred in finding that the strike did hit the left side of the neck of PW1.

163.  The Principal Magistrate found such injury actual bodily harm, having considered a passage in the Archbold[103] and the case of R v Choi Wai-kwong.[104]

164.  She found that “the force applied by the Appellant on PW1 with his baton was neither technical nor trivial and the accompanying pain which he, PW1, said he suffered was neither trifling nor transitory.”[105]

165.  It was held by the Kings Bench Division in R v Donovan[106] that:

“Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury need not be permanent but must be more than mere transient or trifling.”

166.  On the evidence which the Principal Magistrate accepted, and such acceptance cannot be said to be wrong, she was entitled to make the finding she did.

Ground 6

167.  Ms Draycott SC criticized the Principal Magistrate for having erred in her assessment of whether the strike was justified, in that:

(1) she failed to judge the reasonableness of the force by reference to the Appellant’s subjective belief of the factual circumstances as he perceived them to be; and

(2) she erred in ruling that the statutory exemptions are not available to the Appellant.

168.  The first point raised by Ms Draycott SC has been dealt with earlier.

169.  When the Appellant testified, quite apart from the asserted perception of the circumstances and his belief, he put forward certain statutory provisions to justify his actions.

170.  The statutory provisions put forward were sections 45, 46 and 53 of the Public Order Ordinance,[107] the relevant parts are as follows:

(1) Section 45 provides:

“Without prejudice to any other powers conferred by this Ordinance, any police officer may use such force as may be necessary—

(a) to prevent the commission or continuance of any offence under this Ordinance;

(b) to arrest any person committing or reasonably suspected of being about to commit or of having committed any offence under this Ordinance; or

(c) to overcome any resistance to the exercise of any of the powers conferred by this Ordinance.”

Section 45 confers power on a police officer to use force in relation to offences under the Public Order Ordinance or exercising powers under the same Ordinance.  Indeed, generally speaking, a police officer is empowered to use force as may be necessary in similar situations as stipulated and not confined to situation where offences under the Public Order Ordinance occurs.

(2) Section 46(3) provides for exemption of liability as follows:

“Any person who uses such force as may be necessary for any purpose, in accordance with the provisions of this Ordinance, shall not be liable in any criminal or civil proceeding for having, by the use of such force, caused injury or death to any person or damage to or loss of any property.”

(3) Section 53 provides for the so called “good faith” defence, as follows:

“Without prejudice to the provisions of section 46, no person acting in good faith under the provisions of this Ordinance shall be liable in damages or otherwise for any act done by him in pursuance or exercise of any obligation, duty or power imposed or conferred, or reasonably supposed to be imposed or conferred, on him by this Ordinance, if done in good faith, and done or purported to be done in the execution of his duty or for the public safety or for the defence of Hong Kong or for the enforcement of discipline or otherwise in the public interest, if such person be a person holding office under or employed in the service of the Government in any capacity, … .”

171.  Section 45(a) is relevant in the present case, I will start with it and section 46.  The key words in section 45(a) are “may use such force as may be necessary” and “to prevent the commission or continuance of any offence”.

172.  In R v Scarlett,[108] which was relied upon by Ms Draycott SC Beldam LJ cited a passage in Venna:

“Where … an accused is justified in using some force and can only be guilty of an assault if the force used was excessive, the jury ought to be directed that he cannot be guilty of an assault unless the prosecution prove that he acted with the mental element necessary to constitute his action an assault, that is … that the defendant intentionally or recklessly applied force to the person of another.”

and went on to say what I quoted in paragraph 115 above.

173.  In Nimrod Owino,[109] while addressing the issue of self defence, Collins J observed:

“The jury have to decide whether a defendant honestly believed that the circumstances were such as required him to use force to defend himself from an attack or threatened attack. In this respect a defendant must be judged in accordance with his honest belief, even though that belief may have been mistaken. But the jury must then decide whether the force used was reasonable in the circumstances as he believed them to be.”

