HKSAR v. DARSEH MEHMANESH MAHDI AND ANOTHER

HCMA 187/2022

[2023] HKCFI 198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 187 OF 2022

(ON APPEAL FROM TMCC 1254/2021)

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J U D G M E N T

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1.  The 1^st appellant was convicted after trial of Charge 1, assaulting a police officer in the due execution of his duty and Charge 3, resisting a police officer in the due execution of his duty, both charges contrary to section 36 (b)  of the Offences against the Person Ordinance, Cap. 212.

2.  The police officer in both charges was the same officer and the particulars of the offences state the date of the charges as 29 June 2021 and the location as outside number 49, Ha Pak Nai, Nim Wan Road, Tin Shui Wai, Yuen Long, New Territories, Hong Kong.

3.  The 2^nd appellant, the 1^st appellant’s girlfriend, was convicted after trial of Charge 2, assaulting a police officer in the due execution of his duty contrary to the same section and ordinance.  Similarly, the particulars of the offence state the same date and location as charges 1 and 3.  She assaulted a different officer to the officer assaulted by the 1^st appellant.

4.  They were both convicted on 28 April 2022 after a trial before deputy magistrate, Fung Lim Wai, Henry.  On the same date, they were both sentenced to 3 months’ imprisonment.  They were granted bail pending appeal immediately after sentence.  Both appellants now appeal against both conviction and sentence.

The prosecution’s case

5.  The location of all 3 charges was the 1^st appellant’s home.  At about 6pm on 29 June 2021, the appellants were at that location together and had had a dispute or argument over their relationship.  Subsequently, the 1^st appellant called the police because he had sustained a cut on his left upper arm.  Initially he told the police who arrived that the 2^nd appellant had slashed him with a cutter but later when the police accompanied him home to investigate the matter with the 2^nd appellant, he then said that he had cut himself.  It appeared that the dispute was settled and no further action was required by the police.

6.  However, the police did check the identity cards of both appellants during the course of their investigation and found that the 1^st appellant was wanted for failure to pay a traffic fine.  A warrant of arrest had been issued.  The police explained to the 1^st appellant that he was under arrest according to the warrant issued.  They were to take him back to the police station but would go via the hospital to have his wound treated medically.

7.  Just before the police and the 1^st appellant were to leave the 1^st appellant’s home, both appellants became very emotional.  The 1^st appellant physically struggled and resisted arrest.  The 2^nd appellant tried to pull the 1^st appellant away from the police officers who were trying to subdue him.  She grabbed a broom and hit an officer over the head with it.

8.  The 1^st appellant tried to shake off the police who were subduing him and threw punches at a police officer.  That police officer dodged the punches and discharged pepper spray at the 1^st appellant.  Eventually the 1^st appellant was subdued and calmed down.  The 2^nd appellant took a lot longer to subdue.  It required the assistance of a woman police officer to attend the scene and assist.  Both appellants were sent to hospital for medical treatment as were the 2 officers, PW1 and 2, victims of charges 1, 2 and 3.

The admitted facts

9.  The admitted facts, exhibit P8, included the fact that the 1^st appellant made a police report at around 6pm on the material date and that both appellants were at the material location.  It was admitted that both were in a relationship.  It was admitted that there was camera footage from body-worn cameras by one officer and produced as exhibit P2.

10.  The facts included the seizure of a broom broken in two from the scene.  Photographs of the offence location were admitted as were photographs taken of injuries of the officers assaulted.  Medical reports for both officers assaulted were admitted.

The defence case

11.  Both appellants elected to give evidence.  Their version of events was very different to that given by police officers.  It was the police who without invitation forced their way into the 1^st appellant’s home.  They were not invited in.

12.  The defence case at trial was that neither the appellants were under arrest by any police officer at the material time and therefore, the police were not acting in due execution of their duties.  The elements of the offences were not all made out.

