HKSAR v. Chan Pak Yeung

[English Translation - 英譯本]

HCMA 575/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 575 OF 2016

(ON APPEAL FROM KCCC 514 OF 2016)

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J U D G M E N T

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1.The appellant was charged with two offences, namely one count of “assaulting a police officer in the due execution of his duty” (Charge 1) and one count of “resisting a police officer in the due execution of his duty” (Charge 2), both contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212, Laws of Hong Kong.

2.The appellant pleaded not guilty and was found guilty of both charges after trial by Mr SO Wai‑tak, a Magistrate sitting at Kowloon City Magistrates’ Courts.

3.On Charge 1, the appellant was sentenced to 9 months’ imprisonment. On Charge 2, the appellant was sentenced to 4 months’ imprisonment.  The two sentences were ordered to run concurrently, making a total sentence of 9 months’ imprisonment.

4.The appellant appeals against his convictions and sentences.

Facts

5.The magistrate set out the prosecution case and the defence case in his Statement of Findings, which I shall adopt below:

“Prosecution Case

4. The prosecution mainly relied on the evidence of 3 police officers, and further called PW4 and PW5 to be cross-examined by the defence.

5. In short, at 11:35 pm on 8 February 2016, PW1 and PW2, both attached to Police Tactical Unit, Kowloon East, having received an order, arrived at the junction of Nathan Road and Nelson Street to carry out an operation to cordon off the road at MTR Exit E1 to prevent rally participants from entering Portland Street.

6. At 3:30 am the next morning, they saw 20 to 30 people in the Tsim Sha Tsui‑bound lanes of Nathan Road. Some of these people were wearing face masks and gloves and they piled up miscellaneous objects such as rubbish bins, traffic cones and recycling recollection boxes on the traffic lanes, resulting in obstruction. Therefore, they went up, stepped across the flowerbed dividing Nathan Road, issued warnings to those present and cleared the miscellaneous objects. There were about 200 to 300 people yelling and making a lot of noise at the scene

Charge 1

7. When PW1 and his team members were about to jointly remove a metal recycling recollection box, a man wearing a black top, blue pants, dark shoes and a face mask threw a plastic bottle containing a transparent liquid at him from the pavement approximately three feet away. The bottle landed on his left shank. He then shouted at the man to stop, but the man picked up another plastic water bottle from the ground and threw it at him again. The bottle landed on his chest. Thereafter, the man turned and fled in the direction of Prince Edward. He, together with PW2, immediately went up in pursuit. Eventually, it took them less than 5 seconds to intercept the man approximately 5 metres away.

Charge 2

8. When PW1 was pressing the man on his shoulders with both hands, he declared an arrest on him for “assault”. However, the man kept wriggling his upper body, and pushed away PW1 with both hands and kicked him to try to break free from the police officer. At this juncture, PW3 joined in to reinforce. However, the man kept putting up vigorous resistance. PW1 was only able to handcuff his right hand. The man kept curling up his body and placed his hands on his chest. During the period, PW1 made repeated warnings only to be disregarded by the man.

9. During the struggle, the ra[lly] participants at the scene kept yelling and shouting “release him”, and threw objects such as water bottles and rubbish bin lids at the police. Eventually, the police managed to handcuff the man at the back.

10. PW1 testified that he had never lost sight of the man, his observation was not impinged by any obstacles between them, and there was sufficient lighting. The man was no one else but the defendant.

11. At about 4:03 am the same day, the defendant was taken away from the scene to Mong Kok Police Station. Later, when seeing the Duty Officer at the Police Station, the defendant did not make any complaints, ask to see the doctor or raise any requests. There was an injury of about 6 cm on his right wrist at that time. In the Police Station, the police seized a snood and a glove from the defendant.

12. At about 6 am the same morning, PW1 received medical attention and treatment at the Accident & Emergency Department of Princess Margaret Hospital. He was diagnosed as having a 5 cm circular bruise on his chest and abrasions on both knees.

13. During the material time, the ground floor shop at No. 642 Nathan Road was equipped with a CCTV system with recording functions. The police officers’ attempt to subdue the defendant was captured on video. The video clip extracted from the system was produced as Exhibits P1 and P2. In addition, from the television channel TVB Interactive News Channel, the police extracted a video clip, produced as Exhibit 3, which captured the situation at the later stage of the incident when the defendant was already sitting outside the shop at No. 642.

Defence case

14. The defendant elected to testify. He also called Reverend Lee as a character witness.

15. The defendant testified that when he read online news after work that night, he came to know there had been an incident in Mong Kok in which a police officer fired his gun. Considering it a major social event, he therefore proceeded to the Mong Kok area to gain an understanding of the situation, bringing with him a snood and gloves. He brought along the gear to protect himself in case the police used pepper spray, or to prevent his friends or family from identifying him as being at the scene.

16. At the material time, upon seeing police officers next to a metal recycling recollection box on the road, he went up to take a look to find out what it was about. He was then standing behind two rows of people, and the crowd was surrounding the police officers in a half-moon shape. All of a sudden, in front of him to the left, a man in black with his face covered threw a plastic water bottle at the police and the bottle landed on a police officer. The police officer shouted at him to stop but to no avail. The man in black threw another plastic water bottle at the police officer before turning and fleeing in the direction of Prince Edward.

17. While running in the direction of Prince Edward in pursuit of the man in black, the police officer suddenly threw himself at him without letting him explain. Out of fear that he would be injured from being pressed on the ground, he kept exerting force with his legs to maintain his balance. During the period, his right hand was held by the police officer, and his spectacles were snatched away. A female voice kept demanding him to kneel down. However, the police officer kept trying to throw him to the ground. They continuously wrestled with each other. Finally, while sitting outside the shop at No. 642, he co-operated by letting the police officer handcuff him as he felt it was safe.

