R. v. HUI KWOK ON

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 327 OF 1995

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J U D G M E N T

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1. The appellant was convicted after a trial of the offence of assaulting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap. 232. He was fined $2,500.00 and ordered to pay costs of $750.00.

2. The appellant was stopped by PW1, a police officer on duty directing traffic for picking up passengers in a restricted zone. The appellant was ordered to move forward to a place where a second police officer PW3 was. This second police officer made out a ticket against the appellant for the traffic contravention. It was raining at the time and the appellant had closed the door and wound up the window. When PW3 finished making out the ticket, the appellant told PW3 to put it under the wiper on the screen. At this stage, PW1 came to where the taxi had stopped. The taxi for reasons unknown, moved forward a little bit. PW1, as he admitted, banged hard on the taxi door. PW1 said he did so because the taxi moved. Both PW1 and the appellant were angry at the time. PW1 said the appellant opened the door and alighted from the taxi. The appellant then used his left hand to push PW1 on the left shoulder, as a result PW1's cap fell on the ground. PW1 bent down and picked the cap. He then called for reinforcement and the appellant was taken to the police station. He was later charged with assaulting a police officer.

3. There were two passengers in the taxi at the time and one of them PW2 was summoned to be prosecution witness. His evidence was that he was chatting with his friend at the time and he did not notice how PW1's cap fell to the ground, but earlier he saw the appellant alight from the taxi. Later in his evidence, he supplemented it describing how the appellant opened the taxi door. He said, "He pulled handle and pushed door, one foot stepped on ground. When I turned around I saw police bend down and pick up his cap." He did not see anything in between.

4. The evidence of PW2, the independent eye witness, called by the prosecution is inconsistent with PW1's evidence. According to PW1, the appellant had already alighted from the taxi and then pushed him on the shoulder causing the cap to fall. According to PW2, the cap was already on the ground while the appellant was still half way in the taxi. If PW2 was correct, the officer could not have been pushed by the appellant resulting in the cap falling on the ground. PW2's evidence, even if not inconsistent with, could not in any case support the evidence of PW1.

5. PW3, the other officer, who gave out the ticket witnessed the whole incident. Strangely, he was never asked by either side questions on what happened.

6. The appellant denied pushing the officer. He said he was given the ticket for picking up passengers and he was told to alight to get back his licence. He alighted and he saw the cap had fallen on the ground. PW1 was at the back of taxi. They then had an argument about fixing the badge on the officer's cap. The officer used abusive language. He told the officer he would complain against him. The officer then asked for reinforcement. He was told he would be charged with disorderly conduct in a public place, but later on, the police charged him with assaulting a police officer.

7. The learned magistrate rejected the appellant's evidence and accepted the evidence of PW1 that the appellant did push the officer and found PW2's evidence in support of PW1's evidence. He convicted the appellant.

8. Mr. Casewell for the Crown accepted that the evidence of PW2 did not support the evidence of PW1 in a material aspect.

9. The learned magistrate had relied on inconsistent evidence to conclude that there was an assault in the manner described by PW1. In such circumstances, the conviction is unsafe and unsatisfactory. The appeal is allowed and the conviction quashed and the sentence of fine and costs set aside. Fine and costs paid to be refunded to the appellant.