HKSAR v. WAN MING YEE

[English Translation - 英譯本]
HCMA 817/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.817 OF 2011

(ON APPEAL FROM KTCC 2607 OF 2011)

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J U D G M E N T

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1. The Appellant was prosecuted for the following two charges:

  Charge 1:  Obstructing a public officer lawfully engaged in the performance of a public duty, contrary to section 23 of the Summary Offences Ordinance, Cap. 228 of the Laws of Hong Kong; and

  Charge 2:  Assaulting police officer in execution of duty, contrary to section 63 of the Police Force Ordinance, Cap. 232 of the Laws of Hong Kong.

He appeared before the Kwun Tong Magistrates’ Court.  He was legally represented, and pleaded not guilty.  After trial, the Magistrate found the Appellant guilty of both charges.  The Appellant is aggrieved with the convictions, against which he appeals.

Prosecution Case

2. The prosecution case can be summarized as follows: the Appellant and a female (PW2) were arrested at the same time.  They were taken to the Cheung Sha Wan Police Station and detained respectively in the report room there.

3. When the police officer (PW1) arrived at the interview room bringing along with him the Appellant from the cells for the finger-prints taking procedure, initially the Appellant cooperated.  When PW1 asked for the taking of palm-prints after having finished taking the finger-prints, the Appellant refused to cooperate by withdrawing his hands and getting up trying to open the room door to leave.  When PW1 grabbed hold of his hand to stop him, he lowered his body and lay down on the floor.  In order to prevent the Appellant from hitting the magnetic door-securing device on the floor, PW1 dragged the Appellant away by pulling his hands, and arrested him for the offence of obstructing a public officer in performance of duty.  The Appellant swayed from side to side and shouted, “police hitting somebody”.  PW1 also shouted for reinforcement.  The duty officer (PW3) entered the room to see what happened.  The Appellant complained against PW1 for assaulting him, yet PW1 said that the Appellant had already been arrested for the above offence.

4. PW3 told the Appellant to get up and ordered PW1 to bring him back to the cells.  So the three of them left the interview room and walked towards Cell No.1.  The Appellant, when arriving at the vicinity of the cell, suddenly stopped and said that he would not go in.  He also tried to free himself from PW1’s hand which was pulling him.  The prosecution witness was pulling him by his hand, and, when trying to take him into the cell, was bumped against by the Appellant from the back.  As a result, the whole body of PW1 lurched forward with his leg hitting the door frame with minor injury.   

Defence Case

5. At trial, the Appellant exercised his right to give evidence in court.  The Magistrate summarized his evidence, which is quoted by me as follows:

“14. The Appellant said in his evidence that PW1 kept on scolding him in the report room using foul language and asked him to admit his guilt. PW1 first of all took PW2 to Interview Room No. 1. Then PW2 was seen coming out and going back to the cell. Then another police officer took the Appellant into Interview Room No. 1, inside which the Appellant asked PW 1 why he scolded him with foul language, and he would complain against PW1. In the meantime, PW1 hit the Appellant’s forehead with his warrant card. At that time, PW 1 did not explain the procedures concerned. The Appellant only came to know that finger-prints were going to be taken when he signed the documents concerned.

15. According to the Appellant, at that time PW 1 threw the ink roller to his front. At that time the Appellant was very frightened and he asked PW1 whether he might took the finger-prints by himself. However, at the end, PW1 took the prints of the ten fingers of the Appellant with great force. After that, palm prints had to be taken from the Appellant. At that time, the Appellant was worried that the wedding ring on his hand might come into contact with ink. So he asked if he might take off the ring first. However, his request was turned down by PW1. So the Appellant asked if he might go to the toilet as he intended to take off the ring there. This request was also turned down. PW1 also said that if the Appellant left the interview room, the Appellant would be prosecuted for obstructing him in the performance of a public duty and assaulting police officer.

16. So the Appellant asked to be accompanied by a lawyer before the follow-up of the procedures concerned. This was also turned down by PW1, who even asked the Appellant to dry his hand and take off his ring. The Appellant said that if he was not allowed to go to the toilet, he would rub the ink against the table. PW1 said that he might do so. The Appellant rubbed his hand against the table. PW1 alleged that the Appellant “was playing games”. The Appellant said in a bit louder voice, “I really have to take off my ring.” PW1 pushed the Appellant together with his chair towards the wall behind the door and punched him on the left part of his chest. The Appellant said, “Are you out of your mind”, and got up crying for help. He tried to open the door but did not succeed.

17. When the Appellant got to the side of the door, he felt that somebody pulled him by his waist and the back of his neck. He felt great pain over his throat in particular. Then he was pushed, as a result which he fell down in front of the door. In the meantime, PW3 opened the room door and popped his head in to see what was happening inside the room, and the Appellant immediately said, “He hit me” and “Help”. The Appellant saw that PW3 got stunned for a few seconds without any response. The Appellant immediately got up and ran out of the room. As he was in a hurry to leave, he lost balance slightly. In the meantime, he felt that his left elbow was pushed from behind, as a result of which the Appellant finally fell down at somewhere between Cell No. 1 and Cell No. 2 with his face down. Soon afterwards the Appellant saw that someone opened the door to Cell No. 1. So he got up and went into the cell.

18. Then the Appellant lodged a complaint to PW3 that PW1 had assaulted him inside the room and did not allow him to take off his ring. The Appellant also overheard PW1 reporting to PW3. At that time the Appellant saw that there were many police officers inside the report room, and PW3 said that he would handle the Appellant’s complaint. Finally, arrangements were made for the Appellant to have photos taken (i.e. Exhibit P7) and to go to the hospital for medical examination. Later on the Appellant formally lodged the complaint.

