THE QUEEN v. PETER ANTHONY STONE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No.848 of 1985

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BETWEEN

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JUDGMENT

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Preliminary

1. This is an appeal against conviction and sentence in respect of 3 convictions for assault of a police officer acting in execution of his duty, the appellant having been acquitted on 3 other charges of assault occasioning actual bodily harm and criminal damage.

Grounds of appeal

2. The only grounds of appeal filed were that the convictions were unsafe because the magistrate had failed to evaluate the evidence and to attach sufficient weight to evidence in favour of the Defendant. No further particulars were given. Mr Jackson for the Crown, while not applying for such further particulars, as he was perfectly entitled to do, quite rightly pointed out that the Court of Appeal has repeatedly said that such grounds are not sufficient and particulars should be supplied, per Blair-Kerr, J. in Wong Wing-koon v. R. 1970 H.K.L.R. 60. Failure to do so may result in an adjournment until they are provided and an award of costs. Mr Jackson also referred to the fact that the notice of appeal against sentence had been filed only at the very last minute. I can only repeat the warning given by Blair-Kerr J.

Background

3. On the 4th of April 1985 the appellant, who is a Staff Sergeant (Chief Clerk) with the H.Q. British Forces, went with a friend to the Sergeants Mess at H.M.S. Tamar at 2000 hours. It was his birthday and between then and leaving at 2300 hours he said he had 3 pints of beer. They then went to a Wanchai bar where he had 2 more cans of beer and then to premises in Marsh Road known as Palatial Villas, no doubt an apt description, with 2 bar girls. After payment to the receptionist - and presumably the girls though that was unclear - each went to a room. The appellant said his friend attended to payment. Sometime later the appellant came down to the lobby, without the girl, and there was an altercation with various members of the staff. Clearly violence was used and some of the premises'property was damaged. This resulted in the first 2 charges of assault and criminal damage. The magistrate however found that the evidence given by the premises' staff was conflicting and unreliable and he dismissed those charges.

4. Several police officers then came to the scene including two inspectors, and again clearly there was further violence as a result of which two constables and one inspector received injuries, as did the appellant; none of the injuries was serious though all persons received a medical examination. Reports on the Police officers were produced at a very late stage. There was none produced at the trial as to the appellant but I was informed one was now available. As it was not before the magistrate it was not used in the appeal but the magistrate had clear evidence that the appellant was injured, which was not challenged.

5. It was the Crown's case that when the Police party arrived the appellant reacted to them in a violent manner, assaulted 2 constables and had to be restrained with handcuffs. When approached by an Inspector Lau he kicked out at him causing injury and had to be restrained until 2 Army Provost Corporals came when he was taken to Wanchai Police Station and charged.

6. The appellant gave evidence and his version was that he was prevented from leaving the premises by the staff for unknown reasons. He himself asked them to call the Police and was held down by several males and females until the Police came. However when they did so he was attacked by them and in particular by Inspector Lau who grabbed and twisted his private parts. He was handcuffed very tightly so that his hands became swollen he suffered numerous minor abrasions, a false tooth came out and he was bleeding from the mouth. Eventually the Provost Corporals arrived and he was taken to Wanchai Station and released into military custody.

7. The magistrate found the Police Officer's evidence reliable and he accepted it. He did not believe the appellant who he convicted on all 3 charges of assault on Police Officers and fined him $1,500 on each charge.

8. The appellant has no previous convictions and has been in the Army for 17 years. He is married with 3 children. He holds a responsible position and handles highly confidential material. His future career prospects will be affected by these convictions.

Case for the appellant

9. The case for the appellant is essentially that there were such inconsistancies between the Police Officers' evidence that it should not have been accepted as reliable. It is emphasised that it was the appellant himself who wanted the Police to be called. Why should he attack them when they came if they did not themselves assault him. The allegations are mainly directed at Inspector Lau Tat-keung who the appellant said jeered at him in front of the constables, on 2 occasions held and twisted his private parts and in the presence of Insp. Payne made as if to do so again. He kicked Insp. Lau to prevent him doing so.

10. The main point of inconsistancies is where the appellant was when the Police came and who was holding him. P.C. Yau Sze-cheung, who was first on the scene with P.C. Tse, said when he came the appellant was being pinned down by about 4 persons, male and female - a Pakistani watchman was, however, not one of them. The watchman himself said that there were no other males on the staff and when the Police came the appellant was standing.

