HKSAR v. KIRKHAM, MARK EDWARD

HCMA 658/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 658 OF 2015

(ON APPEAL FROM ESCC NO 693 OF 2015)

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J U D G M E N T

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Introduction

1.  The appellant faced two counts of “Assaulting a Police Officer”, contrary to section 63 of the Police Force Ordinance, Cap 232 at Eastern Magistracy.  He pleaded not guilty to both charges before Mr Jason Wan (“the Magistrate”) and he was acquitted of both charges after trial.  The prosecution later applied to review the acquittal of charge 2 and the verdict was subsequently reversed.  In the end, the appellant was convicted of charge 2 and was sentenced to 3 weeks’ imprisonment suspended for 12 months.

2.  This is the appellant’s appeal against conviction for charge 2.

Summary of the Evidence

3.  Mr Derek Wong, Senior Public Prosecutor, of the respondent has succinctly summarized the case of both parties in his written submission which I shall adopt in this judgment:-

“The Prosecution’s Case

3. The Prosecution called altogether 3 witnesses. PW1 is a civilian witness while PW1-2 are police officers which are the respective victims of the 1^st and 2^nd Charge.

4. On 16^th December 2014, PW1 parked his light goods vehicle (‘the vehicle’) at the roadside in Central district. Three foreign males (the Appellant and two other male hereinafter referred as ‘male 1’ and ‘male 2’) appeared. Male 2 tampered with the vehicle causing the glass window of the rear door thereof shattered. When Male 2 tried to leave the scene, PW1 chased after him but was obstructed by the Appellant and Male 1. A case was reported to a nearby police officer (PW2).

5. PW1-2 were unable to locate Male 2 but they managed to stop the Appellant and his wife. Upon enquiry by PW2, the Appellant became agitated and attempted to leave. PW2 did not let him go and there were some body contacts between them. In the heat, PW2 said the Appellant spat at his face 3 times. (1^st Charge) However, according PW1, the Appellant spat only once.

6. As PW2 was unable to control the Appellant, he summonsed for reinforcement. PW3 was one of the officers came to the scene. PW2 declared arrest. After learning what had happened from PW2, PW3 tried to arrest the Appellant for ‘assaulting a police officer’ and put handcuffs on him. However, the Appellant struggled so violently that both the Appellant and PW3 fell onto the ground. After handcuffing the Appellant, PW3 took the Appellant to the police vehicle in which Appellant kept on shoving and kicking. When PW3 tried to control the Appellant, he was bitten by the Appellant on his left forearm. (2^nd Charge) According to his medical report (Exh. P4), abrasion was detected on his left forearm.

The Defence’s case

7. The Appellant elected to give evidence and to call her wife as defence witness.

8. On the day in question, the Appellant went to a bar at Lan Kwai Fong, Central with his wife and some colleagues for drinks. They finished at around 7p.m. and were walking down D’Aguilar Street to look for taxi. When the group walked past the vehicle, one of the Appellant’s colleagues (‘Michael’) got into the van. Another colleague named Gordon opened the rear door of the vehicle with the intention of entrapping Michael in the van for fun but the glass of the rear door smashed as a result thereof. Gordon immediately left the scene and the rest of the group continued their journey to find taxi.

9. Suddenly, PW2 approached them. The Appellant asked PW2 what the problem was. As PW2 did not reply, the Appellant walked away. At this juncture, PW2 grabbed the Appellant and told him not to leave but did not explain the reason. The Appellant tried to free himself, and as a result, there were some pushing and shoving between them.

10. After more police officers had come, the Appellant was arrested and taken to the police vehicle. He was thrown into the vehicle and two officers held him down on the floor. The Appellant’s wife (DW) tried to get close but was pushed down by an officer. As the Appellant worried about the safety of his wife, he became even more emotional and struggle fiercely. At one point, PW3 used his hands to push against the Appellant’s throat to the extent that the Appellant was unable to breath. The Appellant instinctively bit PW3’s hand to try to break free.

11. The Appellant suffered multiple injuries in the incident and was taken to the hospital later. Apart from bruises on different parts of his body, his left knee suffered more serious injuries and required surgery later on.

12. DW claimed that the Appellant did not spit at PW2.  When she went forward to see what happened to the Appellant, she was pushed to the ground by an officer and injured her foot.”