174.  A two-stage test was therefore set out.  Indeed, the same test is stipulated in the statutory regime.  The exemption in section 46(3) is subject to section 46(1) which provides:

“Whenever in this Ordinance it is provided that such force as may be necessary may be used for any purpose, the degree of force which may be so used shall not be greater than is reasonably necessary for that purpose.”

175.  It was the submission of Mr Marash SC that the tests required had not been satisfied.

176.  The facts as found by the Principal Magistrate in the present case which led to her conclusion that the Appellant was not justified at all to use force on PW1 comprise the followings:

(1) PW1 was in compliance with police orders, leaving the area, and had already walked past the Appellant; and

(2) the Appellant did not honestly believe:

(a) that force had to be used in order to compel the compliance of PW1; and

(b) PW1 was being actively aggressive to any police officers so that using a baton on him was warranted.

177.  The Principal Magistrate found that the appellant was not justified to use any force at all, it follows that the question of whether the level of force used was reasonable did not arise.

178.  As examined and considered above, I find no sufficient justification to disturb these findings of the Principal Magistrate.  On the evidence, as submitted by Mr Marash SC there was no room to find that the Appellant subjectively believed that PW1 was aggressive and that any force was necessary.

179.  Mr Marash SC further submitted that it appears when Principal Magistrate said “even if the Appellant so believe, I am satisfied beyond all reasonable doubt that the Appellant was not justified in all the circumstances in hitting PW1 from behind with his baton as he was seen to do”,[110] she was addressing her mind to the second question stated in Orwino.  This submission makes sense in the context.  In any case, the important thing is that in the first place the Principal Magistrate found that “the Appellant did not honestly believe that PW1 was being actively aggressive to his colleagues.”[111]

180.  Having found that the Appellant did not honestly have the belief in question, whether the force used was reasonably necessary becomes irrelevant.  That said, if the Principal Magistrate had gone on to consider this issue, it does not affect the validity of the verdict if it was otherwise properly made.  Her conclusion on this issue was wholly justified on evidence.

181.  All in all, as the force used failed the test, I agree with the Principal Magistrate that the Appellant cannot rely on sections 45 and 46.

182.  As regards section 53, the Principal Magistrate ruled that this defence provision covered civil proceedings only and not extended to criminal proceedings.

183.  Ms Draycott SC submitted that this ruling is wrong, for the following reasons:

(1) if the relevant statutory provision protects the Appellant from civil liability, a fortiori it protects him from criminal liability; and

(2) in any event the lack of bad faith / malice on the part of the Appellant in this case was highly relevant to the question of whether he intended to apply unlawful force on PW1.

184.  Ms Draycott SC relying on Bennion on Statutory Interpretation, also submitted that there is a presumption against statutory interpretation which would produce any absurd, illogical or anomalous result.

185.  Mr Marash SC drew the court’s attention to the Indemnity Ordinance 1922 which provides for similar defence.  Its section 3(1) provides:

“No action or other legal proceedings whatsoever, whether civil or criminal, shall be instituted in any court of law for or on account of or in respect of any act, matter or thing done, whether with or without the Colony, during the war before the passing of this Ordinance, if done in good faith, and done or purported to be done in the execution of his duty, or for the defence of the realm, or for the public safety, or for the defence of the Colony, or for the enforcement of discipline, or otherwise in the public interest, by a person holding office under or employed in the service of the Crown in any capacity … or by a person holding under or employed in the service of the Government of the Colony of Hong Kong in any capacity … and if any such proceeding has been instituted before the commencement of this Ordinance, it shall be discharged and made void, subject to such order as to costs … .”

186.  This provision has been repealed but Mr Marash SC submitted that it still has reference value.  Although wording in the provision is not identical with section 53 it covers similar situation.  It provides for immunity expressly for both civil and criminal liability, whereas section 53 is silent on criminal liability.  That the provision in section 53 only expressly mentioned about “damages or otherwise” is another indication that the legislative intent is to provide a defence for civil liability only.  Mr Marash SC further submitted that, as the expression used is “shall be liable in damages or otherwise”, under the ejusdem generis rule “otherwise” it should be interpreted as referring to damages and indemnity which are civil remedies.

