HKSAR v. LO TAK HING AND ANOTHER

HCMA 57/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 57 OF 2003

(ON APPEAL FROM TWCC 3030 /2002)

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J U D G M E N T

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1. The 1st Appellant appeals against his conviction on one charge of Resisting a Police Officer in the Due Execution of his Duty, contrary to s. 63 of the Police Force Ordinance, Cap 232. The 2nd Appellant, who is the 1st Appellant's brother, appeals against his conviction on charges of Resisting a Police Officer, Obstructing a Public Place, contrary to s. 4A, the Summary Offences Ordinance, Cap. 228 and Hawking without a Licence.

2. The police answered a 999 call made by the 1st Appellant who was unhappy that a vehicle was blocking the entrance of a construction site to which he was trying to gain access. The 1st and 2nd Appellants were running a food delivery business which entailed delivering pre-ordered lunch boxes and drinks.

3. By the time the police arrived, the vehicle had been moved. The police at that time saw and heard the 2nd Appellant hawking lunch boxes and drinks near the entrance of the construction site and found that boxes and drinks were obstructing the pavement.

4. The 2nd Appellant denied selling anything and refused requests to produce his identity card. The 1st Appellant asked what was happening and took from the 2nd Appellant the bag that he had been using as a cash bag. Eventually after several refusals to produce his identity card, the 2nd Appellant was arrested and the police had to handcuff him to get him to their vehicle. The 1st Appellant refused to hand over the cash bag or produce his identity card when he was asked.

5. In a short space of time the 1st Appellant made various telephone calls, the first requesting an ambulance, again by 999 call. He rang PC 6031's (PW2) superior officer to complain about PC 6031 and also made a call to CAPO to enlarge this complaint; again a 999 call. A second police vehicle arrived at the scene in answer to the complaint; so did the ambulance. The ambulance's journey appeared to be entirely wasted as the Appellants' father, for whom the ambulance was supposedly needed, said it was unnecessary.

6. Eventually, the 1st Appellant was arrested. He said the cash bag belonged to him and threatened to accuse police of theft by shouting 'snatching' if the bag was removed from him. The police seized 6 lunch boxes and 117 cans of soft drinks at the scene.

7. The defence for each Appellant was similar. They had gone in their vehicle to deliver pre-ordered meals to the construction site. The 1st Appellant complained the police had falsely accused him of being a hawker and had abused him because they were annoyed at being called out by his complaint about the vehicle blocking access.

8. The 1st Appellant denied refusing to hand over the cash bag at the scene and said he had not been asked for it until he reached the police station; he complained about the poor behaviour of the police. He told the court that only pre-ordered lunches were sold. He had a list of such orders but was unsure what the 2nd Appellant was doing. He could not explain why some lunch boxes were found on the pavement and suggested to the court that the 2nd Appellant be asked about it.

9. The 2nd Appellant in evidence said he had produced his identity card immediately when asked and that, as far as he knew, the goods had been ordered by a Mr Wong. He himself had told people they could not have lunch boxes unless they had been ordered.

10. A witness, Mr Au Chi-hung (DW1), a delivery worker employed by, and giving evidence for, the Appellants, told the court that he had had a list of customers who had pre-ordered lunch boxes, but failed to give it to the police at the time because he was scared and did not know what to do.

11. The Appellants were represented at the hearing in the Magistracy but they appeared in person today, legal aid having been refused.

12. The written grounds of appeal put forward by each Appellant were similar: They were that the judge's attitude was not professional; the judge was "fidgety"; the judge did not understand the facts of the case; the interpreter did not interpret the evidence clearly and accurately; the judge did not listen carefully to the evidence given by the Appellants; the judge improperly admitted the evidence of the police witnesses even though it was contradictory and consisted of many doubtful points. There was a complaint that the evidence of each Appellant was rejected by the Magistrate. Another ground of appeal was that the police evidence was full of lies and that the police witnesses had given false evidence which had led to an unfair trial.

13. The 1st Appellant complained that not even a single word of Mr Au Chi Hung's evidence was mentioned by the Magistrate and that his evidence was ignored. This was patently not the case. Mr Au's evidence was mentioned and considered both in the Magistrate's oral reasons for verdict and in his more detailed Statement of Findings.

14. Today the grounds have been expanded a little further. The chief complaint appeared to be that the Magistrate made an incorrect finding that the 2nd Appellant was selling goods outside the construction site. The police witnesses were categorised as untrustworthy. The 2nd Appellant stated that the police officers had given false evidence. They had not checked properly to find out whether or not he was selling goods, or merely delivering pre-ordered goods. Further, an officer said to him at the site "I am framing you". Later there was a complaint to CAPO over various matters.

15. This was a case where the Magistrate had to assess the credibility of the witnesses against conflicting accounts; the crux of the case was whether pre-ordered goods were being delivered, or whether the 2nd Appellant was actually hawking outside the site.

16. The Magistrate looked carefully at all the evidence, including the evidence given by the Applicants and their defence witness. Having done so and having given himself the appropriate directions, he concluded that he accepted the evidence of the police officers and rejected the evidence of each Applicant.

17. He did accept that some lunches had been pre-ordered and were being delivered by the 1st Appellant, but on the evidence he was sure that the 2nd Appellant was selling to the general public by hawking as the police described. Boxes and drinks were found to have obstructed the pavement; there appeared to be no real defence put forward in respect of the obstruction charge and photographs showing the items at the scene were not disputed. The Magistrate was sure that the 1st Appellant had resisted the police and that the 2nd Appellant had done so.

18. The Magistrate dealt properly and fairly with the case and with the Appellants. None of the grounds of appeal elaborated on today by the Appellants has been substantiated. It appeared from the Magistrate's resumé of the facts that the 1st Appellant was trying to be as obstructive as possible during the incident and, in my view, he was fortunate to have avoided a charge of wasteful employment of police. The 1st Appellant appears also to have abused the 999 reporting system, in particular by the unnecessary call-out of an ambulance and the use of a 999 call to complain about a vehicle obstructing access.

19. These appeals are dismissed.