HKSAR v. CHU KA YIN AND OTHERS

[English Translation – 英譯本]

HCMA 496/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 496 OF 2015

(ON APPEAL FROM TMCC 570 OF 2015)

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JUDGMENT

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1.  This case took place on 1^st March 2015.  During a public assembly in the area between Kui Lok Square and Sau Fu Street in Yuen Long, the 1^st and 3^rd Appellants were charged with assaulting a police officer, Chief Inspector Chan Ka-po (hereinafter referred to as “PW1”), in execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap 232; the 2^nd Appellant was charged with obstructing a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap 212; and the 4^th Appellant was charged with obstructing another police officer in the due execution of his duty, i.e., Sergeant Hung Kwok-kei (hereinafter referred to as “PW2”), contrary to section 36(b) of the Offences Against the Person Ordinance.

2.  The four Appellants denied the charges and were convicted after trial by Deputy Magistrate Michael, Chan Pik-kiu, (hereinafter referred to as “the magistrate”) of Tuen Mun Magistrates’ Court. They were sentenced as follows respectively:

The 1^st Appellant——Rehabilitation Center

The 2^nd Appellant——Detention Center

The 3^rd Appellant——3 months and 15 days’ imprisonment

The 4^th Appellant——5 months and 1 week’s imprisonment

The four Appellants were aggrieved by the conviction and sentence and lodged an appeal.

Prosecution Case

3.  At around 4:30 pm on the material date, PW1 was executing crowd control duty on a safety island at the junction of Kui Lok Square and Sau Fu Street.  At that time, he was in plain clothes but wore a CID vest with his police warrant card hanging in front of his chest.  PW1 saw the 1^st, 2^nd, 3^rd Appellants and an unknown male coming out to the road of Sau Fuk Street from Tai Kui Market and running towards Ho Shun Fuk Shopping Mall.  At that time, many people had gathered on the pavements at both sides of the road and were yelling different slogans.  However, the road was still opened for vehicle access albeit the flow of traffic was low.    PW1 at once went up to intercept the four persons who were spreading out in a line at that time.  The 1^st Appellant was standing at the left most position, then the 2^nd and 3^rd Appellants, and the unknown male was standing at the right most position.  PW1 said to the four persons, “Police! Return to the pavement”.  The 3^rd Appellant responded, “What?”  PW1 repeated, “Police! Walk back to the pavement”.  At this moment, the 1^st Appellant bumped against PW1’s left chest with his right shoulder and said “Why not?”  PW1 declared to arrest the 1^st Appellant and was about to grab hold of him with his right hand.

4.  At this moment, the 2^nd Appellant intervened and pushed away PW1’s hand.  PW1 then grabbed hold of the 2^nd Appellant and pulled and tugged with him and reached the location off Ho Shun Fuk Shopping Mall at Sau Fu Street.  In the meantime, someone attacked PW1’s head and left forehead.  At this moment, the 3^rd Appellant appeared, bumped against PW1’s right upper arm with her breast and shouted, “Police indecent assault” at the same time. Shortly afterwards, a male voice also shouted, “Police indecent assault!” and then people threw miscellaneous items to Sau Fuk Street.

5.  PW1 fell to the ground and in the course of which someone kicked his back.  He saw the 2^nd and 3^rd Appellants moving backward.  At that moment, he saw the 1^st Appellant appear in front of him. He got up immediately and grabbed hold of the 1^st Appellant. He also instructed other police officers to arrest the 1^st Appellant.

6.  In the meantime, the police officers at the scene used pepper spray.  Shortly afterwards, PW1 also instructed other police officers to arrest the 2^nd and 3^rd Appellants.

7.  Regarding the video footage (Exhibit D1) and the screenshots shown to him by the defence, it was alleged that he never fell down before the arrest of the 1^st Appellant.  PW1 pointed out that the video footage showed the situation after he got up from falling to the ground.

8.  The defence relied on the footage and put to PW1 that he did not grab hold of the 1^st Appellant immediately after his falling to the ground. There was a 13-second gap.  PW1 replied that the situation was pressing at that time and he considered 13 seconds to be an immediate (response).

9.  PW1 said that from the time he solely dealt with the three Appellants and the other unknown male to the time he grabbed hold of the 1^st Appellant, it took less than 5 minutes.  He agreed with the defence’s description that when he solely dealt with the four persons, he was “fighting alone”.

10.  PW1 said when he fell to the ground, PW2 had assisted him in dealing with the person who had attacked his head and left forehead.

11.  PW1 disagreed with the defence that the 3^rd Appellant only shouted “indecent assault” instead of “police indecent assault”.

12.  PW1 denied that he had moved his face close to the 3^rd Appellant.  He also denied that he had grabbed the shoulder strap of the 3^rd Appellant’s backpack and touched the 3^rd Appellant’s left breast, that’s why the 2^nd and 3^rd Appellant shouted “indecent assault”.

13.  At the time of the incident, PW2 was also in plain clothes and wore a police vest with his police warrant card hanging in front of his chest.

14.  Originally, PW2 was on duty with PW1 together on the safety island.  At that time, the crowds at Kiu Lok Square kicked up a commotion and he looked towards that direction.  Later, he lost sight of PW1 so he walked towards Kiu Lok Square.  Then he saw the back of a person who looked like PW1 lying on the ground whilst another male dashed towards and kicked that male on the ground with his leg.  PW2 intercepted the male who did the kicking and shouted “Police”.  PW2 and the male who did the kicking pulled and tugged with each other.  PW2 shouted “Police, come out!”  At that junction, the 4^th Appellant appeared suddenly and pushed PW2’s chest with both of his hands.  PW2 said to the 4^th Appellant, “Police, walk away!” and took out handcuffs preparing to arrest the male who did the kicking.  At that junction, the 4^th Appellant walked to the back of that male and pulled him away which caused PW2 to loosen his grip.  The male who did the kicking seized the opportunity and left. Then PW2 grabbed hold of the 4^th Appellant and arrested him.