187.  It should also be noted that, in contrast, section 46(3)[112] as quoted above provides for exemption expressly for both civil and criminal liability.

188.  Having considered these, I agree with the Principal Magistrate that section 53 does not extend to cover criminal liability.  I do not consider such interpretation would produce absurd, illogical or anomalous result.

189.  I have in any case, upon being invited, considered and examined whether or not the Appellant can successfully rely on the provision even if it extends to criminal proceedings.

190.  Mr Marash SC referred to several dictionary and submitted that central to the concept of “good faith” is “honesty”.  I am with him.

191.  Mr Marash SC further submitted that based on the finding of the Principal Magistrate that the Appellant had no honest belief that PW1 was being actively aggressive, there is no basis to regard the Appellant as “acting in good faith”.  I agree to this.

192.  I therefore find that the Principal Magistrate had not erred in finding that the Appellant could not rely on any of these provisions as separate defence.

Conclusion

193.  For the reasons I have stated, all the grounds fail. Having considered the evidence and the reasons for the verdict, in my judgment the findings of the Principal Magistrate are reasonable and sufficiently supported by evidence.  The conviction is neither unsafe nor unsatisfactory.

194.  I therefore dismiss the appeal against conviction.

Appeal against sentence

195.  In sentencing, the Principal Magistrate took into account the following matters[113]:

(1) the Appellant was a senior serving police officer, in command of a team of police officers at the scene, one of the duties being crowd control and preventing re-occupying of the road which had been cleared earlier;

(2) the Community Service Order (“CSO”) suitability report[114] which content is favorable to the Appellant and CSO was recommended;

(3) many mitigation letters written by various walks of people, all spoke very highly on the Appellant and his contribution to the community and the Police Force;

(4) the Appellant had a long and distinguished career in the Force, and had earned many compliments and commendations;

(5) the difficult situation faced by the officers and the Appellant at the material time;

(6) officers were subject to insulting remarks and violent behavior from the protestors;

(7) officers, including the Appellant, had worked hours prior to the incident;

(8) the assault of PW1 was very short and counsel had described it as a technical breach (which the Principal Magistrate did not accept);[115]

(9) the injury sustained by PW1 was not serious and he has fully recovered;

(10) the submission that the Appellant was only overzealous and the chance of re-offending was almost non-existent;

(11) the Appellant is a man of good character and personality;

(12) since the incident, the Appellant and his family have been subjected to harassment by social media; and

(13) there had been a lengthy period before the Appellant was charged for the offence.

196.  She has considered the following factors which the Court of Appeal said in HKSAR v Chan Chun-tat[116] as relevant in determining the gravity of the offence and the culpability of the offender:

(1) the extent to which the assault was premeditated;

(2) the reason or motivation underlying the assault upon the victim;

(3) the mental / emotional state of the assailant at the material time;

(4) whether alcohol or drugs contributed to the action;

(5) whether the assault was committed by the assailant alone;

(6) the type of weapon employed;

(7) the level of force or aggression;

(8) the persistence with which the assault was pressed home;

(9) the injuries caused to the victim; and

(10) the effect of the assault upon the victim and those close to him.

197.  The Principal Magistrate accepted that the circumstances of the present case were not the most serious in that the injuries sustained by PW1 were not the most serious and he had now fully recovered.  She was also satisfied that the assault was not premeditated.[117]

198.  She, however, highlighted the following matters which caused her to have a serious view of the case:[118]

(1) PW1 was an unarmed pedestrian when he was hit;

(2) he was hit from behind by the Appellant after he had walked past him (the Appellant);

(3) he was walking with a woman at that time;

(4) the gesture he made which the Appellant claimed had led him to believe that his colleague was at risk cannot be viewed as a threatening one;

(5) PW1 did not as a matter of fact suffer more serious injury but the situation would have been different if not for the sweater hanging around his neck;

(6) the baton was capable to inflict serious and permanent injuries;

(7) it was used on a passing member of the public who had not displayed any hostility to the Appellant nor any police officers at the scene; and

(8) the senior position the Appellant held in the Police Force.

