HKSAR v. RIC NG

HCMA1077/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1077 OF 1997

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J U D G M E N T

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1. The Appellant was convicted of one charge of assaulting a police officer and was sentenced to a community service order. He was tried together with another defendant and the Appellant and the other defendant were also charged with another charge of assault occasioning actual bodily harm of which they were both acquitted.

2. The charge of which he was convicted involved an allegation that he had assaulted PC 49463 who, together with other police officers, had arrived at the scene of the incident at the New World Centre, Salisbury Road on 13th April 1997. The charge of which the Appellant and the other defendant was acquitted involved an assault on Chinese male Ng Fuk Lung who was PW1 at the trial. The Appellant now appeals against his conviction on the first charge.

3. The incident of which the Appellant was convicted had started with the Appellant having an altercation of some sort with PW1 and PW2. The Appellant's allegation at the trial was that he and his friend were in fact victims of an assault by PW1 and PW2, and that they in fact never assaulted PW1 and PW2. The learned Magistrate acquitted them of this charge on the basis that there were two many irreconcilable contradictions between the evidence of PW1 and PW2. He did not go as far as to say that he disbelieved PW1 and PW2, but that must have been the effect of his judgment.

4. Mr Jenkyn-Jones who appears for the Appellant makes the point that if the Magistrate had gone, as he should have, as far as to say that he did not believe PW1 and PW2, that would have assisted the Appellant insofar as the Appellant's credit-worthiness was concerned. This was, as it were, black against white - one side's version being diametrically different from the other side's version. The Appellant on the one hand said he was the victim but PW1 and PW2 on the other said that they were. The Appellant was charged with assaulting PW1 and PW2, he was tried and acquitted of that charge. The charge that the Appellant was at the end of that day convicted of, of course, did not involve PW1 and PW2 but involved a police office who only arrived at the scene after the altercation was over.

5. Mr Jenkyn-Jones, as his first ground, submits that the Magistrate was wrong to reject the evidence of PW4 who was another police officer at the scene as a prior inconsistent statement and was therefore inadmissible and irrelevant. What had happened was that PW4 had given evidence that PW1 had said to him, PW4, that he, PW1, had been assaulted inside the nightclub which was different from the evidence which he had given that he was assaulted outside the nightclub. This was clearly a prior inconsistent statement by PW1 and should have been taken into account by the Magistrate in assessing the credit-worthiness of PW1. Whether the Magistrate in fact did that or not, he should not have rejected that evidence as a prior inconsistent statement. However, in my judgment, at the end of the day it makes not a jot of a difference to the verdict of not guilty on the charge of assaulting PW1 because the verdict of acquittal on that charge was tantamount to the Magistrate saying that he did not believe PW1 and PW2.

6. Mr Jenkyn-Jones makes the point also that the Magistrate had wrongly rejected the evidence of DW3, Peter Smith, as being irrelevant and inadmissible. As I understand it, the evidence of this witness related to incidents prior to the night in question, incidents involving violence by PW1. The Magistrate had rejected that evidence as evidence which only went to credit. In any case it was not evidence which, in my judgment, should have affected his finding of guilt on the charge of assaulting the police officer because, if anything, it affected the credit-worthiness only of PW1 and not of PW3, the police officer who was assaulted.

7. The crux of Mr Jenkyn-Jones's submission is really that by failing to expressly say that he was disbelieving PW1 and PW2, the Magistrate was taking away from the Appellant matters which could have assisted the Appellant's credit-worthiness in front of the Magistrate. Mr Jenkyn-Jones says that this was because the Magistrate had wrongly rejected the evidence of PW4, which I have just mentioned, about the prior inconsistent statement by PW1 and also wrongly rejected the evidence of Peter Smith, DW3.