15.  Under cross-examination, PW2 agreed that the 4^th Appellant might have failed to see his warrant card but disagreed that the 4^th Appellant might not have heard him shout “Police, walk away!”.  PW2 agreed that the 4^th Appellant had said under caution after being arrested, “I did not know he was a police officer. I saw people fighting so I separated them!”

Defence case

16.  All four Appellants were of clear record and elected to give evidence.

The 1^st Appellant’s case

17.  At the material time, the 1^st Appellant was a 13-year-old teenager.  He participated in the “Recover Yuen Long” action alone.  He was outside Ho Shun Fuk Shopping Mall.  When he intended to cross the safety island at Kui Lok Square to go to Tai Kiu Market, where supporters of “Recover Yuen Long” gathered at, clamours suddenly came from his back.  He was then pushed to the road outside Ho Shun Fuk Shopping Mall by the human chain formed by police officers.  At that time there were many people on the road.  Soon afterwards, he was caught and arrested by police officers.

18.  He said he had not run out to Sau Fu Street and bumped against PW1 as alleged by PW1. He said the video footage in Exhibit D1 had shown PW1 had never fallen on the ground.  He said he did not know the 2^nd and 3^rd Appellants.

19.  Under cross-examination, he disagreed that the 3^rd Appellant had bumped against PW1 with her breast – although he had not paid attention to the 3^rd Appellant.  He said that there was a female voice shouting “police indecent assault” and another male voice shouting “indecent assault” at the time of the incident.  He said he had arrived at Sau Fu Street at around 4:30p.m.  Two camps of people were on the pavements at both sides of the road.  The road at Sau Fu Street was still open for vehicle access. There were no participants of “Recover Yuen Long” action on the road. Only some “blue berets” policemen stood at the side of the road.

The 2^nd Appellant’s case

20.  At the material time, the 2^nd and 3^rd Appellant were lovers. He did not know the 1^st Appellant.  He participated in the action of “Recover Yuen Long” with the 3^rd Appellant.

21.  When he and the 3^rd Appellant arrived at the safety island at Kiu Lok Square, he separated with the 3^rd Appellant because he needed to drink water and there was crowd control at the scene but he still kept an eye on the 3^rd Appellant all along.  He saw the 3^rd Appellant and a female talking to police officers.  The two of them walked towards the direction where there were clamours and stopped at somewhere which was 6 or 7 meters away from him.  At that junction, a fat male (i.e., PW1) lowered his head, bent down his body and “leaned” his face “towards” the 3^rd Appellant’s face and forehead but the two had no physical contacts.  Upon seeing the afore-mentioned situation, he was very concerned and ran towards the 3^rd Appellant.  He saw PW1 grabbing the shoulder strap of the 3^rd Appellant’s backpack with his right hand.  The 3^rd Appellant shouted “indecent assault” and he also shouted “indecent assault, let go, let go of the girl”.  He grabbed hold of PW1’s left hand but was caught by PW1 in return.  The two pulled and tugged with each other and later PW1 loosened his grip.

22.  The 3^rd Appellant found that her phone was missing so they returned to the scene and asked the police officers at the scene whether they could look for the phone.  Suddenly a police officer grabbed his neck, pulled him down to the ground and a lot of police officers dashed to him.  After he got up, he saw blood on the 3^rd Appellant’s mouth and nose.  He was taken away and arrested by police officers.

23.  He did not obstruct PW1 in his arrest of the 1^st Appellant as alleged by PW1.

24.  Under cross-examination, the 2^nd Appellant alleged that the incident of PW1’s “leaning towards the face” and pulling the shoulder strap of the 3^rd Appellant’s backpack had occurred prior to the situation captured in the video footage (Exhibit D1) produced to the court.

25.  He also pointed out that before he reached the 3^rd Appellant, he already saw PW1 “holding” the shoulder strap of the 3^rd Appellant’s backpack, “touching” the 3^rd Appellant’s breast.  When he reached the 3^rd Appellant, PW1 was still “holding” the shoulder strap and was “touching” the 3^rd Appellant’s breast.

The 3^rd Appellant’s case

26.  The 3^rd Appellant’s evidence was generally the same as the 2^nd Appellant’s.  She said PW1 showed up before her all of a sudden, “leaned” his face “towards” her forehead, grabbed the shoulder strap of her backpack with his hand and touched the upper part of her left breast.  She was very scared and shouted, “Indecent assault, indecent assault”.  Later PW1 suddenly shouted, “Arrest her, arrest her”.  She denied that she had known PW1 was a police officer.  She said when the 2^nd Appellant was subdued by the police officers, she was also pushed down onto the ground causing fracture on her nasal bone.

27.  Under cross-examination, she also agreed that the video footage shown in exhibit D1 was recorded after the incident she described.

28.  The 3^rd Appellant did not complain to the police officers at the scene that she had been indecently assaulted by PW1, nor did she lodge any complaints after the incident.

29.  The 3^rd Appellant stated that after the incident, she followed the legal advice provided by a pro bono lawyer, so she did not lodge a complaint to the Complaints Against Police Office, nor did she make a report to the police to pursue the matter.

The 4^th Appellant’s case

30.  The 4^th Appellant claimed that he did not participate in the assembly.  He only walked past the location concerned in the case.  At that time, he saw two males have bodily contacts so he went up to separate them.  He did not know one of them was PW2.  He said the scene was very noisy.  He did not see PW2’s police warrant card and did not see PW2 taking out the handcuffs. He also did not hear PW2 saying “Police! Walk away!”

31.  After the 4^th Appellant was arrested, he said under caution that he did not know PW2 was a police officer and he saw people fighting, so he separated them.

32.  Under cross-examination, the 4^th Appellant agreed that uniformed police officers had been at the scene all along and the distance between PW2 and he was [close] enough for him to know PW2 was a police officer.  He also agreed that he had worried about being beaten up when he separated the two males who were pulling and tugging with each other.

The findings of the magistrate

33.  The respondent briefly recounted the magistrate’s verdict for conviction which I basically adopt.

34.  The magistrate set out the charges faced by the four Appellants and briefly set out the evidence of PW1 and PW2.

35.  The magistrate gave himself relevant directions on the good character of the 1^st to 4^th Appellants.

36.  With regards to the burden and standard of proof, the magistrate also gave himself relevant directions, including the prosecution’s duty to prove the case beyond all reasonable doubts, the defence does not bear any burden of proof, if the defence’s cases are true or may be true, they must be acquitted and even if the magistrate does not accept the defence’s versions, it does not mean that they have to be convicted because the prosecution still has to prove their guilt.