199.  Although the CSO suitability report was favourable, the Principal Magistrate did not adopt the recommendation since she considered the culpability too serious for such an order, having regard to the nature and circumstances of the offence and the Appellant.[119]

200.  She was of the view that a deterrent sentence was necessary and a term of imprisonment was appropriate.

201.  She adopted four months as the starting point and gave the Appellant one month discount for the following matters:[120]

(1) the circumstances prevailing at the time and the great stress police officers were under;

(2) the character of the Appellant and that it is his first conviction;

(3) his contribution to the Police force and the community;

(4) he is now retired and unlikely to re-offend;

(5) the stress caused to him since the investigation of the matter and the length of time lapsed before completion of the proceedings; and

(6) the stress from social media.

202.  She was of the view that the circumstances of the assault were too serious to suspend the sentence.  Nor did she find any exceptional circumstances warrant suspending of the sentence.

203.  After the above consideration, she imposed an immediate imprisonment term of three months upon the Appellant.

204.  On appeal, Ms Draycott SC stressed that the case involved a single strike the Appellant delivered on PW1 when he was discharging duty as a police officer dispersing an unruly crowd.

205.  She put up the following grounds of appeal:

(1) The imprisonment term was wrong in principle in the circumstances of the case in particular as the Principal Magistrate erred in not properly considered the following matters:

(a) The background and context in which the Appellant committed the offence was exceptional, namely:

(i) the officers including the Appellant were under unparalleled pressure;

(ii) they constantly faced provocation and real risk of violence from all fronts at the junction the entire night;

(iii) they had been on duty for hours trying to defend the junction; and

(iv) the Appellant and his team were tasked with subduing an emotional, uncooperative and sometimes violent crowd.

(b) The exemplary personal background of the Appellant, such as:

(i) he has been in the Police Force for over 35 years with hitherto good character;

(ii) he was four weeks away from his pre-retirement leave;

(iii) he regrets what had happened; and

(iv) the offence was clearly out of character.

(c) The Principal Magistrate wrongly applied case authorities which involved breach of trust and aggravating factors in particular as those cases were of much more serious both in nature and facts, whereas the present case involved an instinctive decision and reaction resulting in a single strike without premeditation and the Principal Magistrate should have sentenced the Appellant on the basis of an error of judgment.

(d) The option of a CSO was a reasonable one, especially as there was a report with favourable recommendation.

(e) Significant delay in the case of over three years.

(f) The Appellant was subjected to serious public condemnation before, during and after the trial.

(g) Whether deterrence was needed.

(h) The Appellant had already been remanded in custody for 16 days after conviction pending sentence.

(2) The sentence is manifestly excessive and the Principal Magistrate had erred:

(a) In failing to give sufficient weight to the exemplary personal background of the Appellant and the peculiar background and context in which the offence took place.

(b) In considering that the present case called for deterrence, as there was no basis for either a general or a personal deterrence.

(c) The sentence imposed is heavier than various cases which involved facts more serious as well as aggravating features.

(3) The Principal Magistrate erred in not suspending the sentence and she had applied the wrong legal test in consideration of the matter.

206.  Apart from what she set out in the written submission, Ms Draycott SC also stressed that:

(1) the Appellant had already served 16 days in custody, the court should consider a “clang of the prison gate” sentence;

(2) he has over the years been suffering from harassment by the press and people having political affiliation, as evidenced from what recently had happened as well as what took place outside the court building during hearing;

(3) such harassment had hindered him from looking for a job even though he was physically fit after retirement and desired to do so; and

(4) the matter had lingered on for almost four years now during which the Appellant could not live a reasonably private life.

