HKSAR v. WONG HARK KEUNG

HCMA 588/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 588 OF 2010

(ON APPEAL FROM KTCC 1508/2010)

____________

_______________

J U D G M E N T

_______________

1.  The Appellant appeared for trial before D J Dufton Esq. at Kwun Tong Magistrate’s Court charged with one charge of possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 and two charges of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212.

2.  He was found guilty after trial of all three offences and in due course, after a Drug Addiction Treatment Centre report was called for, sentenced to 7 months’ imprisonment.  That sentence was achieved by passing 6 months’ imprisonment for the possession charge and 1 month imprisonment concurrent in respect of the two assault charges, which sentence was ordered to run consecutively to the 6 months.  He appeals against conviction only.

3.  Although certain criticisms have been levelled at the way this case was dealt with in the Magistracy, the Magistrate dealt with the Appellant (who was unrepresented at trial) with great care and consideration throughout.

4.  Complaint is made, for example, that the Magistrate refused to allow an adjournment on the first day of the trial, when the Appellant apparently received the police statements for the first time, so as to enable him to take legal advice.  However, the Appellant had been afforded the services of the duty lawyer scheme which he had declined and there were approximately 4 months between the matter first coming before the Magistrate’s Court and the trial, had he wished to secure private representation.

5.  Furthermore, when the day of sentence arrived, the Appellant sought to challenge his conviction by claiming that he had not been given the chance to make a closing submission at the trial.  When it was pointed it out to him that in fact he had been offered but declined that opportunity - and the record bears that out - the Magistrate nevertheless allowed the Appellant to say what he wanted to say before adjourning overnight to consider his further submissions.  The following day, the Magistrate confirmed the conviction and passed the sentence I have indicated.

6.  Defendants in criminal trials of course have certain basic rights but magistrates cannot force defendants to avail themselves of these rights if they choose not to do so.  With respect, I see no substance in the complaints against the Magistrate for the way this case was handled at trial.

7.  The prosecution called four witnesses: Sgt 10158 (PW1) and PC 53207 (PW2), who both intercepted the Appellant, PC 3869 (PW3), the arresting and exhibits officer, and But Pak Yan, Jasper (PW4), a civilian witness, who operated the shop next to the toilet where the incident took place and who witnessed part of what happened. 

8.  The Appellant elected to give evidence.  No witnesses were called on his behalf. 

9.  The relevant facts were these.  At about 18:10 hours on 15 March this year PW1 and PW2, who were both in uniform, saw the Appellant coming out from the toilet near the back entrance to the Fairwood restaurant in Yue Man Square, Kwun Tong.  According to them, the Appellant appeared nervous and furtive and when challenged by the officers he immediately put his hands into his trouser pockets.  PW2 informed the Appellant that he suspected him of being in possession of dangerous drugs and that he would search him.  At the same time, PW1 grabbled hold of the Appellant’s right hand while PW2 grabbed his left arm.

10.  PW2 told the Appellant to take his hands slowly out of his pockets.  The Appellant did not do as requested, at which PW2 warned him to take his hands out and co-operate.  The Appellant ignored PW2 and started moving around from side to side.  Further warnings were given which the Appellant continued to ignore.  At this juncture, PW1 felt the Appellant’s hand moving in his pocket whereupon he tried to remove his hand from the pocket. The Appellant struggled.  In the course of that struggle, PW1 managed to pull the Appellant’s hand out of his trouser pocket as a result of which a broken syringe and a plastic bag containing white powder dropped from his pocket onto the ground.

11.  PW1 and PW2 then pushed the Appellant against a wall next to the toilet.  PW1 said that he was arresting the Appellant for possession of dangerous drugs, whereupon the Appellant exerted even more force to put up a struggle in the course of which he pushed the officers; resulting in all three of them falling to the floor.  The Appellant continued to struggle.  Finally, with the assistance of PW3, whom PW2 had managed to summon to the scene, the Appellant was subdued.  He was subsequently taken to a police vehicle at which time he kept shouting and yelling that police officers had beaten him and framed him up.

12.  The syringe and plastic bag were seized by PW3 and in due course examined by the government chemist.  The white powder in the plastic bag was found to contain traces of heroin.

13.  PW1 and PW2 were subsequently seen by a doctor at the United Christian Hospital.  PW1 was found to have a minor abrasion to his knees while PW2 had a 4-inch red mark on the inside of his right forearm and a 2-inch red mark on his left wrist.

14.  The Appellant was likewise seen by a doctor and, although the medical report in relation to him was not specific, the photographs showed that he had sustained red marks around his abdomen.

15.  The Appellant has raised a number of matters before me today which he says call into question the Magistrate’s findings of fact and credibility at trial.  I have considered those matters in the light of the evidence at trial and the transcript, which I have read.  I am not persuaded that any of them afford grounds for disturbing the Magistrate’s findings nor am I persuaded that the Magistrate himself was not alive to these points when he considered his verdict.

