THE QUEEN v. FAN KAI CHUEN

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 182 OF 1987

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J U D G M E N T

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1. The Appellant was arrested at about 2.30 a.m. on 21st November 1986 after his conduct in a lane near Shanghai Street had aroused the suspicions of a party of patrolling police officers. There were three police officers in the party. One gave detailed evidence of the incident, one was called only for the purpose of cross-examination and the other did not give any evidence.

2. The officer called to give detailed evidence regarding the incident said:-

"The three of us went up to defendant. I revealed my identity. I searched defendant and when I got to the right rear pocket of his denim jeans I found a 5" long screwdriver with red handle (produces screwdriver -- Exhibit P1). I said to defendant that I suspected he had the screwdriver for an unlawful purpose. I put my right hand on the shoulder of defendant and said I was going to arrest him. I was facing him. He used his left hand and warded off my right hand. He then turned and walked down the rear lane towards Pitt Street. I told him I would arrest him for possession of a screwdriver for an unlawful purpose. After he walked 5/6 steps I caught hold of him. But defendant struggled with me …………. Cross-examination:-

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Q. He walked away at a slow pace?

A. Ran.

Q. You said he walked away originally?

A. That would be a mistake. He ran …………."

3. The officer called for the purpose of cross-examination said that after PW1 seized the screwdriver he arrested the defendant and that the “defendant pushed PW1 away and started to run”

4. The Appellant gave evidence. He said that when the officers accosted him they handcuffed him to a parking meter. The screwdriver was then brought from a private car and was not found on his person. He said that he “never tried to run away”

5. Following his arrest the Appellant was charged with loitering, possession of an instrument fit for an unlawful purpose and resisting a police officer in the execution of his duty. He pleaded not guilty to each charge, was acquitted on the first two but convicted on the third.

6. The learned magistrate's reasons for verdict given at the conclusion of the trial were as follows:-

“There is a conflict as to whether [the screwdriver] was ever in his possession but even if it was …… the evidence [falls short of satisfying me] that he had it for that purpose.

There is again a conflict on the [resisting a police officer] charge but I feel I am bound to accept the evidence of the police officers. I find defendant's denial it was like that doesn't raise doubts on the evidence of [the police officers] so defendant will be convicted on the [resisting a police officer] charge ………….”

7. In his Statement of Findings he said:-

“Evidence and Findings

The evidence of the two police officers and Appellant is fully recorded in the notes of proceedings and I found that the evidence fell short of leaving me without doubts on the first two charges. But I found no reason to have any doubts on the evidence of the police officers of Appellant's alleged resistance and so convicted him on the charge which is now appealed.”

8. The Appellant relies on six grounds in his “Perfected Grounds of Appeal” but the gist of his complaint is that the learned magistrate failed to make a proper evaluation of the evidence and misdirected himself regarding the onus and standard of proof.

9. According to the evidence the duty being performed by the officer at the time the resistance was offered was the arrest of the Appellant for possession of the screwdriver. If the allegation that it was found on his person was false then any resistance by the Appellant to a purported arrest based on that false allegation was not resistance to a police officer in the execution of his duty. The defence evidence therefore put two facts in issue: (a) was the officer acting in the execution of his duty and (b), did the Appellant resist him whilst so acting? In order to find the Appellant guilty the learned magistrate had to resolve both issues in favour of the prosecution, that is, he had to be satisfied beyond a reasonable doubt that the officer did find the screwdriver on the Appellant's person and that the Appellant resisted the arrest made pursuant to the finding of it. In his Statement of Findings the learned magistrate says that he was so satisfied as to the fact of resistance. But nowhere, either in his extempore reasons for verdict delivered at the conclusion of the hearing or in his considered Statement of Findings prepared after notice of appeal was filed, does he indicate that he was satisfied beyond a reasonable doubt that the screwdriver was found on the person of the Appellant. On the contrary, insofar as the record indicates anything at all regarding the learned magistrate's reaction to the conflict in the evidence about the origin of the screwdriver, it conveys the impression that he found it unnecessary to resolve the conflict. The record therefore discloses that the learned magistrate failed to make a proper evaluation of the evidence for the purpose of determining whether all the facts necessary to establish guilt had been properly proved. For that reason alone the conviction is unsatisfactory.

10. Additionally, however, there are the expressions earlier quoted from his reasons for verdict and Statement of Findings in which the learned magistrate conveys the notion that the prosecution evidence was acceptable unless the defence evidence was found to be sufficiently credible to raise doubts about that acceptability. It has been said that it must always be remembered -

“that in a criminal case the conflict is not between the stories told by the witnesses for the prosecution and those told by the witnesses for the defence but between the truth and possible falsity of the story told by the witnesses for the prosecution”.[1]

11. A fundamental flaw in the learned magistrate's approach is that it ignored the possibility of the prosecution evidence "casting doubts” upon itself independently of the defence evidence. In this case the principal prosecution witness giving evidence relevant to an allegation of resistance to a police officer in the execution of his duty said on two occasions that the resistance took the form of a warding off and walking away and on a third occasion that the offending conduct involved a running away. That discrepancy did not necessarily mean that the truthfulness of the witness or his accuracy of recollection should be doubted. It did, however, signal the possibility of falsehood within the prosecution evidence.

12. It was a real possibility created independently of the defence evidence, a real possibility which remained even after total rejection of the defence evidence. By directing himself that he was “bound to accept the prosecution evidence” once he found that the defence evidence did not cast doubt on it, the learned magistrate misdirected himself away from determining whether the prosecution evidence regarding a fact in issue was acceptable notwithstanding a discrepancy capable of creating a doubt about its reliability. The learned magistrate therefore misdirected himself in relation to the onus of proof of a fact in issue. A conviction following upon such a misdirection cannot be upheld.[2]

13. The appeal is allowed. The conviction and sentence are quashed.