R. v. CHONG MING HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL
NO. 1181 OF 1995

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J U D G M E N T

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Duffy, J.:

1. This was an appeal against a conviction for assaulting a police officer in the execution of his duty. The appellant had also been charged with disorderly conduct in a public place to which he had originally pleaded guilty, but on the trial day had amended his plea to one of not guilty. He was found guilty of that offence by the learned Magistrate, but he does not appeal against that conviction.

2. The facts of the case were that PW1, a Senior Inspector of police, was driving his private car along Shing Yip Street, Kwun Tong. His fiancee, now his wife, was in the car with him. A heavy goods vehicle emerged from a building to his right and he could see that pedestrians walking in front of the vehicle were dodging objects which appeared to be coming from the vehicle. When he passed the heavy goods vehicle, he heard the noise of things falling onto his vehicle and he got out of his car to investigate and saw the appellant throwing chopsticks at his car. He remonstrated with the appellant who alighted from the lorry, walked up to the Inspector in a threatening manner, and teased him by telling him to hit him. He, according to the Inspector, smelt of alcohol. He then elbowed the Inspector in the stomach at which point the Inspector grabbed him and pushed him onto the pavement. According to the Inspector, he then identified himself as a police officer, and told the appellant he was arresting him for assault. He alleged that the appellant pushed him away and punched him several times in the chest and continued to struggle and refused to allow himself to be arrested.

3. There was in my view only one ground of appeal with merit.

4. Mr Delaney who appeared on the appeal submitted that the learned Magistrate had erred in the way in which he dealt with the evidence of defence witness Lau Hok Chi. Lau had given evidence that he had seen part of the confrontation between the appellant and the police officer. From the evidence he gave, it was obvious he saw that part following the police officer having grabbed the appellant and pushed him towards the pavement. His evidence was that thereafter the appellant appeared to be very frightened, and he did not see the appellant do anything physical, including punching the Inspector. He did not see the defendant struggling. He heard the appellant asking the Inspector not to push him any more, and the Inspector telling him he was a police officer, arresting him, and telling him he was cheeky, and that he would fix him up.

5. It was, of course, of critical importance to decide when the Inspector revealed his identity, and what happened thereafter. The defence witness' evidence was highly relevant to both issues.

6. In his Statement of Findings, the learned Magistrate said this, and only this, about his assessment of the defence witnesses :

"I did not find the Appellant nor his witness to be credible on the other hand."

It appeared to me that this was a most unsatisfactory way of dealing with the evidence of a witness, who had not been involved in the incident, and who gave an account of the event different from the police officer. It was necessary, in my view, for the learned Magistrate to have critically analysed the evidence of this defence witness and not simply dismissed him.

7. The learned Magistrate did not appear to consider that the Inspector might have exaggerated to some extent. He ought, in my view, to have assessed defence witness' evidence alongside the evidence of the Inspector. This he did not do. I felt that this was a fatal flaw in the learned Magistrate's findings, and for that reason I allowed this appeal.