HKSAR v. YAO CHI YUEN

HCMA104/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.104 OF 2000

(ON APPEAL FROM SPCC 7414 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on 6 January 2000 of assaulting a police officer and was sentenced on that day to two months' imprisonment.

2. The facts were that on 17 September 1999 in Chatham Road North, Hunghom, Kowloon, police attended what was said to have been a road accident. It was the case for the prosecution that PC 22305 attended with PC 59055. They found a private car and a goods vehicle stationary in the fast lane with the former in front of the latter, and three men were standing to the right side of the private car whilst the appellant was sitting in the driver's seat of the goods vehicle. Inquiries were made by the police. There was a complaint by the three men of a collision having occurred which was denied by the appellant.

3. PW1, who was PC 22305, told the court that he saw what appeared to be scratch marks and silvery paint on the appellant's vehicle consistent with coming from the private car in front of it. Discussion in respect of settlement was suggested by him which came to no conclusion. PW1 was then told, in the presence of the appellant, that the appellant did not have his driver's licence with him. It transpired in the course of the evidence that it had been sent to the Transport Department. At this point, two other officers, PC 46930 ("PW3") and PC 52676 ("PW4") arrived to take over. At that point, PW1 told PW3 that the appellant did not have his driver's licence with him and suggested that it might be an offence for which he could be prosecuted.

4. The evidence of PW1 was that at that point, the appellant swore furiously at him and used his right hand to punch PW1, the blow landing on his lower lip. This was said by PW1 to be a jab-like punch. PW1 then instructed PW2 to arrest the appellant for assault. He and PW2 grabbed hold with the appellant, whom they said resisted, and that they were assisted by PW3. The appellant was then subdued and handcuffed.

5. Mr Cheng raises a number of grounds of appeal. It was evidence in the case that the appellant suffered injuries. Those injuries were adjacent to his private parts and it was his evidence that he had been kicked in the groin by PW1. He denied having struck the officer in the face. Mr Cheng complains that in accepting that evidence, the magistrate was wrong to reject the evidence of the appellant that it was PW1 who affected the injury. He does so on the basis that the magistrate did not believe that PW1 would so lose control of himself in the circumstances described, but found that the appellant would have lost control in similar circumstances. Mr Cheng complains that the magistrate was not acting even-handedly in his approach to the case.

6. This approach, however, avoids the findings by the magistrate that PW1 was an honest witness whom he believed. He believed PW1 when he said that he did not kick the appellant; that comparing the two, the magistrate did not believe the appellant when he said that he was kicked by PW1. The words used to describe the magistrate's belief that PW1 would not lose control himself were additional words which clearly reinforce the magistrate's view of the probity of PW1. The magistrate went on to say that it was his belief that the injury to the appellant was caused by him being pressed against the metal railings adjacent to the parked vehicles at the time he was subdued. This would, on the facts, appear to be speculation by the magistrate and an unwarranted conclusion. It does not, however, in the light of his rejection of the evidence of the appellant and of his belief in the honesty and creditworthiness of PW1, alter the basis upon which he made his findings.

7. The second ground of appeal was that a number of inconsistencies and discrepancies were apparent in the evidence. Mr Cheng complains that the magistrate, whilst he dealt with those inconsistencies and discrepancies, should have considered a cumulative effect and that the value of the sum total of discrepancies was greater than each of the discrepancies alone. The magistrate did consider those discrepancies, he said this :

"I considered all the evidence. In my view the evidence of the prosecution witnesses was credible and appeared to be given honestly. There were discrepancies between them but I found them to be minor and insignificant and they did not cause me to doubt the credibility and reliability of the essence of their evidence."

The magistrate went on to consider each of the discrepancies and to deal with them.

8. I cannot find that the magistrate has in any way dealt with those discrepancies and inconsistencies in any other way than he ought.

9. The fourth ground of appeal was that the magistrate was wrong to conclude that PW3 was able to join in the efforts to subdue the appellant, these efforts having taken place in a 3-foot gap between the offside of a parked vehicle and the metal railing of the road. He points to exhibits D1 and D3 which were sketches drawn by two of the witnesses indicating the position of the parties at the time the blow to the police officer was said to have been struck. These do not place the witness, PW3, between PW1 and PW2 as found by the magistrate, but behind them.

10. We do not have the benefit of sketches showing the positions of the parties after the blow was struck and when the appellant was subdued. In the absence of that evidence, I am not prepared to find that the discrepancy between where PW3 was said to have been and the sketches is material.

11. The next ground of appeal was that in concluding that PW4, who was one of the civilian witnesses, would not fabricate evidence to support the police officers, the magistrate erred in failing to consider submissions of defence counsel that PW4's observations and evidence might be coloured. The learned magistrate in considering the evidence of PW4 said this :

"I took into account that PW4 had had a heated argument with the appellant about the alleged collision and he was displeased with the appellant's attitude. I accepted that PW4 did not know PW1 and his colleagues and the possibility that PW4 might be fabricating evidence to support the police officers was considered by me but I was satisfied that it could safely be dismissed. I had no doubt that PW4 was a genuinely impartial and honest witness."

12. It is quite clear from this determination by the magistrate that he lent his mind to the proposition that PW4 could fabricate evidence which is in fact a colouring of his evidence as suggested by defence counsel. Having considered that proposition, the magistrate properly rejected it and nothing arises from this ground of appeal.

13. The last ground of appeal is the general ground that the conviction was unsafe and unsatisfactory. There is nothing to support that ground and the appeal against conviction is dismissed.

14. In imposing sentence, the learned magistrate first of all considered the appropriate nature of the sentence to be imposed. He determined that the only appropriate sentence was that of immediate imprisonment.

15. I am referred to the case of R v. Fung Chi Sang, MA No.418 of 1994 where Leonard J (as he then was) said in that case :

"The magistrate was quite right in saying that this offence normally calls for an immediate custodial sentence."

That view was again stated by the same judge in MA No.1279 of 1996, R v. Liu Hoi On and Choi Man Fai.

16. I agree that the appropriate sentence for an assault upon a police officer is one of immediate imprisonment. Therefore, the sentence imposed upon this appellant is not wrong in principle. The learned magistrate having arrived at a sentence of two months' imprisonment was right in his assessment of the severity of the offence. In the grounds of appeal, Mr Cheng argues that the appellant had already suffered a severe injury and that the injury to the policeman was only a tiny abrasion. In fact it is necessary that courts do protect police officers and that they are entitled to have the protection of the courts when, in the course of their duty, they are attacked.

17. I cannot say that a period of two months' imprisonment is manifestly excessive. The appeal against sentence is dismissed.