13.  The 1^st appellant said he did not speak Cantonese and had no idea that he was arrested at home for being a wanted person.  The police told him that he was to be taken to hospital and that the 2^nd appellant had to leave the premises before they left.  It was the police who insisted she pack up and leave, not the 1^st appellant.  He was upset by this and demanding to know the reason why they insisted the 2^nd appellant leave his home.  When he questioned this he was pushed into a chair before he was suddenly pressed to the ground without prior warning or reason.

14.  It was at this moment, the 2^nd appellant came out of his home and asked the police to stop kneeling on his neck, back and leg.  She was pushed away and fell over.  She was pushed in the breast.  He was very angry she was assaulted.  They tried to handcuff him but failed.  He told the 2^nd appellant to turn on her mobile phone and video the police so that they would not touch her again.

15.  The 1^st appellant’s evidence was that this incident started when the 2^nd appellant cut him with a cutter during the course of an argument.  It made him angry and he called the police.  When the police said that they would arrest the 2^nd appellant after arriving to investigate, he said that he had cut himself.

16.  The 2^nd appellant said that at the material time, she was arguing with the 1^st appellant when he accidentally cut himself.  He called the police.  He then left home to meet the police outside.  About 15 to 20 minutes later, he returned with the police.  The police came into the premises and told her to pack up her belongings and leave as it was the 1^st appellant’s home.  She did as she was ordered but heard the 1^st appellant shouting outside the house demanding she not leave.

17.  She packed a suitcase and took it outside only to see the 1^st appellant face down on the ground with 3 police officers kneeling on him.  She got very upset; she began to cry and scream.  She approached the officers and told them not to hurt her boyfriend.  They ignored her because they were trying to pin the 1^st appellant to the ground.  Suddenly, an officer, PW3 grabbed her wrist to pull her away and she resisted.  He then pushed her and she fell to the ground, losing consciousness for a few seconds.  He pushed her breast.  When she got up again, she picked up a broom to ward off PW2 because she felt threatened and sexually assaulted as a Muslim.  It was a sin for any man to touch her.  She succeeded because PW2 left her alone and moved away.  She then used her mobile to film the police.

18.  The 2^nd appellant’s evidence was that no police officer declared arrest on her at the premises.  She had brandished a broom at a police officer, PW2 only because she felt threatened and had been sexually assaulted by an officer.  She only used the broom to ward him off and did not assault him with it.  She assaulted no officer.

Issues at trial

19.  The magistrate identified the issues in dispute.  The key issues were whether the 2 officers, PW1 and PW2, victims of charges 1, 2 and 3 were acting in due execution of their duty at the material time.  In addition, he had to determine whether the prosecution had proved beyond reasonable doubt that the 1^st appellant assaulted and resisted PW1 and whether the 2^nd appellant assaulted PW2.  The credibility of all witnesses was in dispute.

The magistrate’s findings

20.  The magistrate was satisfied that there was no issue as to the location of the offences.  The defence had complained that the prosecution had failed to prove a particular under all 3 charges; the location of the offences.  The evidence was that the offences took place inside the parameters or fenced-in area of house number 49 and not outside those parameters.  Clearly the offences were not committed inside the house.  There were no merits in that argument during trial.  This was not an issue raised on appeal.

21.  The magistrate dealt with all the points raised by the defence in great detail.  Those points included the lack of any prior warning by the police before the 1^st appellant was subdued on the ground and before pepper spray was used or before the 2^nd appellant was pushed away or before the appellants were handcuffed.  It included whether the police failed to switch on their body cameras before the offences were committed.

22.  The magistrate evaluated the evidence of both appellants in his statement of findings and found that their evidence was inherently improbable; he did not believe either. He gave full explanations as to why he found their evidence incredulous, inherently improbable and not credible.  He found their evidence respectively unreliable.

23.  The magistrate reminded himself of the burden of proof and standard of proof required.  He was satisfied that the prosecution witnesses were telling the truth, were reliable and credible.  He disagreed that there were any material discrepancies, contradictions or omissions in their evidence or when comparing their oral evidence to their witness statements that were so serious it affected their credibility.

