HKSAR v. CHEUNG SAI DAI

HCMA125/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.125 OF 2003

(ON APPEAL FROM STCC 1201 OF 2002)

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J U D G M E N T

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1. On 8 February 2003, the appellant and his wife were convicted after trial at Shatin Magistrates' Court of separate offences of assaulting the same police officer on the same day in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap.212.

2. The appellant was sentenced to a term of one month's imprisonment and he appealed against his conviction. He is aged 68 and had been on bail since 17 February.

3. On 28 May I dismissed the appeal and here follow my reasons.

The prosecution case at trial

4. PC 33036 (PW1) and a colleague (PW2) responded to a radio call from a lady who complained about a dispute which she had had with the appellant. The officers approached the appellant and his wife and asked them to provide some identification papers which they were unable to do. PW1 then accompanied the appellant's wife to her home to collect such papers.

5. Upon their return the appellant was in an agitated and emotional state. He tried to approach the lady who made the initial complaint in an aggressive manner. There was a struggle for about 20 minutes and the two police constables stood in between and eventually the situation calmed down. Then suddenly the appellant lunged forward and grabbed the handle of PW2's revolver.

6. There was a struggle between the police officers and the appellant and his wife and a number of blows were struck by them upon the officers. PW1 testified specifically that the appellant had kicked his abdomen area causing him to fall backwards. He said the kick was "forceful and sudden and caused him much pain". Eventually other police officers arrived and the appellant and his wife were subdued.

7. PW1's testimony was supported by PW2 who said that he saw the appellant strike out with a kick that landed on PW1's abdomen. A security guard also saw the kick to PW1's abdomen and the attempted snatching of the revolver.

The defence case at trial

8. The appellant's account of matters (put in cross-examination) was that PW1 had deliberately dropped the appellant's papers thus agitating him; that PW1 had scolded and punched him in the chest; and that he had only accidentally kicked PW1. All of this was denied by the prosecution witnesses.

9. The appellant gave evidence to the effect that he was the victim of an unprovoked attack by the police and by security guards. He said he never tried to snatch the gun. He also made some assertions about a plot to steal his 'tens of millions of dollars', and about an inspector of police trying to steal $40 million from him. Further he said that one police officer tried to inject a syringe into his left upper arm and that he had been subjected to violence by the group of police officers. As to the kicking of PW1 the appellant said that he did that when he was trying to fend off the officer and to defend himself.

The Magistrate's Findings

10. In his Statement of Findings, the magistrate carefully evaluated the evidence that had been presented to him. Having done so he concluded that the prosecution witnesses had given a truthful account of matters and he rejected the evidence of the appellant and his wife as being 'incredible'.

11. He further, and specifically, concluded that the prosecution had satisfied him so that he was sure that the appellant had quarrelled with the initial complainant; that he tried to hit her; that the police tried to subdue him; that he tried to snatch PW2's gun (which resulted in a further struggle) and that he then kicked PW1 (who was then acting in the course of his duty) in the abdomen.

12. The magistrate went on to say this :

"After conviction of [the appellant] I was informed that he had 5 previous convictions, 3 of which were violence related. [The appellant] denied such conviction record. The Prosecution later provided formal proof, which I accepted.

[The appellant's] counsel suggested, and I agreed, that given [the appellant's] conduct during the trial it was necessary to adjourn sentencing to obtain psychological and background reports. Those reports were obtained and I considered those reports before sentencing.

In coming to my decision, I was mindful of the fact that I convicted [the appellant] of an excepted offence. [He] was a man of 67 years of age and had a history of violent behaviour. I also considered the fact that this was clearly an unprovoked attack on PW1 causing him serious injuries during the course of the performance of his duties. A term of imprisonment was inevitable in [the appellant's] case. But considering his old age I was prepared to be as merciful as possible thus I sentenced [him] to 1 months imprisonment."

13. Before me the appellant attempted to repeat what he had said in evidence before the magistrate, and he did so in a very loud and belligerent manner joined at one stage by his wife who was sitting in the public gallery. He repeated his allegations against members of the police force and, indeed, added to them.

14. The appellant said nothing whatsoever to me which caused me to question the magistrate's findings. Accordingly I dismissed the appeal.