Reasons for Verdict

4.  In his Statement of Finding, the Magistrate explained why he rejected the evidence of the appellant based on two reasons:-

“15. The defendant elected to give evidence. After careful consideration, I was sure he had not told the truth. The reasons were these:

(1) The defendant insisted that he did not understand why PW2 intercepted him. It cannot be true. The defendant witnessed what his colleague did to PW1’s vehicle. He should know full well that PW2 stopped him to investigate into that matter. Even he was not the person who caused the damage, it was not unreasonable for PW2 to make enquiry to him as he admitted he was present at the scene and witnessed the whole incident. The defendant said in evidence that he only came to know the reason of his being stopped when Station Sergeant Chow told him at very late stage. It is definitely a lie;

(2) The defendant said he bit PW3’s arm because he was pushed by PW3 on his throat and he was unable to breath. He therefore bit PW3’s arm to protect himself from being suffocated. I did not believe it was the truth. The defendant was sent to the hospital and examined by doctor after the incident. If he was really nearly strangled, injury or mark on his neck would definitely be found by doctor. There was no evidence that any injury was found on the defendant’s neck. That could only mean that the defendant was not telling the truth.

16. Base on the above analysis, I found the defendant was not telling the truth and I rejected his evidence.”

5.  The Magistrate then went on to explain why he still acquitted the appellant on charge 2 despite he had rejected the evidence of the appellant:-

“18. Concerning charge 2, as I accepted the evidence of PW3 and rejected the evidence of the defendant, I found that the defendant was not suffocated and bit PW3 to defend himself. However, I found that I could not rule out the possibility that the defendant bit PW3 out of panic. I found that the defendant might be affected by alcohol and the frustration caused by language barrier. I concluded that there was a possibility that he did not have intention to hurt PW3. As a result I also found the defendant not guilty of charge 2.”

Application for review by the Prosecution

6.  Following the “Not Guilty” verdicts on both charges, the prosecution applied to review only the acquittal of charge 2.  The prosecution submitted in the review hearing that self-induced intoxication is not a defence for the charge because it is a basic intent offence.  According to the facts as found by the court, the only logical conclusion must be a verdict of guilty. 

7.  The Magistrate reconsidered the evidence of the case and the submissions of both sides.  After re‑consideration, he agreed with the prosecution that self-induced intoxication is not a defence to the charge, the charge being a basic intent offence.  The appellant may still be convicted even if he was intoxicated to the extent that he did not know what he did, if it was self-intoxication. 

8.  The Magistrate explained that there was no dispute that the appellant did bite PW3’s arm in the case.  Further, there was no evidence that the appellant was so intoxicated that he did not know what he was doing.  The Magistrate found that even though the appellant might have consumed some alcohol, he remained sober at the material times.  After reconsidering the evidence, the only logical finding is that the appellant knew what he was doing and he bit PW3 intentionally. 

9.  At the review hearing, the defence replied that the acquittal on charge 2 was correct as the arrest was unlawful and the appellant was merely acting in self-defence. 

10.  The Magistrate agreed that if the arrest was unlawful, the arrested person may use reasonable force to resist the arrest or to protect himself.  However, in the present case, he found the arrest of the appellant to be a lawful one.  He reiterated that although he could not be sure about PW2’s evidence as far as charge 1 is concerned, he still believed the appellant had spat on PW2.  The Magistrate was of the view that when PW3 arrested the appellant, all it was required to make the arrest a lawful one was that there must be reasonable suspicion that the appellant had committed an arrestable offence.  He found that when PW3 arrested the appellant, he had reasonable suspicion to believe that the appellant had committed a criminal offence.  Therefore he found the arrest to be a lawful arrest.

11.  As to whether self-defence is a defence opened to the appellant, the Magistrate made the following finding:-

“23. Lastly, I had considered whether self-defence is a defence opened to the defendant. After much consideration, though I found that subjectively the defendant might think he was defending himself, objectively speaking the force he used was not reasonable or proportionate under all the circumstances of the case. I accepted that the defendant did not commit any crime when he was intercepted by PW2, and he was extremely frustrated by the language barrier. However, when PW3 arrested him, no excessive force was used against him and there was really no need for him to defend himself. He was handcuffed at the back because he kept on struggling. He might feel uncomfortable but he was not in danger. As PW3 was not attacking him, biting PW3’s arm could not be an act of self-defence. In the circumstances, I found that the defendant was not acting in self-defence.”

12.  The appellant was eventually convicted on charge 2.

Grounds of Appeal

13.  In the perfected grounds of appeal against conviction, Ms Elizabeth Herbert, counsel for the appellant both in the trial (including the review) and in the appeal hearing, has raised four grounds which can be summarized as follows:-

(1)   The Magistrate erred in finding the arrest of the appellant was lawful;

(2)   The Magistrate erred in rejecting the evidence of the appellant;

(3)   The Magistrate’s reliance on the lack of medical evidence to show that the appellant was telling the truth amounted to a reverse burden of proof.