24.  Each element of the offences charged under section 36 (b)  was considered with reference to authorities definitively setting out the elements of both assaulting and resisting any police officer in the due execution of his duty.

25.  The magistrate found beyond reasonable doubt that PW1 was under a duty to arrest the 1^st appellant and had executed his duty by declaring arrest on him.  His colleagues, including PW2, the victim of charge 2 was similarly acting in the due execution of his duty when he went to assist his colleague PW1.

26.  The video footage of exhibit P2, which consists of 2 discs of video footage as well as the oral evidence of the 3 police officers, PW1, 2 and 3 was relied on as proof of the 1^st appellant intentionally resisting PW1 in the due execution of his duty.  Similarly, PW1’s evidence of the 1^st appellant throwing punches at him and swinging his arms around so as to break free from PW1’s hold was relied on as proof of the 1^st appellant intentionally assaulting PW1 in the due execution of his duty.  PW1 did sustain injuries.

27.  It was the magistrate’s finding that the 1^st appellant knew before he became emotional and physical that he was under arrest and about to be taken away from his home.  It was explained to him in English.  It was only after he had been arrested that he became emotional, put up such a resistance that it took 3 police officers to subdue him.  Even then they could not successfully handcuff both wrists such was the size and strength of the 1^st appellant.

28.  The magistrate found that the 2^nd appellant had picked up a broom and hit PW2 repeatedly on various parts of his body with it.  The broom broke in the process.  This witness was acting in the due execution of his duty when he was attacked by the 2^nd appellant.  He found proved beyond reasonable doubt that the 2^nd appellant intentionally assaulted PW2.

Reasons for sentence

29.  The magistrate considered mitigation put forward as well as a number of cases as set out in paragraph 242 of his statement of findings to assist him.  He adopted a starting point of 3 months’ imprisonment for assaulting PW1 and PW2, the victims of charges 1 and 2.  He adopted a starting point of 2 months’ imprisonment for resisting PW1, Charge 3.  He sentenced the 1^st appellant to a total of 3 months’ imprisonment for charges 1 and 3.  He sentence the 2^nd appellant to 3 months’ imprisonment for Charge 2.

Legal principles concerning appeals

30.  A magistracy appeal is conducted by way of a “rehearing” on the evidence before the magistrate.  The legal principles concerning the approach to a magistracy appeal includes the principle that the appellate court will only depart from the lower court’s finding of fact and assessment of a witness’s credibility where the trial magistrate’s finding of fact is plainly wrong.  The appellate court must bear in mind that the trial magistrate enjoyed the advantage of having seen and heard the witnesses give evidence.  Therefore, the credibility and reliability of a witness is in general within the assessment of the trial magistrate.

31.  The test in deciding whether the appeal should be allowed is whether it is just for the conviction to be quashed.  In addition, the appellate court must still perform the statutory requirement of conducting a “rehearing” even if there is an absence of any error by the trial magistrate.  Therefore, a close examination on the evidence adduced is required to decide if the charge or charges were proved beyond reasonable doubt.  If not, the appeal should be allowed.

Grounds of appeal against conviction

32.  Both appellants were legally represented at their appeal.  Each appellant advanced his and her own grounds of appeal, however, they did include similar or overlapping grounds.

33.  The 1^st appellant put forward the following grounds;

a.  the magistrate failed to consider the issues of self defence and/or defence of others at all – Ground 1

b.  the magistrate erred in finding that PW1 was acting in due execution of his duty or had used reasonable force – Ground 2

c.  the magistrate wrongly considered and rejected the evidence of the appellants before evaluating the evidence of the prosecution witnesses – Ground 3

d.  the magistrate wrongly rejected the evidence of the 1^st appellant – Ground 4.

34.  The 2^nd appellant put forward following grounds;

a.  the magistrate erred in rejecting the evidence of the 2^nd appellant – Ground 1

b.  the magistrate erred in failing to consider whether the 2^nd appellant was acting in self defence and/or protecting the 1^st appellant – Ground 2

c.  the magistrate erred in law in adopting a wrong test in considering the prosecution and defence evidence – Ground 3.

