HKSAR v. TUNG MAN KEUNG

HCMA175/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO.175 OF 1998

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J U D G M E N T

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1. The Appellant was found guilty after trial of obstructing a police officer in the due execution of his duty, and sentenced to pay a fine of $10,000. He appeals against conviction.

2. On 18th July 1997 at about 4.45 in the morning the Appellant, who was D2 in the court below, and his girl friend Miss Lam Wai Ching, Michelle, who was D1, were in the Appellant's motor car, No.FH 149. Miss Lam was driving. The car went out of control on Waterloo Road and struck the central divider. Police came on the scene. Both Defendants smelt of alcohol. Ultimately an attempt was made to subject Miss Lam to a screening breath test, colloquially known as a "breathalyser". She refused to give a specimen of breath. It was alleged that the Appellant obstructed PC 19993 Kung Cho Ping, who was trying to obtain the specimen. After trial the Appellant was convicted of this offence. Miss Lam was convicted of careless driving, but not of the breath test offence. The learned Magistrate accepted that the request for the test had been deficient.

3. The learned Magistrate in particular found that the Appellant was increasingly and persistently abusive, aggressive and hostile up to the time of the deficient request and that by leading Miss Lam, who had up to then not refused to give a specimen, away from the investigation, he went "way beyond any reasonable exercise of any legal rights which he might have had, whether as a friend or solicitor of Miss Lam." (The Appellant is a practising solicitor). He further found that the Appellant's removal of Miss Lam actually and deliberately prevented the requesting officer from carrying out his duty.

4. There is no dispute that the prosecution evidence as to the Appellant's actions was sufficient for the Magistrate, having accepted it, to convict the Appellant. The evidence of the Appellant and Miss Lam was to the effect that the Appellant supported Miss Lam, in his role as her friend and her solicitor, in the exercise of her rights. The learned Magistrate accepted the evidence of the police officers and rejected that of the Appellant and Miss Lam. The appeal is brought on the basis that the learned Magistrate erred in law and in fact in so doing.

5. In brief the grounds of appeal are :-

1. The learned Magistrate erred in law and fact in rejecting the evidence of the Appellant and Miss Lam in that he relied heavily on their demeanour rather than testing their evidence against all the evidence;

2. he erred in law and in fact in accepting the police witnesses as truthful when a video tape of the scene did not corroborate consistently with their evidence;

3. he misdirected himself on the burden of proof when he rejected the evidence of Miss Lam because he believed the officers;

4. he misdirected himself by comparing the evidence of the police to that of the Appellant on the basis that the police are less likely to lie;

5. he erred in law and fact when finding that the Appellant's complaints as to lack of courtesy by the police were irrelevant in that such complaints were substantiated by the tape and an admission by PW8 under cross-examination;

6. he misconceived the Appellant's case in finding that provocation was not an issue;

7. in all the circumstances the conviction is unsafe and unsatisfactory.

6. Much of the argument in this case was based on what appeared on the video tape. This tape was taken by a police traffic camera mounted at the road junction. I have had the benefit of seeing it in court and, with the agreement of Counsel, I have viewed it on my own subsequently. I have to say that the tape, as I have viewed it, seems to be in no way inconsistent with the overall finding of the learned Magistrate that the Appellant was "increasingly and persistently abusive, aggressive and unseemly hostile in the minutes leading up to the deficient request". Nor is it in any way inconsistent with the finding that the Appellant led Miss Lam "purposefully away from the requesting officer in the middle of his investigation into a possible drink-driving offence". It is argued that she walked to the car of her own accord, and no doubt she did; but that was after the Appellant put his arm around her and effectively led her, in this way, out of the group of police officers surrounding her.

7. The first ground of appeal goes to the learned Magistrate's reliance on demeanour. In support of this ground, Counsel cited the cases of R. v. Ng Wing-ming [1995] 1 HKCLR 64 and R. v. Chong Luen-shing [1994] 3 HKC 451. Of course it must be accepted that a magistrate should look first at the inherent probabilities as the first point of reference, before considering demeanour; but he is entitled to consider demeanour. In fact he did say that he found the Appellant's evidence to be inherently improbable, and further that the evidence of Miss Lam coincided to a great extent with that of the Appellant, whom he found to be untruthful.

8. D1 said that she felt unwell at the scene. When she was asked how the accident happened, she refused to answer on the Appellant's advice, and asked the officer to let her see a doctor. Later, she told screening test officer PW7 that she had a stomach-ache, wanted to see a doctor and did not want to conduct the breath screening test. In fact D1 was taken to the Kwong Wah Hospital and complained of epigastric pain. She was given antacid tablets and a pain-killer injection.

