HKSAR v. FIELDER, DAVID PAUL LEWIS

HCMA679/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 679 OF 2006

(ON APPEAL FROM KTCC135 OF 2006)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction by Mr Abu Bakar bin Wahab on 15 June 2006 of three offences :

(1)  obstructing WPC1060 in the execution of her duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212 (Charge 3);

(2)  dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374 (Charge 4);

(3)  assaulting a police officer (PC51951) in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap. 232 (Charge 5).

2. All three offences were alleged to have occurred after the appellant’s car was stopped at a police roadblock at the Nam Wai Roundabout on Hiram’s Highway in Sai Kung in the early hours of 6 January 2006.  

3. The appellant pleaded guilty to two other charges arising out of his driving prior to his being stopped, namely speeding, contrary to section 41(1)(a) of the Road Traffic Ordinance, Cap. 374 (Charge 1) and driving a motor vehicle with an alcohol concentration in his breath exceeding the prescribed limit, contrary to section 39A(1) of the Road Traffic Ordinance, Cap. 374 (Charge 2).

4. The prosecution evidence was that the police had constructed the roadblock at the roundabout by cordoning off part of the outer 1^st lane of the roundabout and a bus lay-by with traffic cones into which motorists who were to be stopped would be directed to drive their cars.

5. Insofar as Charge 3, the charge of obstructing a police officer in the execution of her duty is concerned, the prosecution case was that the appellant had been directed by WPC1060 (PW1) to stop his car within the 1^st lane within the cordoned off area.  She had approached the driver’s window and explained to the appellant that he was speeding and asked for his driving licence.  The appellant had simply looked to the front and ignored the officer apart from saying that he did not accept that he had been speeding and wanted to go home.  Having been asked by WPC1060 to assist her, PW2 (an Assistant Sergeant) approached the driver’s window and again asked the appellant for his driving licence.  The appellant still failed to produce his driving licence despite being warned by the officer. 

6. Charge 4, the charge of dangerous driving arises from what occurred subsequently.  The appellant who was still in the driving seat shouted that he wanted to go home and started the engine of the car.  PW1 was in front of the vehicle in the course of going to the nearside to check the licence disc.  The appellant’s car moved forward when PW1 was immediately in front of it.  She put her hands on the bonnet, jumped back and shouted “stop” in English.  The car stopped but then drove forward again.  PW1 reacted as before.  The car stopped and then, for the third time, drove forward. 

7. PW3 (PC51951) had then reached into the car and pulled out the ignition key from the car.  There then followed the events that gave rise to Charge 5.  The appellant alighted from the car and, yelling and shouting at PW3, rushed after him with his right hand raised above his head level apparently wanting to strike the officer.  Other officers went to control the appellant and calm him down but he still remained emotionally agitated and demanded the return of his keys. 

8. The appellant gave evidence.

9. His case insofar as Charge 3 is concerned was that after he had stopped his car within the roadblock, he could not understand firstly what PW1 and then later PW2 had said to him.

10. As far as Charge 4 is concerned, he said that he was concerned about the exposed position at which he had been told to stop his car and wanted to drive into the lay-by.  He had told the police that he wanted to move the car to the side of the road because of his car’s exposed position.  He had ascertained that the woman police constable PW1 was clear from the front of his car and had started the engine and moved forward.  When it started to move, he heard shouts of “stop” and he had stopped the car.  He only alleged that he had moved the car once.  Another police officer had put his hand into car and had snatched the keys which were hanging from the dashboard. 

11. The result of this was that the black plastic electronic key which operated the ignition remained in the car but the boot key which was normally secured in the electronic key and was attached to the other keys on his key ring was forced from the black electronic key and somehow had become detached from the key ring to which the other keys were attached and had fallen to the ground.  The appellant said that he was angry and had picked up the boot key and approached the officer who had pulled the keys from the ignition saying : “you fucking broke my key”.  He held up his right fist towards the officer while holding the key.  He denied assaulting the officer.  Other officers had approached and told him to calm down. 