19.  According to the evidence of the Appellant, he had never said inside the interview room that he would not have finger-prints taken anymore.  He only insisted on taking off his ring.  Outside the interview room, the Appellant had never bumped against PW1 with his body, and nobody was in front of him when he fell down.  The Appellant also said that although he was 1.73 meter tall, his weight was only 50 kg.  Although the Appellant overheard that PW1 told PW3 that he got his leg bumped, the Appellant did not see his injury.  At the time of the incident, there were many police officers inside the report room.”

6. I have read the transcript and I am of the opinion that generally speaking the Magistrate has made an accurate summary. However, in order to make it more precise, the following matters are added:

  (1)  PW1 hit the Appellant’s forehead slightly with his warrant card when the Appellant tried to inspect the card for lodging a complaint.

  (2)  The Appellant rubbed the ink on his hand against the table as this was first suggested to him by PW1.

The Magistrate’s Findings

7. The Magistrate took the view that the Appellant’s evidence was unreasonable and incredible, and she rejected his evidence.

8. On the other hand, she was satisfied that PW1 and PW2 were both honest and reliable witnesses and she was satisfied that what they said was true.  She found that the conduct of the Appellant had constituted obstruction to a public officer in the performance of a public duty. Subsequently he also assaulted PW1.  Therefore, the Appellant was found guilty of both charges.

Grounds of Appeal

9. At the appeal hearing, the Appellant was unrepresented.  He submitted to the Court a “Perfected Grounds of Appeal”, the contents of which set out in details the grounds of appeal and the supporting arguments.

10. I now summarize the main points of the grounds of appeal as follow:

(1)  The Magistrate erred in having satisfied that the prosecution witnesses were honest and credible and rejecting the evidence of the Appellant.  The reasons are as follows:

(a)  When considering the evidence of the prosecution witnesses and the Appellant, the Magistrate put the cart before the horse, nor did she adopt the same test for making her determination.  The Appellant relied on HKSAR v Ejeji, Edwin Robert HCMA 502/2010 in support of his argument.

(b)  The prosecution failed to adduce ample evidence to prove the facts and the reasonableness of the prosecution evidence.  The Magistrate did not duly consider the discrepancies as between the testimonies of the prosecution witnesses and the unreasonable areas in the testimonies.  The findings were erroneous.

(c)  Some areas in the evidence of PW1 were not mentioned in the witness statement.

(d)  Such a great number of contradictions showed that PW1 tried to cover up some truth or play down his own role.

(e)  Even if each prosecution witness had testified honestly, due to various contradictions, the Magistrate should not have been satisfied that their testimonies were reliable and relied on them to find the truth.

(f)  The Magistrate failed to take into consideration the possibility that the evidence of PW2 might have been influenced by the police witnesses.

(g)  Nor did the Magistrate take into consideration the lack of independence of each police witness.

(2)  The Magistrate was satisfied with the testimonies of the prosecution witnesses without giving good and reasonable explanation.

(3)  The Magistrate erred in finding that PW1 was in execution of duty at the material time.

(4)  The prosecution failed to adduce sufficient evidence to prove that the Appellant had motive to commit the offences.

(5)  The evidence adduced by the prosecution failed to prove that he had assaulted PW1.

11. The Appellant also submitted that the Magistrate had misquoted his evidence[1]. However, by the time of appeal, since the Magistrate had made a correction, he no longer relied on this as his ground of appeal.

12. Furthermore, the Appellant also made an application for a piece of garment which he claimed he was wearing at the material time to be produced as new evidence.  The Respondent objected to this application.

13. At trial, the Appellant was legally represented.  Regarding this piece of garment, the Appellant did also mention it in his evidence, and indicated that there was no need to produce it.  I am of the view that this exhibit has all along been in existence.  It was the decision of the defence not to produce it.  Furthermore, the fact that the garment was torn had already been mentioned by the Appellant in his evidence.  There is insufficient ground for it to be produced at the appeal hearing but not at trial.  Therefore, I dismissed the application made by the Appellant.

Discussion

Ground (1)

14. The Appellant made a lot of complaints about the assessment made by the Magistrate on the credibility of the witnesses.

Item (a)

15. The Appellant complained that before considering the reasonableness of the testimonies of the prosecution witnesses and the prosecution case, the Magistrate had already found that the evidence of the Appellant was not true.  This had the effect of requiring the Appellant to prove that his own testimony was credible, failing which would result in a conviction.

16. Such a complaint was based on the fact that in both the orally delivered verdict and the Statement of Findings, the Magistrate considered first the assessment of the credibility of the Appellant before assessing on the credibility of the prosecution witnesses.

17. This way of dealing with the matter was criticized by Saw J. in HKSAR v Ejegi, Edwin Robert HCMA 502/2010 as improper.  He pointed out that unless it was in the most exceptional circumstances for example when the prosecution evidence is not contested, such a putting the horse before the cart approach should not be adopted because to do this would give the impression that unless the defendant’s evidence or witnesses are believed then he/she would be convicted.[2]  

18. I agree that generally speaking, when assessing credibility, it is improper for a magistrate to assess the evidence of the defence first.  However, this point does not necessarily in itself enable a conviction to be quashed.  Even in Ejegi, apart from the above reason, the appellant’s appeal was allowed because, more importantly, Saw J noticed that when examining the evidence of both the prosecution and defence, the magistrate had used different tests.  After taking all the evidence into consideration himself, Saw J was of the view that the evidence could not enable him to be satisfied that the appellant had committed the offence prosecuted.

