HKSAR v. DURRANT, SIMON RICHARD PAUL

HCMA127/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 127 OF 2010

(ON APPEAL FROM ESCC 1422 OF 2009)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted after a trial before Mr Victor So at Eastern Magistracy of an 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. He was sentenced to six weeks’ imprisonment. That sentence has now being served and the appellant appeals only his conviction.

2.  The prosecution case was that at about 1:50 p.m. on 21 February 2009 the appellant, who was a resident of Lamma Island, went to the Yung Shue Wan Police Post on the island and picked up the post’s register book at the reception desk.  As he looked through it PW1 (an on‑duty constable at the reception desk) asked him what he wanted.  The appellant said he had lost his bag and had made a report about that a few days earlier, but when asked did not give further details.  He refused to provide his identity card to PW1, became emotional and abused PW1.

3.  PW1 then summoned two colleagues who were patrolling nearby the post to return to the post.  As it eventuated those two other officers did not arrive back at the post until after the events we are concerned with.  In the meantime the appellant continued to flip through the pages of the register book and abuse PW1.  PW1 told him to stop looking through the book and the appellant brushed the desk top clean of its various books and documents, which then fell to the floor.

4.  The appellant then approached PW1 who told him to calm down.  Instead, the appellant grabbed PW1 by the arm and dragged him out from behind the reception desk.  During that struggle PW1 sustained some minor scratches.  It was that assault which formed the basis of the offence.

5.  PW2, a sergeant at the post, then joined in and attempted to restrain the appellant who resisted.  PW1, PW2 and the appellant then struggled.  The cook at the police post, PW3, also joined in and eventually the appellant was subdued and handcuffed.  He was later taken to the North Lamma Medical Clinic for examination.  The police witnesses claimed that the appellant appeared to be drunk at the time of the incident.

6.  The appellant, who was represented by experienced counsel at trial, gave evidence to the following effect.  He was not drunk, having consumed only a glass of red wine at lunch; he had gone to the police post after lunch to make an inquiry about his lost bag; he agreed that he had been asked for his identity card but had refused to provide it on the basis that, from his previous experience in the post when seeking information about a bicycle that he had lost, it was a waste of time to do so.  It was accepted by the defence case that the appellant had become abusive and agitated.  He had pointed to the photograph of a western police officer and then raised his voice and said that the post would be better managed by a westerner.  The appellant said, in evidence, he then felt a blow to the back of his head.  He turned and saw PW2, the sergeant, and two other officers.  He was then forced to the floor and punched on his chest by these officers and accused of being a trouble-maker, coward and of damaging a fish pond.  The attack lasted for about one minute.  He was handcuffed and later taken for a medical examination.

7.  The grounds of the appeal put forward by the appellant are numerous; some 32 in total through many are repetitive and many others, no doubt as a result of the appellant not being represented for the purpose of this appeal, are irrelevant or immaterial.

8.  In broad terms the appellant claims that at the time of his trial there had been in the media a number of reports of police misconduct, and that because of the undesirability of the appellant being acquitted and the reputation of the police being further tarnished there was a conspiracy involving the police, the government doctors who treated him, various other government officials and the magistracy to cover up or ignore evidence supporting his case and to ensure the police force did not suffer further embarrassment.

9.  Additionally, he points to the evidence at trial, as reflected in the magistrate’s findings and the submissions of counsel, and says that the evidence was insufficient to warrant his conviction.

10.  I will not deal with those complaints he makes which are either irrelevant or so trivial as to have no ability to affect the validity of his conviction but will, instead, refer to those which have prima facie more substance.

11.  The appellant firstly refers to improbabilities and inconsistencies in the evidence of PW1 and PW2.  He asserts that the police post is small and that PW2, the sergeant, was not present in the post at the beginning of the incident as alleged by both PW1 and PW2.  He says if the sergeant, a man he knew well, had been in the post it would have made no sense for the appellant to have spoken to PW1 instead of PW2. 