18. In short, he did not throw plastic water bottles at the police officer at the material time. On the contrary, the police officer misidentified him as the suspect. He never put up vigorous resistance. The wrestle arose only out of his attempt to maintain his balance.

19. Reverend Lee has known the defendant since 2009.  From his observation, the defendant has always been loving and patient in teaching children the truths of the Bible; and although the defendant is keen on current affairs and is a man of principle, he would not act in contravention of the law.”

On the guilty verdict

6.Having given himself the relevant directions on the law (paragraphs 20 and 21), the magistrate spent the length of 18 paragraphs (paragraphs 22 to 39) on an analysis of the testimonies and evidence of the parties before finally finding the appellant to be not an honest and reliable witness and rejecting his testimony.  The magistrate made the findings of fact that the appellant was the person who had thrown a water bottle twice at PW1, and after the police officer had declared arrest on him, the appellant kept struggling and resisting the arrest by the police officer who was then in the due execution of his duty.  The magistrate convicted the appellant of both counts.

Appeal against conviction

7.On behalf of the appellant, Mr Robert PANG SC, leading Mr Tobias CHENG, put forward a total of 3 grounds of appeal:

(1)   The magistrate erred in accepting the evidence of PW1, PW2 and PW3;

(2)   The magistrate erred in adopting an inappropriate standard of proof in rejecting the appellant’s evidence;

(3)   The magistrate erred in rejecting the appellant’s testimony. In particular, he erred in using the appellant’s continuous silence at the time of his arrest as a reason, thus infringing upon the appellant’s right to silence.

Ground of appeal (1): The magistrate erred in accepting the evidence of PW1, PW2 and PW3

8.The appellant submitted that the magistrate had neglected to consider the credibility of PW1 to PW3: In paragraphs 23 to 32 of the Statement of Findings, the magistrate merely analyzed and “explained” the complaints raised by the defence.

9.The appellant submitted that it was untenable for the magistrate to state that the testimonies of the police officers had remained totally unshaken under cross-examination as PW2’s version in court was that he was not sure who had assisted him in moving the recollection box, whereas in the written record he was “sure” about the matter and recorded the colleague who had moved the recollection box together with him.

10.In addition, it was illogical for the magistrate to accept the evidence of PW1 and PW2, and no consideration was given to the inherent improbabilities: On the one hand, the magistrate took the view that the differences and the inadequacies in PW1 and PW2’s testimonies in respect of the appearance/face of the person throwing the water bottles were attributable to factors such as the presence of over 100 rally participants at that time, the chaotic situation, the short span of time, the attempt by PW1 and PW2 at that time to clear the recollection box obstructing the road on the one hand and the need for them to pay attention to those creating an uproar at the scene on the other; on the other hand, the magistrate had failed to take into consideration the same factors when he accepted PW1 and PW2’s statements that the appellant had never left their line of sight.

Respondent’s reply

11.Mr Ira LUI, Senior Public Prosecutor, on behalf of the respondent, replied that the magistrate had considered and assessed the evidence of all the witnesses in an overall rather than an isolated manner.

12.The respondent stated that the facts of the case were simple and the case occurred over just a few minutes.  The contents of the testimonies of all the prosecution witnesses were also simple and direct.  The magistrate had correctly considered the presence or otherwise of inherent improbabilities in the contents of the testimonies of the prosecution witnesses, and whether they had been shaken under cross-examination.  The reasoning of his analysis was sound.

13.The respondent stated that the analysis by the magistrate in paragraphs 23 to 32 of the Statement of Findings aimed at replying to and dealing with the various doubts raised by counsel for the defence in the final submissions, and his analysis was reasonable and sensible.

14.The respondent also pointed out that PW2 did not state that  the matter he had put down in the written statement was one that he was “sure” about, and it was merely the view the defence had come to after cross-examination.  Further, as the defence did not dispute that various police officers including PW1 and PW2 had jointly moved the recollection box before the material time, and the appellant also confirmed this during his testimony, the actual identities of other officers who had moved the recollection box were indeed a trivial side issue.  Even if PW2 appeared to be unsure or even somewhat shaken on this immaterial detail, this did not have any impact on the overall credibility of his testimony.

15.The respondent was of the view that a careful reading of the analysis in paragraphs 24 to 28 of the Statement of Findings would show that the finding of the magistrate was that given the utter chaos at the scene at the material time and the fact that the appellant was wearing a face mask, it was indeed not surprising for the police officer, who had a short period to make his observation, to be unable to further state accurately whether the appellant was wearing spectacles apart from describing the appearance and clothing of the assailant.

16.The respondent stated that the identification evidence in the case was mainly based on PW1 and PW2, who started to pay attention to the appellant after an object was thrown at the former, and who intercepted the appellant 5 metres away in less than 5 seconds after he took to his heels.  During the period, the appellant was all along within the line of sight of the two prosecution witnesses, and there were not any obstacles in between obstructing their observation.  Thus, it was appropriate for the magistrate to find that “it was unimportant whether the police officers were able to recall whether the man was wearing spectacles”.

Analysis by the magistrate

17.The magistrate set out his analysis in the Statement of Findings:

“23. The defence stated that the police officers went on duty in the afternoon that day, and were responsible for crowd control at the parade of floats in Tsim Sha Tsui. As at the material time, having been on continuous duty for about 12 hours, they should have been very tired. In addition, in the chaos at the time, PW1 and PW2, as professional police officers, were unable to recall whether the defendant was wearing spectacles then. This showed the poor quality of the observations. Besides, PW1 did not record in his written witness statement whether the defendant was wearing spectacles but stated under cross-examination that the fact that an event was not written down did not mean it did not occur. This was hard to believe.

