HKSAR v. PANG MO FUNG

HCMA458/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 458 OF 1998

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J U D G M E N T

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1. The Appellant was convicted after trial of assaulting a police officer, contrary to s.63 of the Police Force Ordinance, Cap 232, and he was sentenced to one month imprisonment suspended for 12 months and to pay a fine of $2,000.

2. As appears from the record of what the Magistrate said at the time of convicting the Appellant, and further in his Statement of Findings, the learned Magistrate took into account in deciding the credibility of the Appellant a medical report, written by Dr Tang Kwok Keung of the Psychiatric Unit at the Pamela Youde Nethersole Eastern Hospital.

3. No criticism is made by the Appellant of the learned Magistrate's decision but later after the conviction, the Appellant who was dissatisfied with it and did not accept that the medical report contained the full picture, applied to Dr Tang for a further medical report. That further medical report is somewhat different from the first one in that it shows not simply, as did the first one, that the Appellant complained of having headache and right shoulder pain after admission, but that he was found by the doctor to have multiple bruises over the shoulders, chest, both arms and forearms, and a 0.5cm laceration over the left angle of the mouth. Clearly, if this medical report had been before the learned Magistrate at the time when he had to decide this case, it may be that he would have taken a different view of the credibility of the Appellant from that which he did.

4. I satisfied myself that there was a reasonable explanation for the failure to produce the second medical report in the proceeding in the court below as required by s.83V(2)(b) of the Criminal Procedure Ordinance, Cap 221, and following on that, I allowed the evidence of Dr Tang to be heard before me. Dr Tang confirms that the medical findings which he shows in the second report as to the injury suffered by the Appellant were found by him, and he says that he has with him the notes of his examination at the time. There can therefore be no question that the second report and the findings contained therein are accurate.

5. In the circumstances it is impossible for me to say that if the second report had been before the Magistrate when he tried the case, he would have reached the conclusion which he did. Accordingly, the conviction is quashed, the sentence is set aside and the fine is to be repaid to the Appellant forthwith.

6. Application has been made for a retrial of this matter. I note that the offence charged is a minor one, being brought under s.63 of the Police Force Ordinance, Cap 232. The Appellant underwent, I suppose, what may be regarded as a very considerable ordeal in this matter. He was put to the trouble of a full trial. I cannot see that for what is, at the end of the day, a relatively minor offence, the public interest would be served by bringing a further trial and expending public funds on it. Accordingly, the application for retrial is refused.