HKSAR v. AU CHUN KEUNG

HCMA 332/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 332 OF 2003

(ON APPEAL FROM ESCC 161/2003)

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J U D G M E N T

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1. The Appellant was charged with one count of Assaulting a Police Officer in the due execution of his duty and he was convicted after trial. The learned Magistrate sentenced him to be conditionally discharged in the sum of $2,000.00 for a period of 12 months and to pay compensation of $500.00 to the police officer. The Appellant now appeals against his conviction.

2. This started off as a relatively simple type of case. The prosecution relies mainly on the evidence of PW1, the police officer and his evidence was that he had noticed the Appellant who was a taxi driver letting off passengers in a restricted zone. PW1 said he approached the Appellant and told him that he was going to issue him with a fixed penalty ticket. He then asked for the Appellant's driving licence and when he was writing out the ticket, the Appellant was scolding him. Subsequently, the Appellant refused to accept the ticket and approached PW1 and pushed him on the weight. PW1 said he felt pain and stepped back and then PW1 said that the Appellant returned to his taxi and drove his taxi and parked it at an angle on the road.

3. The prosecution also called a second witness who was a mini bus driver and was observing this whilst standing on the pavement. He said that he noticed the taxi driver getting out of the vehicle reasoning with the police officer. And then he said he saw the taxi driver go over to a shop, and shouted at PW1. He saw the taxi driver refuse to accept something, get into his taxi and drive his taxi did parked it in a skewed position.

4. PW2 also remembered that he did not see any physical contact between the police officer and the Appellant. It was subsequently found that PW2 said his view had been obstructed by people standing in front of him. Then as far as the other prosecution evidence is concerned, the witnesses were police officers who subsequently arrived at the scene.

5. After the prosecution closed the case the Appellant elected to give evidence and largely agreed, that, indeed, he had refused to accept the fixed penalty ticket. He denied that he had ever pushed the police officer and he said that he was polite to PW1 and PW1 was polite to him and he said the situation was peaceful all along. Then he called as his witness, DW1, who was a by-stander at the time in Lockhart Road when he saw the argument between the police officer and the taxi driver. He said that he did not know the Appellant at the time of the incident and he did see the Appellant refuse to accept the penalty ticket and he said he did observe PW1 calling for assistance, but at no stage did he see the Appellant pushing the police officer. And he said that nothing blocked his view. He also said that the Appellant was not in an emotional state and that the Appellant and PW1 was acting peacefully although the Appellant was loud. He said that two weeks after the incident, he happened to ride in the taxi driven by the Appellant and he asked the Appellant what happened and the Appellant told him that he had been charged with assaulting a police officer and asked him if he would like to be his witness.

6. In her Findings of Fact, the learned Magistrate gave himself the proper warning about the standard and burden of proof. She found, as a fact, that she was satisfied that PW1 was acting in the course of his duty at the time and she then in her Statement Findings of Fact said this:

"PW1 and PW2 both described the Appellant as being emotional and/or excited. The appellant described the interaction between PW1 and himself as being generally peaceful, DW1 described it as being loud but that the Appellant was not excited. It is admitted that the Appellant refused to accept the Fixed Penalty Ticket. It is also clear that the onlookers stayed for a period of time watching the scene unfold."

Then she went on to say about the Appellant admitting he had moved his vehicle. She said:

"PW1 and 2 say that he moved it but left it badly placed, both say it was in a skewed position. DW1 mentioned nothing about the Appellant moving his vehicle. I found the evidence of PW1 and 2 on these matters to be clear and cogent. The scene as portrayed by the Appellant and DW1 in my judgment in no way affected the required standard of proof."

She went on to find that PW1, 2 and 3 to be truthful and honest witnesses.

7. One of the grounds of the appeal is that the learned Magistrate had made an error in her Findings of Fact when she said that DW1 had not mentioned anything about the Appellant moving his vehicle and the prosecution conceded that mistake.

8. What worries me about this mistake is the position in which this mistake appears in the Magistrate's Findings because after saying that the DW1 did not mention anything about the Appellant moving his vehicle, she went on to find the evidence of PW1 and 2 on these matters to be clear and cogent. So ultimately, when she made a credibility finding on the Appellant and his witness, I cannot be sure that this mistake of fact did not affect her finding as to the credibility of DW1 and this is crucial because ultimately it is DW1 who, as an independent witness, had said that he did not see the Appellant push PW1, his observation was never obstructed at the time. So, if that was the case, when the learned Magistrate found the Appellant was guilty of the assault, she would have to find that DW1 was not worth of belief, that he may be lying or something, or his evidence made no sense.

9. It is clear from the way the Findings came about that the fact that DW1 did not mention the Appellant moving his vehicle was an important consideration in her mind at the time. I cannot be sure that this did not affect her ultimate finding against the Appellant and DW1's evidence. Because of that, the benefit of the doubt had to go to the Appellant in this case and therefore the appeal is allowed and the conviction quashed.