HKSAR v. MA KAI CHI

HCMA398/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 398 OF 2009

(ON APPEAL FROM STCC 8448 OF 2008)

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J U D G M E N T

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1. The appellant appeals against his conviction by Mr Casewell at Shatin Magistrates’ Court of the offence of assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212.

2. It was alleged that he had assaulted Sgt 49360, Li Siu Kuen outside the ground floor of Ka Chuen House, 38-44 Chik Chuen Street, Shatin, New Territories.

3. The principal evidence for the prosecution came from Sgt 49360 the alleged victim (PW1).  His evidence was that at about 5:15 a.m. on the day in question, he was in uniform on patrol with other officers in a vehicle in Chik Chuen Street when he saw a man lying on top of the appellant on the pedestrian way.  The two men were exchanging blows.

4. The police vehicle stopped.  The two men were told to stop fighting.  He and another officer then accompanied the appellant and the other man to a place nearby to investigate what had occurred.  He himself was responsible for making enquiries from the appellant who smelled of alcohol, while his colleague PC1603 was asking questions of the other man.  The sergeant agreed that at this early stage the appellant was very cooperative.

5. The sergeant said he asked to see the appellant’s identity card and started asking him questions at which point the appellant had become emotional and after claiming that the other suspect had assaulted him had poked the sergeant’s shoulder two or three times with his finger asking him why he asked so many questions and why he did not arrest the other man.

6. The sergeant said he stepped back and warned the appellant that if he did that again he would arrest him for assaulting a police officer.  The appellant’s response had been to lean forward and punch the sergeant once hard in the area of his sternum with his right fist.  The officer had then grabbed the appellant’s wrist with his left hand but the appellant had succeeded in punching him a second time forcefully in the same area.  There had then been a struggle during which PC1603 had assisted the sergeant in subduing the appellant. 

7. PC1603 (PW2) gave evidence that he was questioning the other suspect about 3 to 4 metres away from the sergeant and the appellant.  He had not been listening to what the sergeant was saying to the appellant nor had he been paying attention to what the sergeant and the appellant were doing as he himself was questioning the other suspect.  He had heard a man believed to be the appellant say something in a relatively loud voice.  He then heard the sergeant shout out “assaulting a police officer” and saw the sergeant grabbing the appellant’s right forearm near his wrist.  He had assisted the sergeant to subdue and handcuff the appellant.

8. A third prosecution witness, an independent witness, gave evidence of having seen part of the incident involving the appellant and the other man.  After the arrival of the police he said he saw three police officers subduing one of the two men.

9. The appellant elected not to give or call any evidence.  The appellant had originally faced a charge of fighting in a public place in addition to the charge upon which he was convicted.  That charge related to the exchange of blows between the appellant and the other man.  The magistrate found that he could not be satisfied that the appellant was not acting in self defence in respect of that incident and so acquitted him.

10. In respect of the charge of assaulting a police officer, the magistrate took the view that the case turned on the credibility of the witnesses.  He found the sergeant to be a reliable witness and accepted that the appellant had struck him.  He convicted the appellant.

11. The first ground of appeal is that the magistrate failed or failed adequately to consider what are said to be inherent improbabilities in the evidence of the sergeant (PW1) and PC1603 (PW2).  Three alleged improbabilities have been suggested by Mr Ng who appeared for the appellant both before me and at the trial.

12. The first suggestion is that if events had occurred as the sergeant (PW1) alleged, it is improbable that PW2 would as he testified have only become aware of what was going on between the sergeant and the appellant after the sergeant had called out “assaulting a police officer”.  I do not see any improbability in this respect.  PC1603 (PW2) was not facing the sergeant or the appellant but was 3 to 4 metres away questioning the other man.  PC1603 explained that because he was questioning the other man, he was not paying attention to the sergeant and the appellant or listening to what they were saying.  There was nothing improbable in that.  The assault incident described by the sergeant happened very quickly.  It is not suggested that the sergeant had shouted out his warning that if the appellant pressed him again with his finger he would arrest him.  It is not improbable that PC1603 would have concentrated on the task he was performing until it became obvious from the sergeant’s shout that something was amiss.

