HKSAR v. CHAN WAI FUNG AND OTHERS

HCMA902/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.902 OF 2005

(ON APPEAL FROM KTCC 399 OF 2005)

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J U D G M E N T

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1. The appellants were convicted after trial of six charges of ‘Assaulting a Police Officer in Due Execution of His Duty’ contrary to section 36(b) of the Offences Against the Person Ordinance (Cap.212).  They were each sentenced to community service.  They now appeal against the convictions.

Parties & charges

2. The following is a breakdown of the charges :

Charge	Appellant(s)	Alleged Victim
1	1, 2, 3 & 4	SGT 48652    (PW1)
2	1	PC 33554       (PW4)
3	1	PC 52039       (PW5)
4	4	SGT 45431    (PW2)
5	4	PC 2501        (PW3)
6	5	WPC 56953   (PW6)

The prosecution’s case

3. It was about 2 a.m. on 29 December 2004.  PW1 and his colleagues of Emergency Unit Kowloon West were outside room 264 of the Neway Karaoke at 688 Nathan Road on complaint of a fighting case.  There (and I quote from the magistrate's Statement of Findings) :

“… [PW1] saw the 1^st appellant … and the 4^th appellant both outside room 264.  The 2^nd appellant … and the 3^rd appellant came out …  PW1 saw that room 264 was a mess; its table was overturned and it was littered with glass fragments.  The 1^st appellant’s lips were bleeding as was the right eye corner of the 4^th appellant.  PW1 stopped the 1^st and 4^th appellants and asked them what had happened.  The 4^th appellant used foul language to tell him that they did not need the help of the police.  There was a strong smell of alcohol emanating from both the 1^st and 4^th appellants.  PW1 brought them both to just outside room 264 for inquiry.  The 1^st to 4^th appellants surrounded PW1 and his colleagues and scolded them.  ... Colleagues from another Emergency Unit vehicle arrived … The 4^th appellant pointed his finger closer and closer to the face of WPC 56953 (‘PW6’) as he swore at her.  PW1 placed his hand on the shoulder of the 4^th appellant and told him to calm down.  Then the 4^th appellant punched PW1 on the right side corner of his mouth with his left fist.  PW1 told his colleagues to arrest the 4^th appellant for assaulting a police officer.  … SGT 45431 (‘PW2’) and PC 2501 (‘PW3’) came over to subdue the 4^th appellant.  Someone pushed PW1 in the back causing him to fall down.  PW1 was assaulted on his back more than ten times.  … He got up and saw PW2 and PW3 struggling with the 4^th appellant on the ground.  PW1 helped PC 34743 (‘PW7’) subdue and handcuff the 3^rd appellant.” [Charge1]

4. Picking up from there :

“… PW2 saw PW1 place his hand on the shoulder of the 4^th appellant who responded by punching PW1 in the face with his left fist.  PW2 and PW3 grabbed hold of the 4^th appellant.  The 4^th appellant kicked PW2’s right knee with his right leg forcing PW2 to kneel down ...  PW2 saw the 4^th appellant struggling with PW3 so PW2 helped PW3 to handcuff him. [Charge4]

…

… PW3 observed the 4^th appellant kick PW2 on the right thigh causing him to kneel.  The 4^th appellant struggled with PW3 and he kicked PW3 twice in the chest/abdomen area with his right leg.  PW3 pressed the 4^th appellant down to the ground and he and PW2 handcuffed him.  Later on, PW3 vomited from the pain in his chest.” [Charge5]

5. Turning to PW4, 5 and 7 :

“… PW4 heard PW1 say, ‘Assault police officer; arrest him’.  The 1^st appellant was irritable and kept on swearing at PW4.  PW4 grabbed the 1^st appellant’s upper garment at chest level and told him not to move.  The 1^st appellant pushed PW4 away and then he pushed the back of PW1 causing PW1 to fall to the ground.  PW4 grabbed the 1^st appellant again and warned him not to move.  The 1^st appellant used both hands to push PW4 on the chest causing PW4 to fall to the ground.  Whilst PW4 was on the ground, the 1^st appellant kicked him twice on the right forearm.  PW4 got up and pulled out his baton.  PW5 helped him subdue the 1^st appellant … [Charges 1 and 2]