207.  She urged, under the very special circumstances of the case, the court to consider ordering a conditional discharge instead of the sentence now imposed.

208.  Mr Marash SC sought to support the sentence imposed and in his written submission he highlighted the following matters:

(1) In the present case, a heavy baton was used to strike an unsuspecting and unarmed pedestrian from behind.

(2) The blow was forceful and delivered to the neck which the Appellant himself acknowledged could be lethal.[121]

(3) It was only fortuitous that PW1 was not injured more seriously.

(4) It was a case of a police officer committing a serious offence in the course of his duty.

(5) A deterrent sentence is required in the circumstances to maintain public confidence.

(6) In imposing the present sentence having given a one-month discount the Principal Magistrate had given appropriate weight to the circumstances of the case as well as the Appellant personally.

(7) The Principal Magistrate did not err in not making a CSO in particular as the Appellant did not show genuine remorse.  In any case, citing SJ v Wong Chi Fung,[122]it was submitted that as the circumstances were so serious which clearly calls for a deterrent sentence, even if the offender is suitable for the Order, it is not appropriate to impose one.

(8)     The Principal Magistrate applied the correct legal principle and had given proper consideration to all relevant factors before deciding not to suspend the sentence.

209.  The Principal Magistrate must have an extremely difficult task in deciding the appropriate sentence in this case, in particular as she had said “I did have sympathy for the stress police officers were under at the time of the Occupy movement and the difficulties they faced in crowd control”.[123]

210.  I do not have an easier task.

211.  Having completed education at F6 level, the Appellant started his career as a police constable and after 36 years’ service he retired as a Superintendent.  He must have proved himself to be an outstanding member of the Police Force.  He fell from grace for a single strike with his baton, in the course of discharging his duty in a difficult situation, and at a difficult time not only for the Police but also for the whole community of Hong Kong.  The effort of each member of the Police Force has to be recognised.

212.  As the Principal Magistrate found, there was no premeditation.  The conduct was out of character.  On the other hand, the conduct cannot be regarded as a technical breach as Counsel representing the Appellant at trial suggested.

213.  What the Principal Magistrate said she had considered, as outlined in paragraph 195 ‑ 202 above, are all matters she was entitled to take into account.

214.  A police baton is a rigid truncheon and a potent weapon.  On this occasion, it landed near the neck of PW1.  As the Principal Magistrate observed, the baton was raised high and the strike was not applied without force.  I agree that had PW1 not put the clothing on that part of the body the consequence would have been more harmful.

215.  There is no doubt that the Appellant and his colleagues were in a very difficult situation.  However, at the very moment before the strike, what I can see from the video footages were people moving steadily on the pavement and there was no sign of non-compliance, let alone any aggressive or abusive behavior either on the part of PW1 or the people around him.  PW1 was in this crowd of people, together with a woman.  Nothing in his conduct and behavior singled him out from the others, or could have bothered any people in his vicinity.  The Principal Magistrate did not find the Appellant labouring under any honest but mistaken belief of the circumstances.

216.  In the circumstances of the case, the court has to consider an appropriate sentence on the basis that the Appellant intended to inflict unlawful force on PW1.

217.  There was only one strike.  It was not a strike as a gesture.  The strike occasioned actual bodily harm, though not serious.

218.  It was an unlawful act performed by a senior police officer in the course of duty.  A law abiding citizen is entitled to expect no such thing to happen on him.  If that happens, public confidence is shaken. That the act was done by a senior police officer in the presence of other officers including his subordinates further aggravated the matter.  There is a reasonable expectation from the community of what a senior police officer should do and not do.  What the Appellant did, sadly, failed to meet the expectation.  He also set a very bad example to his subordinates.

219.  As Lamer CJC said in R v M,[124] the duty of those who sentence is “to draw upon the legitimate principles of sentencing to determine a just and appropriate sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender.”