12.  I do not think there is any merit in this complaint. There is nothing unusual in an individual entering a police station and approaching the officer at the reception desk rather than any other particular officer he may know.

13.  The appellant points also to the contradictions between PW1 and PW2’s witness statements.  He says that in his statement PW1 referred throughout the incident to himself being involved in these events in the singular person, whereas PW2 refers to both of them being involved.  I do not think there is any substance in this complaint.  PW1’s statement, so far as it referred to himself in the singular, only did so in respect of the initial events following the arrival of the appellant at the reception desk and up to the point of time when the statement records PW1 being told by PW2 to contact the patrolling constables for assistance.  Henceforth the statement continues on the plain understanding PW2 was present. 

14.  The differences between the two witness statements of PW1 and PW2 are differences of style rather than substance.

15.  The next complaint made of the evidence of PW1 is that the appellant denies referring to him as a “faggot” while in the police post as PW1 had said.  Instead, the appellant says he only said this to PW1 later at the hospital as “a joke”. 

16.  I do not think this evidential dispute was of any great importance, and in any event there was no internal inconsistency in this regard in PW1’s evidence or between the evidence of PW1 and PW2.  It was simply a difference between the evidence of PW1 and the appellant as to when this particular insult was delivered by the appellant and can have had no effect on the credibility of PW1.

17.  Perhaps the largest number of complaints of the appellant concerned the question of whether or not he was drunk at the time of the offence.  PW1 and PW3 said that the appellant smelled strongly of alcohol.  This, as I have said, was denied by the appellant.

18.  The appellant, after his arrest, was taken to the North Lamma Clinic.  A nurse only was on duty.  She contacted a doctor (presumably by phone) and was instructed to refer the appellant to Queen Mary Hospital where the appellant was eventually examined and found to have “redness of the chest”.

19.  In any event, a test eventually done at the North Lamma Clinic (described as an H-stix test) gave results only for sugar in the appellant’s blood and did not specifically refer to the quantity of alcohol.  In evidence at trial the reason why no dedicated blood alcohol test was performed was not resolved and the magistrate’s finding on that was simply that no report of that test was produced before him.  That was the only finding he could make in the circumstances. 

20.  The appellant’s ground of appeal on this issue is in the following terms :

“Drunk and Disorderly Conduct : never defined and substantiated

       The appellant is charged with been drunken and disorderly, but there was no test conducted by any health staff, at the Lamma Clinic, at the Queen Mary Hospital or by any police officer to determine this claim as to his ‘drunkenness’.  No blood, urine, or breath tests were conducted.  It would not seem unreasonable that some test would have been conducted at one of the fore mentioned government departments to back the drunken claims.  The appellant did request a blood sample be taken at the Lamma Clinic, to do a blood alcohol test [BAC] if the appellant had any doubt as to this sobriety is would have been naïve to request such a test.”

21.  It appears that the appellant, not the police, requested a blood alcohol test.  Before me he said he did not pay for such a test.  That may be a reason why none was done.  In any event, accepting no test was done the point made by the appellant is that the police and the medical staff of the North Lamma Clinic and Queen Mary Hospital conspired so as to prevent a test being done, and by doing so prevented the appellant being able to prove he was not drunk at the time of the events in the police post. I note however that this matter formed no part of counsel’s submissions on behalf of the appellant at trial, and for that reason it was not dealt with by the magistrate in his findings.  I think there is good reason for that.  There is no logic or sense in such a conspiracy.  It is unrealistically wide ranging and motiveless so far as the hospital staff are concerned.  There is no merit in this complaint.

22.  Perhaps the complaint with most substance advanced by the appellant concerns the injuries he suffered as a result of the struggle in the police post.  When the appellant was examined in the evening of 21 February, i.e. the day of the offence, at Queen Mary Hospital he was found to have suffered, according to the reporting doctor, “redness over the upper chest”.  The appellant later went to a private doctor, Dr Phillip Lowe, who examined him on 24 February and found “bruising” on his chest, head, back and legs.

