HKSAR v. CHOY PUN KIM

HCMA101/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 101 OF 2009

(ON APPEAL FROM TWCC 2657 OF 2008)

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

Introduction

1. The Appellant, Choy Pun Kim who is aged 60, was originally charged with one count of common assault and one count of assaulting a police officer.  The prosecution offered no evidence on the charge of common assault, which was dismissed.  The Appellant pleaded not guilty to the charge of assaulting a police officer and was convicted after trial.  He was not legally represented at trial.  He was sentenced to 2 years’ probation.  He now appeals against conviction only. 

Evidence

2. The prosecution case was this: on 31 August 2008, three police officers went to the Appellant’s home in response to a report of assault resulting from a dispute between the Appellant and his wife.  During the investigation, the Appellant was agitated and unoperative.  When the officers and the Appellant were standing facing each other in the lounge, one of them (PW2) asked the Appellant why he had hit his wife?  The Appellant became emotional.  He told the officers, 3 times, that this matter was between his wife and himself, and it was none of their business.  At the same time he used his left index finger to prod another officer, PW1, in the centre of his chest 3 times.  PW1 moved backwards and warned the Appellant that if he did so again he would be arrested for assaulting a police officer.  The Appellant ignored the warning and moved his right hand as if to assault PW1 again.  PW1 then grabbed his hand, quickly changed hands, took out his handcuffs and handcuffed the Appellant’s right wrist.  The Appellant then used his left hand to grab PW1’s throat.  This caused PW1 to fall backwards onto the floor so that he ended up lying face upwards with his body lying long ways in the lounge.  PW1 suffered head, waist and neck injuries in the incident and was later short of breath.  PW1 and PW3 then pressed the Appellant down on the nearby sofa and managed to handcuff his other hand.  The Appellant continued to struggle and kick.  PW1 upon seeing that the Appellant was still emotional pressed his emergency alarm for assistance.  Another police officer, PW4, arrived after the incident and assisted in controlling the Appellant.  He later arrested the Appellant. 

3. An agreed medical report on PW1 showed tenderness over the front part of his neck. 

4. The Appellant elected to testify.  His case was that when the police arrived it was peaceful in his flat, despite his earlier dispute with his wife.  He was very happy at their arrival, even though he was a bit agitated, as he wanted them to mediate in the dispute with his wife.  He let the police into his flat and sat on a stool for questioning by PW3.  At this time PW1 was behind PW3, but he had not participated in the questioning.  He cooperated in answering all of PW3’s questions.  Then PW2 came out of the bedroom and came over to him.  PW3 left them.  PW2 then asked him the same questions that PW3 had asked.  He decided that he did not want to answer these questions again.  He therefore walked to the sofa and sat down.  PW2 then said to him in a loud voice that he could lock him up for hitting his wife.  The Appellant replied that he had not hit his wife and asked if PW2 was threatening him?  He also said that PW2 could lock him up if he liked and he put his hands forward to allow handcuffing.  PW2 became angry and instructed other officers to handcuff the Appellant.  At the same time the Appellant saw PW1 take a step backwards and lie down on the floor by himself, with his feet facing the balcony, whilst the other police officers handcuffed the Appellant and pressed hard on both of his hands.  PW1 lay still on the floor for 15 seconds and then grabbed his neck with both of his hands and indicated he was in pain.  He started moving sideways and back and forth, while panting at the same time.  The Appellant’s wife then came out of her bedroom.  Later another officer, PW4, arrived and replaced PW3 in pressing him down. 

5. The Appellant’s wife was called as a defence witness.  She said that she entered the lounge after hearing an “Ah” sound.  She saw that the Appellant was sweating and being pressed down by two police officers.  There was another officer lying face upwards on the ground, with his feet facing the balcony.  He was lying at the tip of the Appellant’s toe area.  She saw that the officer lying on the ground was conscious.  Then he suddenly clutched his throat and rolled his head back and forth, and sideways.  She became scared and begged the policemen to stop because the Appellant had chronic diabetes and was weak.  They ignored her.  The two police officers pressed the Appellant down for about 25 minutes.  At one stage she saw that the Appellant looked pale.  He sweated and it looked as if he was suffocating. 