(4)   By reasons of the above, the conviction of charge 2 was unsafe and unsatisfactory.

Ground (1)

14.  Ms. Herbert firstly complained that while it appeared that the  Magistrate originally accepted the arrest was illegal, after the review, he changed his position by ruling the arrest was lawful. 

15.  It is further submitted that if PW2’s evidence in relation to the spitting was rejected, it could not possibly be relied on to show he had reasonable suspicion of the spitting. 

16.  The appellant also relied heavily on the proposition that PW2 had already arrested the appellant for the criminal damage offence as and when he grabbed hold of him before the spitting occurredbecause at that moment the appellant was deprived of his liberty.  The arrest of the appellant at that juncture was unlawful because PW2 had said under cross-examination that he did not genuinely suspect the appellant of committing the offence and that he was merely carrying out enquiries.

17.  The respondent replied that during an application for review under section 104 of the Magistrates Ordinance, Cap 227, a Magistrate was entitled to reverse or vary his previous decision as long as he has given adequate and sound reasons. 

18.  The following is what the Magistrate had said about his assessment of PW2’s evidence on the spitting by the appellant (at paragraph 13 of the Statement of Finding) :-

“Concerning PW2, though I believed he could be telling the truth, I was not sure his evidence is reliable. PW2 repeated said the defendant spat at him 3 times during the time after the defendant fell on the ground and one Station Sergeant arrived at the scene. However, according to the video footage produced by the defence, if there was any spitting from defendant, it is quite unlikely to have taken place within that time frame. In the circumstances, I found that I was unable to fully rely on the evidence of PW2 and I did not accept his evidence.”

19.  It is clear from the above passage that it remains the finding of the Magistrate that the appellant had spat at PW2. It is only that he was not sure that the spitting occurred within the time frame as alleged by PW2.

20.  It is also the evidence of PW2 that when he later declared arrest of the appellant after he was spat on his face, it was for the offence of “Assaulting Police Officer”[1]. He has also told PW3 about the spitting when PW3 came to the assistance.

21.  In the circumstances, I agree that as far as the offence of “Assaulting a Police Officer in Due Execution of His Duty” is concerned, the two police officers (PW2-3) must have had reasonable suspicions, both subjectively and objectively, that the appellant had committed the offence and the arrest was therefore lawful.

22.  Ms Herbert was trying to argue that the arrest by PW2 on the appellant had already taken place even before the spitting when PW2 stopped the appellant for enquiries.  She cited Hussain v Chong Fook Kam [1970] AC 942 which was followed by the Court of Final Appeal in Yeung May Wan & Others v HKSAR [2005] 2 HKLRD 212 where Lord Delvin said (at 947):

“An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go. It does not occur when he stops an individual to make inquiries.”

23.   Ms Herbert submitted that according to the evidence of PW2, the appellant was already deprived of his liberty even before the spitting incident was alleged to have occurred because he was physically prevented from leaving.

24.  Mr Wong for the respondent replied however that when PW2 grabbed hold of the appellant in the very beginning, he was not arresting the appellant but he was just minded to make enquiries only[2]. The arrest of the appellant did not occur when PW2 just stopped the appellant to make enquiries.  According to section 54 of the Police Force Ordinance, Cap 232, PW2 also had power to detain the appellant for a reasonable period for enquiries[3]and the initial interception by PW2 was entirely lawful.

25.  I agree with the submission.  Clearly, what PW2 was trying to say in his testimony was when he first stopped the appellant, he was not thinking of making an arrest at that point of time but he just simply wanted to make some enquiries with the appellant first.  According to the evidence, at the material time after the rear window of the vehicle was broken, PW1 went up to PW2 informing him of the incident[4] and pointed at the appellant and his party [5].  In my judgment, there is thus ample evidence to conclude that the appellant and his party has acted in a suspicious manner and in the circumstances, there was simply nothing wrong for PW2 to detain the appellant for further enquiries according to section 54(1)(b) of Cap. 232.

