HKSAR v. CHIANG WEE TIONG

HCMA 503/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 503 OF 2013

(ON APPEAL FROM ESCC 3168 OF 2012)

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J U D G M E N T

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1. The Appellant was convicted after a ten day trial at the Eastern Magistrates Court by Ms Kathie Cheung of the offence of “Assaulting a Police Officer” contrary to section 63 of the Police Force Ordinance, Cap 232. He was sentenced to 2 weeks imprisonment.

2. The Appellant appeals against both conviction and sentence.

The Prosecution case

3. At around 0120 hours on 9 March 2012, the Appellant approached police officers in the Lan Kwai Fong area and reported a matter involving illegal workers which caused him concern.  As the Appellant was dissatisfied with the way the officers proposed to deal with the matter, he requested the attendance of more senior police officers at the scene and continued to make a number of 999 calls.  Eventually, by around 0200 hours, a total of about 10 police officers attended the scene.  In the course of dealing with the matter, at about 0215 hours a Station Sergeant (PW2) tried to stop the Appellant from making a further 999 call by holding his left hand.  At this juncture, the Appellant grabbed PW2’s neck with his right hand.  This grabbing by PW2 was referred to at the trial as “forking.”  When the Appellant was being pulled away by other officers, the Appellant kicked at PW2’s leg but missed.  The incident was witnessed by a taxi driver (PW1) who was waiting for passengers nearby.  The incident was also captured by CCTV of a nearby shop however the forking and the kicking could not be seen on the footage. 

Defence case

4. The Appellant met his business associates and friends in a nearby bar. Prior to leaving the bar, he witnessed some sort of argument.  Worried that the argument would turn into a fight, he reported the matter to police officers in the area.  The police officers misunderstood his request and refused to go to take a look.  He was dissatisfied with the way the officers handled the matter and requested the attendance of more senior officers.  The officers also suggested to him, that he make his request via 999.  At a certain stage, he had wanted to leave but was asked to stay because he had made 999 calls.  During the course of the incident, he was threatened by a police officer (PW6).  PW2 and other officers were rude, unpleasant and violent to him.  Moreover PW2 swore at and made some obscene remarks about his mother who had died only a year ago. The Appellant denies ever forking or kicking at PW2 however if there was any touching of PW2’s neck, it was accidental or in response to the violence towards him.  He was under attack by the officers and he was in the course of defending himself. 

5. Mr James McGowan, counsel, on behalf of the Appellant who also appeared in the court below, advanced three grounds of appeal. 

Grounds of Appeal

Ground 1:

6. The learned magistrate erred in finding the Prosecution Witnesses “honest and reliable”.

7. It was submitted that the learned magistrate should have found PW1 to be an unreliable witness as PW1 was not able to see the act of kicking as his did not have an unobstructed view.  Mr McGowan argued as he did in the court below, that PW1’s view was obstructed by a barrier between himself and the police officers, he was distracted by passengers and his taxi was not at the front until later.  All this it was submitted could be seen from the CCTV footage. 

8. PW1 was a taxi driver, whose evidence was that he saw the Appellant kicking a police officer (PW2). At that time he was in his taxi, a short distance away. 

9. The magistrate had carefully considered the evidence and the position of the taxi driver PW1 when PW1 made his observation.  She had watched the CCTV recording. 

10. The CCTV recording was also played at the present hearing.  It could be seen that PW1’s taxi was at a position on the road which was at a location above the Appellant and the officers as it was on a slope.  PW1 was therefore making an observation from higher point looking down towards the Appellant and the officers. 

11. It was the magistrates finding that from PW1’s position he was able to see the kicking by the Appellant but that from his position he may have actually believed he saw that the kick touch the area of the knee of the officer although it had not.  The magistrate was entitled to accept the observation of PW1. 