13. The second alleged improbability suggested by Mr Ng was that the appellant who had initially followed the sergeant and been described as very cooperative should suddenly change his attitude and resort to violence.  I find nothing inherently improbable in this. 

14. According to the sergeant, the appellant had claimed that the other suspect was the one who had hit him, yet rather than arrest the other suspect, the sergeant had continued to question him, i.e. the appellant.  The sergeant said that the appellant appeared emotional and smelled of alcohol.  These factors could well had led him to behave in the way the sergeant said he did.

15. The third alleged improbability is that after the appellant had poked the sergeant in the shoulder area, the sergeant would have been in a position to prevent or avoid the first punch and by grasping the appellant’s wrist prevent him from landing the second blow.  This was a submission that Mr Ng had made to the magistrate at the trial and the magistrate referred to it in his Statement of Finding.  He obviously rejected it.

16. I found nothing improbable in the appellant being able to assault the sergeant in the manner the sergeant described.  The sergeant would not have expected the appellant to have poked his shoulder with his finger.  When he issued the warning to the appellant not to touch him again, he may well not have expected that the appellant would resort to punching him in the sternum with his fist.  The two blows to the sternum were in close succession.  There is nothing improbable in the appellant being able to land the second blow despite the fact that the sergeant was holding his wrist with his left hand.

17. The second ground of appeal is that the magistrate failed to give sufficient consideration to an alleged conflict in evidence between that given by PW1 the sergeant and PW2 and that given by PW3.

18. The alleged discrepancy arose as a result of the evidence of Mr Tsui Yan Fai (PW3) who was a customer in the Hakka Inn restaurant outside of which the appellant and the other suspect were first seen to be trading blows.

19. He gave evidence that both men being on the ground and then a police patrol car arriving.  He was asked question : “So, what happened when the police arrived?”  His answer was simply : “When the police arrived, I kept on looking back to the two males, and I saw three police officers subduing one of the two males.”  He later clarified that the three officers were all male officers.

20. It was submitted that his reference to three police officers subduing the appellant conflicts with the evidence of the sergeant and PC1603.

21. The sergeant’s evidence was that after he had been assaulted, he tried to arrest the appellant who had put up a struggle.  He said that : “At this moment, my colleague PC1603 came forward to give help.”  He made no reference to any other officer assisting to restrain the appellant but he did say that he had requested another Emergency Unit vehicle to come to the scene to assist.  PC1603 gave evidence that after the sergeant had shouted out that he was being assaulted he had helped to control the appellant.  In cross-examination he was asked : “at the time when you said you came to the sergeant’s assistance, were there other police officers at the scene?”  His answer was : “At that moment, there was only sergeant and me.”

22. While it is correct that the magistrate did not refer to this evidence in his Statement of Findings, it has to be borne in mind that not only did PW3’s evidence not contradict PW1’s evidence about how the assault had occurred, but also that it was extremely vague as to the stage he had seen the three officers and indeed whether they were all involved at the same time.  He was not asked to elaborate what he meant by seeing the three officers subduing the appellant.  Assuming he was referring to the period after the alleged assault on the sergeant (PW1), it is not clear whether his reference to subduing the appellant included the period after PW1 said that the appellant had been pushed to the ground and before he was handcuffed or indeed the period up to the time he was brought to the police vehicle.

23. The evidence of the sergeant (PW1) was that there were four police officers in his vehicle, he himself, PC1603, the driver PC2616 and the WPC.  He said that after he had asked the driver to stop the car he had instructed his team members to get off the car to deal with the matter.  There is no reason to suppose that did not include the driver.

24. There were therefore three male officers at the scene although the sergeant and PC1603, according to PW2’s evidence, would appear to have been the only officers in the immediate vicinity of the appellant when the assault occurred.  There is no reason to suppose that the driver PC2616 who had been instructed by the sergeant to leave the car did not come over to the appellant slightly later to assist the sergeant and PC1603 with the appellant.

25. I am satisfied that in the absence of any further exploration of the matter, there was not necessarily any discrepancy between the evidence of PW3 and that of PW1 and PW2.

26. I am satisfied that the appellant’s conviction was not unsafe or unsatisfactory and I dismiss the appeal against conviction.