…

… PW5 saw the 1^st appellant push PW4 to the ground so he went forward to help, holding his shield in his left hand.  He tried to pull the 1^st appellant away.  The 1^st appellant turned round and used his right fist to hit PW5 once on the right side of PW5’s face.  PW5 grabbed the 1^st appellant. [Charge3]

…

… PW7 asked the 3^rd appellant what had happened.  The latter replied ‘No fucking business of yours.  Fuck off.’  The appellants were very emotional and agitated.  The 4^th appellant swore continuously at PW6.  PW1 put his hand on the 4^th appellant’s shoulder and asked him to calm down.  The 4^th appellant punched PW1’s face.  The 1^st appellant pushed PW1’s back with both hands causing PW1 to fall to the ground.  The 2^nd and 3^rd appellants punched and kicked PW1 on his back as he lay on the ground.  PW7 was just one to two feet away from PW1.  PW7 pulled the 3^rd appellant away and tried to handcuff him.  The latter resisted violently.  PW1 got up and assisted PW7 to handcuff him.” [Charge1]

6. Finally :

“… PW6 saw the 5^th appellant inside room 264.  She was crying.  … PW1 and PW6 took the 1^st and 4^th appellants back to the outside of room 264.  PW6 questioned the 4^th appellant as to what had happened.  The 4^th appellant swore at her.  … The 4^th appellant pointed at her head.  He punched PW1 with his left fist.  … The 5^th appellant came to the entrance of room 264 and shouted ‘You’ve got my man’.  PW6 told her to calm down.  The 5^th appellant went back to the soaf inside room 264.  PW6 entered that rom and the 5^th appellant rushed up to her and pulled up her upper garment saying ‘police indecently assault’.  PW6 pushed her away and stopped her from pulling up her upper garment.  The 5^th appellant pulled PW6’s shirt collar and tie ... PW6 grabbed the 5^th appellant’s hand.  The 5^th appellant pushed her away and PW6 fell to the ground.  PW6 got up and the 5^th appellant kicked her on the inside of her left shin ... PW6 subdued and handcuffed the 5^th appellant who bumped her head against the wall.” [Charge 6]

The defence case

7. Only the 1^st and the 4^th appellants gave evidence, but what they said covers the entire defence position.  The 1^st appellant testified that :

“… the 2^nd and 4^th appellants were his brothers.  ….. He went to the Neway Karaoke Box to celebrate his uncle’s birthday.  He and his brothers wen to room 264 where they found ten odd people including the 3^rd and 5^th appellants who were the 4^th appellant’s friends.  The 1^st appellant drank one to two glasses of beer but he was not drunk.  The 2^nd appellant drank about the same amount of alcohol.  The 4^th appellant did not drink alcohol at all on doctor’s orders.  Their uncle paid the bill and left.  The 1^st appellant waited in room 264 for his brothers to return from the toilet.  The appellants were the last to leave room 264.  No fighting had taken place inside room 264.  When they left the 1^st appellant heard someone say ‘Don’t leave’ and he saw eight to tem police officers.  The 4^th appellant said ‘We have paid.  Why can’t we leave?’  PW1 told them to return to room 264.  The 4^th appellant protested.  PW1 and the 4^th appellant argued.  The latter tried to leave and the former pushed him into room 264.  The 1^st appellant also protested but the police pushed all the appellants into the room.  Ten odd officers came into the room.  The appellants were told to squat down and were pushed down.  The 4^th appellant complained of pain and stood up.  PW1 punched the 4^th appellant on the head.  The 1^st appellant tried to pull the 4^th appellant away but the 1^st appellant was kicked on the leg and fell to the ground.  Police officers assaulted him whilst he was on the ground with fists and kicks.  He was also hit on the head with batons.  Eventually the violence stopped.  The 1^st appellant saw PW6 press down the 5^th appellant on a sofa.  He saw the 2^nd appellant was on the ground; a police officer stepped on his shoulder which was bleeding.  ….. The 1^st appellant saw the 4^th appellant was kneeling with a bleeding forehead.  They were told to squat down again with their hands on their heads.  Afterwards, the appellants were brought to another room.” 

