HKSAR v. CHAK YAN LIM

HCMA285/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.285 OF 2004

(ON APPEAL FROM STCC 1738 OF 2003)

---------------------------

---------------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant, Chak Yan Lim, was convicted after trial before a magistrate of resisting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap.212. He was fined $1,000. He now appeals against conviction.

The fact

2. On 30 September 2003, PC53989 (PW1) and his colleague were in uniform duty and they were assigned to execute warrant of arrest in the name of the appellant. They went to the premises in question. They encountered the appellant in the corridor. PW1 verified the appellant's identity and told him he was wanted by the police. He declared arrest on the appellant. The appellant tried to leave. PW1 tried to grab the appellant's hand and the appellant pushed him away. The officer tried to grab the appellant again but there was a struggle and they fell onto the ground. The appellant tried to bite PW1 and PW1 was unable to handcuff the appellant. Later, the appellant was subdued when reinforcement arrived.

3. The appellant gave evidence at the trial and he denied struggling with PW1 and his colleague nor biting PW1. He said he encountered two officers and they hit him with martial arts for no reason or perhaps they were afraid of him.

Reasons of the magistrate

4. The issue in the case was the credibility of PW1. The magistrate found him to be credible. As counsel for the defence had conceded at trial, there was not much to cross-examine him as he was very much consistent.

5. The magistrate rejected the evidence of the appellant. She listed out examples of contradiction of the appellant's evidence in the Statement of Findings and said the appellant's evidence did not make sense. She ruled out any question of any misunderstanding arising from the interpretation and the defence lawyer also confirmed that the appellant understood everything said during the trial. The magistrate found the appellant knew the police officers were as such as they were in uniform and the appellant had been told he was a wanted person and he resisted the police officers until put under control by reinforcement.

Grounds of appeal

6. The appellant filed the general grounds of appeal that there is no or insufficient evidence to support the conviction and asked the court to apply the Laws of the Communist Party to protect the people.

7. At the appeal the appellant said after the incident the officer sent someone to bit him up with intent to murder and his eye was blinded in the incident, and the matter has been further reported to the police.

Consideration on appeal

8. The magistrate had properly considered the elements of the offence, the evidence of the prosecution and the evidence of the appellant. She applied the requisite criminal burden and standard of proof. She is entitled to come to the view on the evidence as she did and there is evidence to support the conviction. There is no occasion for an appellate court to interfere and the appeal is dismissed.