HKSAR v. Kee Wing Hong

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 187 OF 1998

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J U D G M E N T

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1. The 1st Appellant appeals against his conviction for assaulting a police officer, an event that took place on 24th November 1997, according to the charge. The grounds of appeal are that the Magistrate was in error in holding the evidence of police officers was in a special and more reliable category than that of other witnesses. A second ground was that he wrongly put a positive burden on the Appellant to prove his allegations. The third ground is that he failed to find an injury suffered by the Appellant was inconsistent with his allegations of having been stamped on by one of the alleged victims. The fourth ground is that he failed to consider adequately the many discrepancies in the prosecution case.

2. The events relating to the charge took place when a Sergeant and another police officer were supervising the removal of signboards outside an establishment in Portland Street. In respect of the first ground, I have considered the part of the Magistrate's finding complained of where the Magistrate said in his findings that "Police Officers are trained to remember details. They are often more reliable than laymen". It was submitted that the Magistrate was putting police officers into a special category of witness. While I accept that this is an unfortunate form of wording, in the context of the whole paragraph and of the findings I do not consider it significant. The reality is that police officers are trained to remember details; whether they do or not is a matter for the Magistrate to assess. They may be more reliable than laymen in regard to special matters they have to deal with in their police capacity. In this context, the Magistrate was looking at the question of who could, or did, hear what was stated in relation to the proximity of by-standers to the Sergeant and the Appellant at the time Appellant's misbehaviour in jeering and swearing was complained of. I do not consider that the Magistrate was actually putting the officers into a special category, although he has worded this paragraph poorly. I dismiss the first ground.

3. In respect of the second ground, that the Magistrate put a burden on the Appellant, I have considered the details of the transcript in this regard and am satisfied that the Magistrate did not put any onus on the Appellant to prove his allegations. All he was doing was giving an explanation of why, for various reasons, he did not accept the account given by the Appellant.

4. Similarly, in respect of the third ground that he failed to find the injuries consistent with allegations by the Appellant that he had been stamped on, the Magistrate considered this evidence in the context of whether or not he believed the police witnesses and he was entitled to come to the conclusion that he did.

5. In respect of various discrepancies, it was submitted that the Magistrate failed to take those into account. I have read the Statement of Findings and note that the Magistrate, who was not obliged to go into minute detail as to every pattern of thought that he followed, did in fact consider the salient discrepancies in the prosecution case and was well aware of them in reaching his decision.

6. The fact that these events were confusing, as counsel for the Appellant suggested, did put the Magistrate in some difficulty in assessing evidence. That is a common situation in which Magistrates often find themselves. However, that, too, was a matter that was in the Magistrate's mind and the Statement of Findings deals with it adequately. This appeal is dismissed.