8. This is largely consistent with the evidence of the 4^th appellant who added that having sustained serious injuries at work in July 2004, he was hospitalized for a month for, amongst other things, fractured left arm and pelvis, and that the plaster cast on his arms had just been removed by the time of the incident.  As a result, he was unable to move his arms freely or kick with any force.  Anyway, when the police arrived, they were told that the officers were investigating a case and unless they all went into the room, they would be charged with obstruction.  When all four of them men were pushed into the room, however, they were told to squat.  This caused the 4^th appellant considerable pain who then stood up and was hit on the head by PW1.  At that point, all the appellants stood up but were assaulted.  A woman officer pulled the 5^th appellant’s hair and dragged her to a sofa where two male officers pressed her arms.   

The verdict

9. In the end, the magistrate convicted the appellants of all the charges.  Insofar as it is relevant to the present appeal, the following is what he said in explaining his decision :

“In my view, the testimony of the prosecution witnesses was credible, and such discrepancies which arose in the course of the evidence were not vital.

…

I took into account the striking similarities in numerous passages of the witness statements of certain of the prosecution witnesses.  There were some differences as well, and I am satisfied that the similarities arise not because the witnesses have dishonestly colluded together to make up a false story against the defendants, but because, as PW7 testified, they were describing the same events that each had seen.

It was submitted that to believe the prosecution’s version of events would be to find that these police officers were a weak and feeble lot, and several of them, on their testimony, were pushed to the ground.  However, defendants 1 to 4 were young – and with the possible exception of the 4^th defendant – able-bodied men, and I see nothing surprising in their physical ability to cause police officers to fall to the ground.

I took into account that PW1 suffered no injuries despite the large number of blows he received.  I am satisfied that the lack of injuries is explicable because it was winter and PW1 was wearing think clothing which in effect protected him from injury.

I took into account the prosecution witnesses’ testimony that the 2^nd defendant throughout the incident was not wearing an upper garment, and PW9’s testimony that later on he zipped up the 2^nd defendant’s jacket for him over his naked upper body.  This would appear to be contradicted by the copy newspaper photographs produced as Exhibits D10 to 12, showing the 2^nd defendant to be wearing upper garments under his jacket as he was escorted by the police from the building.

This does not cause me to doubt the credibility of the prosecution witnesses.  After the defendants had been subdued they were taken to room 286 and asked to retrieve their clothing.  In the newspaper photographs the 2^nd defendant’s jacket can be seen unzipped.  I am satisfied that either PW9 has mistakenly remembered that the 2^nd defendant had nothing underneath when he zipped up his jacket for him, or thereafter the 2^nd defendant unzipped his jacket and put his other upper garments on underneath the jacket.  I will repeat, it was wintertime.

I also did not find it strange or surprising that none of the prosecution witnesses noticed the abrasion or wound on the 2^nd defendant’s shoulder.  It does look prominent in photograph Exhibit D13, but when the 2^nd defendant revealed his shoulder during the trial the remaining mark on his shoulder covered only a small area.  It does not surprise me that during and after this chaotic altercation the prosecution witnesses should fail to notice that.

I take into account the injuries sustained by the defendants, as detailed in the medical reports produced as Exhibits D5 to 9.  While some of these injuries might have been sustained in the course of their being subdued by the prosecution witnesses, I am sure that some of them pre-exist the arrival of the police at the bar.  Injuries were seen by several prosecution witnesses on the faces of the 1^st and 4^th defendants before any violence erupted between the defendants and the prosecution witnesses.  Room 264, outside of which the 1^st and 4^th defendants were found and from which the 2^nd, 3^rd and ultimately the 5^th defendant came out, was trashed before the police arrived, so I find.  The table was overturned and glass fragments littered the floor.

