THE QUEEN v. NGAN WAI YEUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1593 OF 1994

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JUDGMENT

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1. The appellant, an inmate at Stanley Prison, was convicted before a Magistrate of two charges of common assault contrary to Section 40 of the Offences Against the Persons Ordinance, Cap. 212. He was sentenced to 1 month's imprisonment on the first charge and 3 months' imprisonment on the second charge, to be served consecutively and consecutive to the sentence of 6 years and 4 months he was and is still serving. He appeals against the convictions.

2. These offences took place inside Stanley Prison in the course of the internal movement of prisoners. The appellant refused to cooperate, when he was asked, to remove his jacket to be checked. This is a usual procedure for this type of movement. Instead, the appellant suddenly took off his jacket and threw it at the senior officer present and rushed towards that officer causing the officer to knock against a wall.

3. The appellant was restrained by PW1 and another officer PW2 after a brief struggle. PW2 then left the room to attend to other duties and at that time the appellant appeared to have calmed down. While PW2 was attending to some documents at a table outside, he felt an attack to his neck. He turned round and saw the appellant grabbing at his neck. After a vigorous struggle, the appellant was eventually restrained. A medical examination revealed redness over the right side of the face and neck of this officer and a swelling on his right hand.

4. The appellant gave evidence. He explained that he cooperated with the officers at the time. He agreed to remove his jacket and in the course of so doing, the jacket accidentally touched the hand of the senior officer. However he refused to take off all his clothes and asked for the reason to be put down in writing. As a result, he was severely assaulted by PW1 and PW2. Blows landed on every part of his body and 7 blows landed on his head. He sustained a number of injuries which the Magistrate found to be consistent with having been caused in the course of the officers trying to restrain him.

5. Having carefully examined and evaluated the evidence, the Magistrate accepts the evidence of the officers and disbelieved the appellant. There is nothing in the evidence or the record that causes me anxiety that the convictions are unsafe and unsatisfactory.

6. The appeal against conviction is dismissed.