HKSAR v. NG KO MAN

HCMA1062/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1062 OF 2000

(On appeal from Tsuen Wan Magistracy Case No. TWCC3378/1999)

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J U D G M E N T

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1. The appellant, Ng Ko-man, appeals against his conviction on 21 August 2000 by Mr Alan Wyeth, Permanent Magistrate sitting at Tsuen Wan Magistracy, for an offence of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance.

2. The magistrate sentenced the appellant to 21 days' imprisonment for this offence. The appellant does not appeal that sentence.

3. At trial, the appellant was represented by counsel. And at trial the appellant testified on his own behalf and called three witnesses in his defence.

4. In brief, the prosecution's case against the appellant was that an off duty senior police inspector came across the appellant urinating into bushes near to Discovery Bay Plaza in Discovery Bay. This was on 24 September 1999. Upon the senior inspector going up to the appellant, putting his hand on the appellant's shoulder, identifying himself and pointing out the nearby public toilets, the appellant responded with an obscenity and pushed the senior police inspector. He followed up that push with a punch to the officer's jaw as he moved to meet the appellant's request that he produce his police warrant card. The appellant was then subdued by the senior police inspector.

5. The appellant's case at trial was that he had been accosted by the police officer while he was urinating into the bushes. He had been forcibly manhandled, assaulted and injured by the police officer. He said that he had not struck the police officer as the prosecution claimed.

6. At trial, the appellant pleaded guilty to a conjoined charge of obeying the call of nature in a public place contrary to section 4(3) of the Summary Offences Ordinance, for which he was fined $300. There is no appeal against his conviction on that charge or the sentence he received.

7. Before me the appellant relies on the general grounds of appeal set out in his notice of appeal - Form 101 of the Magistrates (Forms) Rules.

8. In his submissions before me this morning he refers to discrepancies in the prosecution evidence - discrepancies that were resolved at trial by the magistrate in his statement of findings - and he repeats elements of his defence given at trial. He claims, wrongly, that the magistrate disbelieved him because of his demeanour at trial. While it is true that, in his statement of findings, the magistrate referred to the appellant's demeanour, he made it abundantly clear that he did not in any way rely upon it in coming to his decision to disbelieve the appellant's case.

9. Like so many cases that come to the High Court on appeal, this was a case that revolved around the credibility of witnesses both for the prosecution and the defence. The best person to resolve those issues is the trial magistrate. From his statement of findings, it is quite clear that the learned magistrate fully understood the evidence given before him and that he applied it correctly.

10. He was aware - and he demonstrated so in his statement of findings - that even though he disbelieved the appellant, the burden still lay on the prosecution to prove the appellant's guilt on the charge he faced.

11. The learned magistrate had the advantage, which I do not have, of having heard and seen the witnesses - including the defendant - give evidence at trial.

12. There is nothing in his statement of findings that indicates that the learned magistrate's approach to the evidence or the case was in any way wrong. It is not for me to substitute any view that I may have on reading the appeal bundle for his view on the veracity and reliability of witnesses.

13. I am satisfied that the learned magistrate's conviction of the appellant on the charge is unassailable on appeal and therefore the appellant's appeal against conviction is dismissed.