8. I do not agree that that is the case. The credibility of PW1 as a witness of truth was clearly rejected by the Magistrate. In rejecting the evidence of PW1, it did not necessarily follow that the Magistrate must have or should have accepted as true what the Appellant was saying. There is the obvious reason that the Magistrate acquitted on the charge of assaulting PW1 because he was not satisfied with PW1 and PW2's evidence; it does not follow from that that he must necessarily have been persuaded by the evidence of the Appellant as being true. PW3, the police officer, gave evidence which was accepted by the Magistrate. It has been said that findings on credibility of witnesses are for trial magistrates and for trial judges; it is not the function of the appeal court to interfere with these findings of fact by trial courts unless it can be shown that, for instance, there are such major discrepancies between the evidence of prosecution witnesses, or there are other matters which would cause an appeal court to have a lurking doubt about the correctness of the finding of guilt.

9. In this particular case, PW3 had given evidence, which was short compared with the rest of the evidence adduced at the trial, that when he arrived at the scene, the Appellant was shouting loudly "Nobody is fighting here and there is no need for policemen. Go away." PW3, the police officer, then said that the Appellant ran forward towards him and pushed him once. The officer then lost his balance and moved backwards for two steps. The Appellant then immediately ran forward and hit the officer's scrotum with his right knee. The officer felt very painful at that time, lost his balance and fell onto the ground. The officer's colleagues then went forward and subdued the Appellant.

10. Mr Jenkyn-Jones says that that evidence should not have been accepted in effect and he said that it was most unlikely that the victim of an assault, as the Appellant claims he was, who after the assault was at the scene waiting for the arrival of police officers would then launch an unprovoked attack on one of the police officers.

11. I made the comment to Mr Jenkyn-Jones when he was making his submission that it was also most unlikely that a police officer who was not involved in any altercation with anyone, arriving at the scene in uniform and on duty to investigate an incident, would fabricate evidence against a defendant. Mr Jenkyn-Jones then submitted that the suggestion was not that PW3 had fabricated the evidence but simply that he was mistaken, and the mistake is said to have arisen because, on the Appellant's evidence, the Appellant was not sure whether it was because he was not steady on his feet because of the amount of alcohol he had drunk, that he had fallen forward towards the police officer which caused the police officer to fall onto the ground.

12. The police officer's evidence, I think, goes much further than his falling backwards because of the Appellant falling towards him. The police officer says that the Appellant ran towards him, pushed him once and then kneed his scrotum with his right knee. That is far more than simply saying that the Appellant fell forward towards him which caused him to fall backwards.

13. Mr Jenkyn-Jones also makes the point that the evidence by PW3 was not only not corroborative but was contradicted by two people around him, namely, PW2 and PW4. PW2 was in effect a witness who had been in effect disbelieved by the Magistrate but be that as it may, PW2 had said in evidence that in relation to the incident of the police officer being assaulted, he could not see exactly but he saw one of the officers fall. He saw one of the defendants make a move and the officer fell on the ground. The effect of that evidence is simply that PW2 did not see very clearly what had happened vis-à-vis the police officer, and certainly does not contradict the police officer's evidence.

14. The other officer who is said to contradict the police officer is PW4 who was another police officer at the scene. Mr Jenkyn-Jones says PW4 never saw the Appellant run towards PW3 and never described the assault. PW4, in his evidence, said that he was 25 to 30 metres away from PW3 when PW3 fell to the ground. His evidence was that he did not know why PW3 fell, but he saw PW3 fall back on the ground. He agreed that he did not see anybody running towards PW3 immediately before PW3 fell onto the ground. That would of course be logical if indeed he was 25 to 30 metres away from PW3 as he said he was.

15. I do not agree with Counsel's suggestion that PW3 was contradicted by PW2 and PW4 and therefore should not have been believed by the learned Magistrate. It was, as it turned out, an unfortunate evening for the Appellant and one feels a bit of sympathy for his finding himself being involved in so much trouble on a night of drinking with friends, but the fact remains that he was convicted by the learned Magistrate of the charge of assaulting a police officer which, in my judgment, the Appellant has not been able to successfully attack as a wrong conviction. For the reasons which I have given, the appeal against conviction is dismissed.