19. Nor did the appellate court in some other cases allow appeals because of this situation which can be described as putting the cart before the horse.[3]

20. In the present case, the Magistrate expressly stated,

“20. In a criminal trial, the burden of proof is on the prosecution, who has to prove each element of the charge beyond all reasonable doubts. The Appellant does not have any burden of proof. The Court bears in mind that it must consider the evidence of each witness independently, the inherent probabilities of his / her evidence and what their demeanour was when they were giving evidence. Whether there are any discrepancies among witnesses on material facts must also be taken into consideration. The Court also bears in mind that the Appellant faced two charges, each of which must be considered independently based on the evidence concerned. The Court also takes into consideration the final submission made by the defence counsel. The Appellant has a clear record. I bear in mind that the Appellant is more likely to tell the truth and less likely to commit the offences.

… …

22.  The rejection of the Appellant’s evidence by the Court does not mean that the Appellant has committed the alleged offence.  The Appellant does not have any burden of proof, which is on the prosecution who has to prove the necessary elements of each charge beyond all reasonable doubts.  The Appellant neither has to prove his innocence nor does he have to prove anything.”

21. Obviously, the Magistrate knew very well who has the burden of proof, which she did not shift.  I do not agree with the complaint of the Appellant that the approach adopted by the Magistrate had the effect of requiring him to prove that his evidence was credible and the prosecution’s one was not.

22. In her Statement of Findings, the Magistrate gave an account of her analysis and consideration of the assessment on the credibility of each witness.

23. I have read the account given by the Magistrate, examined carefully the transcript on which all the evidence were recorded and taken into consideration the complaint of the Appellant and the submission made by Miss Hermina Ng, Senior Public Prosecutor (Acting) for the Respondent in considering whether the Magistrate’s findings were erroneous, particularly, when making the assessment, whether the standard adopted by her for the prosecution witnesses was too generous while the one for the Appellant was too stringent.

24. Whether item (a) under Ground 1, which is the crux of this ground, is valid or not involves the consideration of all the circumstances.  Therefore, it will be left for subsequent discussions.

Items (b), (c) and (d)

25. These three points can be considered together.

26. At trial, the Appellant was represented by counsel, who made a detailed final submission to the Magistrate.

27. In the final submission, the defence counsel suggested some contradictions and weaknesses in the evidence of PW1 and PW3 challenging their credibility, particularly the former.

28. On appeal, the Appellant even set out in extreme details those which, in his view, are the weaknesses of the evidence.

29. The Appellant contended that in the prosecution evidence, there were unreasonable areas, which were set out in paragraph 14 of the Grounds of Appeal.  These matters included:

(i)  Regarding the conduct of the Appellant alleged by PW 1, particularly the fact that he wanted to open the door to leave and subsequently sat on the floor, under the circumstances at that time, it was unreasonable to say that the Appellant would act in this way;

(ii)  The response of PW1 upon seeing this was also unreasonable;

(iii)  Upon hearing his complaint of having been assaulted, PW3 did not separate him from PW1 but told the latter to take him to the cells instead;

(iv)  Under such circumstances, PW3 should have instructed other police officers to perform the duty;

(v)  The description made by PW1 on what happened outside the cells, particularly the actions of each person, was unreasonable;

(vi)  PW1 claimed that he was pushed.  Surprisingly, no ink was left on his body;

(vii)  After the conducts alleged by PW1 had taken place, PW3, surprisingly, did not render any assistance;

(viii)  Nor did other police officers do;

(ix)  PW1did not have photos taken of the injuries until very late.

30. Having relied on the two cases R v Kwong Wing On & Anr. HCMA 574/2006 and HKSAR v Chan Hok Pang CACC 193/2008,[4] Miss Ng pointed out that when dealing with the contradictions or discrepancies in the evidence of the relevant witnesses, a magistrate should adopt a realistic and pragmatic approach.  What had to be considered was whether those contradictions or discrepancies were material such as would affect the credibility of the evidence of that witness on central facts.

31. She also contended that the Magistrate had obviously adopted a realistic and pragmatic attitude in dealing with the evidence of the prosecution witnesses.  Regarding the discrepancies, contradictions, unreasonable areas and so on mentioned by the defence in his submission, the Magistrate had taken that into account and set out the reasons for rejection.

32. In her Statement of Findings, the Magistrate gave an account of the alleged contradictions which she had taken into consideration:

(1)  Where the Appellant was on the floor when both of them saw him[5];

(2)How PW1 grabbed hold of the Appellant[6];

(3)  Whether PW3 made any enquiry of the Appellant;

(4)  How the Appellant got up from the floor; and

(5)  Whether PW1 had told PW3 that he was the one who pressed the Appellant onto the floor.

33. She has also given the following account in her Statement of Findings:

“25. The Court has taken into consideration the matters raised in the final submission of the defence, and the submission. I do not think what the defence has put forward are inconsistencies or contradictions, not to mention differences on material facts. The presence of differences in the descriptions of the event made by the witnesses does not mean that there are contradictions. Both PW1 and PW3 pointed out that the Appellant lay on the floor inside the room. The differences in both the direction which the Appellant was facing and his position are not contradictions on amaterial fact. I do not think that this would affect the credibility or reliability of the evidence of PW1.

