HKSAR v. Yeung Man

HCMA 153/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.HCMA 153 OF 2002

(ON APPEAL FROM KTCC 7366 OF 2001)

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J U D G M E N T

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1. The appellant, who pleaded guilty to one offence of 'remaining in Hong Kong' contrary to section 38(1)(b) of the Immigration Ordinance Cap.115, pleaded not guilty to 2 additional charges, of 'resisting a police officer' and 'assaulting a police officer'.

2. After trial the appellant was convicted of the offences to which he had pleaded not guilty and he was sentenced to a term of 18 months imprisonment in respect of the 'remaining' charge, and 3 months imprisonment in respect of each of the offences of 'resisting' and 'assaulting' - all of those sentences to be served concurrently.

3. The appellant appealed against his convictions for the latter 2 offences.

4. Before me the appellant sought to repeat, time and time again, what he had said in the Magistrate's Court i.e. that far from him resisting or assaulting anybody, the police had assaulted him.

5. Having repeatedly sought to explain to the appellant my function as an appellate judge as against that of the learned Magistrate who was the 'finder of facts' upon the evidence presented before him, the appellant persisted in seeking to relate his account of events which directly contradicted that of the police officers who had given evidence before the learned Magistrate.

6. What the Magistrate said in his statement of findings was, inter alia, this:-

"I found the evidence of all 3 police officers consistent, honest, truthful and reliable. I found as the facts of the case that the incident took place in the manner described by them .... I rejected the version of events given by the defendant, I disbelieved that he had been assaulted by the officers".

7. I say again that the learned Magistrate was the tribunal of facts. The appellant was unable to suggest to me how it might be that the Magistrate had fallen into error in that function.

8. That being so I dismissed this appeal as being without merit.