24. I consider that with over a hundred rally participants at the scene then, it was, [of] course, a highly chaotic situation. On the one hand, PW1 and PW2 were trying to clear the recollection box blocking the road, and, on the other hand, they needed to pay attention to the people creating an uproar at the scene. Therefore, it was indeed not surprising for PW1 to be unable to tell whether the man whose face was covered and who had thrown a plastic water bottle twice within a short span of time was wearing spectacles or not.

25. Further, [what] we must not ignore is that identification in the case was not reliant on the recognition of the man’s face by the police officer. PW 1’s testimony went like this -- before assisting to remove the recollection box, he had already taken notice of the man 3 metres way on the pavement at the time; after the first time the plastic water bottle landed on him, he immediately shouted at that man to stop, and after the second time the plastic water bottle was thrown, he immediately went up in pursuit of the man; during the period, the man never left his line of sight and his view was not in any way obstructed. Therefore, it was unimportant whether the police officer was able to recall whether the man was wearing spectacles.

26. When the police officers were making written witness statements, they were only required to put down what they were sure about. For descriptions of appearance they were not sure about, there was simply no way for them to put them down. I consider that their replies under cross-examination were reasonable and sensible.

27. The defence also stated that as PW1 had long taken notice of the man on the pavement, why was he not on guard at all against having water bottles thrown at him? I consider that given the situation the police officers were in at that time, they needed to pay attention to the rally participants at the scene as well as clear the obstacle, the complaint by the defence was nothing but nitpicking.

28. As to whether, according to PW1, the man was in blue jeans or blue pants, this was a triviality irrelevant to the main issue and not important at all.

29. The defence complained that PW2 did not mention in his written witness statement that PW1 was pushed away by the defendant, and this was not captured on the CCTV footage either. First, the video footage only captured “part of” of the episode in which the police officers attempted to subdue the defendant; moreover, at the same time as PW2 was taking part in attempting to subdue the defendant, he also had to pay attention to the surroundings. For instance, as can be seen from the footage, some of those present kept throwing objects at the police officers. Therefore, how could PW2 have focused his whole attention on all physical contacts between PW1 and the defendant?

30. The defence also stated that PW1 did not recall matters such as at which stage PW3 joined in to assist, what PW3 had said and when the defendant lost his spectacles. By reason of the situation then, it would be impractical for us to require PW1 to remember each and every detail with clarity and precision like a video recorder.

31. The defence strenuously submitted that there were striking similarities in terms of sequence and narration of events between the written witness statements of PW1 to PW3, giving rise to a suspicion of “collusion in making consistent witness statements”. I am unable to agree. At the time, the police officers were in the same situation experiencing the same incident. It was not surprising for them to record a similar sequence of the incident. Besides, the relevant paragraphs read out by the defence in cross-examination mainly concerned background information not in dispute, such as the police officers’ moving the recollection box. Indeed, as stated by the prosecution, the relevant paragraphs were only written in everyday language without any wording which is particularly difficult or not in general use. I consider that the complaint by the defence was not convincing.

32. The defence also stated that the police did not attempt to search for the weapons, that is, the plastic water bottles, at the scene afterwards. As can be seen from the footage, quite a number of plastic water bottles were rolling along the ground towards the police officers at the scene. To require the police officers to search for plastic water bottles that should have been unmarked in the chaotic situation then would be almost an impossible mission.

33. Adopting an overall view at the totality of the evidence of all the police officers, their testimonies were not only simple and direct but were also completely unshaken under cross-examination, let alone the presence of any inherent improbabilities. I find them all to be honest and reliable witnesses and accept their evidence. The identification evidence was also accurate and clear.

My considerations

18.I agree in full with the submissions of Mr LUI, Senior Public Prosecutor.  The magistrate did not neglect to consider the credibility of the 3 prosecution witnesses.  Their evidence was not illogical either.  The issue in the case was not whether the prosecution witnesses recalled who assisted who with moving the recollection box but whether the prosecution witnesses correctly identified the appellant as the person throwing the plastic water bottles.  Although PW1 had been on duty for 12 hours at the material time (slightly past 3 am in the small hours) and should have been quite tired, according to the testimonies of the parties, the situation was relatively calm immediately before the first water bottle was thrown (Appeal Bundle, page 84I).  PW1 had already paid attention to the man 3 metres away on the pavement before he assisted with moving the recollection box.  After the first water bottle landed on him, he immediately shouted at the man to stop, and the man went on to pick up another plastic water bottle from the ground and throw it at PW1.  PW1 immediately went up in pursuit, the duration (less than 5 seconds) and distance (approximately 5 metres) of which were both short. The man did not leave PW1’s line of sight.  Under such circumstances, PW1 did not rely on the man’s face to make the identification.  I agree with the analysis by the magistrate.  Under such circumstances, whether the police officers were able to recall whether the man was wearing spectacles was unimportant.

19.This ground of appeal is not substantiated.

Ground of appeal (2): The magistrate erred in adopting an inappropriate standard of proof in rejecting the appellant’s evidence

20.The appellant submitted that the Court of Appeal had expressly stated in multiple cases that the correct consideration is not whether the jury positively believe the defence evidence but whether the defence evidence may be true.  The judge shall give the “Liberato” direction to the jury as to the correct question to ask being “whether it may be true” instead of “whether it is credible”.