26. Furthermore, PW1 said that when grabbing hold of the Appellant, he also helped him up from the floor, and PW3’s evidence was that he together with PW1 helped the Appellant up. The Court does not think that these are contradictory testimonies. As to whether PW1 had told PW3 that he was the one who pressed the Appellant onto the floor, PW3 did state so in his witness statement. In court he said that he did not remember if PW1 had said so. In any event, the evidence of both of them stated that PW1 did grab hold of the Appellant at the material time. As to whether PW 3 had made any enquiry of the Appellant on this aspect, according to PW3, when he made enquiry of the Appellant, the Appellant was very emotional and only kept on shouting, “police hitting somebody” without making any formal reply to the enquiry. The Court does not think that this would have any effects on the credibility or reliability of the evidence of PW 3.”

34. I do not quite understand what the Magistrate exactly meant when she said “not a difference on amaterial fact”.  However, if what she was trying to say is that the materiality of each matter would not affect the credibility and reliability of the witnesses, I, taking into account of what the Appellant has set out in the Grounds of Appeal and the supplemental submission made in court, would have no objections to the findings of the Magistrate.

35. The Magistrate said that she had taken all the evidence and submissions into account.  I have no reasons to suspect her.  Her Statement of Findings shows that she knew very well the material issues in the case.  It would have been desirable had the Magistrate given a more detailed account.  However, it cannot be denied that in fact she had already touched upon general matters when considering individual issues.

36. In evidence, there are often contradictions, the effects of which on credibility assessment are also often exaggerated.  Some contradictions are not material. Even if the contradictions truly affect credibility assessment, still the reality should not be neglected during assessment.[7]

37. Regarding the matters put forward by the Appellant, if one considers it with common sense in a realistic manner, it will not be difficult to be of the opinion that they were not as unreasonable as described by the Appellant.

38. In my judgment, the findings made by the Magistrate were within reasonable bounds.

39. I will not go through other items except item (vi) in paragraph 29.

40. PW1 alleged that he was bumped against.  However, no ink was on his body.  On the face of it, it seems to be unreasonable.  However, this depends on whether the hands of the Appellant had come into contact with the witness.  If he rushed forward to bump against PW1 with his body, it is not surprising to see that no ink was on the latter.

41. The Appellant also alleged that due to the difference in weight between PW1 and himself, it was impossible for what the witnesses had described to have happened.  On this point, the Magistrate had conducted an analysis, which, in my judgment, was reasonable:

“37. Furthermore, the defence pointed out in the final submission that the Appellant and PW1 were of similar height, but the difference in their weight was considerable, with the Appellant only weighed 110 pounds while PW 1 over 170 pounds. If the Appellant only rushed forward, could that make PW1 lurch forward to such an extent? The Court does not think that one could not do this act simply because of the difference in weight. At the material time, the Appellant suddenly rushed forward causing PW 1 to lose his balance and, as a result of that, lurch forward.”

42. The Magistrate also gave an account of the following matters which are worth considering.  The conclusion was also reasonable:

“28. Nor does the Court think that another woman police officer witnessing the Appellant signing or she left the interview room later etc as mentioned by the defence during cross-examination (sic). These matters do not affect my consideration on the material area or central facts of the incident because the main issue is whether at the material time the Appellant knew that PW 1 was in performance of duty.

29.  The defence pointed out in final submissions that it was very difficult to account for the medical report of the Appellant, i.e. exhibit D1 that there was redness over his chest, tenderness over his waist and red marks over his back.  In my judgment, these injuries were likely to be caused by the resistance put up by the Appellant inside the interview room and the bump against PW1’s body outside the cell. The Court does not think that the evidence in this regard would affect the Court’s consideration of the reliability or credibility of PW1’s evidence.”

43. In paragraph 9 of the Grounds of Appeal, the Appellant also sets out his other complaints, among which a particularly remarkable one was that the finger-print form bore the signature of a witness, as to whom, however, there was no mention in the witness statement.

44. In her Statement of Findings, the Magistrate had this to say,

“27. PW1 also agreed that some matters were not mentioned in his witness statement. However, the Court does not think that this would affect the reliability or credibility of PW1’s evidence.”

45. Although it was in dispute in the case as to whether there was any witness when the procedure took place, it was undisputed that after the formal commencement of the taking of finger-prints, only PW1 and the Appellant were inside the room.  I agree that this point would not affect PW1’s credibility.

46. I have no reasons to suspect that in this simple case, with the assistance of the detailed submission made by the defence counsel, the Magistrate has missed out anything in her consideration.  I do not think that the Appellant has put forward sufficient grounds for me to interfere with the findings made by the Magistrate.

Item (e)

47. The Appellant gave an example that even if PW3 was honest, he might only see PW1 rushing towards the cell together with the Appellant and then formed the view that the former was pushed by the Appellant.

48. The evidence of PW3 in this regard was clear.

49. Moreover, as to whether the evidence of the witnesses was reliable or not, the Magistrate had also taken some relevant objective factors into consideration:

“34. Regarding the second charge, the defence pointed out in the final submissions the different accounts of the event given by different witnesses concerning how at the material time the police officers stood, their relevant positions, or how PW1 rushed forward and so on. In fact, it took place within seconds and different witnesses observed the event at different angles. The Court does not think that the differences in this regard would affect the credibility of the evidence of the witnesses or result in contradictions.

35. Concerning the evidence of PW4, she had taken a look at the material time seeing that the situation was calm. However, she did not pay further attention to the situation. The Court does not think that because of that her evidence is in contradiction to or inconsistent with the evidence of PW1 or PW3, nor is the reliability or credibility of the evidence of PW1 or PW3 affected because of that.

