HKSAR v. CHENG YIU FAI

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 561 OF 1997

(ON APPEAL FROM NKC 1813 OF 1997)

____________

____________

_______________

J U D G M E N T

_______________

1. This is an appeal against conviction for an offence of assaulting a police officer in the due execution of his duty and for an offence of assault occasioning actual bodily harm. In respect of both convictions, the Appellant was fined $5,000.00 and in addition, he was ordered to pay costs of $1,000.00.

2. The police officer concerned was Kwan Ping Hang (PW5) and the victim of the assault occasioning actual bodily harm was Police Constable 2680 Lai Kim Hung, he was PW2. Unfortunately, there is no summary of facts or prosecution opening in the papers before me. But from reading the depositions and the learned magistrate's finding, it appears that PW2 was assaulted twice on 2nd January following allegations of indecent assault on the Appellant's niece.

3. On the first occasion, he was assaulted by the 6th of six Defendants and that was about 7:00 p.m. outside her Tsing Yi Police Married Quarters. And secondly, so the prosecution witnesses had told the magistrate, by this Appellant later that evening in Princess Margaret Hospital to where PW2 had been taken for treatment following the first assault. In his statement of findings, the magistrate says that the events at the hospital were "chaotic and confused", and that, or seems to me, is highly relevant to this appeal.

4. Inter alia, the magistrate found the following facts: firstly, PW2 was an off duty police officer in plain clothes. Following his assault by D6, he attended Princess Margaret Hospital at about 8.20 p.m. for a medical examination. His team-mates (PW5, 6 and 7) arrived at the hospital at about 9:05 p.m. where they spoke to PW2 prior to his entering a consultation room.

5. Secondly, after about 5 minutes PW2 came out of the consultation room and spoke to PW5. At this time PW6 was about 10ft. away. All of the officers were in plain clothes and they were not displaying warrant cards.

6. Thirdly, 5 men including the Appellant, entered the hospital and passed by PW6. As the Appellant passed PW2, he pointed at him, claimed that PW2 had assaulted his (the Appellant's) niece and proceeded to punch PW2 on the left side of his face. That punch occasioned actual bodily harm in that he caused PW2's lip to bleed.

7. Fourthly, the 5 men then each tried to lay hands on PW2 and to hit him. PW2 saw refuge behind PW5 who attempted to keep the 5 men at bay. The men continued their attempts to get at PW2 and in the course of so doing, "jostled and buffeted" PW5 who, as soon as PW2 sought refuge behind him, had shouted out: "Police: don't move". The 5 men, according to the magistrate's findings, continued to try to get at PW2. And as they did so, they continued to assault PW5 in their attempt to get at PW2.

8. Fifthly, the Appellant and the other 4 men at this stage knew that all of the people (except PW2) with whom they were struggling were police officers. That PW6 said: "Police: don't move" as soon as he saw the Appellant strike PW2 and he went to the assistance of PW5 and PW2. PW7 had also seen the Appellant's assault on PW2 and he, too, had shouted out: "Police: don't move", before trying to control the situation.

9. Sixthly, there came a time when PW7 produced his service revolver and it was only then that the Appellant and the other 4 men stopped their joint assault upon PW5 who was still trying to protect PW2.

10. Finally, the learned magistrate found as a fact that PW5 was acting at that time in the execution for his lawful duty and that the Appellant had assaulted him whilst he was so acting.

11. There were 3 grounds of appeal advanced by Mr. Matthews, counsel for the Appellant. Those grounds were as follows:

A) The learned magistrate failed to properly consider and to evaluate the evidence in relation to the charge of assault occasioning actual bodily harm and wrongly relied upon evidence of an injury occasioned by the earlier assault by the 6th Defendant.

B) The learned magistrate failed to have regard to evidence favourable to the Appellant contained in an exhibited record of interview, and;

C) The learned magistrate wrongly applied both a subjective and an objective test in relation to the mens rea of the Appellant when convicting him of the offence of assaulting a police officer in the execution of his duty.

