HKSAR v. CHEUNG KEUNG

HCMA149/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.149 OF 2003

(ON APPEAL FROM ESCC 3531 OF 2002)

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J U D G M E N T

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1. The appellant pleaded guilty at Eastern Magistracy on 20 January 2003 to an offence of remaining in Hong Kong without the authority of the Director of Immigration (contrary to section 38(1)(b) of Cap.115) but not guilty to an offence of assaulting a police officer (contrary to section 36(b) of Cap.212).

2. He was convicted after trial of the assault offence. He was sentenced to 15 months' imprisonment in respect of the immigration offence and to three months' imprisonment for the 'assault'. One month of the three-month term was ordered to be served consecutive to the 15 months, making 16 months in all.

3. The appellant appeals against the sentence of 15 months and against his conviction for assault. What he said in his grounds of appeal was simply this :

"I am not guilty of the [assault] charge and reduce sentence of [remaining] charge."

4. In her helpful and comprehensive Reasons for Verdict, the magistrate sets out the evidence which was presented to her at trial as follows :

"Evidence on behalf of the prosecution was given by WPC 56784, PW1 and PC 34632, PW2. The medical evidence on PW1 was agreed and produced as Exh.P2. The Appellant gave evidence on his own behalf, he called no additional witnesses.

PW1 stated that on the 29th November 2002 at about 10.55 a.m. she was on patrol at the junction of Wanchai Road and Bowrington Road when she saw the Appellant. She stated that upon him seeing her the Appellant turned around. PW1 suspected that the Appellant was an Illegal Immigrant so she stopped him and requested his identification. PW1 stated that the Appellant said that he had not brought it with him. PW1 did not accept the explanation so she called for assistance over her beat radio. PW2 arrived and searched the Appellant and no identification was found. PW1 stated that the Appellant started shouting loudly, using foul language, as a result of which a number of people stopped to watch. In the course of this disturbance PW1 stated that the Appellant picked up an umbrella and held it as if he intended to hit her. She stated that she warned him to put it down and to stop shouting, but the Appellant hit her with the umbrella on her legs at the knee area. The umbrella was being held by the Appellant when he was intercepted.

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PW2 gave evidence of being asked for assistance with a suspected Illegal Immigrant. Upon arrival he searched the Appellant, who was seated on the floor when he arrived. Then whilst waiting for a police vehicle the Appellant started shouting, using foul language, picked up an umbrella from the ground and hit PW1 twice across the legs with it. PW2 stated that the Appellant was seated on the ground when he hit PW1 with the umbrella.

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The Appellant gave evidence. He described and explained his medical problems, he explained that he had no relatives, found it difficult to find work in China and had come to Hong Kong to beg. He stated that he had found the umbrella in Causeway Bay, and used it to help him walk. I noted that he was able to walk without a stick or other aid although he was clearly disabled. He described that he was seated in a begging position when PW1 arrived, with his belongings placed around him. He stated that he told PW1 that his identification was elsewhere because he did not want people to see him handcuffed. He wanted to be able to return to this spot to beg, and he did not want people to know he came from Mainland China. He stated that when the male officer came he did not search him; he just checked his plastic bag. The Appellant stated that he tried to get up, using the umbrella as a prop, but he was not permitted to get up. He agreed that he used foul language but he denied hitting PW1. He stated that he had been arrested by PW1 before."

5. Having carefully addressed and assessed that evidence, the magistrate arrived at the following findings of fact in consequence of which she found the appellant guilty of the assault :

"(1) when PW1 arrived the appellant was walking and he turned around when he saw PW1;

(2) the appellant was intercepted by PW1 and asked for his identification;

(3) the appellant said he did not have it with him, so PW1 called for assistance from PW2;

(4) before PW2 arrived the appellant sat down on the pavement;

(5) the appellant was searched by PW2;

(6) the appellant started shouting and using foul language, and then hit PW1 twice on her legs in the knee area with an umbrella; and

(7) as a result of the assault she sustained the injuries as set out in Exh.P2."

6. Before me the appellant has, in effect, sought to repeat what he told the magistrate in relation to the assault charge, and in relation to the sentence for the immigration offence he asks me to reduce it 'somewhat' because of his disability and his age.

7. His conviction for the offence of assaulting a police officer cannot be criticised. As for the length of the sentence imposed for the immigration offence, I note that in January 1991 he was convicted of an identical offence and he was sentenced to a term of nine months' imprisonment, suspended for a period of 18 months. The sentence which was imposed upon him in January of this year is entirely appropriate.

8. These appeals are dismissed.