HKSAR v. KAN KWOK HUNG AND ANOTHER

HCMA746/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.746 OF 2000

(ON APPEAL FROM ESCC 3757 OF 1999)

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J U D G M E N T

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1. The appellants, Kan Kwok Hung and Kan Kwok Shing, were charged with various offences of Assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences Against the Person Ordinance, Cap.212; Criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap.200; Obstructing a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap.212; and 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.

2. They pleaded not guilty to the charges and were convicted after trial. They were sentenced to terms of imprisonment of 6 weeks and 4 months respectively. They sought to appeal against convictions only.

3. The grounds of appeal contained six main points. They were :

1. The learned trial magistrate convicted the appellants contrary to the weight of the evidence. Accordingly, the convictions of both appellants are unsafe and unsatisfactory.

2. There was an absence of balance in the learned magistrate's approach to the case.

3. The learned magistrate was wrong to rely so heavily upon the evidence of PW9 (the Reporter from Apple Daily). This was a witness who had declined to answer relevant and pertinent questions in evidence. His evidence may not have been wholly impartial given the unhealthy and illegal relationship between Apple Daily and certain persons within the Police Force at that time.

4. Some of the evidence given by PW9 supported the version of events contended for by the appellants which was rejected by the learned magistrate.

5. The version of events contended for by the appellants had a far greater 'ring of truth' than that contended for by the Police witnesses.

6. In all the circumstances of the case there is at the very least a lurking doubt as to the guilt of either or both of these appellants such as to render their convictions unsafe and unsatisfactory.

4. This case arose from an incident that happened on the 2 December 1999 in Peng Chau police station. The two appellants were brothers. They had nothing to do with the origin case that the police was investigating. The second appellant had first gone to the police station to find out what had happened to some villagers. Subsequently, his brother also came and what had really taken place at the time of the incident became the main contention at the trial.

5. Mr Harris, Counsel for the appellants, had summarized the prosecution and defence case in a fair manner in his very helpful skeleton submissions. I shall adopt the summary as follows :

"The Prosecution Case :-

In a nutshell the prosecution case was that following upon the arrest of the three youths the Second Appellant had presented himself inside the compound of the Police Post. It was alleged that he was making a nuisance of himself using foul language and when asked to leave he declined. He was then joined by his brother, the First Appellant. They were both asked to leave the compound at a time when the situation was becoming increasingly volatile. The Police were left with no choice but to arrest both Appellants. It was alleged that both Appellants put up physical resistance and that some degree of force was required to effect a lawful arrest.

Thereafter, inside the Report Room it was alleged that the Second Appellant had damaged a distilled water dispenser and in a struggle with his captors he had caused injury to two police officers. As to the First Appellant, he too had put up a struggle and had 'pulled down a metal shelf' and caused a minor injury to one police officer in the course of the struggle. The prosecution contended that the conduct of the appellants was aggressive throughout to the extent that they were even abusive towards one Mr. Wong Hui-yue, the prospective District Board member for Peng Chau who later attended the Police Post to render conciliatory assistance with a view to diffusing the situation.

The Defence Case :-

The defence version of events was materially different. Their case was that the community within Peng Chau was and is extremely closely-knit. Following upon the earlier arrest of the three youths, one of whom was the son of a friend (Mr Wong Hui-kei), the Second Appellant had gone to the Police Post to make enquiries of the police as to the progress of their investigation and what was likely to happen to the youths. The defence claimed that upon making reasonable enquiry the Second Appellant was treated with disdain if not considerable hauteur by the officer to whom such enquiry was addressed. In effect he was told 'to mind his own business'.

Thereafter it is acknowledged that the Second Appellant argued with the officer. There was some pushing and it was suggested that one of the officers took hold of the shirt of the Second Appellant. It was at this stage that the First Appellant came into the picture and sought to persuade his brother to leave the compound. As the two Appellants were in the course of leaving they were both grabbed by police officers and manhandled into the Police Post. Indeed the case for the Second Appellant is that he was literally lifted from the ground and carried into the Police Post. Once inside the Police Post it was the defence case that the Appellants were subjected to violence; that the police officers concerned were the aggressors and that injuries were suffered and damage occasioned to property in the course of scuffles inside the Report Room."

6. At the trial, the prosecution had called a total of nine witnesses to testify : eight were police officers and the ninth witness was the reporter from Apple Daily who happened to be at the scene. As to the defence, both appellants had given evidence and there were two defence witnesses. They were a prospective District Board member and the father of one of the persons arrested by the police earlier.