12. Mr. Matthews did not pursue ground (C) conceding quite properly in my view that it was not pursuable. He did, however, substitute for that ground another matter of which he had not previously been aware and thus had not referred to it in his grounds of appeal. That matter related to the evidence in chief of PW5 where at p.73 of the transcript, line N, the witness (and the alleged victim of the first charge) was asked by prosecuting counsel this question: "Were you at any stage assaulted by any of the defendants?". To which the witness replied as follows: "I did not. All along they were trying to push up and they raised one of their arms trying to hit PC2680", - in other words PW2. Neither prosecuting nor defence counsel pursued that matter at trial and no reference was made to it by the learned magistrate either in his oral reasons for verdict or in his written statement of findings.

13. As to the first ground of appeal, that is (A), it is agreed by Mr. Lee, counsel for the Respondent, that in fact the magistrate was mistaken as to the injury caused by the Appellant. As I say that injury was caused by the 6th Defendant in the earlier assault. Nonetheless, Mr. Lee urged me to say that that was merely a slip of the pen by the magistrate and as there was other evidence of another injury to PW2 after the Appellant had assaulted him I should not disturb the magistrate's conviction of an assault occasioning actual bodily harm. If I felt compelled to do so, I should substitute a conviction against the Appellant for an offence of common assault.

14. As to the second ground of appeal which is relevant to both convictions that has arisen in this way. The record of interview conducted with the Appellant was in reality exculpatory of both offences and only inculpatory to the very limited extent that it put the Appellant at the scene. This record of interview found itself in evidence of the trial as one of a number of admitted facts pursuant to Section 65 of the Criminal Procedure Ordinance. Reference is made in the transcript to prosecuting counsel at the trial seeking to put it into evidence for a limited purpose relevant only to some telephone records, and neither counsel for the Defendants at trial nor the magistrate apparently sought to question that. The fact of the matter is, however, that once adduced into evidence it was there for all purposes and could not be otherwise; the learned magistrate was bound to consider it for all purposes. Given prosecuting counsel's expressed intention to adduce it for a limited purpose and defence counsel having not objected it, it is at the very least questionable whether the magistrate did in fact consider it for all purposes. If he did so, he certainly did not refer to it or to what weight (if any) he attached to the exculpatory part of it relative to the two offences of which he convicted the Appellant.

15. As to what I will call the new or additional ground of appeal advanced today relative to PW5's evidence that he was not in fact assaulted, Mr. Lee for the prosecution today has over the lunch adjournment kindly gone through the transcript again, and he has helpfully referred me to the evidence of other prosecution witnesses concerning this matter. That evidence in total and in essence is not that the Appellant assaulted PW5 but that PW5 was endeavouring to keep a number of Defendants away from PW2. He was, in effect, fending them off. The magistrate concluded (and with respect I think very reasonably) that PW5 was "jostled and received buffetings" (as the magistrate put it) by all of the defendants whilst this was going on.

16. Assuming that to be so, it cannot in my view be right to infer as the magistrate appears to have inferred (to the extent that he was sure beyond a reasonable doubt) that each particular Defendant including this Appellant in fact, assaulted, intentionally or recklessly, PW5 in the execution of his duty or otherwise. Accordingly, that conviction for assaulting a police officer in the due execution of his duty cannot be allowed to stand and I set it aside.

17. As to the conviction for assault occasioning actual bodily harm upon PW2, it seems to me that that too, must be set aside in a light of the learned magistrate's error. The actual bodily harm relied upon him for convicting the Appellant was plainly inflicted by another Defendant at another place and at another time. I have given careful thought as to whether it would be right for me to substitute for that conviction, a conviction for common assault but in all of the circumstances of the case and perhaps in particular given what the learned magistrate described as a "chaotic and confused situation", I do not think that it would be right to do that, and that is so putting aside completely the second ground of appeal relative to the cautioned statement of the Appellant.

18. Accordingly, I find that both of these convictions are unsafe and unsatisfactory. I allow the appeal. I set aside both convictions and I quash the fines and the order for costs and I would just add that I am indebted to both counsel for their helpful submissions and for their diligence.