HKSAR v. YAM KAI MING

HCMA 936/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 936 OF 2010

(ON APPEAL FROM KCCC 5463/2009)

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BETWEEN

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REASONS FOR JUDGMENT

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1.  The Appellant Yam Kai Ming stood trial before Deputy Magistrate Ms WY Ho on a charge of Indecent Assault (Charge 1) and a charge of resisting a police officer (Charge 2). He was acquitted of both the charges at trial initially, but was convicted of Charge 2 upon review. He now appeals against the conviction.

The Prosecution’s case

2.  PW1, a lady, was squeezed on her shoulder and left buttock by the Appellant from behind.  PW2, a policeman, arrived.  When PW2 was trying to handcuff the Appellant, the Appellant lost control, shouted loudly, swung his hands violently and struggled with PW2. 

3.  In his record of interview, the Appellant said he was drunk. 

4.  The prosecution’s case was that the Appellant had had drinks, was unsteady and a bit abnormal, but not totally drunk.

Defence’s case

5.  The Appellant said he was completely drunk, and only had intermittent recollection from the point of seeing his friends at the scene until coming round in hospital. 

6.  Dr Chau (DW2) was the A&E doctor.  He said the Appellant was drunk but not unconscious, abnormal and confused in the sense of loss of control.  The Appellant had to be restrained while in hospital.

7.  Dr Beh (DW3) was the defence’s expert who considered the Appellant was under high blood alcohol content with some loss of memory based on facts as instructed by the solicitor. 

Magistrate’s Reasons

8.  The Magistrate delivered oral reasons upon the acquittal. She accepted all prosecution witnesses as honest and reliable. 

9.  She rejected the defence’s case of complete drunkenness because of the inconsistency in that the Appellant said catheter was applied to him but Dr Chau said there was no such medical notes whilst normally there would be so expected. 

10.  The Magistrate placed little weight on the evidence of Dr Beh because his evidence was based on hearsay.  Although Dr Chau said the Appellant was under the influence of alcohol, the Appellant was not unconscious and there was no mention that he did not know what was going on.

11.  The prosecution case included a video tape (Exh. P5) at the scene sometime after the Appellant was subdued. The Magistrate said although the tape showed only post offence events, she could not rule out upon viewing the tape that the Appellant was unsteady and the touch on PW1 was accidental.   Hence, the Appellant was acquitted on Charge 1.

12.  The Magistrate also said that from viewing the tape she could not rule out the possibility that the Appellant did not have the necessary intent required of resisting police officer.  Hence, he was also acquitted on Charge 2.

The Review

13.  The prosecution sought to review of the acquittal on Charge 2.  Counsel for the prosecution submitted to the Magistrate that resisting a police officer was an offence of basic intent where recklessness would constitute the necessary intent and drunkenness is no defence, and in fact self-intoxication would constitute the necessary mens rea.

14.  In the oral ruling at the review, the Magistrate said although she had not explicitly made it clear in her verdict, she knew Charge 2 was an offence of basic intent and drunkenness would not be a defence at all.  Upon viewing the tape at the trial, she had doubt as to whether the Appellant had a genuine mistaken belief that the man he assaulted was not a police officer.  Although she had not made it clear in her verdict, that was what she meant by having doubt as to the necessary intent, and that was the basis she acquitted the Appellant on Charge 2.

15.  Upon viewing the tape again at the review, she noted that the Appellant had asked the policeman who arrived later who was the senior of the operation, and the Appellant has referred to the officers by their service numbers.  She concluded that she had made an error on mistaken identity.  She overturned herself and convicted the Appellant.

Statement of Findings

16.  In Statement of Findings, the Magistrate added that there was irresistible inference that the Appellant knew PW2 was a police officer because PW2 was in uniform.

Grounds of Appeal

17.  Ms Draycott SC, for the Appellant, submitted three grounds to the following effects:

(1) The Magistrate wrongly relied on the tape in convicting the Appellant because there was evidence after the event;

(2) The Magistrate was wrong to find consistency between the evidence of PW2 and the tape because they related to different time frames;

(3) The Magistrate was wrong in rejecting the evidence of the Appellant by reasons of the so-called inconsistency concerning the use of the catheter because Dr Chau was speaking on the general practice and it was not unreasonable that the catheter could have been used on a patient who was restrained to bed without a record being made.

Discussions

18.  The Magistrate said she made an error not as to whether resisting a police officer was an offence of basic or specific intent, but whether the Appellant had a genuine mistaken belief that PW2 was not a police officer. 

19.  Mr Lo, for the Respondent, submitted that knowledge that the person assaulted was a police officer was not an ingredient of the offence of assaulting a police officer. 

20.  Ms Draycott submitted that there are different considerations in the offences of assaulting and resisting a police officer, as self-defence would be open if the defendant had thought he was unlawfully restrained by a stranger. 

21.  Be that as it made, I had more fundamental difficulties in following the train of thoughts of the Magistrate on the so-called error of mistaken identity.  PW2 was a uniformed police officer.  If the Magistrate had rejected the defence case that the Appellant was inebriated to the extent of loss of awareness or recollection or what happened, it is difficult to see how she could have acquitted the Appellant in the first place. 

22.  Mr Lo agreed that it would be difficult to explain the original acquittal on mistaken belief or identity as a matter of common sense. 

23.  Ms Draycott submitted, not in so many words, that perhaps the error was not really as to mistaken identity but in fact whether drunkenness was a defence open to the Appellant. 

24.  All in all, the difficulty to follow the reasoning of the Magistrate has made it difficult to rely on her findings of facts.  There are two ways out: re-hearing on appeal or re-trial by another magistrate.  I found it difficult to conduct a rehearing on the record as the issue is one squarely on facts.  Mr Lo asked for re-trial as resisting a police officer in his execution of duty is a serious matter

25.  Ms Draycott submitted that there is a special feature in this case that the Appellant had already gone through multiple proceedings. 

26.  I accept Ms Draycott’s submissions that there was already a review.  Balancing the seriousness of the offence and what the Appellant has gone through, I decided that there should be no re-trial.

Costs

27.  Ms Draycott asked for costs here and below covering the trial and the review.  Mr Lo resisted the costs below or at any rate the trial.  Firstly, the Appellant had not asked for costs upon acquittal, and secondly, his conduct at scene and self-intoxication had brought suspicion upon himself. 

28.  I considered a fair order would be to allow costs of the appeal and the review only.  

29.  On second thought, I wish to add by order nisi that there be no order as to costs for the first hearing on the appeal as the adjournment was occasioned by the omission on the part of the appellant to include translation of the transcript in Chinese of the review in the bundle.

30.  I thank Ms Draycott and Mr Lo for the helpful submissions.