Reasons for verdict

6. The magistrate accepted all the prosecution witnesses as honest and reliable and accepted their evidence as true and accurate.  He was satisfied that the Appellant had not been framed by the police as he alleged. 

7. The magistrate rejected the Appellant’s evidence, finding that he was untruthful, and that his evidence was inherently improbable and bore an air of unreality.  Since the Appellant and the police officers had not known each other before the incident, the magistrate found it unbelievable that PW1 would, without any prompting from PW2, simply lie down on the floor and then, after 15 seconds, pretend to gasp for air by clutching his throat.  

8. The magistrate found that the Appellant’s wife’s evidence did not conflict with that of the prosecution witnesses.  Her evidence that when she first saw the Appellant, he was already sweating supported the prosecution’s allegation that the Appellant was actively struggling rather than simply being pressed down as he said he was. 

9. The magistrate was satisfied beyond reasonable doubt that the Appellant was guilty of the offence charged against him. 

Grounds of appeal

10. In his Notice of Appeal, the Appellant claims that his conviction is unsafe and unsatisfactory because:

(a)  the magistrate failed to consider the inherent improbability in PW1’s evidence about the direction of his fall as a result of the Appellant’s alleged assault on him; and

(b) the medical report cannot support the prosecution’s case as the medical examination found no other physical injuries on PW1 other than tenderness to his neck.  Whereas PW1 had said in evidence that he also suffered injuries to his head and waist. 

11. The Appellant has extensively amplified his arguments in support of these grounds before me this morning.  He maintains, from his study of science — physics in particular — that PW1 could not have fallen in the way he said he did. 

Decision

12. I have carefully considered these arguments.  The Appellant’s submissions on the direction of PW1’s fall are pure speculation.  The magistrate was aware that there was a discrepancy between PW1 and PW2, and PW3 and PW4 over the position of PW1’s head when he was lying on the floor.  He did not find this material.  There was no issue in this case that PW1 had not laid on the lounge floor long ways, facing upwards, during the incident.  For my part I fail to see how such a minor discrepancy in the evidence of the prosecution witnesses can affect their overall credibility. 

13. I bear in mind that the magistrate had the advantage, which I do not, of having heard and seen the witnesses.  I bear in mind that a magistrate’s decision on findings of fact should only be overturned if it can be demonstrably shown that he was wrong. 

14. Other than the tenderness to his neck, it is true that no other injuries were found on PW1 when he was examined by the doctor.  The magistrate had this to say about it:

“12.   I did not accept the submission that it was impossible for PW1 to have hurt himself on his waist and head areas when he fell backwards, as I found the manner of his fall when thrown off balance could have resulted in him landing on the parts he referred to and also hitting his head, especially if his body was bent when he fell and not straight like a board.  I also found that the officer would not have necessarily hit something when he fell as I found he fell longitudinally in the lounge in-between objects.  

13. I considered why the agreed medical report did not show any complaint about PW1’s waist and head injury.  I found in conclusion these complaints might not have been mentioned when PW1 saw the doctor as I found they were not PW1’s main complaint at the time of examination, as I found that it was PW1’s throat that was causing PW1 the most concern at the time of the examination.  I also believed the pain in the waist and head areas may not have been present at the time of the medical examination and so they were overlooked and not mentioned.  In this respect, I noted the medical report made reference to examination of PW1’s chest, which I believed may have been as a result of a mention by PW1 of the defendant prodding him in the chest, but I found this prodding was not mentioned in the report.  I therefore found that I could not give the absence of mention of waist and head injury weight.”

15. The lack of any marks of injury PW1’s head and waist does not necessarily cast doubt on PW1’s evidence. 

16. I am satisfied that the Appellant’s conviction is neither unsafe nor unsatisfactory.  His appeal against conviction is dismissed.