36.  PW2 said in her evidence that at the material time the Appellant rushed forward outside the cell.  A ‘bang’ sound was heard and it seemed that a group of people rushed forward.  The defence said in the final submissions that perhaps when the Appellant rushed forward to Cell No. 1, that caused a group of people to rush forward, as a result of which PW1 might have harmed himself.  Based on where PW2 was at the material time and her observation from the side, I do not think that her evidence is in contradiction to the evidence of PW1 or PW3, nor does it affect the credibility or reliability of their evidence.”

50. I do not think that the Magistrate erred in her consideration.

Item (f)

51. There is no evidence in the case, nor did the defence make any allegation in the trial, that PW2’s evidence had been affected by the police witnesses.

52. Under such circumstances, the Magistrate’s failure to take this particular aspect into consideration cannot not be criticized.

Item (g)

53. The Magistrate is a professional finder of facts.  It is impossible for her to have neglected the fact that each police witness could not be described as being independent of each other.  In the circumstances of this case, it was indeed unnecessary to put this in clear terms.

Item (a)

54. Now I go back to item (a) for discussion.

55. The Magistrate provided this account as to the reasons why she disbelieved the Appellant:

“21. According to the Appellant’s case, outside the interview room, PW1 had already started scolding him with abusive language and even asked him to admit the earlier offence. Inside the interview room, his forehead was hit by PW1 with his warrant card, and he was assaulted from behind. According to him, although there were a lot of police officers inside the report room, PW1 still openly asked him to admit his guilt and the other police officers did not pay any attention to that. However, the Appellant did not make any complaint until after the assaults. The Court is of the view that the evidence of the Appellant is neither credible nor reasonable, and rejects the evidence of the Appellant.”

56. As I have mentioned above, I do not think that the Magistrate had made an error of reversing the burden.

57. The issue under consideration now is whether the Magistrate adopted different standards when assessing the evidence of both parties.

58. In my judgment, the finding of the Magistrate that she was satisfied with the evidence given by the prosecution witnesses was reasonable without being inconsistent with the evidence as a whole.

59. Compared with the assessment on the prosecution evidence, the Magistrate was much shorter on the evidence of the Appellant.

60. However, what is important is not the length but the substance.

61. The Magistrate pointed out that according to the Appellant’s allegation, PW1 scolded him in the report room with abusive language asking him openly to admit his guilt.  However, no police officer paid any attention to that.  This was unreasonable, and therefore, it was incredible.

62. The Appellant complained that the prosecution alleged that he assaulted PW1. Similarly, no body inside the report room intervened.  However, the Magistrate did not find that unreasonable.  This reflected that she had adopted different assessment standards.

63. I do not agree.  Regarding the allegations made by the Appellant, had they been true, the conduct of PW1 would have been extremely improper and he might have committed an offence.  Police officers should have intervened.  Furthermore, PW1 was in the interview room together with the Appellant.  It would be against common sense for him not to wait until he was with the Appellant alone before he did such improper things.  The allegations made by the Appellant are incredible.

64. As to the alleged assault made by the Appellant on PW1, it came to an end very soon.  The prosecution witness alone could make the Appellant go into the cell without requiring any assistance.  No analogy can be drawn between these two episodes.  It cannot be said that the Magistrate has adopted different standards.

65. The Appellant did not make any early complaints.  This is also something which the Magistrate can take into consideration.

66. The Appellant contended that the injuries on him and the torn clothing at least could prove that his version might be true.

67. Concerning the injuries, the Magistrate conducted an analysis, and the conclusion is also reasonable.  The Appellant complained that the conclusion made by the Magistrate was based on speculation without any supporting evidence.  I do not agree with this argument.  The Appellant had put up resistance.  There was bodily bumping.  It was not without any evidence.  The Magistrate only made her judgment with common sense according to the evidence.

68. In addition, regarding the ways described by the Appellant by which PW1 assaulted him, the injuries shown in the medical report, when comparing with the ones which can be reasonably expected, were minor.

69. Magistracy appeals proceed by way of rehearing.  In HKSAR v CHAN Wai Yeung, HCMA 191/2000 (sic), Barnes J set out succinctly how a magistracy appeal should be conducted.  She said,

“9. Magistracy appeal is by way of rehearing on the evidence before the trial magistrate supplemented by any fresh evidence which the appellate court may admit, see CHOU Shih Bin v Hong Kong Special Administrative Region. Regarding the facts, the appellate tribunal will recognize that the trial magistrate does enjoy the advantage of having received the evidence at first-hand and the appellate tribunal cannot rely on written transcript to make a finding as to whether a witness is credible and reliable, see Raymond Chen v HKSAR FACC 1/2010. As to whether a witness is credible and reliable, it is purely within the scope of the decision of the trial magistrate. However, if the findings of fact made by the trial magistrate are unreasonable, illogical, inherently improbable, or when dealing with evidence, the trial magistrate has misquoted, or omitted, or failed to consider and analyze important issues, the conviction will be unsafe and unsatisfactory.”

70. As a whole, in my judgment, there is no serious error in the Magistrate’s credibility assessment, and it is difficult to describe it as arbitrary or illogical.  In this case, there is no good reason to interfere with her findings.

71. Ground (1) fails.

Ground (2)

72. As mentioned above, how far and how deep should a magistrate go for the account of the reasons for verdict depends on the need of each case.

73. In this case, credibility assessment is an important decision.  I have read the transcript, and in my judgment, the findings made by the Magistrate are reasonable.  There is no good reason for interference.