Discussion

35.  I turn to deal with the grounds of appeal.

Ground 1 of the 1^st appellant

36.  It was submitted that the 1^st appellant was acting in self defence when he resisted the police officers.  He was also coming to the defence of the 2^nd appellant.  Therefore, the issue of self defence was raised which was for the prosecution to negate.  The prosecution however did not adduce evidence to negate this issue.

37.  It was submitted that the police took the initiative to press the 1^st appellant to the ground in order to control him and there was no finding that he was trying to escape the police.  It was suggested that the 1^st appellant gave the police no reason to physically restrain him on the ground and therefore, his reaction of struggling and physically resisting them was an act of self defence. None of his actions of struggling and throwing punches was unreasonable in the circumstances.

38.  The 2^nd appellant tried to intervene to help him and assaulted the police trying to restrain him.  When she was pushed over and accused PW3 of sexually assaulting her, the 1^st appellant was only resisting in order to go to her defence.  This was another act of self defence.

39.  The magistrate believed the prosecution witnesses evidence that the 1^st appellant became emotionally unstable, noisy and physical only when PW1 and his colleagues were about to leave the premises with the 1^st appellant after he was arrested.  He believed the 1^st appellant struggled and swung his arms around to shake off the police officers.  It was because of these actions that the police attempted to control him by pressing him to the ground and trying to handcuff him.  He refused PW1’s request to calm down and sit down.  He resisted PW1.  The police had no choice but to try and hold him down to the ground in order to subdue him.  The evidence accepted by the magistrate was that the 1^st appellant knew he was under arrest and resisted the police before they tried to subdue him on the ground.  There was no issue of self defence.

40.  The magistrate accepted that the 2^nd appellant assaulted PW2 with a broom and broke it on him.  She shouts and swears at the officers with volume and consistency as seen in the video footage.  The suggestion that she needed defending is negated by her behaviour seen on the video.  She did not require any assistance from the 1^st appellant.  There was no issue of a necessity to defend her that could explain his actions.

41.  Having read the statement of findings, as well as having watched the video footage of some of the mayhem that clearly arose because the police were made aware of a warrant of arrest issued against the 1^st appellant during a routine response to a 999 call for help by the 1^st appellant, I find no fault in the magistrate’s analysis and findings.  His assessment of the evidence from both appellants was thorough; he explained in full and coherently why he rejected their evidence.  His assessment of the credibility of the prosecution witnesses was also thorough and not plainly wrong.

42.  There was no issue of self defence; this issue did not arise as a result of the evidence for the prosecution to address and prove otherwise.

Ground 2 of the 1^st appellant

43.  There was no dispute that the 1^st appellant had called the police and in the course of their investigation they had uncovered a warrant for his arrest.  He would have been therefore arrested and the police officer arresting him would have been acting in due execution of his duty.  The magistrate believed it was explained to the 1^st appellant in English.  There is no merit in the grounds of appeal that the magistrate erred in finding that PW1 was acting in due execution of his duty.

44.  The 2^nd part to that ground of appeal was that the magistrate erred in finding that PW1 used reasonable force.  PW1 and 2 described the 1^st appellant as becoming emotional and physically resisting his arrest.  He was described as strong, tall and well-built.  It took 3 of them to try and subdue him and they did not succeed.  They could not handcuff him despite their best efforts.

45.  The suggestion the police used excessive and unnecessary force has no merit because the appellant did threaten PW1 and he did resist arrest which meant force was required where words were insufficient.  There is no merit in the submission that PW1 used unnecessary and unreasonable force on the 1^st appellant.

Ground 3 of the 1^st appellant

46.  In the statement of findings, the magistrate did first analyse the defendants evidence before the prosecution’s evidence.  He rejected the defence evidence as inherently improbable and incredulous before he went on to analyse the prosecution witnesses evidence.  The 1^st appellant says that he did not apply the same test when he considered the prosecution witnesses evidence.  The main complaint in this ground is that the magistrate did not apply a critical mindset in evaluating the prosecution witnesses evidence but only focused on explaining away the inconsistencies in their evidence.