23.  I might note in passing that the appellant complains that this report was rejected as evidence.  If that is so there is no apparent reason for its rejection.  It is a perfectly straightforward report which contains a diagram illustrating where the doctor found various bruises on the appellant’s body.  I took it into account for the purposes of this appeal.

24.  At trial, however, the appellant relied on photographs, Exhibit D2, taken of him on the same day at an address on Lamma Island by a person describing himself as Mr Andre Eichman, an independent photographer.  Whatever the reason for the rejection of the doctor’s report, the photographs alleviated that rejection by themselves providing evidence of the appellant’s bruising in a far more realistic manner than the doctor’s hand‑drawn diagram.  No prejudice was suffered by the rejection of the report.

25.  Those photographs were considered by the magistrate.  They show a number of smaller bruises on the appellant’s chest, arms and back, with the bruise on the appellant’s upper left chest being very substantial.  The appellant’s argument before the magistrate, repeated before me, is that the size of the bruise on his chest, which his counsel described as “massive”, was inconsistent with the police evidence of a struggle with no blows thrown, and more consistent with the appellant’s case of being violently struck.

26.  There is one oddity concerning this particular bruise.  It is on the upper left chest of the appellant whereas the medical report from Queen Mary Hospital as to the appellant’s examination on 21 February 2009 records him as complaining of tenderness on the “front and right side of the chest”.  It was on this basis the magistrate rejected the appellant’s evidence that the injury was caused by his being struck on the chest by PW2’s punches.

27.  In any event, having considered this matter carefully, I do not think on the evidence before the magistrate that the bruise is inconsistent with the description of PW1, PW2 and PW3 of an ongoing struggle with the appellant; with him being forced to the floor during that struggle and with him continuing to struggle and kick out while the police tried to handcuff him while he was on the floor.

28.  In short, the bruise, while large, is not inconsistent with a struggle which required three persons to subdue the appellant and which continued for some time.

29.  Other grounds of appeal advanced by the appellant were inconsequential.  As an example he claims that he was denied access to a telephone so as to be able to contact a lawyer prior to being interviewed, but under caution he, as was his right, refused to answer any questions.

30.  Much of his submissions focused on aspects of the evidence of PW1 and PW2 with which he disagreed.  Those matters, or some of them at least, had been ventilated during the court hearing.  The appellant’s assertions that the two officers had lied in particular respects were repeated before me with nothing describable as independent support for those assertions being advanced, and in the result the appellant’s assertions do not, in my view, amount to sufficient to disturb the magistrate’s view of those witness’s credibility.  Plainly, once the police witness’s evidence was accepted, as it was, there was sufficient evidence to found the conviction.

31.  Some of the remaining grounds advanced by the appellant are simply misconceived, for example, the appellant complains that PW1 in his evidence refers to the appellant being taken after his arrest to “see a doctor” at the North Lamma Clinic.  It was common ground that there was no doctor there and that the appellant was seen by a nurse.  But it was pointed out at trial that PW1’s evidence in this regard had been mistranslated and that the term used by PW1 in his evidence had been in fact a general phrase meaning “to seek medical attention”.

32.  Other grounds reflect completely unjustified suspicions in the mind of the appellant, for example, he asserts that the changing of the case trial magistrate from Mr Mierczak to Mr So is somehow part of the conspiracy against him.  However such changes are part and parcel of the daily operation of a magistracy.  The appellant asserts also that the government psychiatrist at Western Psychiatric Clinic who examined him was a “mercenary” who was convinced his mental problems were due to alcoholism. 

33.  Nothing of any independent substance was advanced to support these assertions.

34.  There was nothing of consequence in the remaining grounds of appeal, and for the reasons I have given the appellant’s appeal against conviction is dismissed.