9. I was also shown a scene from the video tape in which, after the Appellant had been arrested and D1 had been sitting in the car for some time, she got out, apparently retched and then leant against the car door, as indicating that she obviously felt unwell. I have to say that I could not see any clear indication that she retched, though she did lean on the car door.

10. Much was made of this evidence as indicating an inherent probability that she had been unwell throughout and had indeed indicated that she wanted to see a doctor rather than answer questions or give a breath specimen.

11. It has to be noted, however, that there was no evidence from the doctor as to when the Appellant's stomach pain might have come on, and certainly from her first appearance on the video tape up to the time of her being put into the car by the Appellant after the refusal of the breath test, there is nothing obviously wrong with her. She spent a lot of time apparently talking on a portable telephone and her condition looked somewhat agitated as it might well have been, but there was nothing to indicate that she was in need of medical attention.

12. So the argument that the learned Magistrate in effect missed an inherent improbability while concentrating on demeanour does not, it seems to me, have merit.

13. There is of course nothing inherently wrong in the learned Magistrate's having watched the demeanour of Miss Lam, in giving her evidence, as she looked towards the Appellant before she answered questions. There is certainly nothing wrong in his considering the evasive answers of the Appellant on the question of the advice given by him to Miss Lam and the effect of solicitor-client privilege on his replies. I did not have the benefit, as did the learned Magistrate, of seeing and hearing the witnesses; but having read the relevant passages to which he refers, I cannot say that I am surprised that he made the findings as to the credibility of the Appellant which he did.

14. The learned Magistrate went through the evidence in some detail and while he obviously relied strongly on demeanour, I do not see that it can be said that he neglected the inherent probabilities or improbabilities in the situation. I have dealt above with the argument on the evidence of D1 and further, it must be said that the inherent probability in the scene shown on the tape favoured rather straightforward obstruction by a truculent and aggressive defendant rather than the protection of the legal rights of a driver who may have committed an offence of drink-driving.

15. I turn to the second ground of appeal. Of course it may be said that the tape did not "corroborate consistently" the evidence of the officers. This is not surprising in that the evidence was not itself entirely consistent. There were discrepancies in that evidence. That there should have been, when there were a number of witnesses all milling around at the scene, was not surprising. The learned Magistrate dealt properly with those discrepancies and having done so accepted the evidence of the police officers as he was entitled to do. Of course it is possible to go through the tape and the evidence, and compare them minutely and find inconsistencies. The learned Magistrate heard the police officers cross-examined at great length and with great skill. He saw the video and heard considerable argument about it. It cannot be said that he failed properly to deal with the discrepancies in the evidence and on the tape and having done so, he accepted the evidence of the police officers, as he was entitled to do.

16. The third ground of appeal may be answered quite simply as Mr Wong, Senior Government Counsel, answered it before me. The learned Magistrate was writing his Statement of Findings after the event. He had reminded himself before reaching his verdict of the continuing onus of proof which lay on the prosecution, and he had at that stage given himself a good character direction in respect of both the defendants. Perhaps his choice of language was infelicitous but it cannot be taken as indicating that he misdirected himself as to the onus of proof.

17. The fourth ground relates to the terms used by the learned Magistrate in referring to the conduct of PW8 as against that of the Appellant. This should perhaps be considered along with the fifth ground which also relates to the actions of PW8. Now it is true that PW8 appears to have lost his temper and to have departed from the standards expected of the police. He can clearly be seen on the tape "giving the finger" to the Appellant. One cannot condone this and the learned Magistrate did not, but given the rest of the scenario as depicted on the tape, one is not entirely surprised to see it. The point is that the learned Magistrate dealt with this. He dealt with its possible effect on the credibility of the police generally and PW8 in particular. It was his function to do that and he did it and it cannot be said that he took the stance that the police were more likely to be telling the truth. The point is that courtesy and veracity do not necessarily go together. Failure to admit a lapse in courtesy may impugn credibility; but it cannot be said that the learned Magistrate failed to consider that possibility or that having considered it the conclusion to which he came is not supportable.

18. The sixth ground relating to provocation goes to the question of credibility. Of course provocation was not an issue in the sense that it might have afforded some kind of defence. The point of the ground seems to be the credibility of the police and I think this was adequately dealt with by the learned Magistrate.

19. Overall I have come to the conclusion that the learned Magistrate's verdict cannot be said to be unsafe or unsatisfactory. Ultimately, the case depended on credibility; he considered the various issues relating to credibility and came to his decision; and it cannot be said that that decision was reached in a faulty way.