220.  The court is to have regard to the classical principles of sentencing in deciding how best to dispose of a case.  The principles are summed up by Lawton LJ in R v Sargeant:[125]

“Retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which has the greatest importance in the case with which he is dealing.”

221.  The court is under the duty to achieve the right balance in the circumstances of the particular case.

222.  The Principal Magistrate obviously was aware of all the matters mentioned by Ms Draycott SC.  I have no reason to doubt that she had not given appropriate and sufficient consideration of these matters.

223.  Ms Draycott SC criticized the Principal Magistrate for having wrongly applied case authorities.

224.  The Principal Magistrate mentioned the following cases and stated the main concern which she thought existed in the particular case:

(1) AG v Chan Chi Yin:[126] culpability of an offender from a good background may be regarded as the greater particularly if he is a person to whom others look for an example;

(2) AG v Tai Chin Wah:[127] professional people have a duty to uphold public standards as well as the standards of their profession;

(3) R v Kwok Yee, William:[128] a breach of trust by a person in authority may require a deterrent sentence;

(4) HKSAR v Leung Chun-man:[129] for a public servant who was responsible for the enforcement of law and order in Hong Kong, his involvement with these offices (corruption offences) are clearly aggravating factors;

(5) HKSAR v Hui Man-tai:[130] police officers who break the laws which they are entrusted to uphold have to be made examples in terms of deterrent sentencing so that others will not be tempted to follow along similar lines and so that public confidence will be maintained; and

(6) HKSAR v Yuen Ka-kui, Chris:[131] it is an aggravating factor for a serving police officer to commit serious offences while acting in the course of his duty.

225.  Ms Draycott SC criticized that the Principal Magistrate had wrongly applied at least a case which involved breach of trust, probably referring to the case of Kwok Yee, William.  I agree that the present case does not involve a breach of trust in the usual sense.

226.  The relevance and weight of each of the cases cited by the Principal Magistrate vary.  Sentence in each case must be determined by consideration of the special circumstances and facts in that case.  Whilst the Principal Magistrate mentioned these cases, it is not apparent that she followed the level of sentence imposed in them.  It requires no case precedent to appreciate that the community has high expectation on high ranking law enforcement officer.

227.  The Principal Magistrate demonstrated she had considered the whole of the relevant circumstances.  The question is whether the ultimate sentence she imposed is wrong in principle or manifestly excessive.

228.  I agree with the Principal Magistrate that this case should not be viewed lightly.  The court must be very cautious in deciding to impose a deterrent sentence on a person who hitherto was of impeccable character and indeed has shown to have significant contribution to the community.  On the other hand, the fact that the Appellant committed the offence in the capacity of a very senior police officer and in the course of duty, and the offence was in the form of applying unlawful force on a citizen in circumstances which did not call for any use of force on him tilt the balance of consideration.

229.  There is substantial element of public interest in the present case.

230.  In R v Howells,[132] Lord Bingham CJ observed:

“Courts should always bear in mind that criminal sentences are in almost every case intended to protect the public, whether by punishing the offender or reforming him, or deterring him and others, or all of these things. Courts cannot and should not be unmindful of the important public dimension of criminal sentencing and the importance of maintaining public confidence in the sentencing system.”

231.  In all the circumstances, I am of the view that it is not wrong in principle to impose an immediate custodial sentence.

232.  As regards adoption of four months as the starting point, taking into account that it was just one strike which did not result in serious injury, it is no doubt a heavy penalty.  However, taking into account the whole circumstances, I am of the view that it is within the reasonable range the court may consider.

233.  I am also of the view that the discount of one month is sufficient in the circumstances of the case.

234.  The Principal Magistrate had considered the option of CSO and decided that it is not appropriate.  She was of the view that “the nature of the present offence and the circumstances of the offence and the Appellant gave rise to a culpability too serious for a [CSO] to be imposed”.[133]

235.  CSO is not a soft option to imprisonment.  It stands as a sentencing option in its own right, and serves the dual purpose of punishment and rehabilitation.  In SJ v Li Cheuk Ming,[134] Chan CJHC (as Chan PJ then was) held that CSO was not to be excluded as a sentencing option under exceptional circumstances even where the offences were serious.

