THE QUEEN v. YEUNG SHEUNG KWAI AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1142 of 1990

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BETWEEN

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JUDGMENT

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1. The appellants were convicted of common assault by Miss Loh at South Kowloon Magistrates Court.

2. The trial lasted six days and the evidence is contained in 124 pages of typescript. The incident itself was trivial and involved two groups of persons, most of whom almost certainly had had too much to drink. Had one of the groups not been off-duty police constables, the case would probably never have come to court.

3. The prosecution witnesses gave contradictory accounts of what occurred, which is not surprising considering the four officers mainly concerned had consumed between them 36 bottles of beer.

4. One of the few undisputed facts is that PC47328 was examined by a doctor an hour after the incident and found to have a small haematoma on the left side of his face, an abrasion on his right hand and tenderness on his chest.

5. He said that, after leaving the Apollo Night Club in Haiphong Road at 4 a.m., 1st appellant asked him "Where do you belong to? I am of Lo Sun. Sun Yee on." When he produced his warrent card, 1st appellant accused him of impersonating a police officer and punched him on the cheek. The other two appellants then came out of the night club and punched him on the chest. The front of his shirt was torn when one of them grabbed him round the neck. A police car then arrived and the appellants were subdued. The only reason he could give for the assault was that he and his friends had been asked in the night club not to make too much noise.

6. The magistrate was not impressed by this officer's evidence and said she did not give it much, if any, weight. She was nevertheless satisfied that he suffered the injuries as a result of the assault.

7. PC46962 gave evidence to the same effect. But he said that the whole incident took place outside the night club and could not explain why PC47328 was at a wire fence 40 metres away when the police car arrived.

8. PC47400 said that the first blow was a punch on his chest by 1st appellant and that all three appellants then chased PC47328 some distance in order to hit him. In cross-examination he admitted that in his witness statement he had said the first blow was on the left cheek but he said he had not seen this. He then said he had seen it.

9. The last of the group to testify, PC45524, gave similar evidence to that of the first two police constables, except that he said he did not hear 1st appellant's accusation that PC47328 was impersonating a police officer, although he had put this in his witness statement. In re-examination, in reply to a leading question, he said he did hear this accusation; he had not heard the earlier question clearly.

10. It is significant that these four officers admit putting their heads together later when they composed their witness statements. The descriptions of the defendants in these witness statements tally very closely, but this is not surprising, as they had seen these men in the night club and later in the police station.

11. PC48182 said he received a radio message that people were fighting outside the Apollo Night Club. He arrived four minutes later at 4.20 a.m. to find a chaotic situation. PC47328 was leaning on a wire fence and was being scolded by 1st appellant for impersonating a police officer. Foul language was being used on both sides. He separated them but shortly afterwards PC47328 was punched by 2nd and 3rd appellants. Although he was only four feet away from the victim, he could not see where the blows landed. He and his colleague PC47211 separated them and divided the 9 - 10 persons present into two groups. Reinforcements then arrived. PC47211 did not give evidence.

12. The appellants were arrested at the scene, according to this witness, but were allowed to travel to the police station in 1st appellant's car under escort by two other police constables. He admitted however that he made no record of arresting anyone at the scene, but did record arresting 2nd appellant in the police station.

13. 1st appellant did not give evidence.

14. 2nd appellant is Entertainment Manager of the night club. He finished work at 4.05 a.m. and went to the nearby 7-eleven store to buy cigarettes. There he met a night club captain, who was calling the police. He returned to the night club and found 1st and 3rd appellants arguing with the prosecution witnesses. Others were also present. 1st appellant was accusing PC47328 of impersonating a police officer because he did not produce his warrant card.

15. The prosecution witnesses walked away but 1st appellant told them to wait for the police. When the police patrol arrived, PC47328 tore his shirt and smiled at 1st appellant. 2nd appellant was asked by 1st appellant to be his witness in his complaint against PC47328, but was told by the police they would have to go to the police station if he wanted to make a report.

16. 2nd appellant went back to 7-eleven and bought some cigarettes. He returned to the night club and went to the police station in 1st appellant's car. He was not arrested until he reached the police station. He did not see any assault in Haiphong Road, but it was a chaotic scene and the police witnesses were unsteady on their fact.

17. 3rd appellant is 1st appellant's younger brother. When they left the night club, his brother went to get his car, on which some people were leaning. 1st appellant asked them to move and an argument started. One of the other group said he was a police officer but did not produce his warrant card when asked for it. He was arrogant and drunk. 1st appellant asked that the police be called. The other group and their girls began to move away and there was some physical contact between the groups as the appellants tried to prevent them leaving before the police arrived, but no hitting took place.

18. They had all reached the wire fence when two uniformed police officers arrived and separated them. 3rd appellant complained about the police impersonation and went to the police station, not because he had been arrested, but to pursue that complaint.

19. Evidence was also given by the captain in the night club, who produced the prosecution witnesses' bill - for $1,837 - and said he called the police from the 7-eleven shop because of the noisy argument outside the night club. The whole group then moved away towards the market and he went home. He saw 2nd appellant in 7-eleven when making the telephone call. It was 1st appellant who asked him to call the police. 1st Appellant was involved in the argument and was drunk.

20. It was submitted both on appeal and below that the appellants had not been properly identified. In my judgment, however, the magistrate was right to permit dock identification, on the basis that there was no dispute that the appellants were the persons involved in the incident and had gone to the police station. The issue was whether they had gone there of their own volition or had been arrested.

21. The magistrate, however, made no attempt to resolve the serious discrepancies in the evidence of the eye-witnesses. She placed weight apparently only on that of PC46962 and the uniformed PC48182. She described the latter as sober and independent. He was certainly sober but, as a fellow police constable, he was independent only up to a point. It is rather surprising, first, that he was unable to say whether the blows he saw were to the head or body, and second, that two of the appellants, at least one of whom was sober, should have punched PC47328 in the presence of uniformed police officers.

22. No assessment was made of the evidence of PC47400 and PC45524.

23. The magistrate did not accept the evidence of 2nd and 3rd appellants. Her only comment on 2nd appellant's evidence was that she was not satisfied he was telling the whole truth. The only part of 3rd appellant's evidence she specifically mentioned is a contradiction as to whether he actually touched the victim's hand while he was following. him to the wire. But she said she found it hard to believe a large part of his evidence. This is an inadequate examination of defence evidence that covers 35 pages of transcript.

24. In my judgment there is a real possibility that events did not take place as described by the prosecution witnesses. There is considerable doubt and confusion as to whether any arrests took place at the scene. There is no explanation why an employee of the night club should telephone the police if it was the appellants who provoked the incident. The injuries suffered by PC47328 could easily have been caused by scuffling between the groups. Indeed had he been punched as described, it is surprising he was not severely bruised.

25. The prosecution evidence has too many weaknesses, in the light of the defence evidence, for the verdict to be anything but unsafe and unsatisfactory.

26. The appeal is allowed and the convictions quashed.