Ground (3)

74. Charge 1 concerns the offence set out under section 23 of the Summary Offences Ordinance, Cap. 228 of the Laws of Hong Kong.

75. It is provided in the Ordinance that:

“Any person who resists or obstructs a public officer or other person lawfully engaged, authorized or employed in the performance of any public duty or any person lawfully assisting such public officer or person therein shall be liable to a fine of $1000 and to imprisonment for 6 months.”

76. PW1 is a police officer.  According to him, at the material time, he was taking finger-prints from the Appellant.

77. Taking into account of the fact that at the material time the Appellant was arrested and detained for what had happened earlier on, the Magistrate found that PW1 was lawfully engaged in performance of duty.

78. According to section 59(1)(a) of the Police Force Ordinance[8]:

“1) Where a person has been arrested under the powers conferred by this or any other law, any police officer may take, or cause to be taken under the supervision of a police officer-

  (a)  photographs, finger-prints, palm-prints and the weight and height measurements of that person;”

79. Under the circumstances of this case, PW1 may take finger-prints and palm-prints from the Appellant.

80. The main allegations put forwards by the Appellants are as follow:

(1)  The Magistrate failed to take into consideration as to whether PW1 would still be in performance of duty if he used excessive force or did other unlawful acts,

(2)  No witness was present when finger-prints were taken.  The act of PW1 was unlawful, or at least could not be considered as performance of duty.

(3)  PW1 did not clearly explain to the Appellant whether the taking of palm-prints was required.

81. PW1 indeed had used force on the Appellant.  However, if what he said is true, it was only after the Appellant had acted uncooperatively and put up resistance that he used force, which was necessary in order to protect the Appellant.  Moreover, under such circumstances, it was not excessive at all.

82. Although the finger-print form bore an item of witness signature, which was indeed signed, there is no evidence in the case as to whether the finger-prints taking procedures must be conducted in the presence of a witness.

83. There is no such provision under the Police Force Ordinance.

84. Whether it is improper for the woman police officer in question to leave after signing depends on for what purpose she signed to act as a witness.  The form did not specify this point clearly.  PW1 said that the woman police officer signed to act as a witness to the Appellant’s signing. There is no evidence in the case to prove or show that it was not so.  Even if it was not so, assuming that a witness must be present when finger-prints are taken and so what the two police officers did was far from proper, however, the impropriety, no matter in terms of nature and degree, would not make the course become non-performance of public duty.

85. Even if, as what the Appellant has said, at the explanation stage, PW1 did not state clearly that palm-prints had to be taken, by the time he asked for palm-prints to be taken, this request was clear.  It is difficult for the Appellant to argue that he did not know that PW1 was lawfully engaging in the performance of a public duty.  PW1 denied that the Appellant had asked for the presence of a lawyer, and the Magistrate was satisfied with his testimony.

86. The Appellant also said that the Ordinance only states that police have the powers to take finger-prints from a detainee.  However, that does not mean that they have the powers to do so by grabbing hold of his hand.

87. According to the evidence of PW1, he did not allow the Appellant to take finger-prints on the form by himself because he was of the view that the Appellant did not know how to do it.

88. Techniques are indeed required for the taking of finger-prints before the required effect can be obtained.  Therefore, it is not only blameless but also practically necessary for an officer to conduct it by grabbing a hand appropriately.  If the person whose finger-prints are going to be taken is allowed to do it by himself, it can be expected that the effects will fail to meet the requirements.  If such a course of action is allowed, it may result in perfunctoriness or waste.

89. I do not think that what PW1 did was improper.

90. The Appellant relied on the Court of Final Appeal case HKSAR v TAM Lap Fai [2005] 2 HKLRD 487 to support his submission that his conduct did not constitute resistance or obstruction.

91. In that case, the Court of Final Appeal considered the meaning of obstruction when dealing with an offence under section 36(b) of the Offences Against the Person Ordinance[9].

92. The gist of the judgment of Mr Justice Chan PJ is as follows:

“Obstructing means making it more difficult for the police to carry out their duties. Whether particular conduct amounts to wilful obstruction of an officer in the due execution of his duty is always a matter of fact and degree. It is important to look at all the circumstances of each case, including what the person has done and how it is done, what the officer is doing, and the effect of what the person has done on what the officer is doing.

The above test does not intend to include conduct which may cause mere inconvenience to the officer or require him to expend only trifling additional effort.  On the other hand, I do not think it is necessary for the prosecution to prove that the conduct in question makes the officer’s work substantially more difficult.  This is to set too high a standard and if such test is applied too strictly, it may hamper the work of the police.”

93. The Magistrate was satisfied that PW1 was an honest and reliable witness.  The following is the evidence she quoted:

“5. The testimony of PW1 indicated that on the day in question he took the Appellant from the cell to Interview Room No. 1 for the APS procedures, including obtaining his personal particulars and taking finger-prints. Upon entering Interview Room No. 1, PW1 started explaining the APS procedures to and took finger-prints from the Appellant.

6. After finger-prints were taken, the Appellant suddenly refused to have his palm-prints taken and asked PW1 why so many were required to be taken. PW1 explained to the Appellant, who, however, still refused and withdrew his hands. Therefore, PW1 verbally warned the Appellant that if he refused to have his finger-prints (sic) taken, he would be arrested for the offence of obstructing a public officer in performance of duty. The Appellant immediately stood up saying that he had to leave the interview room, and tried to open the door. PW1 went forward grabbing hold of the Appellant and tried to persuade him to be calm. The Appellant was told again that if he was not cooperative, he would be arrested for the offence of obstructing a public officer in performance of duty.