12. This is the case which ultimately turned on the magistrate’s assessment of the credibility of the prosecution witnesses.  He bore in mind the appellant’s good character.  Having taken into account certain discrepancies in the evidence of prosecution witnesses he nonetheless accepted their evidence on the matters relevant to the charges.  He took into account the appellant’s good character but nonetheless rejected his account. 

Charge 3

13. The appeal so far as the charge of obstructing a police officer (Charge 3) is concerned centred on the understanding of the appellant of what was said to him by the police officers.  The ground of appeal is that :

“… given that PW2 accepted that there was a possibility that the appellant could not understand him …, the magistrate was wrong to conclude that the appellant understood both PW1 and PW2 when they spoke to him.”

14. Three police officers gave evidence of demands being made to the appellant for his driving licence, all of which he had ignored.  PW1, WPC1060 told the court of her own demand to the appellant for his driving licence, which she said was in simple English, and two warnings by Acting Sergeant 53803 to produce his driving licence.  PW2, Acting Sergeant 53803 said that he had first made a request to the appellant for his driving licence, then an enquiry of the appellant as to whether he had a driving licence, followed by two warnings to him that he should produce his driving licence.  All were ignored.  He too said that he had spoken in simple English.  PW3, PC51951, spoke of hearing two requests by the acting sergeant to the appellant for his driving licence, which were ignored. 

15. The ground of appeal is based upon an answer given by PW2, Acting Sergeant 53803, in cross-examination.  The officer had disagreed that the appellant had seemed confused with what he had been saying.  The officer confirmed that after the incident that had given rise to the assault charge, he had made a call to an Inspector Wu because the appellant was a foreigner and he was afraid that he could not communicate with him.  He agreed that that had passed through his mind when he was speaking to the appellant.  He was then asked :

“Q.  So there’s a possibility in your mind that he couldn’t understand what you were saying?”

to which she answered : “Yes.”  It is this answer which Mr McNamara argues leaves open the possibility that the appellant had not understood either PW1 or PW2.

16. I am satisfied that the Statement of Findings for Verdict showed that the magistrate carefully considered the issue of the appellant’s understanding of what was said to him.  Based upon other words uttered by PW1 and PW2 in their evidence, he was satisfied that they were quite capable of saying both “speeding” and “licence” and that the appellant had understood them.  I would add that it is apparent that the appellant must have understood the reference to the speeding because he said that he did not accept that allegation. 

17. The magistrate dealt with the fact that the appellant had later cooperated with Senior Inspector Wu (PW4) who could speak English very well.  He also specifically dealt with the answer to which Mr McNamara has referred.  He said this :

“… PW2 even accepted the possibility that the Defendant could not understand him.  In re-examination, PW2 clarified that there had been no problem in communication between him and the Defendant.  PW2 merely feared that as the situation further developed, problems in communication might arise.  He therefore called his superiors.” 

I am satisfied that that is a fair and reasonable understanding of what the appellant said in re-examination.

18. I find that the magistrate properly came to the conclusion that the appellant could understand the requests for his driving licence but chose to ignore them.  I dismiss the appeal against the appellant’s conviction on Charge 3.  

19. The 2^nd ground of appeal relates to the appellant’s conviction on Charge 4 (dangerous driving).  Mr McNamara argues by reason of a passage that appeared in the magistrate’s Reasons of Verdict delivered at the time of trial (but not repeated in his written Statement of Findings) the magistrate was effectively reversing the onus of proof.  The magistrate said this :

“      I should say a word about the evidence of Mr Fielder.  Mr Fielder was, of course, not obliged to give evidence.  Mr Fielder did not have to prove anything.  I would simply say that Mr Fielder’s evidence did not affect my assessment of prosecution’s evidence.  In fact, I found Mr Fielder’s evidence or explanation inherently unbelievable.  For example, if what Mr Fielder said was true, then I honestly see no reason for the police officers to tell me what happened as they told me in their evidence.”

20. It is the last sentence of which particular complaint is made.  Mr McNamara says that is the real meaning of those words was that the magistrate commenced his deliberations by assuming what the police were saying was true and he could only be persuaded from this view by the evidence from the appellant and that even then, if that evidence was contrary to what the police officers said, he would not accept it. 

