HKSAR v. FUNG KWOK LEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1117 OF 1997

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REASONS FOR JUDGMENT

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1. The appellant, a serving police officer, was convicted after trial before a magistrate of one charge of common assault and one charge of possession of imitation firearm. He was sentenced to concurrent terms of four months imprisonment. His appeal against sentence was abandoned at the outset of this hearing and is accordingly dismissed. The appeal is against conviction only and he is represented by counsel.

2. The facts are simple. The appellant was waiting for his girlfriend, who was P.W.1, to finish work inside his own private car. After P.W.1 had boarded the car, they had an argument and P.W.1 got off the car and boarded a taxi in front. The appellant drove his car to intercept the taxi. According to the taxi driver, the appellant, having prevented his taxi from moving, got off and came near to his taxi pointing a pistol at his head and he was frightened. He had his window wound down and asked the appellant what happened. The appellant scolded him and said "you're cheeky". He also told P.W.1 to get off from the taxi. P.W.1 initially said "no" and then got off the taxi after dropping a $20 note. She returned to the appellant's car. When the taxi driver was asked in cross-examination why he opened the window when he saw a pistol pointing at him, he said it was because he was afraid that the appellant could not hear him. In re-examination, he said that he was afraid that the appellant might shoot him with the pistol.

3. The appellant did not deny that he walked to the taxi. He said that he walked to the right side of the taxi, tried to open the door but could not since it was locked. He knocked at P.W.2's window and told P.W.1 to open it. He then realized that he was holding the pistol in his right hand and so he used the handle of the pistol to knock on the window asking P.W.2 to open the lock to the door. After he knocked on the window, P.W.1 immediately got off from the taxi and went back to the appellant's car and the appellant drove off. The appellant denied pointing the pistol at P.W.2 and said that P.W.2 had not wound down the window. The appellant explained that he was angry at the time and did not realize that he was holding the pistol.

4. P.W.1's evidence is not at all helpful. She said that after she boarded the taxi, she saw the appellant's car cutting in front of the taxi and the appellant alighted from his own car and approached the taxi. On seeing this, she moved from the left side of the rear passenger seat to the right side and told the taxi driver not to be afraid since the appellant was only looking for her. The appellant walked to the taxi driver's side and told P.W.1 to get off. P.W.1 said that she did not see what the appellant was doing and only heard knocking sound on the window. But she did not notice if anything was used to knock on it as she was concentrating on fishing in her wallet for money to pay for the fare. She got off the taxi after throwing a $20 note to the driver and then boarded the appellant's car.

5. The appellant's car was later intercepted by the police and the pistol was found on the roadside. Shortly after the appellant was taken to the patrol car, he told an inspector that he used the toy pistol to shoot at rats whilst waiting for his girlfriend and he had an argument with the girlfriend who alighted from his car and got on a taxi. The appellant chased after her and asked the taxi driver to let his girlfriend out and it was by then he realized that he was still holding the pistol.

6. After evaluating the evidence, the magistrate rejected the evidence of P.W.1 but she found P.W.2, the taxi driver, to be a truthful and honest witness and she accepted his evidence. She also had this to say about the defence:-

"It would be absurd for the Defendant to say that he had suddenly forgotten about the pistol in his hand during the argument and yet with the pistol in his hand, he had driven his vehicle for a certain distance to stop P.W.2's taxi and also opened the door of his car with the pistol in his right hand without noticing its presence."

7. There are two grounds of appeal advanced on behalf of the appellant. The first one is:

"There is a material irregularity in that the first prosecution witness was allowed to be cross-examined by the prosecution without leave of the court. (25G - 25R)."

8. The appellant was represented by counsel at the trial and there was no objection from him when these questions were asked. Moreover, none of the answers were damaging to the defence. In fact they were favourable to the appellant's case. The magistrate convicted the appellant clearly on the evidence of the taxi driver and to a certain extent on the evidence of the appellant himself. I am satisfied that what took place did not amount to a material irregularity.

9. The second ground of appeal is:

"The convictions are unsafe and unsatisfactory in that the learned magistrate had wrongly approached the evidence of the first and second prosecution witnesses in that in resolving the discrepancies between them, who were being put forward by the prosecution as truthful and reliable witnesses, the learned magistrate set off by deciding who is telling the truth and who is more apt to lie. (65E)."

This is what the magistrate said at p.65:

"In assessing their evidence I have to decide on who is telling the truth and who is more apt to lie. Being ex-girlfriend of the defendant, seeing that the whole incident was more or less caused by her, PW1 is more than likely to cover up for the defendant. This can be seen from her evidence that she could not tell definitely that the driver's window had never been opened since she did not take a look of it, but did see what the defendant did at that location. This court has some reservation in accepting her as a credible and reliable witness and her evidence is rejected.

On the other hand, P.W.2, the taxi driver, being a stranger to both the defendant and P.W.1, is just doing what he should do as a good citizen, and he had no purpose to serve if he lied. He gave clear and consistent evidence throughout and there is nothing to cast doubt on his credibility and veracity. I accepted his evidence."

10. In my view, these are perfectly proper and legitimate observations which a judge or magistrate is entitled to make. There is nothing wrong with this approach. The prosecution might have put forward both P.W.1 and P.W.2 as truthful and reliable witnesses, it is for the court to decide whether they were truthful and reliable.

11. There is absolutely no merit in the arguments advanced by counsel. I am satisfied that the convictions are neither unsafe nor unsatisfactory. The appeal against convictions is dismissed.