7. At the hearing of the appeal, Mr Harris, had expanded on the grounds of appeal. He queried whether the trial magistrate was justified to rule out the possibility of the appellants' accounts of the event. He asked whether their versions were really so obviously untrue that there was no doubt about the case at all. In his view, what the appellants had said were quite reasonable. He submitted that the appellants' description of the incident had a ring of truth about it. He complained that the magistrate's approach lacked balance. More specifically, he disagreed with the learned magistrate's finding about PW9. In effect, apart from the general grounds such as the existence of a lurking doubt, the main criticism against the convictions would be the acceptance by the magistrate of PW9's evidence.

8. In this regard, Mr Harris reminded this court that at around the same time, there was the Court case about the Apple Daily reporters being tipped off by the police. He said, fairly, that while he did not want to overplay this matter, but being a reporter for the Apple Daily himself, PW9 could have given pro-prosecution evidence. He stressed the fact that PW9 had refused to answer some of the questions in the trial must have an impact on his credibility and, therefore, the learned magistrate should not have used PW9's evidence as a yardstick. Further, Mr Harris reiterated that certain parts of PW9's evidence appeared to support the defence case.

9. In order to consider the validity of the general and specific matters raised by the appellant, it would be necessary to go to the Statement of Findings to see whether the learned magistrate's decision could be supported. Having summarized the evidence in this case, the magistrate had succinctly pointed out the issues which he had to deal with :

"The Issues

The case resolved itself upon the credibility of the respective witnesses. The prosecution witnesses gave broadly consistent evidence as did the defendants and their witnesses who was present at the time of the arrest. Were the prosecution evidence to be accepted it was also necessary to decide whether he arrests of D1 and D2 were in themselves lawful and was reasonable force used to effect these arrests. Were the arrests not lawful then the defendants would be entitled to use force to respond to an unlawful infringement of their liberties. If the arrests were lawful then the police could use reasonable force to effect these arrests were they to be resisted.

It was the defence submission that as they were leaving at the time of arrest that to effect the arrest at that point was not lawful. It was submitted that I should find that the evidence of the defence witnesses created a doubt as to the veracity and reliability of the prosecution witnesses. I was asked to view with caution the evidence of PW9 a reporter from the Apple Daily whose evidence had confirmed important aspects of the evidence of the Police Officers as to what happened at the time of arrest outside the Police Post and contradicted the evidence of both defendants and DW4. It was submitted that the relationship between the police and the newspaper disclosed in a recent District Court Criminal Case should cause me to treat his evidence with caution and that his evidence was inherently unreliable. It was said he had been unprepared to say why he was at Peng Chau although I did note that he did say he had only been aware of the police operation when he saw the launch discharging the plain clothes Police Officers at the pier.

It was also submitted that the evidence of DW4 was very important as it supported the Defendants account of how the incident started and how the arrests were made. Also that DW3 did not find the defendants abusive to him after the incident inside Peng Chau Police Post and this showed that the defendants had told a consistent account throughout. It was also submitted to me that the covering of the Police Post window was highly suspicions and was consistent with the police trying to hide the illegal activities that they were carrying out from the on-lookers outside. It was submitted that the Police had overreacted to the defendants presence at the Police Post and had used excessive force. I was also asked to consider that D2 had complained to CAPO about PW3 in respect of an earlier incident and this could have caused an overreaction by the Police "

10. I believe it could not be argued otherwise that the learned magistrate had stated the issues in a competent and comprehensive manner. He was fully aware of the points taken by the defence. Having stated the issues to be resolved, he then embarked on a careful analysis of the evidence.

11. The magistrate had devoted a whole section in his Statement of Findings to deal with PW9's evidence. He said that on the face of it, PW9 was independent from the police and would be in a position to provide an independent and objective account of what had transpired in the initial stages outside the police post. In assessing PW9's evidence, the magistrate stated expressly that he had taken into account the submissions made by counsel about the risk of collusion or bias towards the police. He said he had also borne in mind the defence evidence that appeared to contradict PW9's account.

12. However, the magistrate took the view that there was nothing in PW9's evidence which suggested that he had colluded with the police in formulating his account of the event. It would have been a considerable undertaking for him to do so. The magistrate duly noted that PW9 had refused to answer questions on why he had come to Peng Chau, which was not associated with the incident. In the end, the magistrate found that PW9 did not have any bias towards the police and that he was a straightforward and honest witness.