37.  The magistrate reminded himself that he had to consider the respective charges faced by the 1^st to 4^th Appellants independently.

38.  The magistrate summarized the evidence of the 1^st to 4^th Appellants.

39.  The magistrate, after viewing and considering the content of Exhibit D1 and the relevant screenshots, opined that the video footage of Exhibit D1 was blurry, unclear and of extremely poor quality.  He also could not see any relevance between its content and the incidents happened in the four charges of this case.  He could not give any weight to the video footage and the screenshots.

40.  The magistrate considered PW1’s evidence and found that his evidence was clear and was unshaken under cross-examination.  The magistrate specifically mentioned the closing speech of the 1^st Appellant in which the discrepancies between PW1’s evidence and his written statement were emphasized. However, he considered that the discrepancies alleged were not contradictions and found that PW1’s evidence was reliable and credible.

41.  The magistrate also considered PW2’s evidence and found that his evidence was clear and not exaggerated.  PW2 frankly agreed to the things put to him by the 4^th Appellant under cross-examination.  The magistrate found PW2’evidence to be reliable and credible.

42.  The magistrate considered the discrepancies between the evidence of PW1 and PW2 and held that these discrepancies were not contradictions and they did not affect their reliability and credibility.

43.  The magistrate pointed out that the evidence of the 1^st Appellant was a simple denial.  After considering the 1^st Appellant’s evidence, he did not accept that the 1^st Appellant who had a smaller body size would not have bumped against PW1 who had a bigger body size.  He also refused to accept the 1^st Appellant’s evidence.  He was sure that the incident had happened in the way described by PW1 in his evidence and found that the 1^st Appellant had known PW1 was a police officer who was in execution of his duty and had bumped against PW1’s left chest with his right shoulder.  Hence, [the magistrate found him] guilty of the charge of “assaulting a police officer in the execution of his duty”.

44.  The magistrate considered the 2^nd Appellant’s evidence and found that his evidence in chief was inconsistent with that under cross-examination, moreover, (i) when the 2^nd Appellant sawthat his girlfriend (i.e., the 3^rd Appellant) had been indecently assaulted, he did not mention the incident to the police officers in his vicinity and (ii) it was inherently improbable that the 2^nd and 3^rd Appellants only focused on looking for the mobile phone after the indecent assault incident.  He foundthat his evidence was not credible.  The magistrate was sure that the incident had happened in the way as described by PW1 in his evidence and held that the 2^nd Appellant had known that PW1 was a police officer in the execution of his duty.  When PW1 intended to arrest the 1^st Appellant, the 2^nd Appellant pushed away PW1’s right hand with both of his hands and pulled and tugged with PW1.  Hence, [the magistrate found him] guiltyof the charge of “obstructing a police officer in the due execution of his duty”.

45.  The magistrate considered the 3^rd Appellant’s evidence and found that her evidence was self-contradictory and was inherently improbable, i.e., she was indecently assaulted but did not report the incident to the police officers nearby. Later she knew that PW1 was a police officer and even obtained legal advice but she still did not lodge any complaint or make a report to the police regarding the incident.  Instead she only complained that she had been pushed down by someone.  The magistrate found that her evidence was not credible.  The magistrate was sure that the incident had happened in the way described by PW1 in his evidence and found that the 3^rd Appellant, at the time of incident, had bumped against PW1’s upper right arm with her breast and she had assaulted PW1 knowing that PW1 was a police officer in the execution of his duty.  Hence, [the magistrate found her] guilty of the charge of “assaulting a police officer in the execution of his duty”.

46.  The magistrate considered the 4^th Appellant’s evidence and found that his evidence was inherently improbable, i.e., he intervened in the pulling and tugging of two males without knowing the cause and separated them with his hands but he had worried that he might be beaten up.  The magistrate held that his evidence was not credible. The magistrate was sure that the incident had happened in the way as described by PW2 in his evidence and found that when PW2 was about to arrest the male whom he had grabbed hold of, the 4^th Appellant pulled that male away, causing PW2 to loosen his grip and at that time, [the 4^th Appellant] knew that PW2 was a police officer in the execution of his duty.  Hence, [the magistrate found him] guilty of the charge of “obstructing a police officer in the due execution of his duty”.

Application of [Adducing] Fresh Evidence

47.  The 1^st Appellant originally applied to produce two video footages, namely CTM-1, CTM-2 (and their screenshots) and CTM-3(and its screenshots) as fresh evidence.  As the purpose of CTM-3 was just to show the faces and the clothes of the four Appellants, the respondent did not object to the production of the video footage (and the screenshots) to the court.

48.  The video footages in CTM-1 and CTM-2 were retrieved by the 1^st Appellant’s father from a video stored in a SD memory card (CTM-1) owned by the photographer Yiu Wai Ming.  It was burned into a digital disc (CTM-2) by a computer. The content showed the situation at the scene on the material date.

49.  The Appellant contended that the footage in CTM-2 showed the 1^st Appellant’s climbing over the metal railing at the pavement outside Ho Shuk Fuk Shopping Mall and walking onto the road.  It also recorded the location of PW1 and the 3^rd Appellant.  It can be seen that the circumstances under which the 1^st Appellant was arrested was different from those described by PW1.

50.  The 1^st Appellant’s father also explained in his affirmation that the existence of the video footages in CTM-1 and CTM-2 was not known during the trial.  Various video footages and video links were received from people through internet only after sentencing and the relevant video footages were later found on the website of Facebook.

51.  The Appellant contended that the circumstances shown in the video footages were relevant to the issue in this case.  The video footages did not show the circumstances described by PW1 and did not show that PW1 had fallen down.  The video footages might lead to a different verdict, thus they shall be admitted as fresh evidence.

