HKSAR v. LO SAI KIT AND ANOTHER

HCMA 507/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 507 OF 2003

(ON APPEAL FROM KCCC 15904 OF 2002)

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J U D G M E N T

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1. Five persons were charged. Four stood trial. They stood trial before Albert S. H. Wong Esq. in the Magistrate's Court at Kowloon City. All four gave notice of appeal. But the 3rd Appellant abandoned his appeal. The 4th Appellant's appeal, which was against a refusal of costs, has been disposed of by a Deputy Judge who allowed that appeal. So I am concerned only with the 1st and 2nd Appellants.

2. The 1st Appellant faced three charges, being Charges 1, 2 and 4. Charge 1 was of inhaling a dangerous drug. Charge 2 was of trafficking in a dangerous drug. Charge 4 was of resisting a police officer. He was acquitted, on a submission of no case to answer, on Charge 1. On Charge 2 he was convicted of the lesser offence of simple possession. On Charge 4 he was convicted of resisting a police officer as charged. He was fined $4,000 for simple possession (Charge 2) and sentenced to six weeks' imprisonment for resisting a police officer (Charge 4). He appeals against his convictions in respect of both Charges 2 and 4 and sentence in respect of only Charge 4, having now abandoned his appeal against his sentence on Charge 2.

3. The 2nd Appellant faced two charges, being Charges 5 and 6. Charge 5 was of resisting a police officer. Charge 6 was of inhaling a dangerous drug. He was acquitted on Charge 6 (inhaling a dangerous drug) but convicted on Charge 5 (resisting a police officer) for which he was sentenced to six weeks' imprisonment. He appeals against his conviction and sentence.

4. The Magistrate said in terms that he drew no inference adverse to the 1st and 2nd Appellants from their choice not to give evidence. He also said in terms that he took their clear records into account in their favour.

5. In convicting the 1st Appellant of resisting a police officer (Charge 4), the Magistrate acted on the evidence of Police Constable No. 51090 who was PW2. The Magistrate said (in paras. 35 and 46 of his Statement of Findings) that he found PW2 credible and honest. As to the effect of PW2's evidence, the Magistrate summarised the same like this:

"13. The 1st Appellant took out a paper packet from his trousers pocket. He unfolded it. He touched the back of a hand of the 2nd Appellant once with a MTR ticket. He then put the MTR ticket on the paper packet and had some wiping actions on the packet with the edge of the ticket.

14. Shortly afterwards, at 3:55 a.m., PW2 was instructed to take action. He approached the 1st Appellant together with PC 50744 (PW4). They separately stood at both sides of the 1st Appellant. PW2 put his hand on the shoulder of the 1st Appellant. The 1st Appellant was sitting, his hands still holding the piece of paper and the MTR ticket. PW2 produced his warrant card and declared his police identity. When he declared arrest of the 1st Appellant for the offence of Possession of Dangerous Drug and told him not to move, the 1st Appellant said, "What happened, don't arrest me." At about the same time, the 1st Appellant dropped the paper and the ticket. PW2 at once told the 1st Appellant not to move. The 1st Appellant still stood up. PW2 and PW4 tried to stop the 1st Appellant by each holding one of his hands. The 1st Appellant pushed them away and swung his body and arms. He struggled for about one minute and was eventually subdued.

15. The paper and the MTR ticket which the 1st Appellant dropped were recovered by PW2."

6. In convicting the 1st Appellant of simple possession (Charge 2), the Magistrate said:

"52. Traces of Ketamine were found on the hands of the 1st Appellant. For reasons mentioned in paragraphs 40 and 41 above, I was satisfied beyond reasonable doubt that it was not a result of contamination. In all the circumstances, I was satisfied that I could draw the only irresistible inference that the 1st Appellant had been in possession of Ketamine. I therefore found the 1st Appellant guilty of the offence of Possession of a Dangerous Drug, under Charge 2."

7. In convicting the 2nd Appellant of resisting a police officer (Charge 5), the Magistrate acted on the evidence of Detective Police Constable No. 33893 who was PW6. The Magistrate said (in para. 37 of his Statement of Findings) that he found PW6 credible and honest. The effect of PW6's evidence was summarised like this by the Magistrate:

"19. At 3:55 a.m., PW6 was instructed to arrest the 2nd Appellant. He approached Table 33. After having produced his warrant card and revealed his identity, he declared arrest of the 2nd Appellant for inhaling a suspected dangerous drug. The 2nd Appellant pushed the chest of PW6 once and then ran to the dancing floor. PW6 used his right hand to try to stop the 2nd Appellant. He declared his police identity again and told the 2nd Appellant not to move. The 2nd Appellant used his right hand to push away the hand of PW6 and continued to run towards the dancing floor. PW6 followed him. He managed to use his right hand to grab the right wrist of the 2nd Appellant and used his left forearm to press the right forearm of the 2nd Appellant. As a result the 2nd Appellant knelt on the floor. However, even in that position the 2nd Appellant continued to move both of his hands and struggle. PW6 attempted to drag the hands of the 2nd Appellant back, he failed because of the struggle put up by the 2nd Appellant. The 2nd Appellant continued to move and swing. Eventually, with the assistance of WPC 56387, PW6 succeeded in pulling the hands of the 2nd Appellant to his back and tied them up with plastic straps. The process took less than a minute."

8. As against conviction, Mr Eric Kwok who appeared for both Appellants has settled the following perfected grounds of appeal:

"1. The learned Magistrate erred in concluding that traces of Ketamine found on the samples taken from the 1st Appellant could not have come from contamination during or before the taking of samples.