13. Having further analysed the contents of PW9's evidence, the learned magistrate pointed out that although PW9's observation was not as detailed as the police evidence, he was able to confirm important and material parts of their evidence. There was no suggestion that PW9 was personally related to the case of tip-off. I would regard it as an overstatement to suggest that PW9's evidence must be tainted because of the other Court case. The matters raised by Mr Harris regarding PW9 had been canvassed at the trial and the magistrate had given his decision, having seen and heard the witness. I was unable to find any ground to disturb his finding.

14. Apart from the evidence of PW9, the learned magistrate had also analysed the rest of the evidence with care. He found that the police officers' testimonies were consistent with one another. He dealt with the matter about the covering of the windows of the police station. He accepted the explanation advanced by the police officers as to why such a step was necessary. He had considered the testimonies of the defence witnesses and in particular, he had given his reasons as to why he did not accept DW4 to be an independent witness. While it might be a valid criticism regarding the magistrate's reference to DW3's difficulty in hearing the interpreter, but I found that I could not, based on this alone, disturb the magistrate's finding that DW3 simply did not hear what was being said to him at the time.

15. The learned magistrate had obviously paid careful attention to the appellants' evidence. He had reminded himself to treat their cases separately and that they both had a clear criminal record. However, at the end, the magistrate came to the conclusion that he would reject the defence evidence and accept the evidence of the prosecution witnesses.

16. Having done that, the learned magistrate stated the following findings :

"On the basis of the evidence that I accepted it was clear that D1 and D2 had no entitlement to be present within the wire mesh compound of the Police Post the Police were acting within their duty in asking them to leave. There was a crowd gathering that was abusive towards the police the situation was threatening. The behaviour of the defendants was to refuse the request of the police that they vacate the premises of the Police Post that were enclosed by the wire fence. They both refused this on a number of occasions and responded with foul language. D1 used threatening language.

The Police officers present were acting within the execution of their duty when they asked the two defendants to leave the Police Post. A situation existed outside the Police Post which the officers present reasonably apprehended that there was a real possibility of a breach of the peace occurring. There was a threatening crowd developing and the reality of the threat can be seen by the fact that part of the crowd ran into the Police Post. There was a clear risk of a threat of harm to both the police present and the property of the Police Post. The defendants had behaved in an abusive and disorderly manner. Their conduct in refusing to leave made it more difficult for the Police to carry out their duties. The police were justified and correct to try to resolve the situation by an arrest for obstruction and disorderly conduct. The Police were acting in the execution of their duty by both clearing the Police Post and acting to prevent a breach of the peace occurring.

Thereafter both D1 and D2 resisted their arrests. D1 by pushing PW1, D2 by going over to separate PW1 and D1 and also by waving his arms so that he could not be restrained. I am satisfied that after this matters unfolded as the police witnesses testified. That D1 was dragged into the Police Post as described by PW1 that D1 struggled vigorously and freed himself, that he was again apprehended. That D1 resisted again pulled down the shelf by using his hand and physically resisted PW1 in such a way as to cause the injuries set out in the medical report. (P5)

On the facts that I found I was satisfied beyond a reasonable doubt that D1 had committed the offences set out in Charges 5, 6 and 3. I convicted D1 accordingly.

In respect of D2 the fact that I found about events outside the Police Post established Charges 5 and 7 beyond a reasonable doubt. I also found that once inside the Police Post he freed himself and elbowed PC17445 (PW3) causing him to fall on a table and strike his hand thereby fracturing it. That he also kicked PW2 dislocating his finger and that he also pushed over the distilled water dispenser thereby breaking it. These facts that I found clearly (proved), also proved offences 1, 2 and 4. I convicted him accordingly."

17. I have quoted extensively from the Statement of Findings to illustrate that the learned magistrate had taken a very careful approach to the case. I could not agree that the magistrate's approach in considering the evidence lacked balance. The appellants were represented by an experienced and competent lawyer at the trial, which turned on a determination of who to believe and what to believe. All the issues that could have been taken, in my view, had been taken on their behalf. The magistrate had made a considered decision, having seen and heard all the witnesses. He was aware of the matters raised by defence counsel and his reasoning could not be said to be irrational and unsupported by evidence. I was not convinced that the convictions were unsafe or unsatisfactory.

18. Mr Harris had also invited this court to take a global view of the evidence and to consider whether there was a lurking doubt in this case. I have taken time to go over the transcripts and the Statement of Findings with care, bearing in mind the question whether there was an unacceptable risk that justice might not have been done in this case. I was unable to reach such a conclusion. I could find no lurking doubt in this case. As I said earlier, it was an unfortunate incident that had escalated unnecessarily. However, I was not convinced, despite counsel's very persuasive arguments, that there was any ground to overturn the convictions.

19. In the premises, I would dismiss the appeal on the convictions.