HKSAR v. LEUNG PO YEE

HCMA 4/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 4 OF 2004

(ON APPEAL FROM KTCC 6756/2003)

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J U D G M E N T

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1. The Appellant was convicted of one charge of assaulting a police officer in the due execution of his duty and was sentenced to 3 months' imprisonment. The Appellant appeals against her sentence and conviction. But at the hearing of the appeal, Mr Boyton on behalf of the Appellant sought leave to abandon her appeal against sentence. Leave was thus given. So the appeal proceeds on the conviction alone.

2. The prosecution case is very simple and basically the prosecution called two witnesses. The first prosecution witness is a police officer, he gave evidence that in the early hours of the morning on the day of the offence, he had arrived at the scene together with his sergeant and two other PCs because he was investigating a reported case of fighting and he said he did suspect that the Appellant might have been involved. PW1's evidence was that the Appellant was in a taxi and PW1 then proceeded to ask her a question. At that time, he said that he smelled alcohol on her breath and he noticed some red marks between her eyebrows and when he persisted with his inquiry, the Appellant then disembarked and pushed him on the chest with both hands, causing him to step back. At that time, PW1 told her to calm down but the Appellant used her right hand to slap his left chest. PW1 again warned the Appellant that if she continued he would charge her with assaulting a police officer. At that time, the sergeant, who was with PW1, telephoned for a woman police officer and at that time, the Appellant then used her right hand to slap PW1's left cheek with considerable force and subsequently, a male person, who appeared to be the Appellant's friend, came up and calmed her down.

3. The second prosecution witness was a Mr Chan. He was, an independent witness because he was inside a taxi with his wife and daughter and they were behind the Appellant's taxi. His evidence is crucial in this appeal because as it has been pointed out, he had agreed that there was a chaotic struggling in the back of the taxi. He did see an assault on the police officer and it would appear from the way his evidence came out that this assault took place inside the taxi. As I have picture out to Mr Madigan, I was surprised that the prosecution did not seek at the trial to clear this up in re-examination. But, be that as it may, the witness was not specifically asked as to exactly when the assault on PW1 took place whether it was inside or outside the taxi. But upon the reading of his evidence in cross-examination, it would appear that he thought the struggling was inside the taxi. I note that PW1 never said there was any struggling inside the taxi. His evidence was that the Appellant had alighted and it was only after she had alighted from the taxi that the assault on him took place.

4. It is also to be noted that the Appellant's caution statement did mention about the struggling inside the taxi with the policeman, of course as Mr Madigan pointed out, this is an issue of credibility and the learned Magistrate was entitled to make a finding of fact as to which witness he believed. The learned Magistrate did so in his statement of findings at paragraph 4 where he said that:

"Neither PW1 nor PW2's testimonies contained any inherent improbability or impossibility. Further, PW2 was an independent witness, had never known Defendant, and had nothing to gain by testifying. I find both prosecution witnesses reliable and have told the truth."

5. Then the learned Magistrate went on to disbelieve the Appellant's evidence which he was entitled to do. It would appear that the learned Magistrate, in his statement of findings, had not dealt properly with the discrepancy as to the struggle inside the taxi. This is a discrepancy between PW2 and PW1.

6. Furthermore, as Mr Boyton pointed out, there was also the evidence of PW2 that he did hear the Appellant calling out that she wanted her identity card back and it was PW1's evidence that he did not take her identity card. This was again not cleared up and the learned Magistrate when he was making an assessment on credibility in this case should have dealt with this matter. Instead what the learned Magistrate chose to do was to say that he noticed that the defence had raised the issue of self-defence but he found that it did not arise because he found that PW1 had not used any force.

7. When an issue of self-defence is raised, it is for the prosecution at the end of the day to prove that the assault did take place and that it was not a self-defence. It is unfortunate that with the discrepancies between PW1 and PW2, the learned Magistrate just chose to dismiss the issue of self-defence.

8. What also concerns me is the learned Magistrate make a mistake as to the facts because, as Mr Boynton pointed out, the evidence of PW1 was that he and his colleagues arrived at the scene in pursuance of a report of fighting and he said that the report was a fight between a man and a woman at the bus stop. He was not sure if the Appellant was involved and so he was making an investigation. In the cautioned statement, there was denial of any fighting but the learned Magistrate in his findings and conclusion found that the Appellant had just had a fight with her boyfriend and wanted to go home and therefore that explained why she was annoyed and agitated and therefore became angry with PW1. Again, the evidence does not purport this.

9. I am therefore left with a lurking doubt whether the learned Magistrate, had he properly considered the above, would have arrived at a different conclusion. So, in the event, the only conclusion I can make is that the conviction is unsafe and unsatisfactory and the appeal is allowed.

10. As Mr Boyton had said, he has abandoned the appeal against a sentence. I therefore also formally rule that the appeal against sentence is dismissed.