HKSAR v. CHU FRANKLY

FAMC No. 56 of 2018

[2019] HKCFA 5

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 56 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 70 OF 2018)

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REASONS FOR DETERMINATION

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The Appeal Committee:

1.  We dismissed this application at the hearing and now provide our reasons.

2.  The applicant, then a serving Superintendent of Police, was convicted by the Magistrate[1] after a seven day trial of one count of assault occasioning actual bodily harm[2] and sentenced to three months’ imprisonment.  His appeal against conviction and sentence was dismissed by the Judge.[3] 

3.  On 26 November 2014, which was the 60^th day of the protest movement known as Occupy Central, the applicant was in command of a company of police officers tasked with crowd control in Argyle Street in Mong Kok.  The applicant was found to have used his baton to strike a man (“PW1”) who was present, causing him actual bodily harm.  Video evidence of the applicant’s actions was viewed by the Courts below as well as by the Appeal Committee.

4.  In a careful and meticulous Statement of Findings, the Magistrate found that when PW1 was hit, he was amongst a group of pedestrians walking along as directed by the police and that PW1 did not do anything that could be described as hostile so as to be capable of giving cause to any police officer to hit him with a baton.[4]  The blow was found to have been struck with considerable force when PW1 had his back to the applicant, landing on the back of his neck, after he had walked past the applicant.[5] Judging from PW1’s immediate reaction, grimacing with pain and covering the back of his neck with his hand, as well as PW1’s testimony as to swelling and pain at the site of the blow, the Magistrate found that actual bodily harm had been sustained by PW1.

5.  The Magistrate found that there was no justification for inflicting the blow: PW1, who was unarmed, was leaving the area, complying with police orders and walking steadily; the crowd had almost dispersed; PW1 was not displaying aggression or hostility to the police and there was no need for the applicant to defend himself or his colleagues or to make PW1 compliant.[6] The applicant was accordingly convicted.

6.  On appeal, in a hearing lasting two days, the applicant sought to challenge the aforesaid findings but they were endorsed by the Judge in a comprehensive judgment.

7.  Appearing for the applicant before the Appeal Committee, Ms Charlotte Draycott SC[7] sought leave to appeal against conviction on the “substantial and grave injustice” basis, advancing three grounds.  She also sought leave to appeal against the sentence.

8.  First, she sought leave to argue that the Judge had wrongly failed to treat the applicant’s intermediate appeal as a “rehearing” and thus had failed to form his own conclusions on the basis of the material before the Magistrate supplemented by any fresh evidence which he might admit (as explained in Chou Shih Bin v HKSAR[8]). Instead, she submitted, his Lordship had treated it as an appeal in the strict sense, requiring the applicant to demonstrate an error by the Magistrate before he could act.  Accordingly, it was said that the applicant was deprived of having the Judge determine for himself whether the offence was made out (“the rehearing ground”).

9.  Secondly, Counsel sought leave to argue that the Courts below had applied the wrong test in assessing whether the applicant’s blow, struck in the context of his duty and power to maintain order, had “crossed the threshold into criminality” (“the wrong test ground”).

10.  Thirdly, she contended that on a proper re-evaluation of the evidence applying the right legal test, the Judge ought to have rejected the inferences drawn below, namely, that the applicant’s use of force was unlawful; that he did not believe that striking the blow in the circumstances prevailing was necessary and lawful; that actual bodily harm was caused to PW1; and that there was no legal justification for the force used (“the re-evaluation ground”).

11.  In respect of sentence, it was again contended that the Judge had not conducted a rehearing and had therefore not considered the matter afresh.  A substantial and grave injustice is said thereby to have occurred (“the sentence ground”).

The rehearing ground

12.  Ms Draycott referred to statements by the Judge, such as: “There is no sufficient reason for me to find that [the Magistrate] had erred,”[9] as indicating that he had adopted the wrong approach.  However, on a fair reading, it is plain that he carefully reviewed the evidence and, forming his own conclusions, upheld the Magistrate’s findings in a judgment that ran to 85 pages.  This appears throughout the judgment but the following passages provide a clear illustration of that process:

“108. I have perused the evidence, in particular the video footages parties invited me to view, including the proposed new evidence. The Principal Magistrate has given a summary of what shown in the video footages. The DBC video and the Apple Daily YouTube video show the incident. The footages show some officers using batons to ensure the crowd keep moving forward. The Appellant was shown also using his baton. The way he used the baton was not the same. The difference was even more significant when he applied his baton on PW1. I have to stress that the action was not conclusive by itself as what the court has to do is firstly to decide whether the Appellant had the intent to apply unlawful force in the light of the perception and belief he genuinely held. The court has to consider the whole of the relevant circumstances and what I have just said are what the court may take into account.

109. I bore in mind the observation of Ms Draycott SC in this regard, in particular that PW1 did stop his movement in the course of moving, turn his head to the right shouting something (the only evidence of the content came from PW1 who said it was something along the line ‘we are only pedestrians walking past, don’t hit us’; on the other hand the Appellant said he thought this was an aggressive act and he did not say what he heard) and he and Miss Ma were amongst the last in the group to move forward.

110. In relation to these observations, Mr Marash SC pointed out that the video footages show the followings which must also be noted and taken into account:

(1) PW1 was together with a woman (PW1 said she was Miss Ma) displaying actions in protecting her.

(2) They were close to the wall.

(3) The movement of them and a few people nearby were hindered by the crowd at the front.