My ruling on the fresh evidence

52.  The Court of Final Appeal sets out clearly the conditions to be satisfied before the Court of Appeal can receive fresh evidence in Mohammad Mahabobur Rahman v HKSAR[1]:

(a)  the fresh evidence is likely to be credible;

(b)  it would have been admissible in the courts below;

(c)  it is relevant to an issue in the appeal;

(d)  there is a reasonable explanation for the failure to adduce it in the courts below; and

(e)  the court is satisfied that it would afford a ground of appeal.

53.  I accept that the fresh evidence has satisfied the conditions of paragraph (a), (b) and (d) above but I think it fails to meet the conditions of paragraph (c) and (e) above.

54.  CTM-2 is apparently clearer than D1 and the footage covers a longer period of time than D1. It shows more about the situation at the early stage of the incident but it is still basically similar to the situation shown in D1.  As to the defence’s argument that CTM-2 did not show that D1 had fallen down, after considering that D1 also did not show that D1 had fallen down but PW1, the 2^nd Appellant and the 3^rd Appellant all stated or agreed that what D1 showed was after PW1 had fallen down and it showed what happened after the contact incident with PW1 as described by the 2^nd and 3^rd Appellant, thus [I consider that] the situation shown in CTM-2 and D1 are basically similar in this regard.

55.  The 1^st Appellant particularly relied and stressed on the 1^st Appellant’s movement.  Mr. Randy Shek, Counsel for the 1^st Appellant argued that CTM-2 showed that the 1^st Appellant climbed onto the metal railing from the pavement and then climbed over the metal railing and walked onto the road and approached PW1.  However, I have repeatedly watched CTM-2 and still cannot see the 1^st Appellant climbing onto the metal railing from the pavement.  From what I have seen, the footage shows that the 1^st Appellant was already on the metal railing when he appeared.  He then climbed over the metal railing and ran towards PW1 and other people.  Judging from the 1^st Appellant’s posture at that time, I think he seemed to change his mind after climbing onto the metal railing from the road and went to the other side of the road instead.  Anyway, in short, I definitely cannot see from the footage that the 1^st Appellant climbed onto the metal railing from the pavement.

56.  Having considered that the 1^st Appellant’s testimony in court did not reveal that he had climbed onto any metal railing [his testimony was that he only intended to go to Tai Kiu Market but he was pushed to the road outside Ho Shun Fuk Shopping Mall by the human chain formed by the police officers and was then arrested innocently], I do not think that the video footage is relevant to the issue in this appeal and do not think it would afford a ground of appeal if the court accepts it as evidence.

57.  I do not accept CTM-1 and CTM-2 to be fresh evidence.

Grounds of Appeal (Re: Conviction)

The 1^st Appellant

58.  As I do not allow the application for adducing fresh evidence, it is not necessary for me to deal with the grounds of appeal based on the grounds of “fresh evidence”.  The 1^st Appellant basically advanced four grounds of appeal to say that the conviction is unsafe and unsatisfactory:

(i) The magistrate should not have criticized the extremely poor quality of the video footage of D1 and its screenshots (D2 and D2A) and attached no weight to them.

(ii) The magistrate rejected the 1^st Appellant’s testimony without fully considering the 1^st Appellant’s testimony.

(iii) The magistrate did not properly deal with the intrinsic contradictions between the testimony of PW1 and that of PW2 and the contradictions between exhibits D1, D2 and D2A under comparison; and

(iv) There is a reasonable lurking doubt in the case.

The 2^nd and 3^rd Appellants

59.  The ground of appeal put forward by Mr. Lawrence Lau, Counsel for the two Appellants, basically said that PW1’s testimony was exaggerated and not credible, so the magistrate should not have accepted his testimony.  On the other hand, the Appellants also complained that the magistrate failed to assess the 2^nd and 3^rd Appellants’ testimony properly when he rejected their testimonies in his findings.

The 4^th Appellant

60.  Mr. Kelvin Hon, Counsel for the 4^th Appellant, pointed out that even if the magistrate did not believe and accept the testimony of the 4^th Appellant, the magistrate still needed to examine whether the prosecution had sufficient evidence to prove the guilt of the 4^th Appellant.  He also submitted that the basis on which the magistrate rejected the 4^th Appellant’s testimony was irrational.

My Consideration

61.  Magistracy appeals are dealt with “by way of rehearing” on the evidence before the trial magistrate (if fresh evidence is held admissible by the appellate court, that will be taken into consideration too): See the case of Chou Shih Bin v HKSAR[2].  I am of the view that for the facts of the case, the appellate court should give regard to the advantage of the trial magistrate for having heard and observed the witnesses in the witness box. The appellate court should not rely on the written transcripts of the case to determine whether a witness is credible and reliable: See the case ofRaymond Chen v HKSAR[3]. As to the credibilityand reliability of a witness, that will be a matter entirely for the trial magistrate to decide.  If the trial magistrate has made a finding of fact which is unreasonable, illogical or inherently incredible, or that the trial magistrate has erroneously quoted certain important matter or that he has omitted it or failed to take it into consideration, the conviction will be unsafe.

62.  Firstly, I completely disagree with Mr. Shek’s criticism of the magistrate in relation to the footage in D1 and its screenshots in D2 and D2A.

63.  In the trial, the magistrate indicated to the two counsel for the four Appellants that he could not see the situation referred to by the defence in the video footage and the screenshots.

64.  After viewing the relevant video footage and screenshots, I also cannot see the acts of the people (regardless of whether it was PW1 or the 1^st, 2^nd and 3^rd Appellants) at the material moment referred to by the defence.

65.  The video footage showed a chaotic situation and even though screenshots were provided, they could not clearly show actually who did what act to whom? It is obvious that the magistrate meant the relevant people and acts were unclear and the quality was extremely poor. He was not saying that all images in the video footage were blurry and were of poor quality.

66.  Although the 1^st Appellant heavily relied on the video footage in D1 which did not show that PW1 had fallen down and grabbed hold of the 1^st Appellant who was in front of him once he got up, PW1 expressively said that the video footage showed what happened after he had fallen down and the testimony of the 2^nd and 3^rd Appellants also supported what PW1said.

67.  The magistrate, as the fact-finder, definitely was entitled not to rely on the relevant video footage or screenshots.