7. In the meantime, the Appellant was sitting on the floor. PW1 still tried to pull him up. However, at the end, the whole body of the Appellant lay on the floor. At that time, as the Appellant’s head was close to where the magnet was at the bottom of the wall, PW1 grabbed hold of his hands hoping to pull him away and arrested him for the offence of obstructing a public officer in performance of duty. Then the Appellant started struggling and shouting “police hitting somebody”. PW1 shouted for assistance from his colleagues and pressed the door bell on the door opening the door. Later on, after PW3 had entered into the interview room, the Appellant complained to him about the assault made on him by PW1, who reported to PW3 about what happened earlier on during the arrest. So PW3 ordered PW1 to bring the Appellant back to Cell No. 1.”

94. When making her findings of facts[10], the Magistrate said that PW1 had explained that palm-prints were needed to be taken.  This was inconsistent with the evidence of PW1.  However, this point would not have any material effect on the final verdict, the reasons for which can be seen in paragraph 85 above.

95. In my judgment, the Magistrate’s findings that PW1 at the material time was lawfully engaging in performance of duty and the conduct of the Appellant constituted resistance or obstruction to PW’s (sic) lawful engaging in performance of duty are within the law and supported by ample evidence.  The Appellant has failed to put forward sufficient grounds for me to be of the opinion that these findings should be disturbed.

Ground (4)

96. Whether the Appellant had any motive to commit the offences is not the crux of the matter in the case.

97. The Appellant also appeared to understand this point.  At the appeal hearing, he said that in fact what he wanted to say was that the prosecution had failed to prove that he had mens rea.

98. As what I have mentioned earlier on, PW1was lawfully engaged in the performance of a public duty, and the Appellant must also have known or understood that he was in the performance of a public duty.  However, he consciously did certain acts which had resisted or obstructed PW1’s work.

99. I do not agree that the prosecution has failed to adduce sufficient evidence to prove that the Appellant, when doing the acts, had the relevant mens rea.

100. Miss Ng for the prosecution pointed out in her submissions that the offence in question was different from the one under section 36(b) of the Offences Against the Person Ordinance because the provision under the Summary Offences Ordinance did not contain the word “wilful”, and,  therefore, the prosecution did not have to prove that the defendant had wilfully obstructed the performance of a public duty, meaning that there was no need to prove that obstructing the performance of a public duty was the defendant’s intention of doing an act[11].

101. I agree with this point of view.  In my view, with respect to section 23 of the Summary Offences Ordinance, the prosecution only has to prove that the defendant intentionally, or recklessly did an act or acts which indeed had obstructed the performance of a public duty.  The evidence in this case has proved this point.

102. Even if in fact the prosecution has to prove that the Appellant had obstructed the performance of a public duty wilfully, I am still of the opinion that the prosecution has adduced sufficient evidence to prove this point.

103. In Barnes v HKSAR [2000] 3 HKLRD 279, Ribeiro PJ found that the statutory wording “wilful” included the mental state of recklessness.  

104. No doubt, based on the facts found by the Magistrate, the only reasonable inference must be that when the Appellant did that series of acts, he did not only intend to do them, but also must have been aware of their consequence, which was obstructing the performance of a public duty, or that such risk would arise, and yet he still did the acts regardless of the consequence.  Also, from the Appellant’s knowledge, it was unreasonable to take the risk. 

105. In my judgment, the finding that the Appellant committed charge 1 was safe and satisfactory.  This ground of appeal fails.

Ground (5)

106. This ground of appeal concerns charge 2, and the Magistrate made such findings:

“39. The Court found that the facts relating to charge 2 were that the Appellant stopped on the way to the cells. When PW1 tried to continue to take him to the cells, the Appellant suddenly rushed forward and bumped against PW1 causing him to lurch forward as well. At the end, PW1’s leg bumped against the door frame of the cell resulting in the injuries stated in the medical report P3.

40.  The Court found that in fact the Appellant must have known that PW1 was a police officer who was in the execution of his duty, that is, bringing the Appellant back to the cells under the order issued by PW3.  In the meantime, the Appellant suddenly stopped. Then he rushed forward with his body towards PW1.  The Court found that this was a deliberate act, which was neither accidental nor involuntary.  Nor did the Court find that at the material time there was anything which caused the Appellant to do such act for defence at that time.  It was because at the material time, according to PW1, he only grabbed hold of the Appellant’s hand trying to continue to bring him back to the cells.  On such evidence, the Court was of the opinion that the prosecution had proved all the elements of charge 2 beyond all reasonable doubts.  The Court found Appellant guilty of charge 2.”

107. Regarding what happened at this stage, the Magistrate only quoted the evidence of PW1.  In fact, when PW3 testified, he did mention this episode as well.  He said that when he saw the Appellant refusing to go into the cell, he was at somewhere two or three steps behind PW1 and the Appellant.  When PW1 tried to pull him in a bit harder, the Appellant rushed forward towards PW1.

108. The Magistrate was satisfied with the testimonies of the two prosecution witnesses.  The evidence of PW3, generally speaking, was in support of PW1’s.

109. The Magistrate’s finding that the Appellant assaulted PW1 by rushing forward was safe and satisfactory with ample evidence.

110. The offence in question is assaulting police officer in execution of duty[12] . 

111. The Appellant contends that even if there was assault, the prosecution still had failed to prove that PW1 was in execution of duty.  His grounds are as follow:

(1)  The finger-prints taking process which took place in the absence of any witnesses was unlawful.  Therefore PW1 was not in execution of duty.

