HKSAR v. LAM KWOK KIN

HCMA 806/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 806 OF 2001

(ON APPEAL FROM STCC 643/2001)

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J U D G M E N T

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1. The Appellant was charged with one offence of Assaulting a Police Officer, contrary to section 63 of the Police Force Ordinance Cap. 232, and was convicted by a Magistrate of that offence. He now appeals his conviction.

2. The evidence showed that the incident occurred at Lo Wu KCR Station, as the Appellant, with his 5-year old son, was going to China. An off-duty police officer saw the Appellant and another man pushing and pulling each other as they waited in the queue; he climbed over the barrier to investigate what was going on and produced his police warrant card.

3. He found that there was a dispute between the Appellant and the other man about the ownership of a mobile phone. The police officer requested the Appellant to hand the mobile phone to him and invited both the Appellant and the other man to the nearby police post to resolve the question of the ownership.

4. At that point, the Appellant ignored the request and, despite repeated requests by the officer, attempted to walk away. When the officer blocked the Appellant's way, he suddenly grabbed the officer's throat with his right hand. The officer pushed his hand away. At that point, the Appellant complained vociferously that police were assaulting people and summoned the attention of uniformed police officers who took the parties back the Lo Wu KCR Station police post to investigate the matter. The police were satisfied eventually that the mobile phone was not the property of the Appellant, but belonged to the other man.

5. There was lengthy evidence given at trial by the participants in the matter. In summation the Magistrate found that the prosecution witnesses were telling the truth about the matter and found the other man who had been a party to the mobile phone dispute to be a truthful witness. She rejected suggestions made by the Appellant that there had been connivance or concoction to frame the Appellant for the offence.

6. Today before me, the Appellant's grounds of appeal amount to a lengthy analysis of matters on which the Appellant says the Magistrate was incorrect, and overlooked considering vital evidence.

7. Having considered these matters in conjunction with the transcript and in particular with the evidence given by the witnesses, I am satisfied that the Magistrate dealt with this matter correctly, and that she paid proper attention to the analysis of matters relevant to the charge.

8. A particular complaint was that medical evidence produced was not given full weight by the Magistrate, in that she did not make any reference to that evidence in considering whether or not it supported the Appellant's version of how the incident occurred. The medical evidence was minimal and was not compelling. At its highest it could support no more than that there might have been a pushing and shoving incident. It is hardly surprising that the Magistrate found no reason to refer to it specifically, because it was not indicative of anything other than that there was some contact made by the Appellant and his son with some object at some point.

9. The Magistrate clearly disbelieved the account given by the Appellant as to what happened at the station. She examined the inherent improbabilities in the account that he gave and I am satisfied that she had not erred in reaching the conclusion that she did, namely that the Appellant was guilty. Accordingly, this appeal is dismissed.