68.  The 1^st, 2^nd and 3^rd Appellants all complained about PW1’s testimony and submitted that the magistrate should not have accepted his testimony.

69.  I first point out that it is not necessary and also not possible for a magistrate to explain the entire mental process which he went through.  As Hon Stock J (as he then was) stated in R v Kwong Wing On and Another[4]:

“...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.”

70.  After considering the testimonies of PW1 and PW2, I can see from PW1’s testimony that when he was on the safety island before going onto the road, no other people besides uniformed police officers and some CID officers were on the road. Supporters and opponents of “Recover Yuen Long” action were on the pavements at both sides of the road respectively.  When PW2 described that there were many people on the road, he was referring to the situation after he had heard clamours.  Moreover, the 1^st Appellant also agreed that there were no other marchers on the road at around 4:30p.m.  I do not agree that there was a discrepancy between the testimonies of PW1 and PW2.

71.  The Appellant argued that the duration of the incident described by PW1 and PW2 was different: PW1 said the entire incident had happened within 5 minutes.  He believed that it had been around 5 minutes from the moment he fell down and got up to the time the 2^nd and 3^rd Appellants were subdued.  The 2^nd Appellant said that PW1 and he were on the safety island together.  Later he heard clamours and after 10 seconds or so, he saw a person whose back looked like PW1 lying on the ground and being kicked at the back by a male.  The Appellant also contended that [saying that] PW1“was fighting alone” was unreasonable.

72.  I will first deal with PW1’s testimony of “fighting alone”.  I do not agree with the Appellant’s argument.  At that time, two opposing parties were on the pavements at both sides of the road respectively.  Only police officers were on the road guarding and maintaining order.  PW1 saw four people walking out to the road and running towards Ho Shun Fuk Shopping Center.  It is not inherently improbable that PW1, as a Chief Inspector, went forward alone to stop them.  PW1 was attacked by the 1^st Appellant and later pulled and tugged with the 2^nd Appellant.  In the meantime, no other police officers assisted him.  Judging from all the circumstances at that time, it is not unreasonable.  The police officers at the scene had to “have regard to the overall situation” and ensure the safety of the circumstances at the scene.  PW1 was not attacked by people with weapons. It is understandable that the other police officers continued to maintain order of the crowds at the scene and did not provide assistance at once.  Moreover, PW1 was not fighting alone throughout the whole incident.  Police officers assisted him after his head was hit and he fell to the ground.

73.  As to the argument that the significant discrepancy between the evidence of PW1 and PW2 relating to the duration of the incident (i.e., within 5 minutes and around 10 seconds) cast doubts on PW1’s evidence, I think the 5 minutes should not be compared with the 10 seconds directly.  It must be pointed out that what PW1 described was the approximate duration of the entire incident.  Everyone has different conceptions about time – especially when an incident happened unexpectedly and it was a party in the incident who was asked about the length of time.  It is very probable that PW1 subjectively considered the duration to be within 5 minutes or so but the actual length of the incident might not be that long.

74.  More importantly, the 10 seconds or so described by PW2 was counted from the moment after he heard the clamours. Why did the crowd clamour?  When did the clamours begin? Was there any correlation between the clamours and PW1’s going to the road and intercepting the three Appellants and an unknown male?  If yes, at which stage did it happen?  There is no evidence in this regard in this case.

75.  I do not think that the different accounts of PW1 and PW2 about the duration are major discrepancies which cast doubts on PW1’s evidence.

76.  With regards to the 1^st Appellant, PW1’s evidence was simple and direct.  I see nothing improper for the magistrate to reject the submission that the 1^st Appellant who had a relatively smaller body size would not have bumped against PW1 who had a bigger body size.  He, as the fact-finder, was entitled not to accept what the 1^st Appellant said.

77.  Mr. Shek submitted that the magistrate, after setting out the evidence from the prosecution and the defence, only briefly explained that he had considered the evidence and demeanour of the prosecution witnesses before finding they were honest witnesses and accepting their evidence.  Hence the magistrate only stated his conclusion without making any evaluation.

78.  It is true that the magistrate could have further elaborated why PW1’s evidence was not unreasonable (for example, about the aspect of “fighting alone”) but the facts of this case are simple and straight-forward.  I have already stated that it is not necessary for the magistrate to reveal his mental process.

79.  The magistrate clearly knew and stated that the burden of proof was on the prosecution.  He also stated that the 1^st Appellant would not be convicted if what he said was true or might be true.

80.  Although the magistrate said, “The 1^st Appellant’s evidence did not cast any doubts on PW1’s evidence”, it seems that the magistrate was just saying he did not accept the 1^st Appellant’s testimony, therefore the 1^st Appellant’s evidence did not cast any doubts on PW1’s evidence.  Such words of his did not place the burden of proof on the defence and mean whether the 1^st Appellant could be acquitted depended on whether the 1^st Appellant’s evidence could bring out any doubts.

81.  The evidence of the 2^nd and 3^rd Appellants revealed that they did not know PW1 was a police officer.  PW1 had “leaned” his face towards the 3^rd Appellant’s “face, forehead”.  Furthermore, he even pulled the shoulder strap of the 3^rd Appellant’s backpack with his hand and touched the left breast of the 3^rd Appellant, that’s why they shouted “indecent assault”.

82.  PW1’s evidence was completely different.  He said he had not “leaned” his face towards the 3^rd Appellant.  He also had not grabbed hold of the shoulder strap of the 3^rd Appellant’s backpack and touched the left breast of the 3^rd Appellant.  His evidence was that when he was pulling and tugging with the 2^nd Appellant and focusing on grabbing hold of the 2^nd Appellant, the 3^rd Appellant appeared and bumped against PW1’s upper right arm with her breast and shouted “police indecent assault” at the same time.

83.  If the incident had happened in the way described by the 2^nd and 3^rd Appellants, then a Chief Inspector who was on duty indecently assaulted the 3^rd Appellant in full view of the public totally ignoring the other police officers and public at the scene.  If the incident had happened in the way described by PW1, then a woman had deliberately bumped her breast against PW1 and then shouted “police indecent assault” to falsely accuse PW1.  I consider that it is not absolutely impossible that the above two scenarios would not have occurred, which are not “inherent improbable”. What is important is how the magistrate, as the fact-finder, dealt with the evidence concerned.

