THE QUEEN v. TSANG KAM-PUI

IN THE HIGH COURT

1992, No. 961
Magistracy Appeal

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J U D G M E N T

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1. The appellant was convicted on 19th October 1992 at the Tuen Mun Magistracy on one charge of assaulting a police officer acting in the course of his duty, contrary to section 63 of the Police Force Ordinance. The prosecution case was that two uniformed police officers were on duty at San Fat Estate, Tuen Mun on 9th August 1992, when they observed the appellant in a small park near Block 4 of that estate carrying a small parcel. When the appellant saw the two uniformed police officers he walked away, whereupon one of the officers PC 1387 Lam Shu-kei walked after the appellant. The appellant then ran away and PC 1387 raced after him, followed by the other officer, Inspector Lewis. PC 1387 caught up with the appellant whilst they were both running but when he was about to put his hand on the appellant’s shoulder, the appellant pushed his right cheek with his hand causing him to loose balance and fall to the ground. PW1 had slight injuries to his arms and knees and his glasses flew off. PC 1387 got up and the chase continued, joined by Insp. Lewis. Eventually the appellant was apprehended.

2. The appellant’s case was in essence this. There was such a chase as described; that was because in the vicinity of Block 3 San Fat Estate he had observed some people gambling and fearing that the police might mistakenly have thought that he was acting as a look-out he ran away. The appellant denied that PC 1387 had caught up with him in the way alleged and he denied that he had pushed PC 1387 in the face as alleged. He said that PC 1387 sustained those minor injuries because he tripped and fell, without any assault on the appellant’s part.

3. The second police witness Inspector Lewis gave evidence substantially in accordance with that of PC 1387, but with one significant gap. He saw PC 1387 closing up on the appellant during the chase and heard the constable telling the appellant to stop, but he did not actually see the assault as alleged. Essentially, therefore, as to the crucial issue, this was one person’s word against another.

4. In the course of the cross-examination of the appellant, the prosecutor put to the appellant a case which in fact was not part of the Crown case against the appellant, namely that he had punched PC 1387 in the face, which the appellant of course denied. This matter did not seem to have been weighed by the magistrate, although in other respects he had evaluated the evidence with great care. The magistrate adverted to the fact, for instance, that in the course of cross-examining PC 1387, Defence Counsel was able to point out the fact that in a previous statement PC 1387 did not say that when he put his right hand on the appellant’s shoulder he had said to the appellant that he wanted to search him. And there was also a discrepancy as to which hand was allegedly used by the appellant in the push which resulted in PC 1387 falling to the ground. The assault, if it be an assault, putting the prosecution case at its highest, occurred momentarily: this fact was not specifically mentioned by the magistrate.

5. In the course of a hot chase of the kind undertaken by the two police officers on the day in question, the fact that one of them tripped and fell when attempting to arrest the fleeing suspect was something that could have happened very easily. The appellant was, of course, wrong to have fled. If the appellant had been charged with the offence of obstructing the police in the course of execution of their duty it seems clear on the evidence that he would have had no defence.

6. Whilst the magistrate had very carefully evaluated the evidence, in my judgment, he had not given sufficient weight to the inherent possibility that the officer might simply have tripped and fallen. He could have thought, wrongfully, that the appellant had pushed him. Nor did the magistrate advert to the fact that the. incident categorized as “assault” occurred momentarily. At the end of the day, and giving credit to the magistrate for a very careful summary of the evidence, I am left with an uneasy sense that the evidence simply was not sufficient to warrant the charge of assault.

7. In my judgment the magistrate had not weighed sufficiently in the scales the possibility that there was an accidental tripping up. In these circumstances the conviction for assault, in my judgment, cannot stand and the appeal is allowed and the conviction quashed.