I am satisfied that the prosecution witnesses have given their testimony honestly.  I accept their testimony.

On the other hand, I did not believe the testimony of the 1^st and 4^th defendants about the incident.  According to them, the defendants were subjected to quite a vicious beating by the police inside room 264 simply because the 4^th defendant mildly protested against being forced to stay on the premises.  I do not believe that.  It did not smack of the truth.  I reject their version of the events.

I accept the good character of all the defendants.  In particular I accept the 1^st defendant is doing voluntary pro bono work for the community.

I also accept that the 4^th defendant suffered serious injuries in a fall at work in July 2004, for which he was hospitalized for one month and from which he had not fully recovered by the time of this incident. 

The simple explanation for the behaviour of the defendants is this : they had consumed far too much alcohol.  Several prosecution witnesses testified of the strong smell of alcohol emanating from the defendants.  The mere fact that the 4^th defendant had been advised by his doctor not to drink does not preclude him from drinking; many people disobey their doctors’ instructions.  In a vivid piece of testimony – a descriptive piece of testimony, PW6 testified that the defendants were drunk, agitated, acted wildly, and spitting when they spoke.  It is a sad fact that excess consumption of alcohol can bring out the worst from the best of people.  I am satisfied, however, that all the defendants knew what they were doing.” 

Ground of appeal

10. It is now complained that the convictions are :

“… unsafe and unsatisfactory for the following reasons :

1.    The learned magistrate failed to give sufficient or any weight to the following :

(a)   the striking similarities in the numerous paragraphs in the prosecution witnesses statements (PW1, PW6, PW7);

(b)   the medical reports concerning the defendants;

(c)   that PW1 suffered no injuries despite his evidence of receiving a large number of blows;

(d)   the conflict between the prosecution witnesses’ testimony that D2 throughput the incident was not wearing any upper garment and PW9’s testimony that later on he zipped up D2’s jacket for him over his naked upper body and the copy newspaper photographs produced as exhibits D10 – D12;

(e)   that none of the prosecution witnesses noticed any abrasion or wound on D2’s shoulder;

(f)    that no civilian witnesses were called;

(g)   that at the material time there was a CCTV in operation during the time of the incident;

(h)   the good character of the defendants;

(i)    the evidence of D1 and D4 about the incident.”

Judgment

11. As can be seen from the quoted passages, all the matters referred to in the sole ground of appeal have in fact been dealt with by the magistrate.

12. The only exceptions are the fact that no civilian witnesses were called and that the tape of the CCTV presumably in operation outside room 264 was never seized.  It is contended that either alone or in conjunction with all the other points, such a ‘lacuna’ should cast a long shadow of doubt over the veracity of the police witnesses.  If things really happened as they said, why did the police not get the karaoke staff or show the CCTV tape to prove it?  That, in effect, is what counsel is saying.

13. The difficulty with this approach is that it amounts to nothing less than an invitation to speculate.  On the contrary, there are all sorts of reasons why a case should end up in a particular state so it is not for anyone to fill in the gaps by guessing.  I should add that insofar as the CCTV question is concerned, only PW6 seems to have been cross-examined about the subject.  She was asked if she accepted that the CCTV was operating in the corridor and her answer was : “I did not check but I believe so”.  She made no attempt to seize the tape and had no idea what her colleagues did or did not do.  There is, therefore, noevidential basis to suggest impropriety.  The same applies to the question of civilian witnesses except that no police witnesses seem to have been asked anything about it.

14. Note also that photographs showing the interior of room 264 had been produced as part of the prosecution case (Exhibits P3(2) – (3)).  They show it to be in a complete mess not unlike PW1’s description.  (Other police witnesses had obviously said the same : p.166 I to O of the Appeal Bundle.)  This supports the police version whereas nothing in the 1^st and the 4^th appellants’ accounts can adequately explain the situation.  (If there is then counsel has not drawn it to my attention.)