16.  Perhaps the most cogent point is the Appellant’s reliance on what PW4 apparently overheard the officers saying to each other as they walked past his shop in the vicinity of the toilet.

17.  The witness was asked what he had noticed about the two police officers that day.  The answer he gave was this: “They came down from the alley and they were talking with each other.  And they seemed like they were asking if it were there, if the toilet was there.  And then, I just took a look at them.  Then, I did not pay attention to them.  It appeared that they were looking for someone.”

18.  My interpreter today has informed me that that may not be an entirely accurate translation, and that a more correct translation of the critical part of the sentence was that one officer said to the other “Is (it) inside the toilet?”  However, it is also said to be vague in its meaning and, in any event, PW4 was not able to say what was said with any great accuracy.  All he could say was what he had seen and overheard in part.  Even giving the interpretation that the Appellant contends for and assuming (it) was (he) and that (he) was the Appellant, I do not think that that is sufficient evidence to afford a reasonable possibility that the officers were engaged in an exercise to frame up the Appellant.

19.  There are, however, two matters of law which have concerned me.  The first is whether or not what happened between the Appellant and the two officers amounted to an assault in law.  The second is, if it did, whether the police officers were acting in the due execution of their duty when the assault took place.

20.  In relation to the first issue, it is true that neither PW1 nor PW2 gave evidence of any deliberate or gratuitous assault by the Appellant on them.  PW4 agreed with the Appellant in cross-examination that he did not see the Appellant assault the police officers.  However, the Magistrate was alive to this issue and held as follows:

“I carefully considered that the police officers did not specifically say the appellant assaulted them and that the civilian witness (PW4) said he did not see the appellant assault the police officers. Whilst there was no assault in the sense of punching and kicking, I was satisfied the acts of the appellant amounted to an assault on both police officers, in particular that he pushed both the officers, which was witnessed by PW4.”

21.  After PW1 had seen the syringe and plastic bag drop to the ground, he explained that he suspected according to his experience that it was dangerous drugs, whereupon he immediately arrested the Appellant for the offence of possession of a dangerous drug.  He went on to say:

“At that time, he exerted more force to put up a struggle with me…

Then we struggled for a while…

After we struggled for a while, both of us were pushed over by the male…

I was grabbing hold of his hand when he pushed me.  I knelt down on both my knees.”

22.  PW2’s account was slightly different.  He said this:

“Then we tried to grab hold of him, but he was so forceful that we …. fell down on the ground…. At that time, he was so forceful that just with a -- just flung his arm, then I fell down.”

23.  That the Magistrate was alive to his issue, which explains his reasoning which I have just quoted, is clear from the following exchange during cross-examination by the Appellant of the civilian witness PW4:

“Question: And also, did you see if I had pushed over the police officers or assaulted the police officers?

Answer: I did not see him assault. I just see him push away or resist.

Court: Wait a moment. Mr Interpreter, does the witness use both “I did not, I just saw him pushed away or resist”; or is that your alternative translation?

Interpreter:   He used both.”

24.  In my judgment, the evidence of what the Appellant did, in particular after the arrest was announced by PW1, was sufficient to amount to an assault in law.  It was the pushing action upon which the Magistrate relied for his conviction on these two assault charges.

25.  In respect of the second issue, I am aware of a line of authority in England suggesting that where a police officer physically restrains a person, but does not at that time intend or purport to arrest him, then the officer commits an assault, even if an arrest would have been justified.  See Kenlin v Gardner (1967) 2 QB 510 and Wood v DPP (2008) 6 Archbold News 2.  Accordingly, an assault by a defendant in such circumstances is not an assault committed on a police officer acting in the due exercise of his duty.  See R v Inwood (1973) 57 Cr App R 529.  It could be argued that when the Appellant signified to the police officers his refusal to cooperate and be searched, they either had to let him go or, if they had reasonable grounds to suspect an offence had been committed, arrest him.  Consequently, any assault committed by the Appellant whilst his liberty was being interfered with unlawfully, would not amount to an offence of assaulting a police officer in the execution of his duty.

26.  However, it is not necessary for me to engage the law on this topic and its application to this particular case.  Different cases are often fact specific and dependant on whether and how it is conveyed to a defendant that he is under arrest.  Here the evidence reveals that there came a time when PW1 did make it clear that he was arresting the Appellant for the offence of possession of dangerous drugs.  He had seen the syringe and the plastic bag fall from the Appellant’s trouser pocket, and he reasonably suspected - correctly as it turned out - that the Appellant was in possession of dangerous drugs.  What happened then, as PW1 described, was that the Appellant “exerted more force to put up a struggle with me” and, after struggling for a while, “both of us were pushed over by the male”.  It was that push after the arrest was announced, which, as I have said, formed the basis of the Magistrate’s conviction on the assault charges. Clearly, again, he was very much alive to this issue.

27.  Accordingly, in my judgment, the Appellant was properly convicted on all charges on the evidence and there is nothing unsafe or unsatisfactory about any of these convictions.  The appeal against conviction is dismissed.