84.  The magistrate accepted PW1’s testimony and rejected what the 2^nd and 3^rd Appellants had said. The reasons he set out included the following aspects: whether PW1 had “leaned” towards the 3rd Appellant’s head or forehead according to the 2^nd Appellant; they returned to the scene after the “indecent assault” incident to look for the phone instead of complaining to the police officers at the scene about the 3^rd Appellant having been “indecently assaulted” and no action was taken by the 3^rd Appellant for the “indecent assault” on her after the case.

85.  Although I am of a view that the magistrate should not have arbitrarily held that no lawyers would have advised the 3^rd Appellant not to lodge a complaint after the incident, I think the magistrate was entitled to reject the testimonies of the 2^nd and 3^rd Appellants in relation to what happened at the scene.  If the situation described by the 2^nd and 3^rd Appellants is true, i.e., a male (whom they did not know was a police officer) blatantly “indecently assaulted” a female in full view of the public and the 2^nd and 3^rd Appellants also shouted “indecent assault” and there were police officers (including “blue berets”) at the scene to maintain order, there is no reason why they did not complain to the police officers at the scene at once (particularly in view of the fact that the male did not withdraw his hand once he touched the 3^rd Appellant’s breast but continued to touch her breast according to the 2^nd Appellant).  The magistrate analyzed it and stated that it was unreasonable that they only focused on looking for the phone and did not complain to the police officers at the scene.  There is nothing wrong in this finding.

86.  Moreover, the 2^nd and 3^rd Appellants claimed that they did not know PW1 was a police officer.  PW1 disagreed (PW1 said the 3rd Appellant had shouted “police indecent assault”), the 1^st Appellant also testified that at that time someone had shouted “police indecent assault”.  His testimony supports that the 3^rd Appellant shouted “police indecent assault” knowing full well that PW1 was a police officer.

87.  Since the 2^nd and the 3^rd Appellants were lovers, it is not impossible and not inherently improbable that the 3^rd Appellant bumped against PW1 with her breast, falsely accused PW1 and shouted “police indecent assault” in a moment of desperation when the 2^nd Appellant and PW1 were pulling and tugging with each other.

88.  As to whether it was possible that the 3^rd Appellant might have misunderstood that PW1 had indecently assaulted her and shouted, since the magistrate accepted the words of PW1, i.e., he simply had not pulled the shoulder strap of the 3^rd Appellant and had not touched the 3^rd Appellant’s breast, no misunderstanding would have arisen.

89.  In respect of the 4^th Appellant, the evidence showed that PW2, who wore a police vest and carried his warrant card, shouted, “Police! Walk away!”  There is no reason why the 4^th Appellant did not know PW2 was a police officer.  The 4^th Appellant said that he had thought some people were fighting so he readily intervened.  However, police officers (including “blue berets”) were around him to maintain order and he had worried about being beaten up for his intervention.  Although he said under caution and after his arrest that he did not know PW2 was a police officer and he went to separate them as they were fighting, as far as the evidence in this case is concerned, it is sensible and reasonable for the magistrate to reject what the 4^th Appellant said.  I see no reason for interfering.

90.  I disagree with Mr. Shek’s submission that there is a lurking doubt in this case.  The conviction of the four Appellants is not unsafe.  When I “re-heard” the case in appeal, I also found the prosecution has proved the charges faced by the four Appellants beyond any reasonable doubt.

Conclusion

91.  For the above reasons, I dismiss the four Appellants’ appeals against conviction.

Reasons for Sentence

92.  The Respondent also briefly recounted the magistrate’s reasons for sentence which I adopt.

“The magistrate’s reasons for sentence

85.  On 16 July 2015, the magistrate heard the preliminary mitigation for the 1^stto 4^th Appellants after finding them guilty. After adjourning the hearing for consideration on the same day, the magistrate decided to call for Rehabilitation Center and Detention Center reports for the 1^st and 2^nd Appellants whilst background reports would be called for the 3^rd and 4^th Appellants. The magistrate also considered that both probation order and community service order were not the appropriate sentences.

86.  On 27 July 2015, the 1^st Appellant was represented by a senior counsel who applied to review the decision of the magistrate made in the mitigation in the last hearing, i.e., his refusal to remit the sentence of the 1^st Appellant to a juvenile court. The magistrate upheld his decision after consideration.

87.  Lastly, after considering the relevant reports and further mitigation, the magistrate imposed the sentence on 30 July 2015. His sentencing consideration can be seen in his Reasons for Sentence and a summary is made as follows:

(a)  The magistrate first pointed out that his experience in hearing trials in Tuen Mun Magistrates’ Court showed that there were a number of cases involving assaulting or threatening public officers in the execution of their duties, so he considered that the court had a dutyto deter defendants and other people from committing crimes of assaulting or threatening law enforcement officers. The magistrate also stated the number of demonstration activities had grown in recent years, though citizens had the right to participate in these activities, the court had to protect police officers from any assaultsor obstructions in demonstration activities. In the demonstration activities in recent years, there were many cases of assaulting or obstructing police officers. He was of the view that sentence with deterrent effecthad to be imposed. Hence, in this case, custodial sentence was the only appropriate sentencing consideration.

(b)  For the sentence of the 1^st Appellant, the magistrate referred to his medical report regarding his mental status, his Rehabilitation Center and Detention Center reports, the 《Beijing Rules》put forward by the 1^st Appellant regarding the sentencing of juvenile criminals and the fact that he had a similar case pending trial. He opined that the order of Rehabilitation Center was appropriate. The magistrate must have taken into account the mitigation letters submitted to the court by senior counsel for the 1^st Appellant in mitigation as well.

(c)  For the sentence of 2^nd Appellant, the magistrate referred to his Rehabilitation Center and Detention Center reports and pointed out that the facts of the case of the 2^nd Appellant were more serious than those in the general cases of obstructing police officers in the execution of their duties. After considering his age and background, a Detention Center order was made.