47.  Firstly, it is a matter of style as the respondent submits, “it is merely a presentation style adopted by the magistrate for his analysis that put his assessment of the defence evidence before the prosecution evidence”.  What is important is that the magistrate reminded himself on more than one occasion that the burden of proof rested on the prosecution and that the appellants had no duty to prove their innocence.  Even after he rejected the appellant’s evidence, he reminded himself again that although he did reject it, this did not relieve the prosecution of proving the appellant’s guilt beyond reasonable doubt.

48.  The submission that he shifted the burden on the 1^st appellant to prove what he said was true has no merit.  The magistrate gave full reasons for rejecting the 1^st appellant’s evidence; from a careful analysis of his oral evidence and the footage of exhibit P2.  I see nothing that shows that those reasons were unreasonable or plainly wrong.

49.  This ground includes a submission that the magistrate addressed a number of irrelevant issues when considering the credibility of the prosecution witnesses.  Those issues were relevant during the trial because they had all been challenged or raised by the defence.  The magistrate did address those issues one by one.

50.  Obviously the style of analysis differed between the defence and prosecution witnesses.  In cross examination, the prosecution witnesses had their oral evidence compared in quite minute detail to their witness statements.  The magistrate had to deal with the submission that there were many perceived inconsistencies and alleged omissions when considering the issue of credibility.

51.  This situation did not arise with the appellants giving evidence.  This does not mean that the magistrate applied a different test in evaluating the accounts of the events given by the prosecution witnesses and the 1^st appellant.  There is no prescribed test to follow.  With the prosecution witnesses, the magistrate gave full reasons why he found them credible.  After he found them individually credible, he accepted their evidence was reliable.

52.  Nothing in his statement of findings supports the submission that by rejecting the accounts given by the appellants first, it suggests he had already made up his mind that the prosecution witnesses evidence must therefore be true.

53.  There was nothing plainly wrong in the magistrate’s assessment of the 1^st appellant’s evidence, credibility and reliability.  There was nothing plainly wrong in the magistrate responding to the issues raised by the defence during the course of the trial.  There is nothing plainly wrong in his analysis of first the defence evidence and then when he rejected it, considering whether the prosecution had nevertheless on its own evidence proved guilt beyond reasonable doubt as required.  There was nothing plainly wrong with the magistrate’s analysis of the prosecution witnesses evidence before finding them credible and reliable.  There is no merit in this ground.

Ground 4 of the 1^st appellant

54.  The submission here is that the magistrate did not properly deal with the issues raised by the 1^st appellant.  A reading of the magistrate’s analysis of the 1^st appellant’s evidence and why he found it unbelievable revolves around whether or not PW1 was in due execution of his duty and whether he was resisted and assaulted by the 1^st appellant when he learned that the 1^st appellant was wanted by the police, arrested him and tried to take him away from the premises.

55.  Those were the essential issues and were dealt with in full by the magistrate.  There is no merit in this ground.

Ground 1 of the 2^nd appellant

56.  It is argued the magistrate erred in rejecting the evidence of the 2^nd appellant without good reason or cause.  The 2^nd appellant had a clear record and during cross examination her evidence was not tested because the prosecution did not test her evidence and only put the prosecution’s case.  Therefore, her evidence must at the very least be true or may be true which means the magistrate erred in rejecting it.

57.  The magistrate’s reasons were considered hard to comprehend.  The respondent suggests the reasons for finding her evidence unbelievable were cogent and clear.  Much was made of the fact she felt outrage because she was sexually assaulted by PW3 when he pushed her away from his colleague, PW2, who was trying to assist PW1 in controlling the 1^st appellant.

58.  I am satisfied there was certainly no intention to sexually assault her, pushing her away was more than reasonable and necessary under the circumstances.  She clearly put herself in that position.  The magistrate found her outrage and intention to ward off PW2 with a broom only to protect herself from him inconsistent with the independent evidence; the footage of exhibit P2.  The magistrate explained in full why he did not believe her evidence that it was the police who insisted she pack up and leave the premises.