12. PW2 was the Station Sergeant and victim of the charge.  The defence complained that PW1 was dishonest and unworthy of belief because PW2 had noted in his notebook, witness statement, his examination in chief and to the doctor who examined him that the Appellant had kicked him on his right thigh three times. However only in cross examination did he admit that the kicks had not landed on him but the kicks by the Appellant had missed him.  In view of this material discrepancy the defence argued that the magistrate erred in finding PW2 to be a credible witness. 

13. At the trial lengthy and substantial cross examination on PW2’s credibility was made.  The magistrate was very much alive to the issue of PW2’s credibility.  Various references were made to it in the Statement of Findings but more particularly in §21 and §22 in relation to the kicks.  The magistrate was sure that PW2 was not fabricating his evidence about the kicks although PW2 had described them as kicks when he should have described them as ‘missed’ kicks.  The magistrate had correctly found on the facts, the lack of mention of the missed kicking had little effect on PW2’s credibility.  She was justified in finding that PW2 was not dishonest and untruthful, as PW1’s evidence supported PW2’s evidence. 

14. The defence remarked that despite the presence of about 10 officers only PW2 and PW3 saw the “forking.”  The learned magistrate had properly found it natural, that although there were 10 other officers at the scene, each was in a different position and focused on different aspects of the incident at the time, therefore only PW2 and PW3 had seen the forking. 

15. The defence complained that it was incredible that despite PW3 standing close to the Appellant he did not see a mobile phone in the Appellant’s hand immediately before the forking.  The point being that if there was a mobile phone in the Appellant’s hand PW3 would have seen it.  PW3’s evidence was that he did not remember if there was anything in the Appellant’s hand.  PW3’s evidence was that he was not paying attention to the Appellant’s hands, PW3’s attention was on the Appellant’s state and emotion.  In those circumstances it was not unreasonable for him not to have seen the mobile phone.  The situation at the scene was chaotic as can be seen from the CCTV.  At this appeal hearing, Mr McGowan highlighted that the clarity of the picture shown on the CCTV footage was superior to that at the trial.  He conceded that it could be seen from the picture seen at this hearing that immediately before the forking the Appellant had something in his hand.  This footage was not seen at the trial. 

16. The Magistrate had analysed the evidence in detail in resolving the issue of whether the Appellant was holding a phone in his hand as alleged by PW2 or holding nothing as claimed by the Appellant §12-17 of the Statement of Findings.  Indeed, her reasoning in finding that the Appellant was at the time trying to use his phone before PW2 had stopped him was logical and thorough. 

17. The grounds were fully and ably argued on the Appellant's behalf. At the end of the day, however, the Magistrate was entitled to accept the evidence of the police officers and the taxi driver. 

18. Having reviewed the points myself, without the added advantage of having seen and heard the witnesses give their evidence, I can find no error in the Magistrate’s approach in finding the prosecution witnesses honest and reliable.

Ground 2:

19. The learned magistrate failed to fully consider and analyse the CCTV images and the manner and behavior of the PWs and other police officers depicted therein.

20. The CCTV footage has no sound recording, and it is up to the court on viewing the CCTV and on hearing the evidence from witnesses to come to its conclusion as to the events of the night. 

21. The forking or the kicking could not be seen on the CCTV recording.  Mr McGowan’s complaint was that the actions by PW2 did not support his allegation that he was forked in the neck.  He submitted that the recording does not show at any time of the post forking, PW2 exhibiting any sign of discomfort or distress as one would expect after being forked, such as rubbing his neck.  Mr McGowan however accepted that the recording does show PW2 pointing at his neck. 

22. PW2 had expressly stated that he had pointed out to Station Sgt Chan that he had been forked at his neck and it was painful there at 02:26:06 as recorded in the CCTV (and see the transcript page 97F-G).  The magistrate was correct in finding that the CCTV showed PW2 had pointed out his injury.  She also found accurately that the medical report supported PW2’s evidence of injury in that there were finger marks found on the neck which was consistent with forking. 

