HKSAR v. TAM LAP FAI

HCMA 835/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 835 OF 2003

(ON APPEAL FROM KCCC 6681/2003)

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J U D G M E N T

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1. This is an appeal against conviction. The trial was conducted in Chinese but at the request of the Appellant and with the agreement of the Respondent, the appeal was heard in English. So, I shall deliver my judgment in English.

2. The Appellant was convicted after trial of four charges: (1) failing to comply with traffic sign; (2) obstructing a police officer in the due execution of his duty; (3) assaulting a police officer in the due execution of his duty and (4) resisting a police officer in the due execution of his duty.

Prosecution case

3. On the date of the offence, at about 6:25 pm, two uniformed police officers, PW1 and PW2, were on duty inside the container truck loading/unloading area in Ferry Street when the Appellant entered in his private car. That area is restricted to the public between 6 a.m. to 12 midnight. PW1, after intercepting the Appellant, and after having told him that he had committed an offence, asked to see the Appellant's driving licence. The Appellant took out his driving license and threw it out of the window and challenged PW1 in foul language to book him. PW1 asked the Appellant to pick up the Driving Licence and after the Appellant had picked up his licence, he went up to PW1, grasped the windbreaker of PW1 with his left hand and punched the face of PW1 with his right fist. The Appellant then proceeded to put his Driving License inside the windbreaker worn by PW1, and again challenged PW1 to book him using foul language. PW2, who was standing near the rear of the car, saw that the Appellant also used both his hands to grasp the neck of PW1. PW1 tried to push the Appellant away unsuccessfully. PW2 asked the Appellant to freeze, or force would be used. The Appellant did not cooperate but continued to struggle and at that time, another police officer who was passing by joined in to assist PW1 and PW2. The three police officers finally managed to subdue the Appellant and handcuffed him and the Appellant was arrested.

Defence case

4. The Appellant elected to give evidence and confirmed that at the material time he did drive into the restricted area because he did not know that it was a restricted area and he had not seen the relevant traffic signs. The Appellant admitted he was disgruntled when PW1 pointed out to him that the area was a restricted area and when he took out his driving license at the request of PW1, his hand accidentally knocked against the window and the driving license dropped onto the ground about 2 feet from the car. When told by PW1 to pick up the driving licence, the Appellant said he did so, but when he was about to hand it to PW1, PW1 suddenly punched him on his face. He said he felt pain and his glasses fell off. At that time, he heard PW1 shout "police being attacked. Grab him.". PW2 then grabbed his neck and caught hold of his hand and PW1 also pushed at his chest with his hands. PW2 pulled him backward, causing the Appellant to fall with his back on the ground. The Appellant was pressed by the police officer onto the ground, and in the confusion, he was struggling. During that time, he was also kicked. He was handcuffed and did not know when PW3 had arrived. When a police vehicle arrived, he was taken onboard and another police officer went to his car to fetch his identity card, driving license and mobile phone for him as he had told the police officer that he had left them in his car. The Appellant was taken to hospital for medical examination and he said he had pointed out the area of his body where he felt pain to the doctor, the Appellant also said that the stains on the back of his sports jacket were caused when he was being pressed onto the ground.

5. The Appellant called as one of his three witnesses, his father who is a retired police superintendent. The Appellant's father gave evidence that he had kept the sports jacket worn by the Appellant and had taken photographs of the Appellant's injuries and of the scene. He together with the Defendant's witnesses all described the Appellant as a person of good character.

Magistrate's findings

6. The learned Magistrate after analysing the evidence and considering the submission of counsel found that all three prosecution witnesses were honest and direct when they gave evidence and did not exaggerate and that although there were discrepancies in their evidence, he did not consider them to be material and thus he found that all three prosecution witnesses were credible. After analysing the Appellant's evidence, the learned Magistrate found that he could not believe the Appellant's testimony. At the end of the day he convicted the Appellant of all four charges.

Grounds of appeal

7. At the hearing of this appeal, counsel for the Appellant abandoned the appeal against conviction on the 1st charge but says his client maintained his appeal against conviction in relation to the 2nd, 3rd and 4th charges.

