Chong Kan-ming and Another v. The Queen

CACC000016/1976

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.16 OF 1976

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Coram: Morley-John, J.

Date of Judgment: 12th February, 1976.

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JUDGMENT

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1. The appellants were found guilty on two charges of common assault and were both sentenced to a fine of $200 on each charge. The now appeal against their convictions and sentences.

2. The appellants were at the time of the offence police constables in the Royal Hong Kong Force. The assaults took place while the two appellants were off-duty and were assisting another police constable also off-duty to ascertain the whereabouts of a person wanted by the police. The assaults appear to have been of a very minor character. The appellants were charged with common assault only and not with assault occasioning actual bodily harm.

3. On the evidence adduced, the learned magistrate very properly found the two appellants guilty as charged, and there is no ground for interfering with the convictions of the appellants. The learned magistrate also found that the dominant role in this affair was played by the police constable whom the appellants were assisting and that acting under that officer's initiative so far as the appellants were concerned it was in part a case of mistaken zeal. I respectfully agree with the learned magistrate that this was a case of mistaken zeal. The two appellants aged 20 and 21 years respectively had each been members of the Royal Hong Kong Police Force for one year whereas the officer they assisted had been in the Force for six years and was therefore the senior police constable. I am fully aware that the police often have to act under considerable difficulties but any force they have to use in carrying out their duties should be kept to the absolute minimum.

4. Following the decision of the learned Chief Justice in the case of Chu Kam0yiu v. The Queen⁽¹⁾, delivered after the learned magistrate had considered this case and which was a case where a police officer was found guilty of assault occasioning actual bodily harm, I think that justice would best be done if the appeal against sentences is allowed and that the fines of #200 are set aside. No conviction is to be recorded against the appellants and they are discharged absolutely. I trust that the future of the two appellants in the Police Force will not be seriously affected by this instance and I hope that this case will serve as a lesson for them to be less rough in their investigations in the future.

Representation:

Mr. A.J.J. Sanguinetti (W.K. Poon & Co.) for the appellants.

Mr. E. Soh, Crown Counsel, for the Crown.

(1) Cr. App. No. 1089 of 1975