26.  Even if the arrest of the appellant in relation to the alleged criminal damage may be unlawful, there is no question in my mind that the arrest of the appellant in relation to the alleged spitting on PW2 must be lawful.  Being the victim of an assault himself, there is no doubt that PW2 genuinely believed the appellant had assaulted him.  PW3 and other police constables also took part in arresting the appellant and they each qualified as an arresting officer[6]. Being told by his colleague PW2 that he was just spat on the face by the appellant, there was no reason for PW3 to doubt that the appellant had committed an assault on PW2.  The term ‘reasonably suspects’ is made up of two components[7]. In order for an arrest to be lawful, there is a need for genuine suspicion on the part of the arresting officer and reasonable grounds for that suspicion.  Furthermore, the standardset by section 50 of Cap 232 was a question of fact of degree and the test was not as high as a prima facie case[8]. As the Magistrate had already found a prima facie case for charge 1, the reasonable suspicion held by PW2 and PW3 must have had satisfied the standard set out in section 50 of Cap 232.

27.  I therefore agree with the respondent’s submission that the Magistrate was correct in ruling the arrest of the appellant was lawful and there is no merit in this ground of appeal.

Ground (2) - (3)

28.  The remaining two grounds of appeal raised by Ms. Herbert concern with how the Magistrate had approached the appellant’s case and his credibility in particular and especially the reasons he gave to reject the self-defence raised by the appellant.  Without rehearsing the detailed submissions by Ms. Herbert in full, I am of the view that ground two and ground three are nevertheless substantiated and I shall deal with the two grounds together. 

29.  A magistracy appeal is in the nature of re‑hearing and the appellate court will only depart from a magistrate’s determination of witness credibility if it is “plainly wrong” (see HKSAR v FOK, James Alistair [2015] 4 HKC 247).  At paragraph 10 the test of plainly wrong is said to be as follows:- 

“10. In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, the finding was one that no reasonable magistrate could have reached.”

30.  It is submitted by Ms. Herbert that had the Magistrate accepted the appellant’s evidence, he would not have been able to rule out the appellant’s evidence that he was acting in self-defence when he bit PW3 and would have acquitted the appellant. 

31.  The Magistrate rejected the evidence of the appellant for two reasons only as stated in paragraph 4 above.  The first reason concerns the allegation by the appellant that he did not understand why PW2 had intercepted him. 

32.  The respondent replied that the Magistrate bore in mind the appellant witnessed what his colleagues had done to the vehicle.[9] When PW2 approached the appellant, he was still with Michael.  There was sufficient basis and it was correct for the Magistrate to make such finding.  Furthermore, the appellant insisted during cross-examination that he did not think he would get into trouble because he was not involved in the commission of criminal damage offence.  However, the respondent submitted that ‘getting into trouble’ has a wider sense than incurring legal or criminal liability.  The fact that the police might make enquiry with the appellant and ask him to provide information of his friends or even testify could be classified as trouble.  As such, his explanation could not stand. 

33.  Ms. Herbert, however, submitted in detail that the appellant did not insist he did not understand why PW2 intercepted him and the Magistrate had misunderstood his evidence.  The appellant’s evidence was rather that he was not told why he could not leave by PW2.  Ms. Herbert had referred me to numerous relevant passages in the transcript to support her argument.

34.  The difference may be subtle but it is clear after reading the relevant parts of the transcript that the Magistrate has committed an error of finding by perhaps placing too much emphasis on the reasonableness on the part of PW2 to detain the appellant for enquiries regarding his involvement in the criminal damage offence. 

35.  As a lay person, bearing in mind the undisputed evidence was that the appellant did not take part in the smashing of the vehicle’s rear window, under the circumstances, it would not be unreasonable for him to think that he should not be arrested for the misdeed by another or even stopped from leaving by PW2.  According to the appellant, which was not disputed, he had repeatedly asked PW2 why he could not leave or if he was under arrest for what but PW2 did not answer.  It was not until he was handcuffed when he was finally told by a sergeant that he was arrested.  PW2 could have told the appellant that he was not making an arrest but he was still empowered under Cap. 232 to stop the appellant for making necessary enquiries to assist investigation but he did not. 

36.  The Magistrate was of course correct when he said it was not unreasonable for PW2 to make enquiry to the appellant as he admitted he was present at the scene and witnessed the whole incident.  However, the Magistrate apparently had failed to step into the appellant’s shoes when he said the appellant should know full well that PW2 stopped him to investigate the matter and concluded that the appellant was lying.  In so ruling, the Magistrate has obviously overlooked his other findings that he accepted that the appellant did not commit any crime when he was intercepted by PW2 and the appellant was extremely frustrated by the language barrier during his conversation with PW2.