59.  The magistrate considered her aggressive body language, foul mouth and finger pointing (as seen in the video footage)  demanding PW2 leave the premises contrary to her oral evidence and version of events.

60.  There was nothing plainly wrong in the magistrate’s assessment of the 2^nd appellant’s credibility and reliability.  There is no merit in this ground.

Ground 2 of the 2^nd appellant

61.  This ground of appeal is similarly put forward by the 1^st appellant.  The 2^nd appellant submits that the magistrate failed to consider the defences of each appellant separately.  The magistrate failed to consider the issue of self defence and the 2^nd appellant’s protection of the 1^st appellant.

62.  The magistrate found that the 2^nd appellant used physical force against PW1, 2 and 3 whilst they were trying to control the 1^st appellant.  She became emotional and tried to pull him away from those police officers.  The film footage shows her aggressive actions.  It shows her raining blows on PW2 and shows PW3 pushing her away to stop her blows.  The magistrate found the 2^nd appellant then used a broom to hit PW2.

63.  The magistrate found her evidence that she was only protecting herself with the broom unbelievable. Her subsequent actions, under the circumstances, did not give rise to an issue of self defence or a mistaken need to protect the 1^st appellant or belief he needed protecting. She must have known the police were arresting him because he was a wanted person.

64.  I repeat what I have said above, having read the statement of findings, as well as having watched the video footage of some of the mayhem that clearly arose because the police were made aware of a warrant of arrest issued against the 1^st appellant during a routine response to a 999 call for help by the 1^st appellant, I find no fault in the magistrate’s analysis and findings.  His assessment of the evidence from both appellants was thorough; he explained in full and coherently why he rejected their evidence.  His assessment of the credibility of the prosecution witnesses was also thorough and not plainly wrong.

65.  There was no issue of self defence; this issue did not arise as a result of the evidence for the prosecution to address and prove otherwise.

Ground 3 of the 2^nd appellant

66.  The 2^nd appellant submits in his statement of findings the magistrate was wrong to first analyse the defendants evidence before the prosecution witnesses’ evidence.  He rejected the defence evidence as incredulous before he went on to analyse the prosecution witnesses evidence.  The 2^nd appellant also says that he did not apply the same test when he considered the prosecution witnesses evidence.

67.  What I have to say in relation to this ground is a repetition of what I have said above in finding the same ground of the 1^st appellant without merit.  There is no prescribed test to evaluate the evidence a witness.

68.  I repeat what I have said above and that is nothing in the magistrate’s statement of findings supports the submission that by rejecting the accounts given by the appellants first, it suggests he had already made up his mind that the prosecution witnesses evidence must therefore be true.

69.  There was nothing plainly wrong in the magistrate’s assessment of the 2^nd appellant’s evidence, credibility and reliability.  There was nothing plainly wrong in the magistrate responding to the many issues raised by the defence during the course of the trial.  There is nothing plainly wrong in his analysis of first the defence evidence and then when he rejected it, considering whether the prosecution had nevertheless on its own evidence proved guilt beyond reasonable doubt as required.  There was nothing plainly wrong with the magistrate’s analysis of the prosecution witnesses evidence before finding them credible and reliable.  There is no merit in this ground.

Grounds of appeal against Sentence

70.  The 1^st appellant raises the following grounds of appeal against sentence and that is, firstly, the magistrate failed to take into account the relationship between the appellants and secondly, that the sentences imposed on the 1^st appellant were manifestly excessive.

71.  The 2^nd appellant raises one similar ground of appeal against sentence and that is the sentence imposed on her was manifestly excessive.

72.  As the respondent points out the magistrate gave very full reasons for the sentences he imposed and referred himself to eight magistracy appeals.  He considered those appeals and found that a starting point of 2 to 3 months was appropriate where the facts for offences of this nature were not so serious.

73.  The magistrate was quite right to start on the basis that there are no sentencing guidelines for these offences and that each case would have its own distinct facts and each defendant his or her own specific mitigation or background relevant to sentence. He did consider specific mitigation and the appellants background.