8. Counsel for the Appellant complains that the learned Magistrate had erred in failing to take into account the improbability of the Appellant assaulting the police officers and given the extraordinary number of inconsistencies in the evidence of the police witnesses, the learned Magistrate was wrong to have accepted them as truthful witnesses. Counsel also criticised the learned Magistrate's rejection of the Appellant's evidence as being illogical because the learned Magistrate had taken into account the Appellant's failure to tell the police officer of his complaint, the Appellant's failure to tell the doctor of his complaint against the police and the failure of the doctor to find bruises on the Appellant. Counsel also submitted that the learned Magistrate should have given more weight to the Appellant's evidence because it was supported by the photographs, the medical reports and the stained jacket of the Appellant. Finally, counsel submits that the actions of the Appellant in throwing the driving license onto the ground and then immediately picking it up and putting it in the pocket of the policeman did not amount to obstruction under section 36(b) of the Offences against the Persons Ordinance, Cap. 212.

Conclusion

9. There were, no doubt, inconsistencies in the evidence of the prosecution witnesses. The learned Magistrate had very carefully identified them in his Statement of Findings and I will not rehearse them here. Suffice it to say that Mr Grossman's submission as to the extent of the Appellant's injuries and whether PW1 did move backwards were all dealt with by the learned Magistrate and the learned Magistrate ultimately found that these discrepancies were not material.

10. Mr Grossman further complains that PW3 said he never saw the Appellant punch PW1 and the learned Magistrate had failed to properly resolve this conflict in the evidence between PW3 and PW1. A close reading of the learned Magistrate's Statement of Findings at paragraph 18(b) show that the learned Magistrate was well aware of this discrepancy but he had properly made the observation that PW3 was observing the incident from some distance away and because the actions of the Appellant happened within a very short period of time, the learned Magistrate came to the conclusion that PW3 either did not manage to observe the whole incident or that he was mistaken and therefore, the learned Magistrate found that this discrepancy was not material and did not affect his ultimate conclusion as to the veracity of PW1 and PW2's evidence.

11. After reading the learned Magistrate's findings, I am satisfied that the learned Magistrate had properly considered this conflict in the evidence and had correctly pointed out that PW3 was some distance away from this incident and I would also note the fact that PW3's evidence that he was actually on the road and waiting for the traffic light to change when he noticed this incident. So, obviously, he was not expecting anything to happen between the Appellant and PW1 and his powers of observation would obviously be less accurate than that of PW1 and PW2, but PW3 did notice that the Appellant had used his hands to "fork" the neck of PW1. This part of his evidence therefore corroborated PW1 and PW2's evidence.

12. As for Mr Grossman's complaint that the learned Magistrate ignored the fact that some of the phraseology in PW1's statement was identical to the phraseology used in PW2's statement and therefore had he properly considered this, a doubt would have been raised as to the credibility of either witnesses.

13. It is clear from the learned Magistrate's Statement of Findings at paragraph 18(g) that the learned Magistrate was fully aware of this matter. The learned Magistrate concluded that the identical words were words actually said by the Appellant or PW1 at the time of the incident and therefore, it was not unusual for the both police officers to have recorded identical wording in their statements. The learned Magistrate was therefore satisfied that neither of the police officers had discussed or fabricated the evidence. I therefore see no merit in this ground of appeal.

14. Counsel for the Appellant also criticised the learned Magistrate, that he may have used the failure by the Appellant to complain to the police and to the doctor against the Appellant. Of course, a failure to complain, certainly, is not corroborative of guilt nor is it an indication of guilt, the learned Magistrate did not say that this was so, the learned Magistrate was merely referring to the fact of the lack of complaint when considering whether the overall evidence of the Defendant made sense.

15. Mr Grossman in his written submissions also complained that the learned Magistrate had erred in law by seemingly taking judicial notice of the fact that bruises appeared immediately and therefore he considered that the Appellant had deliberately injured himself after the medical examination. Mr Grossman pointed out that this was not permissible in law and it was never put to the Appellant.

16. The learned Magistrate at paragraph 24E of his Statement of Findings dealt with the lack of bruises in this way.

"the doctor had conducted such a detailed examination and yet he did not report that he found any bruises. I am of the view that the bruise marks were not there at the time of the examination. I do not believe that one hour after the kick, there was still no injury marks which could be spotted by the doctor during a detailed examination. I do not believe the Appellant's allegation that he was kicked when he was struggling."

17. What the learned Magistrate was saying was that he was surprised that, one hour after the kick, there was still no injury marks that could be spotted by the doctor. He was not saying that bruise marks ought to appear immediately. The learned Magistrate was confining these remarks to the Appellant's allegation that he was kicked.