21.The appellant cited HKSAR v Mosen [2011] 1 HKLRD 45, in which at paragraph 12 on page 49, the Court of Appeal expressly stated:

“that even if they did not positively believe the evidence of the defendant, they could not find an issue against him contrary to that evidence if that evidence gave rise to a reasonable doubt on that issue”

22.The appellant also cited HKSAR v Chan Chi Cheung & Ors [2016] 1 HKLRD 1433, in which at paragraph 67, the Court of Final Appeal judgment in Jim Fai v HKSAR (2006) 9 HKCFAR 85 was cited:

“The principles set down by the Court of Final Appeal in Jim Fai as to what directions should be given to the jury about the treatment of defence evidence and prosecution evidence are that there is a fundamental difference between the treatment of defence evidence and prosecution evidence in the jury’s deliberation of their verdict. It is only when the jury feel quite sure that the prosecution evidence is true and can be relied on that they can convict the accused. If they disbelieve the prosecution evidence or entertain a reasonable doubt in such evidence, they are not to convict on the basis of it. On the other hand, even if the jury totally reject the defence evidence, they still have to be sure that the prosecution evidence is true and that there is no reasonable doubt before they can convict the accused. If they think that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case. In that case, the jury have to acquit him.

68. It appears that the magistrate had only considered whether the evidence of D1 and D3 was credible, namely whether it is true but did not consider whether the evidence adduced by D1 and D3 may be true.”

23.The appellant stated that the learned magistrate embarked on his analysis of the appellant’s evidence from paragraph 35 of the Statement of Findings.  Apart from stating his view that certain aspects of the appellant’s evidence were capable of giving rise to doubts, the learned magistrate did not analyze the appellant’s testimony on the whole.  Then, at paragraph 40, the learned magistrate made the following finding:

“I find that the defendant was not an honest and reliable witness, and reject his evidence.”

24.The appellant stated that the learned magistrate required the appellant to be an honest and reliable witness before he would accept his evidence.  Although the learned magistrate had reminded himself of the burden of proof, due to the fact that in considering the appellant’s testimony, the learned magistrate’s consideration was “whether it is credible” instead of “whether it may be true”, he may not have genuinely and correctly put the relevant principle to use.  The learned magistrate had already plainly erred on this fundamental principle; thus, the conviction in the present case was unsafe.

Respondent’s reply

25.The respondent replied that before the learned magistrate analyzed the evidence in the present case, he had, at paragraph 20 of the Statement of Findings, made it clear from the outset that the burden of proof was on the prosecution, the standard of proof was beyond a reasonable doubt and the appellant did not bear any burden of proof.  Thereafter, from paragraphs 22 to 39, the learned magistrate made a detailed analysis of the evidence and the parties’ arguments, and finally, at paragraph 40, made the finding that the appellant “is not an honest and reliable witness and reject his evidence”, but emphasising at the same time that although the appellant’s evidence was rejected, the burden of proof remained on the prosecution.

26.The respondent stated that all factual evidence from the defence came from the appellant’s testimony, and Reverend Lee, the character witness called by the defence, was not an eyewitness to the course of events in the case and thus unable to assist the court.  After considering the evidence on the whole, the magistrate decided not to believe the appellant and rejected his evidence in its entirety.  As such, the existence of any “reasonable doubt” in the case was out of the question.

27.The respondent agreed that “reasonable doubt” did not necessarily have to arise from the defence case and could also arise from the prosecution case or undisputed evidence in the case.

28.The respondent was of the view that as the magistrate had particularly reminded himself of the burden of proof being on the prosecution and the standard being beyond a reasonable doubt, he must have fully grasped the meaning of “reasonable doubt”.  Apart from pointing out that the magistrate referred to the appellant as not being “honest and reliable” when he rejected his testimony, which showed the magistrate might have misunderstood the standard of proof, the appellant had not put forward any other arguments.

29.The respondent pointed out that the present case was heard by a magistrate on his own, which was quite different from the many cases cited by the appellant, such as Mosen and Jim Fai, which were heard by and before a judge and a jury.

30.The respondent was of the view that as the magistrate had a wealth of judicial experience and his analysis of the evidence was extremely detailed, there was indeed no reason for the court, on the mere basis of the use of one phrase, to suspect or even find that he had misunderstood or neglected such an important and fundamental legal principle.

31.The appellant heavily relied on Chan Chi Cheung, in particular by citing paragraphs 66 to 68 of the judgment.  The respondent, while in full agreement with the judgment and the reasons for judgment in that case, was of the view that it was obviously not on the mere basis of the use of the phrase “whether it is credible” in the analysis of the evidence of the appellants by the trial magistrate that the Court of First Instance came to the conclusion that she had not considered “whether it may be true” regarding the evidence of the first and the third appellants.

32.The respondent was of the view that it was on the basis that the trial magistrate had not given full consideration to the variety of objective evidence, including evidence from the prosecution’s case, capable of supporting the defence case that the Court of First Instance, on appeal, came to the conclusion that the trial magistrate may not have correctly applied the standard of proof and the conviction in the case was unsafe.  The appellant’s submissions appeared to have oversimplified the reasoning of the Court of First Instance and completely disregarded the detailed analysis in paragraphs 51 to 74 of the judgment.

33.The respondent also cited HKSAR v Mang Yat To HCMA 606/2015 to state that the Court of First Instance had also expressly refuted similar arguments when dealing with a recent magistracy appeal.

Analysis by the magistrate

34.The magistrate set out his analysis in his Statement of Findings:

“34. As to the evidence from the defendant, first of all, I find without hesitation that Reverend Lee was an honest and reliable witness. As such, in assessing the defendant’s testimony, I bore in mind he is a person of a positively good character.

