HKSAR v. WONG SAI MO

HCMA528/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.528 OF 1999

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J U D G M E N T

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1. The Appellant was charged with five offences. The 1st charge was remaining in Hong Kong without the authority of the Director of Immigration, the 2nd was resisting a police officer, the 3rd and 4th were theft offences and the 5th was possession of offensive weapon.

2. Apparently, the Appellant had pleaded guilty to the 1st charge and was sentenced to 12 months' imprisonment. He denied the other charges and after trial, the learned Magistrate convicted him of the resisting and offensive weapon charges.

3. The Appellant was legally represented at the trial but not at the appeal hearing. He stated that he had not committed the offences and told the Court what his lawyer had advised him before the trial. He also pointed out that if he did not intend to use the knife to attack people, he should not be convicted of the offence of possession of offensive weapon.

4. The case was a relatively simple one. The prosecution evidence was that two plain clothe police officers had seen the Appellant at the material time walking in the direction of Mount Butler. His conduct had aroused their suspicion so the police approached the Appellant for investigation. One of the officers was wearing his warrant card on a chain around his neck. When he saw the Appellant take out a knife, he went up and tried to catch the Appellant. Then the Appellant ran towards Mount Butler. The officers caught him finally but the Appellant put up a struggle so much so that the officers had to call for reinforcement.

5. The Appellant gave evidence at the trial. He had a clear record and the learned Magistrate gave himself the usual good character direction. The Appellant said that he was the head of the security department at a hotel in China and he came to Hong Kong just to have a look. He said that he did not know the approaching persons were police officers. He tried to leave when the two men asked him why he was there. Then one of them requested to see the Appellant's identity card. When the Appellant replied that he did not have one, he was pushed to the ground. The police officers then hit him and one officer sat on his back.

6. Regarding the knife, the Appellant said that he had found it from a dust bin. He kept it for the purpose of peeling fruit. He maintained that he did not take out the knife when approached by the officers. He also denied that he had ever run away. Furthermore, at the time when he was manhandled by the officers, he was merely struggling to breathe.

7. In his Statement of Findings, the learned Magistrate acknowledged that there were same discrepancies in the evidence of the police officers. He had considered those but concluded that the differences could be attributed to the lighting condition at the scene. He found the main prosecution witnesses to be truthful and accurate witnesses.

8. As to the Appellant's case, the Magistrate disbelieved his evidence. He found that the Appellant knew the approaching men were police officers and that he did take out the knife at the time. He also rejected the evidence that the Appellant possessed the knife just for peeling fruit.

9. In the trial of the case, the Appellant was represented by the Duty Lawyer. She had cross-examined the prosecution witnesses and made a very detailed final submission. Having considered the evidence and the submissions, the Magistrate made his findings.

10. The complaint by the Appellant really related to the finding of facts. The trial Magistrate had seen the witnesses and heard their evidence. It was based on his impression and analysis of the evidence that the Magistrate had reached his conclusions as to whom to believe and disbelieve.

11. I cannot find any ground to interfere with his findings. Having read the transcript and the Statement of Findings, I find that the learned Magistrate was correct in law and procedure. His findings of fact were based on a careful evaluation of the evidence.

12. There is no merit in this appeal and it must therefore be dismissed.