(d)  For the sentence of the 3^rd Appellant, the magistrate referred to her background report and pointed out that her case became serious as she had bumped against PW1 with her breast and had shouted “police indecent assault”as this would lead to a commotion in the crowd andmake PW1 worry about facing disciplinary or criminal procedures. After considering her age and background, four months’ imprisonment was adopted as the starting point and half a month was deducted for her good character. She was sentenced to three months and fifteen days’ imprisonment.

(e)  For the sentence of the 4^th Appellant, the magistrate referred to his background report and pointed out that the facts of the case concerning the 4^th Appellant were as serious as those concerning the 2^nd Appellant.  After considering his age and background, six months’ imprisonment was adopted as the starting point and three weeks was deducted for his good character.  He was sentenced to five months and one week’s imprisonment.” 

Grounds of Appeal (Re: Sentence)

The 1^st Appellant

93.  Mr. Shek advanced four grounds of appeal in total:

(1)  The magistrate erred in refusing to remit the 1^st Appellant’s case to a juvenile court for disposal;

(2)  The magistrate erred in refusing to consider probation order;

(3)  The magistrate erred in adopting a deterrent sentence as the only consideration; and

(4)  The sentence was manifestly excessive.

94.  I first deal with the aspect of “refusing to remit it to a juvenile court”.

95.  Mr. Shek cited section 3F(1) of the Juvenile Offenders Ordinance which read that the court shall, unless satisfied that it would be undesirable to do so, remit the case to a juvenile court.  The appellant pointed out that the magistrate refused to remit the case saying that he himself was more familiar with the case than another magistrate which would put him in a better position in sentencing and remitting the case to a juvenile court would delay the sentence and section 15 of the Juvenile Offenders Ordinance already provided him with various ways to deal with juvenile offenders.  These reasons were inappropriate.

96.  Mr. Shek cited the English Court of Appeal case of R v Holden[5] saying that only under two circumstances could the English adult courts ignore section 56 of The Children and Young Persons Act 1933 and accept that it would be undesirable to remit a case to juvenile courts: (1) the court was considering Borstal training (i.e., Training Center); or (2) the court intended to order a conditional discharge.

97.  In this case, the magistrate did not rely on the above two reasons, so he erred in refusing to remit the case to a juvenile court.

The respondent’s reply

98.  The respondent cited another English Court of Appeal case, R v Lewis[6], saying that the observations in the case on when it would be desirable or undesirable to remit juvenile offenders to juvenile courts were applicable [to this case].  The reasons included the trial judge would be better informed as to the facts and circumstances; to avoid great disparity in sentence if co-defendants were sentenced differently; there would be delay, duplication of proceedings and fruitless expenses etc as a result of the remission. The respondent also pointed out the reasons that Lewis was different from Holden was because after the case of Holden, the United Kingdom had amended the law governing the sentence of juvenile offenders. The justification that magistrates have power to refuse to remit juvenile offenders to juvenile courts set out in Archbold Hong Kong 2016came from the case of Lewis.

99.  The respondent also cited the case of HKSAR v Yeung Sze Lun[7] and advanced that the magistrate had correctly pointed out even though the case was not remitted to juvenile courts, section 15 of the Juvenile Offenders Ordinance already provided various ways to deal with juvenile offenders.

100.  In short, the respondent submitted that the magistrate had sufficient reasons for not remitting the 1^st Appellant’s case to a juvenile court for sentence.

My consideration

101.  I agree with the submissions advanced by the respondent.  I think the magistrate had provided sufficient and appropriate grounds to show that it was undesirable to remit the 1^st Appellant’s case to a juvenile court.  Although the case of Holden only sets out two circumstances under which the English courts could refuse to remit cases to juvenile courts, the case is not binding on me.

102.  Moreover, the magistrate could make consideration under section 15 of the Juvenile Offenders Ordinance.  As far as this case is concerned, this ground of appeal is purely “academic” and does not have any substantial effect on this case.

Other grounds of appeal

103.  I think the other three grounds of appeal can be dealt with together.

104.  According to the law, any person who assaults any police officer acting in the execution of his duty shall be liable on summary conviction to a fine of $5,000 and imprisonment for 6 months.

105.  I think in this case, one must take into account that the Appellant was only 13 years’ old on the date of offence and was 14 years’ old when he was sentenced.  He was of clear record and suffered from Obsessive-Compulsive Disorder. It seems that the offence was not premeditated.  He walked out onto the road suddenly with people whom he did not know.  When he was stopped by PW1, he bumped against PW1 out of momentary impulse.  The court shall also have regard to Clause 17 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, that’s the well-being of the juvenile shall be the guiding factor in the consideration of her or his case and restrictions on the personal liberty of the juvenile shall be limited to the possible minimum if restrictions on the personal liberty of the juvenile are considered (refer to HKSAR v Po Wa Loi[8]). When the 1^st Appellant pleaded not guilty, even though in general circumstances, a deterrent sentence was warranted for assaulting a police officer in the execution of his duty, the magistrate still should have first considered whether the 1^st Appellant was suitable to be put on probation and to impose a non-custodial sentence on him.

Conclusion

106.  For the above reasons, I allow the 1^st Appellant’s appeal against sentence and dismiss the Rehabilitation Center order.  I exercise the power of a magistrate to adjourn the case and to call for a probation report before sentencing.

The 2^nd Appellant

107.  The 2^nd Appellant was sentenced to Detention Center.

108.  Mr. Lau contended that the sentence was too heavy. Mr. Lau submitted that at the material time, the 2^nd Appellant was under 21 years’ old.  It is wrong in principle for the magistrate to sentence the 2^nd Appellant to Detention Center without having considered the option of dealing with him with a non-custodial sentence.

109.  Mr. Lau stressed that the offence committed by the 2^nd Appellant was not premeditated and it was inappropriate for a deterrent sentence to be imposed.

110.  Mr. Lau also pointed out that the magistrate had said the 2^nd Appellant “chimed in to shout ‘indecent assault’” which did not come from PW1’s evidence but from the 2^nd Appellant’s evidence. Hence the magistrate seemed to be self-contradictory.

