HKSAR v. JAGJIT SINGH

HCMA642/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.642 OF 2005

(On Appeal From KCCC 11682 OF 2004)

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REASONS  FOR  JUDGMENT

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1. The appellant was D1 in this case.  He was convicted after trial of Charge 1, ‘Common Assault’ and Charge 3, ‘Resisting a Police Officer’ in the charge sheet.  He appeals against these convictions.

The prosecution’s case

2. Insofar as it is relevant, the prosecution’s case as summarized in the magistrate’s statement of findings was as follows :

“5.  On the night in question, PW1 was on duty as cashier at the 7-11 Convenience Store particularized in the Charges (the Store).  The 2 Defendants were in the store as customers.

6.  D2 selected 2 cans of beer (Exhibit P1 and P2) and went to an unmanned cashier counter in the Store.  PW1 was manning a cashier counter nearby and asked D2 to go over to him.  D2 did so and placed Exhibit P1 and P2 on the counter in front of PW1.  D2 went on to accuse PW1 of ‘playing things/tricks’.  PW1 tried to explain that the counter D2 first approached was not manned, that he merely asked D2 to come over to pay and that he was not playing tricks.  D1 appeared and joined D2.  The 2 of them scolded PW1 in foul language.

7.  PW1 decided not to sell beer to the 2 and asked them to leave.  D1 became agitated and threw Exhibit P1 at PW1 hitting him on the right thigh.

…..

10. The Defendants continued swearing at PW1.

11. D1 threw Exhibit P3 at PW1 hitting him on the chest.

12. A staff member of the Store made a report to the police.  Police officers, PW3 to 5, arrived to investigate.  PW3 and PW5 (Sergeant) were in uniform whereas PW4 was in plain clothes.  PW1 accused the 2 Defendants of assault ….

13. PW3 asked the Defendants what happened.  The 2 became agitated.  PW3 told them to calm down.  D1 was taken just outside the Store, to the left hand-side as one exited.  D2 followed to go out.

14. D1 tried to push PW3 away but PW3 succeeded in dodging D1’s action.  The 2 Defendants tried to go away.  PW3 used his arm to stop them and told them to calm down and to co-operate, otherwise they would be charged with obstructing police officers.  D1 responded by saying ‘you people do not let me go, do you believe I hit you, the police?’

15. D1 tried to push away PW3.  PW3 and PW4 drew their batons.  PW3 told D1 to stop and co-operate or the police would use their batons.  The situation calmed down.  PW3 and 4 replaced their batons.

16. PW5 then approached and instructed PW3 to arrest D1 for assault …. PW3 said to D1 in English ‘I arrest you’.  PW3 then spoke to D1 in Cantonese that he was arresting D1 for assault …. D1 used both hands to push PW3 on the chest causing PW3 to step back 1 pace.  D1 turned and walked a few steps away and said, ‘if you arrest me, be careful.’

17. PW3 caught D1’s left shoulder.  D1 shook his shoulder trying to ward off PW3.  PW5 went over to assist PW3.  D1 continued to struggle.  The police officers finally succeeded in pinning D1 to the ground.  PW3 said, ‘don’t move’ (in both English and Cantonese).  PW3 then handcuffed D1 behind.  PW3 arrested D1 for resisting arrest.  PW3 found there was redness to D1’s right knee and left wrist but D1 told PW3 there was no need to see a doctor.”

The defence case

3. Turning to the defence case, the magistrate wrote :

“20. The 2 Defendants went to the Store.  D2 entered to buy beer whilst D1 waited outside.  After a while, D2 called D1 and said that personnel at the Store refused to accept his payment.  D1 entered the Store and queried PW1 on the matter.

21. PW1 addressed D1 as ‘Char Chai’ (which, as I understood it, is generally regarded as a racist term for a male from the Indo-Pakistan Sub-continent.  In any event, D1 took it as a ‘bad word’ referring to him).  PW1 went on to allege that it was D2 who was ‘paying things/tricks’.

…..

23. D1 never swore at PW1.  D1 never threw any can of beer or magazine at PW1. ….

24. Police officers arrived in the Store.  They did not listen to D1’s explanation of what happened.  D1 was ‘manhandled’ by the police and was pushed outside the Store to somewhere just next to it.  The police ignored D1’s remonstrations and handcuffed D1 behind.  PW3 and PW4 used their batons to beat D1 on the outside of his thighs and on his right kneecap.  D1 felt pain where the handcuffs were, as they had been put on tight.

…..

26. D1 did not behave towards the police as Prosecution alleged.

27. D1 was taken to Tsim Sha Tsui police station.  D1 asked those who had arrested him for medical treatment but was ignored.  Later, D1 made the same request to another police officer (on duty at the station) who arranged D1 to see a doctor.”

The appeal

4. Before me, the appellant says he never threw the can of beer at PW1, nor did he the magazine.  Even PW1’s colleague PW2 said it was D2 who did it.  He says he had never pushed the police, and has a CCTV tape to prove it.  It was the police who assaulted him and caused his injuries.  His friend DW1 saw everything.