11. P.C. Tse Ka-lung, who was with P.C. Yau on patrol, also said the appellant was being held on the ground by both male and female staff.

12. Inspector Lau Tat-keung said when he arrived he was briefed by P.C. Tse at the entrance, which, it is pointed out, means he was not required to subdue the appellant at that stage and the Inspector said the appellant was in fact standing next to the counter. The appellant was very abusive and aggressive, was handcuffed and taken to the wall near the counter. He was there when the other inspector, Insp. Payne arrived. The appellant was searched, his wallet removed and his I.D. card found. At that stage the appellant shouted "You fucking Chinese" and lashed out at Insp. Lau with his foot injuring him in the thigh.

13. Inspector Payne said that when he came the appellant was being held by several Constables on the ground. He helped him up and then took him to the wall. He was handcuffed. Insp. Lau searched him at first without resistance but later the appellant kicked him in the thigh. He said the appellant seemed to have had "a couple of beers" but was not rolling drunk. When it was put to him that the appellant had referred to Insp. Lau as a "fucking Chinese queer" he said he might have but couldn't clearly recall. It was submitted that if the appellant did refer to Insp. Lau in that way it supports his allegation that the Inspector did grab the appellants private parts. It was also submitted that the magistrate has allowed his impression of the appellant, and the fact that he is a big man, to cloud his judgment of the facts.

The case for the Crown

14. Mr Jackson argues that this case was purely a matter of fact for the magistrate to decide. He assessed the witnesses which he is not only entitled but obliged to do. There was ample evidence to support his verdict. It was essentially a matter of credibility and the magistrate has come down firmly on the side of the Police officers. That decision should not be interfered with except for good reason which does not exist here.

Decision

15. There are certainly some inconsistancies in the Police, evidence in particular regarding the position of the appellant when the various Police Officers arrived. They were clearly drawn to the attention of the magistrate by defence counsel at the trial and he must have been aware of them. It is true that the magistrate has not specifically dealt with them but they are not, in my view, such inconsistancies as makes the magistrate's finding of fact one which is unsafe or unsatisfactory. It was essentially for the magistrate to hear the witnesses and to decide if the appellant had behaved in the manner suggested by the two Constables and Inspectors i.e. that he was violent towards them and had to be restrained or whether he behaved reasonably as he said but was attacked by Insp. Lau in the indecent way he described. I can see no reason why the Police Officers should not have been believed and I do not think the inconsistancies were any more than one would reasonably expect. There are, however, aspects of the appellants evidence, as for example when he says he did not know why he was going to Palatial Villas with a bar-girl, which the magistrate had every reason to find totally unconvincing. I have no doubt it was a very confused scene when the Police arrived and for some time after that. It is true that the appellant himself seems to have asked for the Police to be called but there was ample evidence that the appellant who, while not drunk, had been drinking quite heavily, was in a very aggressive mood indeed and turned his attention from the staff to the Police when they arrived.

16. This was a pure finding of fact and an appeal court should not interefere unless the verdict seems unsafe. Here I do not have even a lurking doubt that it was so unsafe and the appeal against conviction must be dismissed.

Sentence

17. The appellant's appeal against sentence is not as regards the fines, though they were severe, over half a month's salary, but it is suggested that he should be discharged without conviction under Section 36 of the Magistrates Ordinance. It is argued that here is a senior N.C.O. with 17 years exemplarily service who has offended for the first time, no great harm has been done and the recording of a conviction will seriously affect his prospects for promotion and future postings. Reliance is placed on Lai Yin-ping v. R a decision of Silke, J. in 1980 where a woman shop-lifter who was a civil servant with a family was given such a discharge. There however the offence was a very trivial one and bears no comparison with the offences here.

18. I would find it most surprising if the Army, or any other authority, being aware of the circumstances of an offence should choose to ignore it because a Court has decided that the background of the defendant is such that it justifies no conviction being recorded. Here the offence is not trivial and it could only be because of that background that an absolute discharge could be entered. The army is even more aware of that background and indeed no doubt have even better details of it. The Court can give its view of the seriousness of the offence but here it was certainly not trivial and I do not consider that because the appellant has a good army record and is married with a family no conviction should be recorded. The appeal against sentence must also be dismissed.

19. Having said that I am also satisfied that this was foolish incident caused by the appellant have had, as the magistrate said, one drink too many. He became aggressive but no great harm has resulted. For myself I would see any reason why it should affect his suitability to perform work of a confidential nature but that is not a decision for the magistrate or myself.