21. I find no substance in this argument.  It is clear from the context that the magistrate was not reversing the burden of proof.  He specifically said the appellant did not have to prove anything.  All he was doing in the last sentence of the passage was commenting on the appellant’s evidence and saying that he could see no reason why the police would fabricate a story if what Mr Fielder had said was true. 

22. There was overwhelming evidence on Charge 4.  I dismiss the appeal against the appellant’s conviction on Charge 4.  

23. The 3^rd ground of appeal relates to Charge 5 (assaulting the police officer).  It alleges that the magistrate misunderstood the evidence regarding the broken keys and that if he had understood the evidence of PW3, the evidence of the appellant and the effect of photograph 12 in exhibit P5 then he might have concluded that the photograph supported the evidence of the appellant and cast doubt on the evidence of PW3.

24. Essentially what is alleged is that the magistrate did not resolve the issue as to how the boot keys were separated from the ignition key in photographs P5(11) and (12).

25. The background to the matters was this.  Four prosecution witnesses gave evidence that the appellant had alighted from his car, rushed or chased after PW3 (PC51951) with his right fist raised above his head.  The appellant effectively alleged that all that he was doing was holding out the boot key which he had picked up from the ground after it had been forced from the plastic ignition key and separated from the key ring to which it had been attached, saying words to the effect : “You fucking broke my key” without any intention to assault.  All prosecution witnesses to whom it was put denied that the appellant had held out his hand in the manner suggested by the defence solicitor.  PW1 said that she had never heard the appellant utter the words “you broke my keys”.  PW2, PW3 and PW4 denied that he had ever uttered such words.

26. The incident in question is alleged to have started sometime after 00:41 a.m. in the morning.  It was an admitted fact that at 00:59 hours, shortly after the incident, photographs P5(1) to (9) were taken.  They showed the appellant’s car without any form of key in the ignition.  Almost three hours later, at 03:50 hours, three further photographs were taken, P5(10), (11) and (12).  Exhibit P5(11) shows the car with just the black plastic ignition key in the ignition.  Photograph P5(12) shows the keys lying on what appears to be a sheet of paper, the black plastic ignition key is detached from the boot key which can be inserted into it but the boot key is on the ring containing other keys.

27. Mr McNamara argues that the fact that the photographs P5(11) and (12) show the black plastic key detached from the boot key and the other keys on the ring support the appellant’s version that in snatching the appellant’s keys from the car, PW3 had left the black plastic key in the ignition.  He submits that the magistrate failed properly to deal with that issue. 

28. I am satisfied that he did not fail to deal with that issue or take it into account.  He referred to the black ignition key being separated from the other keys at the time the photographs were taken.  He went on to say :

“… The evidence did not explain why Photograph 11 was taken.  For example, was it because the Defendant insisted on his version … and the photograph was taken just to show what the Defendant alleged?” 

He would not have mentioned the separation of the black key from the other key except in the context of the allegation that the black ignition key had been left behind.  What he was saying is simply that there was no evidence as to why the photograph was taken and as to why the black ignition key was photographed detached from the other keys.  He gave one possible reason as an example.  Another possible example is simply that the police officer instructed the photographer to take a photograph of the key on its own in the ignition to show how it worked.  These are all equal possibilities along with the possibility that PW3 had left the black plastic key inserted in the ignition. 

29. The magistrate could not do more than he did.  He bore in mind that the keys were separated by the time that the photographs were taken but took into account that there was more than one explanation as to why that was the case.  However, he believed the evidence of PW3 which was supported by that of PW1, PW2 and PW5 and disbelieved the evidence of the appellant.  I would only comment that if as Mr McNamara suggested photograph P5(12) was to support his client’s account that the black plastic key was left by PW3 in the ignition, it would not support the more important aspect of his clients’ case that the boot key became separated from the key ring and fell to the ground and it was that that the appellant was holding out to PW3. 

30. I dismiss the appellant’s appeal against conviction on Charge 5.