5. Yet all these, plus other matters, had already been dealt with by the magistrate in his Statement of Findings.

6. The CCTV tape referred to was in fact a prosecution exhibit in the case (Exhibit P4).

7. With the help of this tape, the magistrate was able to say :

“34. I considered Charge1.  It was clear that although D1 threw the magazine, it did not land anywhere near the chest of PW1.  D1 could merely have thrown the magazine on the counter in frustration or exasperation.  I did not think it safe to convict D1 for assault in connection with the throwing of Exhibit P3.

35. My above observations of PW1’s evidence did not necessarily mean I had to discount the whole of his evidence.  I considered that footages in Exhibit P4 particularised in sub-paragraphs b)i. to iv. and ix. confirmed the evidence of PW1 in relation to D1 throwing Exhibit P1.  I accepted the evidence of PW1 on this aspect of the case whilst admitting that I would not have done so but for Exhibit P4.  I was satisfied beyond reasonable doubt that D1 did assault PW1 by throwing Exhibit P1 at him (and hitting him).  D1 lied when he denied such action.”

8. As regards PW2, he said :

“31. Although PW2 was present on duty, he admitted he could not recall much because of the passage of time.  Though PW2 said 1 of the Defendants threw a can of beer at PW1, he could not say who it was.  He went on to say it seemed to be the 1 with long hair i.e. D2.  PW2 learned about the can of beer hitting PW1 on the leg because he was so told by PW1.  PW2 said 1 of the Defendants pushed or threw a magazine at PW1 but he could not recall if it hit the latter. …. In view of such evidence of PW2, …. [p]rosecution’s case on Charge 1 (assault) rested on the evidence of PW1 and Exhibit P4.”

9. Finally, on the ‘Resisting’ charge :

“36. I considered Charge 3.  I understood Prosecution’s case on this Charge to be centred on matters stated in paragraphs 16 and 17 above.  I listened to and observed carefully PW3 to PW5.  I accepted their evidence.  I was satisfied that none of them behaved or would have behaved in the manner described by the Defence.

37. Defence evidence did not affect my assessment of PW3 to 5. In fact, I did not accept the evidence of DW1 and D1.

38. Defence suggested that inside the Store police officers “manhandled” D1 and pushed him out of the Store.  After viewing Exhibit P4 (footage time 23:58:40 to 23:59:03) and having listened to PW3 to PW5, I was satisfied that D1 was not “manhandled”.  The police officers were trying to separate an increasingly agitated D1 from PW1.  They were merely trying to defuse a potentially explosive situation by using reasonable force to take D1 outside the Store (see, for example, Exhibit P4, footage time 23:59:03, D1 attempted to lunge towards PW1).  I considered that no criticism could be levied against such police action.

39. DW2 was a person of clear record.  He was no more than a nodding acquaintance of the Defendants.  He passed by the Store.  He saw the police handcuff D1.  He said in evidence that approximately 2 minutes (maximum) 2 to 3 police officers used their batons to continuously hit D1 on the legs.  They hit D1 as much as they could, using as much force as they could.  There were people passing by.  D1 was shouting and the police officers were swearing at D1.  D1’s version was along the same lines as that of DW2 though perhaps not as graphic.  D1 said that at first he was standing but the pain from the assault caused him to have to squat.

40. I found such version of police brutality inherently incredible.  I did not believe that PW3 and PW4 would so blatantly, openly and senselessly assault D1.  Exhibit P4 showed nothing extraordinary happening inside the Store after D1 was taken out.  Customers were coming and going.  Life was going on as usual.  If there was police brutality just outside with D1 shouting and the police swearing, people inside the Store would surely have noticed and one would have expected some reaction from them.  Suffice to say that Exhibit P4 showed nothing out of the ordinary (see from footage 23:59:03 to end of recording).  If the police did assault D1 with their batons ‘as much as they could, using as much force as they could’ or assaulted D1 to the extend that he could not stand, the injuries to D1 should be much more serious than those indicated in Exhibits D1, D2 and D4.  PW5 did not know about the injuries of D1 or how they were caused.  PW3 said in cross-examination that if he were asked to guess, he would say (think) the injuries were as a result of D1 struggling on the ground (see paragraph 17 above).  In my view, D1’s injuries had nothing to do with police brutality as alleged by the Defence.”

10. Exhibits D1 and 2, I should explain, were photographs of the appellant after the event.  Exhibit D4 was a set of admitted facts including a paragraph on his injuries.  They were anything but serious.  It reads :

“4.  D1 was medically examined at Queen Mary Hospital at 23.08 hrs on 27 August 2004.  He presented at the hospital with right knee effusion.  He was diagnosed with swelling of the medial aspect of the left forearm with tenderness.  There was mild tenderness over left wrist region with full range of movement of left wrist joint was noted.  Distal power of left hand was full while sensation was noted to be decreased.  There was also bruising over lateral aspect of left thigh with tenderness.  There was also abrasion and bruising over right knee region with tenderness and mild degree of swelling.  Range of movement of right knee joint was full.  There was no fracture or dislocation of right knee, left forearm and left wrist.”

Judgment

11. Given the evidence, the magistrate was perfectly entitled to his conclusions.  That is my judgment.  The appeal is dismissed.