18. There is some substance, however, in Mr Grossman's complaint that the learned Magistrate was incorrect when he made the statement in the same paragraph that "it is impossible that the Appellant was not aware that the doctor was a powerful and independent witness to prove his innocence". Had the Appellant told the doctor about the alleged beating, his complaint to the doctor in law cannot be used as corroboration that there was in fact a beating of him. It is merely evidence of consistency so the doctor's evidence of the Appellant's complaint if there was one would not have been able to "prove" the innocence of the Appellant.

19. Finally, as for Mr Grossman's submission that on the second charge, it was wrong for the learned Magistrate to have convicted the Appellant for obstruction because the words "wilfully obstructs" must be read ejusdem generis with the words "assaults" and "resists" and therefore that it clearly implied an overt aggressive act designed specifically to prevent or hinder a policeman from carrying out his duty.

20. Mr Grossman submitted that the act of the Appellant in throwing the driving license on the ground and subsequently picking it up and putting it in PW1's pocket cannot be said to amount to wilful obstruction and that a reading of the cases which he has submitted to this court would show that obstruction is a deliberate defiance of the police in an attempt to frustrate their lawful activities.

21. In the case of Chung Chi Cheung v. The Queen [1987] HKLR 1221, it is clear that a person is guilty of obstructing a police officer in the execution of his duty if

"he deliberately did an act which though not necessarily "aimed at" or "hostile to" the police, in fact, prevented a constable from carrying out his duty or made it more difficult for him to do so, and if he knew and intended (whether or not that was his predominant intention) that was his conduct would have that effect [Lewis v. Cox (1985) QB 509 applied]."

I respectfully agree with that and it is clear that the Appellant's action in deliberately throwing the driving license on the ground was an act which was deliberately done to make it more difficult for the police officer to carry out his duty.

22. I adopt the words of Keith J in the case of HKSAR v. Hui Kee Fung HCMA No. 196/1994 where he said:

"appeals from decisions of Magistrate on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The judge does not even see the witnesses. It will be rare indeed for a judge to say that the findings of fact made by the Magistrate were so contrary to the weight of the evidence that doubt as to the correctness of the Magistrate's findings exist. There may occasionally be cases in which a defendant believes that he has been the victim of a miscarriage of justice, because the magistrate has chosen to believe the witnesses who gave evidence against him and disbelieved him. But if there are no sustainable grounds of appeal, a belief in one's innocence is not sufficient to justify the invocation of an appellate process which treats the findings of fact made by a court of first instance as so sacrosanct as our system of criminal justice does."

23. The learned Magistrate was entirely within his power after a proper analysis of the evidence to believe the evidence of the three prosecution witnesses. The learned Magistrate had also properly and in great detail dealt with the discrepancies in their evidence and the consistencies in the witnesses statements of PW1 and PW2 which I do not wish to repeat here. As for the injuries found on the Appellant, the learned Magistrate had also correctly found that they were not only consistent with the defence allegation but also consistent with the event as described by the prosecution witnesses. The learned Magistrate had also properly dealt with the questions in the evidence raised by defence counsel. The only matter which caused me some concern was the learned Magistrate's finding that the Appellant ought to have complained to the doctor who would be able to "prove his innocence". It would appear therefore that the learned Magistrate in committing this error, had in mind that had the Appellant complained to the doctor that would not only give credence to the evidence of the Defendant but also corroborate his evidence in such a material particular that he would be believed.

24. The question then arises whether the learned Magistrate had allowed this error to cloud his judgment when he was assessing the evidence of the Appellant when he found the Appellant's evidence to be incredible.

25. After reading the Statement of Findings, I cannot say to what extent this error may have clouded the learned Magistrate's judgment but it obviously had an effect. Next question is had the learned Magistrate not been in error on this point, would he still have found the Defendant's evidence incredible and to that question I must say that I am not sure. This error would therefore have a deleterious effect on the learned Magistrate's ultimate conclusion as to the guilt of the Defendant on charges 3 and 4.

26. At the end of the day, I am therefore left with a lurking doubt and the doubt has to be resolved in favour of the Appellant.

27. I therefore find that the convictions in relation to charges 3 and 4 are unsafe and unsatisfactory and therefore the Appellant is acquitted of charges 3 and 4. As for charge 2, the learned Magistrate had properly convicted the Appellant of that charge and so the appeal against conviction in relation to charge 2 is dismissed. I was informed by Mr Grossman at the beginning of the appeal that the Appellant did not wish to pursue the appeal against conviction in relation to charge 1 and therefore that appeal is dismissed.

28. It follows from that that the Community Service Order that were ordered against the Appellant on charges 3 and 4 would also be set aside.