R. v. CHEUNG KIN TAK and Others

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 416 OF 1994

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J U D G M E N T

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1. The appellants are serving police officers and were members of the Emergency Unit, Kowloon West at the time these offences were committed. In the early hours of 17 February 1993, police officers stopped and searched a man near a noodle shop at the junction of Gillies Avenue South and Baker Street in Hunghom and subsequent development led to the appellants being charged. They stood trial before Mr. Kwok Wai Kin in Sanpokong Magistracy with the result that the 1st, 4th and 6th appellants (respectively D1, D4 and D6 below) were convicted of common assault and the 2nd, 3rd and 5 appellants (D2, D3 and D5) convicted of assault occasioning actual bodily harm. D1 and D6 were each sentenced to 3 months' imprisonment while D2 and D3 each received 6 months. D5 was sentenced to 7 months' imprisonment. D4 was sentenced to 3 months' imprisonment but his sentence was suspended for a period of 12 months. All the appellants now appeal against their convictions and sentences.

2. The facts are succinctly set out by the magistrate in his statement of findings and can be found at p.1469 to p.1473 of the Appeal Bundle. Briefly, the prosecution case was that in the early hours of 17 February 1993, Wong Kwok-hung was on his way to a bank to withdraw some money from a cash machine and he was stopped and searched by three police officers near the noodle shop. After the search, questioning and PONICS check were over, a police vehicle arrived and having alighted from the vehicle the driver swore at Wong Kwok-hung in foul language. Wong swore back in foul language and he was then assaulted by the officers, one of whom was the first appellant. Before he was assaulted, Wong shouted to the noodle shop words: "police hitting people". In response to the shout, Yeung Hak-kwong, Tang Kwok-keung and Wong Fuk-kuen came out from the noodle shop to find out what was happening. They were customs officers and had earlier entered the noodle shop for night snack with a former customs officer, Lee King-kau and three lady friends. Wong Fuk-keun said he saw the 1st appellant punch Wong Kwok-hung once on the belly. Wong Kwok-hung testified that he was hit on the back and head. Wong Fuk-kuen told the police officers that they were fokis of the Customs and Excise and if necessary they were prepared to be witnesses for Wong Kwok-hung. They then returned to the noodle shop.

3. The next event that took place was the arrival outside the noodle shop of several police vehicles and a large group of uniformed police officers entered the noodle shop and surrounded the table where the three customs officers and their friends were sitting. Sergeant 20655 picked up a bowl of noodles from the table and flipped at Tang Kwok-keung. The 2nd appellant then assaulted Yeung with a torch while the 3rd appellant kicked him at the time he was restrained by other officers on the ground.

4. While Tang Kwok-keung was taken to the police vehicle outside, he was punched once at the chest at the doorway of the noodle shop.

5. Yeung Hak-kwong was taken to and placed inside a police vehicle and in the vehicle he was assaulted by the 5th appellant who used a torch to hit him once on his right cheek and once on the back of his right ear.

6. After Yeung was brought back to Hung Hom Police Station, the 6th appellant struck him with his right elbow 3 to 4 times inside the interviewing room guarded by one uniformed police officer.

7. This was the sequence of events and each incident formed the subject of one charge. There were two charges (Charge B and Charge C) arising out of the second incident in which D2 and D3 were jointly charged. The magistrate acquitted them of Charge C having found there was no case for them to answer. He convicted them of Charge B.

8. The defence case is simple and the magistrate summarized it at p.1472 and p.1473. According to the appellants, there was no assault. Wong Kwok-hung had assaulted the police and resisted arrest. The customs officers were preventing the police officers from effecting arrest of Wong Kwok-hung, thereby committing the offence of obstructing the police in the execution of their duty. It was, in those circumstances, necessary to use reasonable force to subdue and arrest the offenders.

9. Mr. Egan who appeared for all six appellants here and below argued the appeal with skill and force. He did not dispute that the incident took place but directed his attack on the magistrate's approach on the issue of identification. Both he and Mr. Reading agreed that identification was the main thrust of this appeal.

10. Mr. Egan relied heavily on the leading authority in R. v. Turnbull and Others [1976] 3 All ER 549 on identification. He highlighted and analysed, again with skill, the discrepancies of the evidence given by prosecution witnesses. He questioned why Sgt 20655 was not identified and charged because he was the one who flipped the bowl of noodles and this action must have a deep and unforgettable impact in the minds of those who were present. He submitted there were a total of 7 persons in the group of the customs officers including their girl friends and yet only one witness could identify the appellant or appellants in each charge. The identification parades did not take place until three months later.

11. There may be some force in these arguments if the magistrate had not considered them. It is not the case here. The magistrate had not only considered each and every point raised by Mr. Egan, he considered them in great detail and with care. Mr. Egan also criticized the magistrate for repeatedly using phrases such as "I did not believe", "I saw no reason" and "it was possible". Here, reading the judgment as a whole, it is quite obvious that the magistrate was setting out his mental process in the course of evaluating the evidence. The judgment contains more than 100 typed pages. I agree with Mr. Reading that it would be much better if the magistrate had been more precise. Judgment of this length dealing with a case of this nature is not expected from a busy magistrate. It is quite unnecessary.

12. Mr. Egan also complained that the magistrate had failed to give sufficient consideration to the good character of the appellants and the bad character of Wong Kwok-hung. I cannot agree. The magistrate specifically dealt with these issues and, in my judgment, he dealt with them adequately.

13. There are other matters raised in the grounds of appeal and by Mr. Egan in his submission. Suffice to say that I have considered them and there is nothing that would cause me concern that the convictions are unsafe and unsatisfactory. The magistrate had considered all aspects of the case. He has the additional advantage of seeing the witnesses and observe their demeanour which I do not have.

14. In the result, the appeal against conviction by all six appellants is dismissed.