37.  It is even not disputed in the prosecution case that all along, the appellant was demanding or pressing PW2 for a reply but PW2 did not answer.  It was not until after he was handcuffed that he was categorically informed for the first time by the police that he was under arrest.  It is one thing that PW2 was acting reasonably to detain the appellant for enquiries; it is quite another thing whether the appellant has been duly informed of the reasons by PW2 or indeed any police officer for his detention.  The ‘reason’ as referred by the appellant in his evidence was obviously a formal or official explanation from PW2 as why he had to be detained. To that extent, I find it difficult to understand how and why the Magistrate could come to the conclusion that the appellant was lying on this matter.

38.  Under the circumstances, there was nothing wrong for the appellant to insist on a formal reply and explanation from PW2 of whether and why he was being arrested.  In my judgment, there was also nothing wrong for the appellant to say in evidence that he only came to know why he was being detained when the police sergeant told him for the first time that he was under arrest for the criminal damage.

39.  Secondly, the Magistrate also rejected the claim by the appellant that he was nearly suffocated:-

“... if he was really nearly strangled, injury or mark on his neck would definitely be found by the doctor. There was no evidence that any injury was found on the defendant’s neck. That could only mean that the defendant was not telling the truth.”

40.  Ms. Herbert submitted that firstly, there would not necessarily be injury or mark to the appellant’s neck if his airway was restricted in the manner as described by the appellant and secondly, in so finding, the Magistrate was reversing the burden of proof.

41.  The respondent replied that the appellant claimed that when he was lying on the floor of the police vehicle, the right side of his body was touching the ground.  At the material time, he was looking up so that his windpipe was exposed and PW3 could block his windpipe with his forearm[10]. If that were the case, the appellant could have freed his airway by simply looking downwards instead of facing up.  The appellant was not lying flat on the ground.  There was nothing prevent him from changing his head direction to free his airway. 

42.  As for the complaint of reversing the burden of proof, the respondent reiterated that all that the Magistrate had said was that there was no evidence that any injury was found on the defendant’s neck[11].

43.  The respondent sought to argue that it is different from “there was no medical evidence that any injury was found on the defendant’s neck”.  If that is the case, it is arguable that the Magistrate required the defendant to provide medical proof which he has not duty to produce.  The respondent also said that even in his examination in chief, when he was asked as to the injuries sustained, the appellant did not mention any injuries on his neck[12]. There is therefore no evidence, be it from the doctor or from the appellant himself, that there was injury on the appellant’s neck which was compatible with the alleged forceful press by PW3.  The learned Magistrate did not reverse the burden of proof.  He simply used common sense to conclude the allegation of the appellant was bare assertion without any supporting evidence even from the appellant himself. 

44.  In my judgment, no matter how well the respondent had tried to put it, it does not alter the fact that the Magistrate disbelieved the appellant on this part due to the absence of any injury or visible injury on his neck as found by the doctor. The Magistrate categorically referred to medical evidence when he said:-

“The defendant was sent to the hospital and examined by doctor after the incident. If he was really nearly strangled, injury or mark on his neck would definitely be found by doctor.”

45.  While I would not go so far as Ms Herbert to say that the Magistrate was reversing the burden of proof, I have to agree with her submission that there would not necessarily be injury or mark to the appellant’s neck if his airway was restricted.  It is therefore unreasonable for the Magistrate to look for evidence of neck injury either from the doctor or from the appellant himself.  The respondent’s submission that the appellant could have freed his airway by looking downwards is irrelevant as the Magistrate did not reject his claim for near suffocation based on this reason.  He simply said there was no evidence from a doctor of neck injury but as said there was no basis or sufficient basis to hold that there must be some kind of injuries or marks found on the neck whenever a person is nearly suffocated.  The evidence of the appellant on near suffocation has thus been wrongly rejected by the Magistrate.  If the claim of near suffocation by PW3 is true or may be true, the Magistrate would not be able to hold that no excessive force was used against the appellant and there was no need for him to defend himself. The prosecution would be unable to prove beyond reasonable doubt that the appellant was not acting in self-defence. The appellant was handcuffed at the back and he was in danger of suffocation at the material time. It was only one bite on PW2’s left arm under panic and as such, the force could not be regarded as excessive.

Conclusion

46.  Based on the above reasons, the appellant’s version of events was unjustifiably disbelieved by the Magistrate.  The conviction for charge 2 was unsafe and unsatisfactory and as a result, the appeal is allowed and the conviction for charge 2 is quashed accordingly.

Costs

(1)   Costs of the appeal to the appellant, to be taxed if not agreed, save in respect of the costs in relation to ground 1 of the Perfected Grounds of Appeal.

(2)   any application for costs by the appellant in relation to costs of the trial and/or review, together with written submissions, be filed with the Court within 14 days and any reply by the respondent, together with any written submissions, be filed with the Court within 14 days thereafter.