35. The defendant testified that when he became aware of the gun-firing incident, he wanted to go to Mong Kok to get an understanding of the situation. Also, based on his past experience at rallies, he equipped himself with a snood and gloves only to prevent himself from being inadvertently pepper-sprayed by the police. I consider that if he had only wanted to understand what had happened at that time without intending to take part in the rally, it would simply have been unnecessary for him to bring along the gear. Taking a step back, even if the snood could have offered protection for the mouth and the nose, what would the gloves have been used for? I consider that the reason for going to Mong Kok as he claimed was only an attempt to tone down the extent of his participation that night.

36. Further, he alleged that the incident in which he was mistakenly subdued by the police occurred around 15 minutes after his arrival at the scene alone. He wandered around in the street during the 15 minutes. How would that have helped him understand the incident?

37. After the police officer threw himself at him, he maintained his balance throughout with both legs, without even knowing his right hand was handcuffed. It can be seen from the video footage that he curled up his body for some time with both hands placed on the chest. He simply could not have been unaware of the fact that his right hand had been handcuffed.

38. Besides, he explained that he had never liked talking to the police and thus he had not spoken a word at the material time. From his testimony, as he was fully aware that the police officers were intent on pursuing and intercepting the person throwing the water bottles, why hadn’t he even questioned the police once instead of remaining silent throughout when he himself was innocently embroiled? This defies common sense.

39. I consider that if he had only wanted to avoid being pressed on the ground but had been ready to co-operate, he could have loosened both hands for the police to handcuff. However, as can be seen from the video footage, it took the effort of 3 police officers in a struggle between the parties lasting several minutes to finally handcuff the defendant at the back. The defendant’s version that he was maintaining balance is not credible whatsoever.

40. I find that the defendant was not an honest and reliable witness and reject his evidence. Although I reject his evidence, the burden of proof remained on the prosecution.”

My considerations

35.I agree with the submissions and arguments of the respondent.  The magistrate has a wealth of judicial experience and fully understands the standard and the burden of proof.  Although he stated that “the appellant was not an honest and reliable witness, and rejected his evidence” after analysis, I do not agree with the appellant that the magistrate had failed to consider whether the appellant’s testimony may have been true.  The analysis by the magistrate clearly shows that he considered that the appellant’s testimony could not have been true; thus, the appellant’s testimony did not give rise to any reasonable doubts in the prosecution case.

36.It should be noted that it was not necessary for the magistrate to give a full account of what he had gone through in his mind.  A single magistrate (especially an experienced magistrate) cannot be compared to a lay jury.  Indeed, unnecessary disputes could have been avoided had the magistrate made it clear that after his consideration and analysis, he was of the view that the defendant’s testimony was not true and could not have been true.

37.I consider the facts of this case to be simple and direct, and cannot be compared with those in Chan Chi Cheung.  Chan Chi Cheung was an appeal I had heard and determined.  In that case, I considered that there was a variety of evidence in support of the defence case -- especially evidence from the prosecution, but the magistrate had failed to give full consideration to such evidence.

38.This ground of appeal is not substantiated.

Ground of appeal (3): The magistrate infringed upon the appellant’s right to silence in rejecting his evidence

39.The appellant submitted that the magistrate had infringed upon the appellant’s right to silence in rejecting his evidence on the ground that it defied common sense for the appellant to have remained silent throughout at the time of his arrest.

40.The appellant stated that the Court of Final Appeal had on many occasions emphasized the importance of the right to silence of an arrested person.  In Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600, at paragraph 55:

“We agree with the reasoning of the majority in Petty & Another v R (1991) 55 A Crim R 322. We recognize that it is a matter of ordinary experience that a failure to put forward an innocent explanation when given an opportunity to do so may support an inference that any later explanation is false but as to the nice distinction drawn in R v Littleboy [1934] 2 KB 408 and later R v Ryan (1966) 50 Cr App R 144 there is doubt as to whether there is a real distinction between using silence to infer guilt and using it to attack the weight of an account given at trial but not earlier. Even if there is such a distinction, it is one which would be difficult for a jury to understand or apply. There is a right to silence. And in consequence of this right, suspected persons in Hong Kong should be -- and routinely are -- given a caution informing them in unqualified terms that they need not speak. In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.”

41.In HKSAR v Ata Asaf (2016) 19 HKCFAR 225, at paragraph 40 on page 240:

“there is a real risk here that the jury may have embarked on an impermissible line of reasoning, viz.: because the appellant did not mention something helpful to his defence at the earliest opportunity, that defence was not to be believed.”

Respondent’s reply

42.The respondent agreed that the magistrate had infringed upon the appellant’s right to silence in drawing inferences against him by reason of his silence under arrest.  However, the respondent emphasized that the appeal was dealt with by way of a “rehearing” and I would still arrive at the conclusion that the appellant’s testimony was unreasonable and that the magistrate’s finding was correct after scrutinizing all the evidence in the case.

My considerations

43.Indeed, as the parties agreed, the magistrate had infringed upon the appellant’s right to silence in erroneously relying on his not questioning the police officers or making other oral responses.

44.It is a very serious error to infringe upon a defendant’s right to silence.  I have perused the appeal bundle, which shows that in fact, the prosecution submitted in its closing submissions that the appellant had not said to the police “You people have arrested the wrong person …”; the appellant had not made such a “normal reaction” (Appeal Bundle, page 86U to page 87A). And counsel for the defence submitted that if the appellant had said “You have arrested the wrong person”, it was believed that the police would not have “released” the appellant, and whether he had said so or not “did not go one way or the other” and was “neither here nor there”.  The defence submitted that the appellant had merely “remained silent”, which was not an act out of the ordinary (Appeal Bundle, page 91O-Q).