(2)  Nor did PW1 explain clearly that palm-prints were required to be taken.

(3)  PW1 pressed the Appellant on the floor inside the interview room using excessive force.

(4)  As the Appellant had raised the issue of lodging a complaint against him, PW1 should not be the one who brought him back to the cells, particularly at that time there were other police officers available for doing this.

(5)  Normally, the victim police officer should not be the one who declared arrest on the assailant for the offence of assault.

(6)  PW1 pulled the Appellant into the cell with great force and this did not amount to execution of duty, particularly when this duty should have been performed by a uniformed police officer and not PW1, who was a detective police constable.

112. I am of the opinion that none of the above grounds succeeds.

113. Regarding the first two points, firstly, the matter had got to another stage and the finger-prints taking procedures had come to an end.  PW1 brought the Appellant back to the cells under the order of the duty officer.  Secondly, even if there was anything improper during the finger-prints taking procedures, I do not think that the nature and degree of seriousness of the impropriety could have caused PW1’s execution of duty becoming unlawful.

114. Regarding the third point, based on the facts found by the Magistrate, PW 1 did not use excessive force on the Appellant.

115. Regarding the fourth point, I agree that under the then circumstances, it would be more desirable for another police officer to bring the Appellant back to the cells.  However, based on the facts found by the Magistrate, PW1, when doing this, was absolutely in proper execution of duty.

116. Regarding the fifth point, the Appellant relied on what Patrick Chan J has said in Pang Lok Sut HCMA 471/1996 that in assaulting police officer cases, it was in accordance with the practice that it was not the victim officer who would make the arrest.[13] Although Patrick Chan J did say so, his main purpose at that time was to give an account of facts instead of making a ruling on the issues in the case.  I do not think that Patrick Chan J’s saying so was to rule that it was a common practice that in assaulting police officer cases, arrest must be made by another police officer.

117. Regarding the sixth point, PW1 pulled the Appellant into the cell with great force.  Based on the facts found by the Magistrate, he only used appropriate force under the circumstances where it was necessary to do so.  Also, that duty was not necessarily to be executed by a uniformed police officer.

Conclusion

118. In this case, there is ample evidence to support the two convictions, which were safe and satisfactory, and it is not unjust to affirm them.  Accordingly, I dismiss the appeal and affirm the convictions.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.

[1] In delivering his verdict, the Magistrate initially said that the Appellant alleged that PW 1 pushed him, as a result of which he sat down.  He only corrected himself later on that. In fact the Appellant’ allegation was that he was sitting on a chair, and PW1 pushed him together with the chair towards the wall.

[2] Saw J said in HKSAR v Ejegi, “In this end result I am disturbed by the process by which the magistrate proceeded to conviction.  The magistrate determined that the appellant’s account was untruthful before she considered the prosecution witnesses’ evidence.  She did not apply the same test when doing this.  This is unacceptable.  It is imperative in my opinion that only in the most exceptional circumstances for example when the prosecution evidence is not contested, that a magistrate should consider the defence evidence before that of the prosecution.  To do as this magistrate did give the impression that unless the defendant’s evidence or witnesses are believed then he/she will be convicted.”

[3] See HKSAR v CHEUNG Kwong Yung HCMA 447/2011, HKSAR v MA Yiu Nam HCMA 699/2011 and HKSAR v Bernardino HCMA 522/2011

[4]In R v Kwong Wing On HCMA 574/1996, Stock J (as Stock VP then was) said, “… … I would say this: that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal.  In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur.  Indeed if they do not, then the evidence is attacked as being artificial or collusive.  A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point.  A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

In HKSAR v Chan Hok Pang CACC 193/2008, Stock JA (as Stock VP then was) said, “Sometimes discrepancies are important and may serve to undermine the credibility of witnesses in a material manner, such as might cause a judge to reject their evidence.  But the approach to discrepancies must be realistic.  Often, words used by witnesses in testimony or in their witness statements to the police are treated by counsel as if they were statutory instruments.  Often, the clear sense of what a witness said is buried by an insistence on literal interpretation.  Sometimes, as in this case, the events in question, the lapse of time, the number of persons involved, and understandable nervousness on the part of the witness both at the time of police interview and at trial, will inevitably result in discrepancies.  Often, though not always, discrepancies, if treated with common sense, do not detract from the credibility of the core story by the witnesses and this, in our judgment, was such a case.”

[5] See paragraph 23 of the Statement of Findings

[6] For Items 2 to 5, see paragraph 24 of the Statement of Findings

[7] See paragraph 33(3) of the judgment of HKSAR v Okafor CACC 437/2010

[8] Cap. 232 of the Laws of Hong Kong

[9] The offence is “Assaults, resists, or willfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer” contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212 of the Laws of Hong Kong.

[10] Paragraph 31 of the Statement of Findings

[11] In Willmott v Atack [1977] IQ B498 (sic), which concerned the same offence as the one under section 36(b) of the Offences Against the Person Ordinance, Croom-Johnson J. of the English High Court held that the prosecution must prove that obstructing the performance of a public duty was the defendant’s intention of doing an act.

[12] Section 63 of the Police Force Ordinance, Cap. 232 of the Laws of Hong Kong.

[13] In R v Pang Lok Sut HCMA 471/1996, Chan J (as Chan PJ then was) said, “The officer called for reinforcement and another officer arrived.  Having learned what happened, that other officer arrested the appellant for assaulting the police officer.  That was in accordance with the practice that it was not for the victim officer to charge a person for assaulting him.”