THE QUEEN v. MAN HING WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 933 of 1985

___________________

BETWEEN

_____________________

__________

JUDGMNT

__________

1. The Appellant pleaded not guilty in the Magistrates Court to two charges, one of assaulting a police officer in the due execution of his duty contrary to Section 36(b) of the Offences Against the Person Ordinance, and the other of neglect of traffic direction contrary to Section 61 of the Road Traffic Ordinance. Two witnesses were called by the prosecution and two by the defence. The two prosecution witnesses were two police officers on traffic duty in uniform. The first police officer who was the alleged victim of the assault gave evidence that he was on traffic patrol at a road junction in the New Territories. His evidence was that the Defendant was driving a motor vehicle towards him when he was standing somewhere in the road directing traffic. He gave a certain traffic direction to the Defendant and said that the Defendant did not comply with it. He apparently sent message to a colleague who was also on traffic duty, and the colleague stopped the Defendant's motor vehicle. The first prosecution witness went up to the vehicle after it was stopped. When he approached the vehicle the Appellant scolded him with foul language and, subsequently, struck the officer on the officer's helmet.

2. The second prosecution witness gave evidence that after the first prosecution witness arrived at the vehicle - by which time the Appellant was out of the vehicle - he did not hear any foul language before departing from the scene to take over directing the traffic, the job which the first prosecution witness had abandoned for the time being. He said that after he departed from the scene for some three metres, he heard a commotion and turned around. He saw the Appellant strike the first prosecution witness on his helmet.

3. The Appellant gave evidence denying that there was any such assault, and said that what in fact happened was that the first prosecution witness scolded him with foul language and assaulted him and endeavoured to handcuff him. He also called a witness who said that he was a motorist at the scene at the time who came upon the incident and gave a version which generally was consistent with that related by the Appellant. It was, however, clear from his evidence that he had not witnessed the whole of the confrontation between the first prosecution witness and the Appellant at the motor vehicle.

4. The learned magistrate, therefore, had before him two bodies of testimony in conflict. In the evidence of the first prosecution witness and the second prosecution witness, there were discrepancies - a discrepancy about whether foul language was used and a discrepancy about the nature of the assault. The first prosecution witness had claimed that in addition to being struck on the helmet, he had subsequently been punched in the abdomen by the Appellant. The second prosecution witness made no mention of any punch to the abdomen.

5. The learned magistrate in his statement of findings set out the facts which he found to be proved by the evidence, and he said that he accepted the version of the first prosecution witness and the second prosecution witness and rejected that of the two defence witnesses where there was conflict between the two bodies of evidence.

6. Mr. Cheng Huan, on behalf of the Appellant this morning, in support of his submission that the convictions are unsafe and unsatisfactory, points to those discrepancies and submits that it was unreasonable for the magistrate to have accepted the prosecution evidence in the face of those discrepancies.

7. It is true that the magistrate in his statement of findings has not adverted to those discrepancies and has, therefore, not indicated how he has come to accept the evidence of the witnesses notwithstanding those discrepancies. However, he has pointed out that he rejected the evidence of the Defendant and the Defendant's witness where it is in conflict with the prosecution witnesses because, from his observation of the Appellant and his witness in the witness-box he was satisfied that they were not reliable and, therefore, did not accept the evidence which he found to be in conflict with the evidence he accepted from the two prosecution witnesses.

8. Appeal Courts have always been at pains to point out that a trial court is in a superior position to an Appellate Court when dealing with questions involving the credibility of witnesses where the trial court has found witnesses not to be credible on the basis of their demeanour in the witness-box. There would need to be some fairly strong indication in the written record that the assessment was wrong before an Appellate Court would come to the conclusion that it should interfere with the trial court's assessment.

9. It seems to me in this case that the discrepancies between the two prosecution witnesses can be resolved consistently with acceptance of their evidence as being truthful and reliable regarding the central issues in the case. Consequently, it seems to me to be not unreasonable for the magistrate to reach the conclusion, notwithstanding those discrepancies, that the two witnesses were still telling the truth about the two basic issues, namely, (a) whether the Appellant did neglect to comply with a traffic direction and (b) whether the Appellant did strike the first prosecution witness on his helmet at the time when the first prosecution witness was enquiring of the Appellant about an alleged breach of the traffic ordinance.

10. The result is that I am not persuaded that the magistrate has reached a verdict which is in any way unsafe or unsatisfactory notwithstanding the submissions which have been made by Mr. Chang Huan. In the result, therefore, I dismiss the appeal.