74.  However, offences against police officers, in particular under this section of Cap 212, do normally attract an immediate custodial sentence even if the defendant is a first-time offender.  The magistrate clearly took into account all the circumstances of the case under which each appellant assaulted or resisted a police officer.  Here I find no error in principle in the magistrate’s sentences.

75.  It has been said time and time again that the courts must convey a message that those who assault a police officer in the execution of his duty will not be treated leniently.  It is a serious offence and sentences must be deterrent to reflect the fact the courts do not condone or tolerate such acts or behaviour.  This does mean that even if this was a first offence from a defendant with a good background and good character, the sentence should be one of an immediate term of imprisonment.

76.  The magistrate clearly gave full consideration to the facts and pointed out the aggravating factors.  The officers responded to a 999 call by the 1^st appellant; they went to help him.  However, because of the appellants irrational and aggressive behaviour in response to the discovery that the 1^st appellant was a wanted person and therefore put under arrest, officers were injured, officers had to become involved in physical altercations, were subject to prolonged verbal abuse from especially the 2^nd appellant and had to call out additional police manpower to assist them.  There was a tremendous waste of police resources that evening.

77.  The fact that the appellants were in a relationship and clearly had had a violent argument which led to the 1^st appellant calling the police does not mitigate the circumstances. It does not mean that they acted on the spur of the moment because there was some discussion or perhaps mediation by the police which resulted in the 1^st appellant telling the police that he had cut himself with a cutter which meant the 2^nd appellant was not arrested for wounding him.  It was only after this was settled did the appellants commit these offences.

78.  As far as the 1^st appellant is concerned, he ignored warnings to calm down.  He continued to struggle after he had been placed under arrest and caused himself and the police to fall to the ground in a need to subdue him.  Clearly, the tussle and physical struggle lasted minutes.  It took three officers to bring him under control but even then, they were unable to handcuff him.  His resistance caused injuries.  He assaulted an officer and injured him.  That officer took a decision to use pepper spray against the 1^st appellant such was the vigour of his resistance.

79.  As far as the 2^nd appellant is concerned, the magistrate found she used a broom to assault a police officer over parts of his upper body, including his head.  In fact, the broom broke.  She was so aggressive that reinforcements were called to assist the police officers at the scene; even a police shield was used at one point to separate the 2^nd appellant and a police officer while she was berating him and trying to push past him to enter the house.

80.  The magistrate was fully cognizant of the 2^nd appellant’s good character and previous clear record but nevertheless considered a custodial sentence necessary to reflect the seriousness of the charge and the facts of Charge 2.

81.  3 months’ imprisonment was adopted as the starting point for each charge.  The appellants were convicted after trial.  Given the findings of the magistrate, the vigourous resistance from the 1^st appellant and the violence from both appellants at the material time, the sentences imposed cannot be said to be manifestly excessive.  The magistrate also properly ordered the sentences of charges 1 and 3 against the 1^st appellant to run concurrently.  Both appellants were sentenced to 3 months imprisonment.

Conclusion

82.  The magistrate considered the case based on the facts and the law, he correctly found that the police officers, PW1 and PW2 were at the material time acting in due execution of their duty.  He correctly identified the elements of the offences and found them proved beyond reasonable doubt by the prosecution as required.

83.  He gave a full and careful assessment of the evidence and submissions from both sides.  I am satisfied that the magistrate was fully entitled to have convicted on the evidence he found proved and having reviewed the evidence, I am sure that the case was properly established against each appellant.

84.  The convictions were neither unsafe nor unsatisfactory.  For these reasons, I dismiss the appeals against conviction of both appellants.

85.  I fully agree with the reasons the sentence.  The sentences imposed on both appellants were not manifestly excessive or wrong in principle in view of the serious nature of the charge and the circumstances of the case.  A custodial sentence was entirely appropriate for both appellants.  I see no grounds to justify the appeals against sentences.  I affirm the sentences and I dismiss the appeals.