2. The learned Magistrate erred in concluding that PW2 is an honest and credible witness in view of his finding that PW2 is not frank in relation to his evidence of demonstration.

3. The learned Magistrate had not resolved the discrepancy between PW2 and PW6 in relation to time that PW2 was led to Table 35 by PW6.

4. The learned Magistrate had not considered the innocent reaction of the 1st Appellant in his oral reason for verdict.

5. The convictions on the 2 Appellants are unsafe and unsatisfactorily in view of the whole of the prosecution evidence."

9. I will deal with Ground 1 last.

10. As far as Ground 2 is concerned, I think that the most that can be said against the Magistrate's decision is that he did not express himself as well as he might have done. But I am satisfied that he, after careful consideration and with the advantage of seeing and hearing all the witnesses, was really saying that although he found PW2 less than frank in regard to the demonstration in question, he was satisfied that PW2 was honest and credible in respect of all his other evidence. The mere fact that a Magistrate disbelieves a prosecution witness on some of his evidence, even where that witness is a police officer, does not preclude the Magistrate from believing that witness on other parts of his evidence provided that the Magistrate bears in mind the implications of his having disbelieved part of the witness's evidence. I am satisfied that the Magistrate had those implications proplerly in mind. Ground 2 fails.

11. As far as Ground 3 is concerned, the Magistrate said in terms that he did not consider this discrepancy to be material. He obviously had it in mind. It does not undermine his decision. Ground 3 fails.

12. As far as Ground 4 is concerned, the Magistrate said this:

"31. ... I had also taken into account the evidence that when the 1st Appellant was approached by police officers, his first reaction was 'what had happened', which to me was a reaction consistent with one coming from an innocent person."

When the Magistrate said, as he did, that he "had" taken this into account, he must have meant that he had taken it into account when convicting. The fact that he did not mention this matter in his oral reasons is not fatal to his decision. Ground 4 fails.

13. As far as Ground 5 is concerned, subject to Ground 1 which I will come to in due course, I am satisfied that there is nothing unsafe and unsatisfactory about any of these convictions.

14. This brings me to Ground 1. This ground pertains only to the 1st Appellant's conviction for possession of dangerous drugs. It is true that the Magistrate has given consideration to the question of contamination. But having regard to all the circumstances, I think that there is at least a lurking doubt as to whether or not the traces of ketamine found on the samples taken from the 1st Appellant may have resulted from innocent contact on the part of the 1st Appellant with ketamine. Ground 1 succeeds.

15. Since this ground, but only this ground, succeeds, the 1st Appellant's appeal against his conviction for possession of dangerous drugs succeeds, but both Appellants' appeals against their convictions for resisting a police officer fail. The 1st Appellant's conviction for possession of dangerous drugs is quashed and the sentence is set aside. Both Appellants' convictions for resisting a police officer stand.

16. I turn now to the appeals against sentence. Each Appellant appeals against his sentence of six weeks' imprisonment for resisting a police officer.

17. Three grounds of appeal against sentence has been settled by Mr Kwok. They read:

"1. The learned Magistrate should not have taken into consideration that the Appellants were serving police officers as their status are merely incidental.

2. The learned Magistrate had not taken sufficient consideration of the serious consequence of the convictions on the Appellants.

3. A starting point of 2 months is too high in the circumstances of the case."

18. The prosecution' stance on the appeals against sentence may be taken from the skeleton argument prepared by Ms Grace Chan where this is said:

"11. It is submitted that the Magistrate in sentencing both Appellants did not take their police status in increasing their sentence (as an aggravating factor) but considered it in the sense that they would lose their employment and pension. These are relevant mitigating factors and the Magistrate correctly took these into account.

12. It is submitted that the Magistrate was aware of the serious consequences of the convictions on the Appellants and said so in sentencing and explained at length the reason why he was imposing a sentence of imprisonment against the Appellants.

13. The starting point taken of 2 months reduced to a discount of 2 weeks (22%) to 6 weeks' imprisonment was not manifestly excessive or wrong in principle (see R v SO Kan-ming HCMA 201/1996, R v LEE Sing-wai CACC 72/1997 and HKSAR v Makhssian, Trajan Vahe HCMA 1219/2002)."

19. As to what is said in para. 11 of the prosecution's skeleton argument, I think it is correct to say, as the prosecution does, that the Appellants' police status was taken into account by the Magistrate in their favour in the sense set out in that paragraph. The Magistrate said this in relation to the 2nd Appellant, who was sentenced first:

"57. ... Owing to the present case, he was forced to retire. He would lose his pension for this conviction."

He said much the same thing in relation to the 1st Appellant, noting: "It is very likely he would lose his job and pension for the convictions".

20. But that is not the only sense in which he took the Appellants' police status into account. He also took it into account against them. This is clear because he said this in relation to the 2nd Appellant:

"59. ... To deal with the matter over leniently, in particular as the 2nd Appellant is a serving police officer , will give a wrong message to the public."

And I think he must have applied that thinking to the 1st Appellant as well. Indeed the Magistrate said in terms: "Most of which I had taken into account in sentencing the 2nd Appellant were applicable to the 1st Appellant".

21. In my view, what the Magistrate did is not to be characterised as increasing the Appellants' sentence because they were police officers. He merely took that fact into account as a reason or an additional reason why being too lenient would be sending out a wrong message as to the seriousness of this kind of offence. In my view, the Magistrate was right in his thinking on this matter.

22. Upon a careful consideration of everything submitted on behalf of each Appellant, I feel unable to say that the sentences imposed upon them for resisting a police officer are flawed in the reasoning by which they were reached or that they go beyond the range within which the Magistrate was entitled to sentence the Appellants. In the result, I also dismiss the appeals against sentence.