45.It appears that the prosecution had erred in asking the magistrate to consider the appellant’s not reacting by saying “You have arrested the wrong person”, and the defence, albeit it mentioned “remained silent”, had still failed to remind the magistrate that he should not draw adverse inferences against the appellant by reason of him remaining silent.  In the end, the magistrate, at the suggestion of the prosecution, erred in infringing upon the appellant’s right to silence by giving consideration to his reaction of not making any explanation whatsoever.

46.Generally, when a judge has made such a serious error, the conviction is unsafe.

47.I have considered that magistracy appeals are dealt with by way of “rehearing” based on the testimonies and evidence before the magistrate (see Chow Shih Bin v HKSAR (2005) 8 HKCFAR 70).

48.On appeal, I may exercise the following powers (section 119(1)(d) and (e) of the Magistrates Ordinance, Cap 227):

“(d) the judge may by his order confirm, reverse or vary the magistrate’s decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate;

(e) the powers of the judge under paragraph (d) shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrate, which the magistrate might have awarded;”

49.I understand that the Magistrates Ordinance does not contain the equivalent of the “proviso” in the Criminal Procedure Ordinance (Cap 221), that is (section 83N(1)):

“but it may dismiss the appeal if of opinion that, notwithstanding that the point raised in the appeal might be decided in favour of the appellant, no miscarriage of justice has actually occurred.”

50.What I need to consider is whether the error of the magistrate was “material” so that it is necessary for me to order that the appeal be allowed and reverse the convictions in the interest of fairness (see Ching Kwok Yin v HKSAR (2003) 3 HKCFAR 387).

51.I consider that even if the magistrate had not made the above error, he would still have found the defendant guilty upon making findings of facts after a detailed analysis of all the evidence before him; therefore, the error of the magistrate was immaterial in the present case.  The convictions were not unsafe.

52.This ground of appeal is not substantiated.

Conclusion

53.I dismiss the appellant’s appeal against conviction.

54.I now deal with his appeal against sentence.

Reasons for sentence

55.The magistrate’s Reasons for Sentence are as follows (Appeal Bundle, page 26 to page 28):     

“Sentence

Plea in mitigation

1. The defendant, now aged 31, was locally born and raised, and currently lives with his mother, a retiree, and his sister. He works as a part-time waiter, earning about HK$6,000 a month.

2. Not only does he have a clear record but he has always been actively and enthusiastically involved with the matters of the church. The defence has also submitted a large number of letters written by his school principal, teachers, schoolmates and fellow church members to prove that he is positively and highly regarded by everyone.

3. The defence has submitted that the facts of the present case were not as serious as those generally found in similar cases; the police officer was not seriously injured either; the court can consider a Community Service Order as a sentencing option; the defence has pleaded for leniency.

Sentencing

4. Regarding the two offences, the higher courts have not laid down sentencing guidelines. Each case has its own distinct facts and background.

5. First, the defendant showed no remorse as he was convicted after trial; further, considering factors such as the fact that he brought along the gear and covered his face on the material day, and his admission to having taken part in rallies previously, I consider that the chance of his re-offending cannot be said to be low; therefore, a Community Service Order is neither an appropriate sentencing option nor capable of reflecting his culpability in the case.

6. In sentencing, I fully appreciate that the objects involved in the case were plastic water bottles not capable of causing massive destruction. However, I must take into consideration the circumstances under which the offences were committed at that time and the facts of the case.

7. At the material time, the police were faced with a large number of rally participants who had been shouting and throwing objects at them. Of course, in assessing the defendant’s culpability, I will not hold him liable for other people’s acts. However, he threw a plastic bottle twice at the police who were clearing the obstructions. It was a wanton assault, a lawless act and rioter-like behaviour. The police officers on duty were simply treated as mobile targets.

8. Given the situation and the atmosphere at that time, the defendant’s acts could easily cause what was already an extremely chaotic situation to deteriorate and spiral out of control. In fact, it can be seen from the video footage of the scene that when the police were trying to subdue him, those present kept throwing objects such as water bottles and rubbish bins at the police.

9. Without a shadow of doubt, assaulting a police officer in the due execution of his duty is a serious offence. The court has always emphasized that the sentence must be severe and deterrent, clearly indicating that the court does not condone or tolerate such acts; otherwise, the personal safety of frontline police officers on duty will not be safeguarded, social order and peace will be harmed, and the morale of the police force will suffer a heavy blow. Even if a defendant is a first offender who comes from a good background and has a good character, the sentence has always been one of immediate imprisonment.

10. Having considered the facts of the case, the plea for leniency and all the circumstances, I adopt 9 months as the starting point for Charge 1, and 4 months for Charge 2. Having considered the overall circumstances, I do not consider that the defendant can rely on any mitigating factors that would suffice to justify a reduction, let alone any exceptional circumstances that would warrant the suspension of the sentence. On the totality of sentencing, I order the sentences of the two offences to run concurrently.

11. For the above reasons, the defendant is sentenced to 9 months’ imprisonment.”

Reasons for appeal against sentence

56.Basically, the appellant submitted that on the facts of the present case, the sentence was manifestly excessive in comparison with similar cases. The appellant cited the following cases in support of his argument.

57.In HKSAR v Lee Kwok‑hei Marco HCMA 392/2015, although Lee was charged with a lesser offence of “assaulting a police officer” contrary to section 63 of the Police Force Ordinance, the case is highly similar to the present case in terms of the course of events, the background of the case, the injuries of the police officer, the good background of the defendant, the date of sentencing, etc.  In Lee Kwok‑hei Marco, the appellant was alleged to have thrown a water bottle at a police officer from about 2 metres away during the Umbrella Movement, causing the police officer to feel pain in the middle on the left side of his back.  A struggle then ensued between the police officer and the appellant.  A subsequent medical report showed the presence of redness.  At that time, Lee was also a first offender with a good background.  Having considered the safety of frontline police officers (see Lee Kwok-hei Marco, at page 4L and see AB/27/9), the same magistrate sentenced Lee to 4 weeks’ imprisonment on 19 March 2016.