23. The CCTV recording was shown repeatedly during the trial, the magistrate was well aware as to what was on the footage.  She had fully considered the CCTV footage in her statement of findings.  There is no substance in this ground of appeal. 

Ground 3:

24. The learned magistrate failed to understand the principles in Kenlin v Gardiner [1967] QB 510, Ludlow v Burgess 75 Cr App R 227 and Collins and Wilcock 1984 79 Cr App R 229 and/or apply these to the evidence before her. 

25. Principally the defence ground is that the magistrate failed to apply the principles in these cases relied on by the Appellant and/or to correctly apply them to the evidence.

26. In brief the principle in Ludlow and Collins is if there is no arrest or even a plan to arrest a person (the Appellant) that person cannot be touched or detained. 

27. It was not in dispute that prior to the forking there was no evidence against the Appellant to justify an arrest.  Various references were made to the CCTV by the defence to identify the Appellant being ‘man-handled’ and under restraint or detention more particularly from about 15 minutes before the forking incident.  In those circumstances the defence submitted there was nothing to justify the man-handling or the restraint by the police on the Appellant. 

28. It was submitted that such force used against the Appellant was unjustified and unlawful.  Therefore as the police were acting unlawfully they were no longer in the execution of their duty.

29. Moreover the defence argued that even if the Appellant did assault PW2, PW2 by his actions and those of his subordinates was clearly no longer in the execution of their duty.

30. The Magistrate had carefully considered, as supported by the CCTV footage that the Appellant was free to walk around at all times.  Being free to come and go, there was no restraint of the Appellant prior to PW2 touching his hand. 

31. As to the actual touching of the Appellant by PW2, the defence submits that this is battery.  The Magistrate found at §29 that the CCTV footage showed clearly the defendant’s body language.  She found he was pointing at various officers at the scene, sometimes he walked closely up to some police officers. The Appellant was emotional and sometimes behaved aggressively.  She found him to be causing a disturbance.  On those findings the police had been reasonable with the Appellant, where they had touched him or if there was force on the touch, it was no more than necessary to steady or calm the Appellant. 

32. PW2 had previously warned the Appellant not to make any further 999 calls.  It was PW2’s evidence that he had warned the Appellant not to make anymore 999 calls because he had already made numerous calls and it was only when the Appellant ignored his warning that PW2 held the Appellant’s right hand to stop him.  It was then that the Appellant had forked PW2 and starting kicking. 

33. The Magistrate had considered the Appellant’s claim that just prior to PW2 touching him, he was looking at the police officers’ feet, which she had rejected as incredible.  She found as a fact that the Appellant had tried to make a call and PW2’s act of stopping him was in furtherance of his duty to prevent the commission of an offence ie wasting police resources.  In the circumstances, she correctly found that PW2 was acting in the course of his duty in preventing the commission of an offence. 

34. The Magistrate considered the case based on the facts and the law (the authorities submitted) and correctly found that PW2 was at the time acting in due execution of his duty. 

35. The learned magistrate gave a full and careful assessment to the evidence and submissions which had been given on both sides.  The Magistrate was fully entitled to have convicted on the evidence and, having reviewed the evidence with care, I am satisfied and sure that the case was properly established against the Appellant.

36. The conviction was neither unsafe nor unsatisfactory.  For these reasons I dismiss the appeal.

Sentence

37. The Appellant was sentenced to 2 weeks imprisonment.  The defence submissions were that in all the circumstances and particularly the Appellant’s previous and positive good character, an immediate custodial sentence was unnecessary and unjustified. 

38. The Magistrate gave detailed Reasons for Sentence.  She was cognizant that the Appellant was in his 50’s of clear record and was of positive good character.  She properly stated that an assault on a police officer is a very serious matter.  It is clear a custodial sentence should be imposed. 

39. I see no ground to justify the appeal against sentence.  The sentence is not either manifestly excessive or wrong in principle.  I affirm the sentence. The appeal is dismissed.