HKSAR v. NG SAI CHEUNG

HCMA1090/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1090 OF 1997

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J U D G M E N T

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1. The Appellant was convicted of the offence of assaulting a police officer in the execution of his duty on 7th November 1997 by Mr Michael Chan sitting at Tuen Mun Magistracy.

2. The incident had arisen in this way. The Appellant's wife had telephoned the police because there had been a quarrel between her and her husband, the Appellant. Three police officers, PW1, PW2 and PW3 were sent to the scene. The evidence of the prosecution was that after the police officers entered the flat, the Appellant had said to them words to the effect "You've come at the right time, you can take my wife to be medically examined". PW1 put an arm around the Appellant's shoulder to try and calm him down. The Appellant pushed away PW1's arm, and then swore at PW1 after PW1 tried to calm him down. PW1 again tried to calm him down. The Appellant then kicked PW1 with his knee, punched PW1 on his chest once, gripped the neck of PW1 with his left hand and gripped the left shoulder of PW1 for 15 seconds. PW1 then said to the Appellant : "I've come to help you but you assault me, stop it, let go!" PW1 then tried to push the Appellant away and a struggle ensued and both of them fell onto a table. PW2 then came to assist and pushed the two of them, PW1 and the Appellant, onto the ground.

3. Police officers of the Hong Kong Police Force are well known for the restrained manner in which they execute their duties, but where a police officer investigating a possible crime is assaulted by the suspect, I think it is expecting too much to expect the police officer to remain passive and let the assault continue.

4. On the scenario described above, as soon as PW1's arm was pushed away by the Appellant, or as soon as the Appellant kicked PW1 with his knee, one would have expected, quite naturally and quite understandably, that all three police officers would then pounce upon the suspect and restrain him from further assaulting one of them.

5. I have said before, on many occasions, that findings of facts are for the tribunal trying the case to determine. It is only with great caution and under exceptional circumstances that an appellate court would reverse a finding of facts by a tribunal trying a case. But where an appellate court is left with a feeling of uneasiness over a verdict of guilty or where an appellate court feels that a particular matter or particular matters of importance were not sufficiently dealt with by the trial court, then the appellant court can, in exceptional circumstances, reverse the finding of facts by the tribunal.

6. Against the scenario which I have described, there was also produced before the learned Magistrate a medical report on the Appellant. The medical report showed that there was swelling over the right peri-orbital area of the Appellant, there was also bruising over the left scapula and abrasion over the right elbow of the Appellant. There was no medical report on PW1. The swelling over the right eye of the Appellant was a matter which gave me some concern. The learned Magistrate said that when the Appellant gave evidence, he did not specifically mention being punched on the eye. That is true, but what the Appellant did say was that he was assaulted around his head and back. The Appellant's son, who was aged 8, did give evidence of his father being assaulted and in particular did mention that his father was punched on the eye by one of the police officers.

7. The learned Magistrate accepted the evidence of PW1 as true because he found PW1 to have been an honest and reliable witness. He found that all three police officers mutually supported one another. He also found that PW2 and PW3 were honest and reliable witnesses who told the truth. On the other hand, he found the Appellant's evidence to have been difficult to accept. He also found the Appellant's wife, who gave evidence, as unreliable. In relation to the son's evidence, he never really carefully analysised it, and in effect he dismissed it in two sentences. He said that the son had quite clearly repeated the version of his parents and that he did not find that the son's evidence created any doubt in the evidence of the three prosecution witnesses. The son gave evidence that he witnessed his father being assaulted, he also gave evidence that he saw his father's eye being punched by one of the police officers. The attack on the eye was in fact something which the father himself never mentioned specifically, so it would have been a bit difficult for the Magistrate to dismiss the son's evidence by simply saying that he was repeating his father's version. The learned Magistrate did not make a specific finding but expressed the view that the injury to the eye might have been caused during the struggle with PW1 when the two of them, at one stage, fell onto a table.

8. The other matter which gave me concern was the wife's evidence, and this was confirmed by the evidence of PW3, that at one stage she shouted to the police officers : "You guys do not hit". The learned Magistrate had said that despite that testimony by PW3, there was no evidence who was hitting whom and so he found that that evidence was really of a neutral effect. What he had not mentioned was that at the time, according to PW3, when the wife was shouting out these words, the Appellant was lying on the ground, being pinned down by PW1 and PW2. If that was all that was happening, namely the Appellant was lying on the ground, being pinned down by these two police officers, it is rather strange that the wife would have shouted out : "You guys do not hit". I rather fear that this point was not sufficiently or satisfactorily dealt with by the learned Magistrate.

9. I am left with a feeling of great uneasiness over this conviction and loath as I am to interfere with a finding of facts by a trial court, in the circumstances of this case, I feel I have to allow the appeal and quash the conviction.