HKSAR v. LAU KWOK YU

HCMA520/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.520 OF 1999

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J U D G M E N T

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1. This is an appeal against conviction. The Appellant was found guilty of assaulting a police officer, contrary to s.63 of the Police Force Ordinance, Cap.232, in that on 21 December 1998 at a carpark of Tsuen Wan Magistracy, Tsuen Wan, New Territories South, he assaulted PC50845, a police officer acting in the execution of his duty.

2. In his Notice of Appeal against Conviction, he relied on the general grounds without mentioning any specific ground, mainly, that the conviction was against the weight of evidence. In his address to me today, he addresses me in some detail as to the evidence apparently in support of the ground that the conviction is against the weight of the evidence. In fact, he queries why the Magistrate believed the prosecution witnesses and not him. He alleges that the Magistrate disregarded discrepancies in the evidence of PW1 and PW2 mainly.

3. In her Reasons for Decision, the Magistrate set out the prosecution case as follows :-

"2. On 21 December 1998, PCs 50845 [PW1] and 19277 [PW2] saw the appellant at the Tsuen Wan Magistracy making a big fuss, arguing with the staff regarding payment of a penalty ticket. Shortly later, Chan, the carpark attendant [PW3] came in and asked the appellant to drive his car away.

3. Down in the carpark, as the appellant was going back and forth trying to get out of the parking space, he collided with the adjacent vehicle. PW1 told the appellant to stop, that his vehicle had bumped into the next car. The appellant replied 'I am dumb if I listen to you', he pushed PW1 on the chest, and tried to drive away. PW1 immediately opened the driver's door, and told the appellant that he was being arrested for assaulting a police officer. The appellant refused to get off, and instead used both hands trying to scratch and resist the officer. PW1 suffered a very small scratch.

4. PW2 approached and helped subdue the appellant.

5. PW2's evidence was that about 10 seconds after PW1 went to the appellant's van, he heard a big noise, and he too went to investigate. His colleague then told him what happened."

The defence case was also set out as follows :-

"9. The appellant chose to give evidence as was his right. Chan had told him that he could not park in the carpark, but he still went upstairs to pay the penalty. Chan followed him up, scolding all the while. The counter staff told him that he had to wait, because they could not find the file. The appellant left.

10. When he was trying to drive out, PW1 told him not to go. He asked why, but there was no response, so the appellant continued driving. Suddenly PW1 grabbed the car keys, and when the appellant tried to snatch it back, PW1 scratched his hands. In pain and by reflex, he pushed away the officer. The appellant then retreated to the passenger seat.

11. Someone said there was a collision, so the appellant got off to see. His van was dusty, he was not sure if the scratches on the vehicles were from the collision, so he went to the toilet. He was intercepted and handcuffed.

12. Cross examined, he conceded that he was annoyed because the car park attendant had been following him and scolding him. He did not hear any noise of collision, nor did he hear Chan saying there had been a crash. He showed us where the scratches on his hand were, which left a scar."

4. The Magistrate found the Defendant's account was incredible, unbelievable and unreasonable and she gave four examples :-

(1) If indeed the Officer had grabbed the car keys away, why is there any urgency to snatch it back right away?

(2) If the Appellant was so bold as to try to snatch the keys back from the officer, he could not have been so intimidated by PW1 that he would have retreated to the passenger seat.

(3) If the Appellant was so frightened that he retreated to the passenger seat, why did he get off to look at the scratches on the vehicles?

(4) If the Appellant could see the scratches on his van, then there was no need to get water to wash the dust off.

5. On the other hand, the Magistrate evaluated the evidence and came to the conclusion that PW1 was a truthful and reliable witness. She appreciated there were a few discrepancies between the evidence of PW1 and that of PW2 as to the following aspects :-

(1) How the Defendant moved his hand?

(2) By whom and when the car door was opened?

(3) How long after the incident that the Defendant was handcuffed?

The Magistrate came to the view that these were minor points of detail and not touching on the main issue and anyway, according to the evidence, PW2 only went to the vehicle about 10 seconds after PW1 had done so. She came to the view that PW2 could not have witnessed the assault which had already taken place.

6. I have listened to the Appellant carefully and I have checked the record very carefully, but I could not find that the Magistrate's decision can be faulted as a matter of principle or in law. In the circumstances, I dismiss the appeal.