236.  Judging the Appellant as a person, he should properly be regarded as a suitable candidate for CSO.  In considering whether CSO should be imposed, the court again has to turn to the four sentencing principles and engage in a weighing exercise having regard to the particular circumstances of the case.

237.  The Principal Magistrate rightly observed that “a police officer has the duty to prevent the commission of crime.  When he himself commits a crime when acting as a police officer, this must be viewed seriously by the court. … PW1 was unarmed and defenceless and had exhibited no hostility towards the Appellant or his colleagues to warrant his being assaulted as he was by the Appellant.”[135]

238.  Besides, the Appellant did not show he has genuine remorse.  He did not plead guilty.  He put up an assertion of belief which was rejected by the court.  I bear in mind that genuine remorse is one of the six factors mentioned in R v Brown[136]for consideration whether community service order is appropriate but subsequent cases have established that not all the factors have to be present and consideration needs not be restricted to the six factors.  That said, in the recent Court of Appeal case of SJ v Wong Chi Fung,[137] the importance of genuine remorse was still stressed.

239.  Having considered the whole circumstances, my judgment is that the Principal Magistrate had achieved the right balance and did not err in refusing to impose a CSO.

240.  The Principal Magistrate also refused to suspend the sentence.

241.  Ms Draycott SC submitted it was wrong and in particular criticized the Principal Magistrate for having applied the wrong legal test.

242.  In relation to the criticism regarding the legal test, Ms Draycott SC quoted the Principal Magistrate for having considered “exceptional circumstances” whilst it had been held by the Court of Appeal in SJ v Wade[138] that it is not accurate to state “exceptional circumstances” as the criteria for suspending a sentence.  Lunn VP said:

“That proposition is valid in respect of certain offences only, stipulated to be such by the courts. When dealing with other offences, the courts must have regard to all the circumstances of the commission of that offence and that of the defendant in determining whether or not it is appropriate to exercise its power to suspend the operation of the sentence of imprisonment.”[139]

243.  The offence in the present case is not one of those offences stipulated by the court as requiring “exceptional circumstances” to justify suspending a sentence.

244.  However, as submitted by Mr Marash SC, although the Principal Magistrate did mention lack of “exceptional circumstances” at a later stage, the main reason she gave for not suspending the sentence was: “Having regard to the circumstances of the offence and of the Appellant, in my view, the circumstances of the assault was too serious to warrant the imposition of a suspended sentence.”[140]

245.  I agree to the observation of Mr Marash SC that the Principal Magistrate had considered the matter by applying the proper test and only after she had found the offence too serious to suspend the sentence did she go on further to consider whether exceptional circumstances existed so that suspending of the sentence was justified.

246.  The question ultimately is whether the decision not to suspend is correct.  Having considered the whole of the relevant circumstances, in my judgment it is correct.

247.  I cannot accept that it is correct to order conditional discharge in the circumstances no matter how much sympathy I have on the Appellant.

248.  An absolute discharge or conditional discharge may be ordered upon conviction.  I have such a power pursuant to sections 119(d) and 36(1) of the Magistrates Ordinance.  Section 36(1) is the primary provision which stipulates:

“Where … the magistrate thinks that the charge is proved but is of the opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment …”

249.  The offence cannot be said to be of trivial nature. There cannot be said to be no moral culpability.  It might have been a momentary lapse and out of character but the conviction means that it was an intentional use of unlawful force by a senior police officer.  I do not consider the circumstances surrounding the case and the mitigating factors available override the public interest in consideration of the proper sentence in the present case so that a conditional discharge should be ordered.  I form my view having regard to the fact that the Appellant had already spent 16 days in custody.

250.  For the reasons I have mentioned, I do not find the sentence imposed wrong in principle or manifestly excessive.  I therefore also dismiss the appeal against sentence.