15. As for the rest of the enumerated matters, I am satisfied that the magistrate’s conclusions on them were largely beyond criticism.  For example : it was the alcohol which got the better of the appellants who had hitherto unblemished records; this includes the 4^th appellant who was recovering from his work injuries; the defence was in itself unbelievable because of its depiction of vicious and unprovoked police brutality; at least some of the appellants’ injuries were sustained before the police arrived; the police did not notice the abrasion on D2’s shoulder because the situation was chaotic.  These and other conclusions were reasonable and ones that the magistrate was entitled to draw in all the circumstances of the case. 

16. Going into a little more detail, I am satisfied that the discrepancy between what the police witnesses said about the 2^nd appellant baring his upper body when they first found him and the newspaper photographs showing him in a white sweater and a jacket when taken away had been adequately resolved.

17. As we now know, the evidence of the PW9 is that after the incident, some officers brought clothing to a room for the appellants to take back.  That is how the 2^nd appellant retrieved his jacket back and was zipped up.  It is, however, common sense that people do not simply don a jacket over their naked torso particularly in wintertime so the magistrate’s conclusion on how the discrepancy might have come about was both judicious and practical.  As a matter of fact, one wonders why if the police were fabricating a story against the appellants, they should invent such an unnecessary and odd detail.

18. Equally, I find the magistrate’s conclusion about PW1’s lack of injury sound and reasonable.  Though saying it was “quite a punch”, PW1 had also said that this punch at the corner of his mouth was “not that forceful” : p.124A of the Appeal Bundle.  The same must be true for the attack that took place after he was pushed on the floor.  Judging from what appears in the transcripts, it was anything but a vicious bout of frenzy (p.135L) :

“Q:  In what way you were assaulted while you were lying on the ground?

A:   I felt that I was assaulted, sort of punched 10 odd times, on my back.

COURT:  And you felt they were punches?

A:  I’m not sure.  What I felt was that there were some objects that assaulted me for 10 odd times, and I was not able to get up.

COURT:  So you’re not able to say then what kind of blows they were, is that -- it’s your word.  You just said ‘punch’.

A:    What I mean was that someone assaulted me from behind.

…

A:    I believed they were punches because I believed there were someone or people behind me.

…

Q:    What happened to you?  Were you very ill that day or that push was very strong so you were motionless lying on the ground?

A:    That night, on that day, I remember it was very cold.  It was below 10°C and so I put on a lot of clothing.  And after I was pushed, I slipped onto the ground.  When I tried to get up, the floor was slippery.  Meanwhile, I also had to protect the equipment on my person, for example, my gun, so I could only manage to struggle, to get up with one hand and I had no time to turn around to look.” 

19. As regards the question of clothing, PW1 did say that (p.162A) :

“A:  I remember I wore a super warm underwear and then a woolen underwear and a uniform shirt.

…

A:    And on the outside, I wore the police jacket which we first wore at that time.

Q:    So the jacket is a thick one or a thin one?

A:    It was a thick one with a lining inside.

Q:    So, at the time when you were being hit on the back, were you still having so many clothes on?

A:    Yes.”

20. Finally, having read the evidence of PW1, 6 and 7 on their witness statements, I should say that I am not surprised at the magistrate’s finding that the so-called striking similarities were the result of the officers describing the same events.  As far as I can ascertain, these similarities are all about peripheral matters like whom these officers saw at what time.  But even if the magistrate was wrong, that is, if there were indeed inexplicable coincidences between those statements, I should remain unconvinced that the appellants’ suggestion of a collusion to frame-up was the reason.  It was at most a case of lack of industry in which some officers simply tried to copy their statements from one another for the sake of convenience.  I say this because of all the officers who testified, striking similarities were only found in the statements of three.  The rest gave evidence that is not unlike the others, and the magistrate believed them — quite rightly in my judgment. 

21. The appeal is dismissed.