My consideration

111.  According to the law, any person who obstructs any police officer in the due execution of his duty shall be liable on summary conviction to imprisonment for 2 years.

112.  The act of obstruction that the 2^nd Appellant did was preventing PW1 from arresting the 1^st Appellant and further pulling and tugging with PW1.  Undoubtedly, the offence of obstructing a police officer in the due execution of his duty is serious and generally a deterrent sentence is warranted.  However, having considered the facts of this case, there is no evidence showing the 2^nd Appellant was acquainted with the 1^st Appellant.  It seems that they suddenly decided to walk out on the road together and run towards Ho Shun Fuk Shopping Mall.  Their actions were stopped by PW1.  The 1^st Appellant bumped against PW1’s chest with his shoulder.  When PW1 was about to arrest the 1^st Appellant, the 2^nd Appellant intervened and pushed away PW1’s hand and then pulled and tugged with PW1.  Having considered the 2^nd Appellant’s action at that time was not premeditated, he actually did not know the 1^st Appellant and the 1^st Appellant was a 13 year-old teenager, the 2^nd Appellant seemed to be “giving a helping hand” to a teenager by pushing away PW1 barehanded, though his act still committed the offence of obstructing a police officer in the due execution of his duty, the overall circumstances of the offence were not very severe.

113.  Although the evidence showed there were other people shouting “indecent assault” besides the 3^rd Appellant, PW1 indeed never said that the 2^nd Appellant had also shouted “police indecent assault”.  The magistrate of course did not accept the 2^nd Appellant’s evidence but there was no evidence showing that the 2^nd Appellant had shouted “indecent assault” knowing full well that the 3^rd Appellant had deliberately framed up PW1.  The 3^rd Appellant and he were lovers.  It is understandable that he shouted together with the 3^rd Appellant upon hearing her shout “indecent assault” or “police indecent assault”. However, I think the sentence shall not have been enhanced because he had shouted “indecent assault”.

114.  Having considered the background of the 2^nd Appellant and the special circumstances of this case, I am of the view that the magistrate should have first considered a non-custodial sentence.

Conclusion

115.  For the above reasons, I allow the 2^nd Appellant’s appeal against sentence. I dismiss the Detention Center Order. I exercise the power of a magistrate and adjourn the case to call for a probation report before sentencing.

The 3^rd Appellant

116.  Mr. Lau contended that the magistrate was wrong in principle to sentence the 3^rd Appellant to imprisonment of 3 months and 15 days and the sentence was too severe.

117.  Mr. Lau submitted that the 3^rd Appellant was of clear record and the offence she committed was not premeditated. It was inappropriate for the magistrate to sentence her directly to a deterrent sentence of 3 months and 15 days’ imprisonment without having considered the sentence of a community service order.

My consideration

118.  The 3^rd Appellant is not a juvenile or a young person under the age of 21.  She is of clear record but the acts in the crime she committed are serious: she bumped her chest against PW1 and falsely accused PW1, a police officer, of “indecently assaulting” her.  Under the circumstances at that time, her acts might lead to a commotion among the other people at the scene which would get totally out of control.  However, I also consider that the circumstances of the case were that she, the 2^nd Appellant and the 1^st Appellant whom they did not know suddenly decided to step out to the road and run towards Ho Shun Fuk Shopping Mall, they were stopped by PW1. When the 2^nd Appellant obstructed PW1 in arresting the 1^st Appellant and pulled and tugged with PW1, she bumped PW1 with her breast and shouted “police indecent assault”, it seems that she was assisting her lover to free himself.  Although what she did definitely cannot be said to be excusable, I shall still take into account that she committed the offence under such circumstances.

119.  Although, on the facts of this case, it is appropriate for the court to consider custodial sentence as the 3^rd Appellant denied the offence and was convicted after trial, it does not mean the court definitely cannot consider a community service order and sentence the offender to spend her private time on performing unpaid community service as reparation for the harm her crime has done to the community.  A person who is convicted may not necessarily have no remorse after the conviction and may not necessarily refuse to perform a community service order.  Of course, imprisonment will be inevitable if the 3^rd Appellant in fact shows no remorse or is not willing to perform community service order.

120.  Moreover, I am also of the view that, on the circumstances of this case, even if custodial sentence is inevitable, the imprisonment term of 3 months and 15 days is also manifestly excessive.

121.  In view of the 3^rd Appellant’s background and the facts of this case, I am of the view that the court shall have first considered whether a community service order is appropriate.

Conclusion

122.  For the reasons above, I allow the 3^rd Appellant’s appeal against sentence and set aside the sentence.  I exercise the power of a magistrate and adjourn the case to call for a community service order report before sentencing.

The 4^th Appellant

123.  Mr. Hon also contended that the magistrate imposed a deterrent sentence of 5 months and 1 week’s imprisonment upon the 4^th Appellant without having fully considered that the 4^th Appellant was a first offender and the offence was not premeditated.  The sentence was wrong in principle and was also manifestly excessive.

My consideration

124.  The 4^th Appellant is a 22 year-old young person.  He is of clear record.  He obstructed PW2 who was in due execution of his duty to arrest another male.  It cannot be said that the facts of the case were not serious.  However, having considered all the circumstances at that time, it seems that the 4^th Appellant committed the offence out of momentary impulse.  It was not a premeditated act and the facts of the case were not very serious.  It is true that generally speaking, custodial sentence is appropriate for people who obstructed a police officer in the arrest of another person but having considered the 4^th Appellant’s background and all the circumstances, the court can give a young person a chance for rehabilitation.  I think the court can first consider whether the 4^th Appellant is suitable for a community service order and can spend his private time on performing unpaid community service as reparation for his mistakes.  Of course, just like the 3^rd Appellant, a custodial sentence will be inevitable if the 4^th Appellant shows no remorse or refuses to perform community service order.

125.  Moreover, I am also of the view that the sentence of 5 months and 1 week’s imprisonment is manifestly excessive even if a term of imprisonment is inevitable.

Conclusion

126.  For the above reasons, I allow the 4^th Appellant’s appeal against sentence and set aside the sentence.  I exercise the power of a magistrate to adjourn the case for a community service order report before sentencing.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung,Barrister-at-law.