(4) Some of these people in front were hit by police officers (not with heavy force) with a view to urge them on.

(5) A man fell onto the ground upon being pushed.

(6) The actions of some officers might have made people feel that it was not desirable to move forward at that very moment.

(7) PW1 claimed what he said to the officer was they were just passers-by (the only evidence of what had been said came from PW1), this is worth believing as it was reasonable in the circumstances.

(8) It was only a very brief pause of PW1.

(9) PW1 and Miss Ma were already moving forward together with others at the time he was struck.

(10) They were almost at the end of the crowd (it was probably because it was their original position, there is no evidence showing that it was a result of their having moved backward) – and thus there was nobody else to clear.

111. Mr Marash SC stressed that there was nothing in the conduct of PW1 which would have caused any one to think that he was aggressive. What shown in the video footages is telling.

112.    Ms Draycott SC criticized the assessment of the Principal Magistrate of the credibility of PW1 and submitted that the erroneous conclusion tainted her consideration of the mens rea issue.  The Principal Magistrate said ‘the prosecution (relied) on the evidence of PW1 as well as the video footages to prove that PW1 had been hit by the Appellant with his baton at the material time and place’.  PW1 testified according to what he recalled had happened. The video footages were objective presentation of what had happened.  I have no doubt that the Principal Magistrate had the precise comprehension of what had happened and the surrounding circumstances.”

13.  This shows that, as one might expect, Counsel on both sides made detailed submissions on the evidence, especially the video evidence, urging the Judge to accept their respective interpretations of its effect when reviewing the same.  His Lordship carefully went through the evidence which was before the Magistrate and was fully aware of the approach laid down by Chou Shih Bin v HKSAR, citing that case at §154.  It is true that there are many passages in the judgment in which the Judge made reference to the correctness of the Magistrate’s findings.  In context, he was dealing with the way the appeal was presented by the applicant’s counsel who understandably concentrated on trying to show that the findings had erroneously been made by the Magistrate.   It is not reasonably arguable that he failed to conduct a rehearing.

The wrong test ground

14.  Ms Draycott sought leave to contend that the Magistrate and Judge had wrongly applied a test based on the degree of force acceptable in self-defence cases.  She argued that they ought instead to have applied a test purportedly derived from AG for Northern Ireland’s Reference (No 1 of 1975)[10]requiring proof that “on the evidence ... no reasonable police officer (a) with knowledge of such facts as were known to the defendant or reasonably believed by him to exist;  (b) in the circumstances and time available to him for reflection; (c) could be of opinion that his application of force may be necessary or justified (for the  purpose of crowd dispersal, securing immediate full compliance with police  orders or any purpose under the Cap 245.)”[11]

15.  This is not reasonably arguable.  As the Judge noted,[12] section 45 of the Public Order Ordinance[13] authorizes police officers to use “such force as may be necessary” to prevent the commission or continuance of an offence under the Ordinance; to arrest someone committing or reasonably suspected of being about to commit, etc, such offence; or to overcome any resistance to the exercise of the powers conferred by the Ordinance.  Section 46(3) exempts persons who use “such force as may be necessary for any purpose, in accordance with the provisions of” the Ordinance from liability for causing injury or death or damage to property.  And section 46(1) limits the force which may be lawfully used:

“Whenever in this Ordinance it is provided that such force as may be necessary may be used for any purpose, the degree of force which may be so used shall not be greater than is reasonably necessary for that purpose.”

16.  There is thus under our law a statutory scheme regulating the lawful use of force for present purposes.  There is no warrant for seeking to adopt some adaptation of the standards applied in the Northern Irish decision.  That case concerned a British soldier who shot and killed an unarmed man who ran away when challenged, in the defendant’s honest and reasonable, though mistaken, belief that he was a terrorist – self-evidently a very different case.

17.  Moreover, unlike in the Northern Irish case, the Courts below held that the applicant did not honestly believe and had no reasonable basis for believing that his use of force was necessary or justified at all.[14] He therefore could not even begin to show that he had used “such force as may be necessary” within the provisions of the Ordinance set out above.  Accordingly, the question of the reasonableness of the degree of force used is not reached.

The re-evaluation ground

18.  The re-evaluation ground is premised on the Courts below having gone wrong on the first two grounds so that their findings have to be re-examined on a corrected legal basis.  As we have rejected both those grounds, this aspect of the application amounts simply to an invitation to re-try the facts.  That is an invitation which, as the Court has repeatedly stated, will not be entertained.

The sentence ground

19.  The Court has made it clear that it is not a sentencing court and does not review the level of individual sentences passed below.[15] It is only where some important point of legal principle is engaged in connection with sentencing that leave will exceptionally be granted.  There is in any event nothing in the sentencing ground.  There can be no doubt that the Judge carefully and comprehensively assessed the sentence, analysing the issues on the materials before him, devoting 19 pages of the 85 page judgment to this question.

Disposal

20.  For the foregoing reasons, we dismissed the application.  We wish to state in conclusion that we are aware that there has been controversy regarding the prosecution and conviction of the applicant.  We echo the Magistrate’s and Judge’s acknowledgement of the extremely difficult and often provocative circumstances faced by the Police during the Occupy Central protests and pay homage to the disciplined professionalism exhibited by the vast majority of the officers deployed.  While we have sympathy for the highly regrettable situation in which the applicant finds himself, such a violation of the law involving the unwarranted use of force against a member of the public cannot be condoned.