58.And in HKSAR v Wong Chi Kai [2016] 5 HKLRD 414, the defendant pleaded guilty to one count of “assaulting a police officer” contrary to section 36(b) of the Offences against the Person Ordinance, the same offence with which the appellant was charged.  The facts alleged that Wong,at a protest “against parallel traders”, swore at a person carrying a suitcase, kicked at his suitcase and pushed him with both hands.  Upon seeing this, a woman inspector went up to dissuade and stop the defendant and produced her warrant card.  Several minutes later, Wong pulled the hair of the woman inspector from behind, causing her head to tilt backward and her to lose her balance.

59.The appellant submitted that at the time of the appeal, Wong had a previous criminal conviction. Although the Judge of the Court of First Instance of the High Court considered that Wong was neither acting on the spur of the moment nor under the influence of the circumstances at the material time, the appeal was allowed with the original starting point of 3 months’ imprisonment reduced to 9 weeks’ imprisonment.

60.In the relevant period, Wong committed another offence of “assaulting a police officer” contrary to section 63 of the Police Force Ordinance.  The facts alleged that during the “Occupy Central” Movement, when the police were in pursuit of a person on the run, Wong punched the right shoulder of a police officer.  He pleaded guilty and was fined HK$2,000.

61.Besides, in his Reasons for Sentence, the magistrate referred to several cases, the starting points of which are all below 4 months.

62.In HKSAR v NG Wa-hon Christopher HCMA 78/2015, Ng pleaded guilty to two counts of “assaulting an officer of the Legislative Council in the execution of his duty” contrary to section 19(b) of the Legislative Council (Powers and Privileges) Ordinance, Cap 382, Laws of Hong Kong and was sentenced to a total of 27 days’ imprisonment by the magistrate.  The facts alleged that when the Legislative Council was deliberating the funding for the Advance Works for the North East New Territories New Development Areas, Ng punched the face of a plainclothes police officer once in the public activities area outside the Legislative Council.  Besides, he elbowed another plainclothes police officer on his chest, resulting in abrasions on his left arm and tenderness in his abdomen.  Later, Ng went on to kick the abdomen of the same police officer he had punched earlier, causing him to fall to the ground.  This police officer suffered abrasions on his left arm, and redness and abrasions on his abdomen.

63.The Court of First Instance considered that the facts were serious.  Ng and other protestors created chaos by actively charging at the mills barriers at the entrance to the Legislative Council Complex.  The court reiterated at paragraph 13, ‘Whatever the demands, protestors must not express them by violent means.  For essentially violent behaviour, the court will not look on without meting out corresponding punishment according to law.”

64.Considering the above and Ng’s then clear record, the court considered that the total sentence of 27 days’ imprisonment was not manifestly excessive.

65.In HKSAR v Ku Kit Ling HCMA 707/2004, the appellant was sentenced to 9 months’ imprisonment for a count of assaulting a police officer.  It was alleged that she had a dispute with the police under the influence of alcohol, and grabbed and pulled down the private parts of a police officer multiple times (page 2/paragraph 3).  On appeal, the court, having considered several cases (paragraphs 15 to 28) and the appellant’s clear record, immediately released her, as she had already served a total of about 2 months in prison.

66.In HKSAR v Tsang Kin Chiu KCCC 443/2016, it took a well-built sergeant substantial force and the use of pepper spray to subdue Tsang.  Having considered various grounds for mitigation including his good record, the court sentenced him to 3 weeks’ imprisonment for the offence of “resisting arrest”.

Respondent’s reply

67.The respondent replied that under section 36(b) of the Offences Against the Person Ordinance, Cap 212, Laws of Hong Kong, the offences of “assaulting a police officer in the due execution of his duty” and “resisting a police officer in the due execution of his duty” are punishable by 2 years’ imprisonment on summary conviction.  The Court of Appeal has not established sentencing guidelines for this kind of cases.  Thus, sentencing mainly depends upon the facts of individual cases; yet, the court generally passes a deterrent sentence of immediate imprisonment.

68.The cases cited by the appellant all confirm that the court needs to protect public officers, including police officers, in the execution of their duties; hence, the sentence must be deterrent.

69.The respondent was of the view that there are the following aggravating features in the present case:

(1)   The “Mong Kok Riot” was at its peak at the time after 3 am in the early morning on 9 February 2016.  It can be said that the riot participants at the scene in Mong Kok were poised for action and there was even the possibility that a confrontation was on the verge of breaking out.  This can be proved by the evidence from the police officers and the undisputed video footage submitted in the present case;

(2)   The fact that the appellant specifically brought along a face mask, a snood and gloves to the scene in Mong Kok serves to show that he had planned to participate in the confrontation instead of joining it on the spur of the moment;

(3)   The appellant’s motive for committing the offences was obviously not to express his opinions and demands. To show his discontent to the government and the police, he wantonly assaulted and harmed Officer Kwan, who was merely in the execution of his duty, that is, removing a recollection box.  The respondent emphasized that before the material time, the police officer concerned had not had any confrontation with any of the protesters including the appellant; hence, the appellant could not have carried out the assault out of a sense of righteous indignation.

(4)   The appellant threw not only one but two water bottles at the police officer in total disregard of the warnings issued by the him after the first water bottle had been thrown, and even regarded the police officer as a “mobile target”;

(5)   As a result of the assault, Officer Kwan sustained a 5 cm circular bruise on his chest and a 2 cm abrasion on either knee;

(6)   At the material time, there were as many as 200 to 300 people at the scene, among whom 20 to 30 placed objects such as miscellaneous objects, rubbish bins and recollection boxes on Nathan Road, resulting in utter chaos.  Given the atmosphere at the scene, even if the appellant had not thrown the water bottles at anyone, his act would also have been extremely provocative;

(7)   The appellant’s act was a particularly serious breach of peace for the reason that a large number of riot participants had gathered at the scene, and it was highly likely that the appellant’s act could have caused a ripple effect, triggering others at the scene to resort to violence.  And indeed, others at the scene did throw objects such as water bottles and rubbish bin lids at the police, resulting in more offences that breached the peace.  The court may refer to the relevant video footage, that is, Exhibits P1 to P3;

(8)   As the magistrate pointed out, the appellant’s behaviour was like a rioter;

(9)   The appellant kept struggling under arrest, causing himself and the police who were trying to subdue him to bump around at the metal gate to a shop and in the pavement off the gate.  As can be seen from the facts, the relevant tussle and struggle lasted several minutes, which was not a short time.  The vigour of the appellant’s resistance is evident from the fact that it took several police officers their joint effort and several minutes to successfully bring him under control;

(10)   The appellant’s struggle caused quite a number of those present at the scene to shout and scream for his release and throw rubbish bins at the police;

(11)   The appellant was not remorseful whatsoever as he was convicted after trial; and

(12)   On the appellant’s own admission, he had participated in rallies in the past; the chance of his re-offending is not low.

70.Although the appellant was a first offender, the facts of the present case were serious.  The respondent cited the Court of First Instance case of HKSAR v Tai Chi-shing [2016] 2 HKC 436, relying on the observations at paragraphs 36 to 42, that is, the court does not tolerate irresponsible and unlawful acts that cause harm to persons or property, and regardless of whether a defendant is a first offender, will pass a deterrent sentence of immediate imprisonment.

71.The cases cited by the appellant cannot be directly compared with the present case as they differ in terms of facts from the present case and are not sentencing guidelines; hence, the respondent would make a brief reply.

72.In Lee Yuk Hei, the police officer assaulted was pursuing a protester playing the role of a leader; hence, the defendant might have assaulted the police officer out of righteous indignation or on the spur of the moment.  This cannot be compared with the present case, in which the appellant obviously had pre-planned to participate in the confrontation and committed the offences in a calm state of mind. Further, given the fact that the defendant in that case was far younger than the appellant, it is not hard to understand the lenient sentence of the court.

73.In Wong Chi Kai, although the defendant assaulted the police officer in a calm state of mind, there was no evidence to suggest that he had planned to take part in the confrontation, and the assault he carried out only involved one single instance of pulling the police officer’s hair, which is different from the series of assaults by the appellant.

74.In Ng Wa-hon Christopher, the defendant punched a police officer’s face once during a struggle.  This is not quite the same as the appellant in the present case, who repeatedly assaulted the police officer on duty in the absence of any provocation or confrontation.

75.As to Tsang Kin Chiu, being merely the Reasons for Sentence in a magistrate’s court, it is not binding on this court and is of extremely little reference value.

76.All in all, the respondent took the view that the sentences of 9 months’ imprisonment and 4 months’ imprisonment the magistrate imposed on the two charges and the order that they were to run concurrently, albeit not lenient, were neither erroneous in principle nor manifestly excessive.

My considerations

77.I fully agree with the words of the magistrate:

“9. Without a shadow of doubt, assaulting a police officer in the due execution of his duty is a serious offence. The court has always emphasized that the sentence must be severe and deterrent, clearly indicating that the court does not condone or tolerate such acts; otherwise, the personal safety of frontline police officers on duty will not be safeguarded, social order and peace will be harmed, and the morale of the police force will suffer a heavy blow. Even if a defendant is a first offender who comes from a good background and has a good character, the sentence has always been one of immediate imprisonment.”

78.The magistrate had also given full consideration to the facts of the case.  As the respondent has pointed out, the aggravating features the respondent set out did exist in the present case.

79.Each case has its own distinct facts and generalization is not possible.  Even for similar facts, the court still needs to sentence a defendant in the light of his background and the presence of any specific mitigating factors.

80.The facts of this case differ greatly from those of the cases cited by the appellant.  As the respondent submitted, the “Mong Kok Riot” was at its peak at the material time, and it can be said that the rally participants at the scene were “poised for action and there was even the possibility that a confrontation was on the verge of breaking out”.  In comparison with Lee Yuk Hei, who committed the offence during the “Umbrella Movement”, the present case is obviously serious.

81.I fully agree with the “aggravating features” set out by the respondent.  The court must send out a strong message: the court does not condone or tolerate assaults on police officers in the execution of their duties; the sentence must be one of deterrence.  The starting point of 9 months adopted by the magistrate was very severe, but in the light of the serious facts of the present case, I do not consider that the starting point was manifestly excessive.

82.Four months’ imprisonment was adopted as the starting point for charge 2.  Given the vigorous resistance of the appellant at the material time, it cannot even be said to be manifestly excessive.  The magistrate also properly ordered the sentences of the two charges to run concurrently.

83.As to Tsang Kin Chiu, being a sentence in a magistrate’s court, it is neither binding on me nor of any reference value.

Conclusion

84.I dismiss the appellant’s appeal against sentence.

Robert PANG SC and Tobias CHENG, instructed by Cheng, Yeung & Co, for the appellant

Ira LUI, Senior Public Prosecutor of the Department of Justice, for the HKSAR Government

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.