HKSAR v. Chan Yi Chun

[English Translation-英譯本]

HCMA 251/2020

[2020] HKCFI 3111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 251 OF 2020

(ON APPEAL FROM ESCC 2146 OF 2019)

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Before: Hon Barnes J in Court

Date of Hearing: 14^th December 2020

Date of Judgment: 18^th December 2020

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J U D G M E N T

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1.The appellant was prosecuted of three charges, which were respectively “Assaulting a police officer in the due execution of his duty”[1] (Charge 1), “Possession of offensive weapon in a public place”[2] (Charge 2) and “Resisting a police officer in the due execution of his duty”[3] (Charge 3). The appellant pleaded guilty to Charges 1 and 2 before Ms Heung Shuk-han, Veronica, sitting at Eastern Magistracy, (hereinafter “the magistrate”), and was sentenced to a total of 8 months’ imprisonment on the two charges.

2.The appellant denied Charge 3.  He was convicted after trial and sentenced to 9 months’ imprisonment.

3.The magistrate ordered that 2 months out of the term of 9 months’ imprisonment be served consecutively with the 8 months’ imprisonment for Charges 1 and 2, making a total of 10 months’ imprisonment.

4.The appellant originally appealed against both his conviction and sentence in respect of Charge 3, but he subsequently abandoned his appeal against sentence, and is now appealing against conviction only.

Facts

5.In the Statement of Findings, the magistrate set out the facts of the case which I am quoting as follows:

“Prosecution case

9. The prosecution alleged that after the defendant attacked the inspector with an extendable aluminium baton (Charges 1 and 2), the inspector chased after him while he was taking flight. During that time, some other police officers, including the second, third and fourth prosecution witnesses, joined to arrest the defendant. However, the defendant kept resisting vigorously, including breaking away from the control of the second prosecution witness (PW2), trying to snatch the baton from PW2, clenching his hands together in front of himself while struggling constantly, and disobeying PW2’s orders so as to prevent the police from successfully handcuffing him.

10. Apart from the testimony of the four prosecution witnesses, the prosecution also relied on the video clips marked as Exhibits P2 to P6 as evidence, and the defence agreed that they were admissible. In fact, a substantial part of the incident has been reflected in the clips. The video marked as Exhibit P2, which lasted approximately 35 seconds, came from “Hong Kong Open TV”. It captured the defendant attacking the inspector with the aluminium baton, the inspector pursuing the defendant and the other police officers taking part in subduing the defendant. Exhibit P3 is from “Now TV”. It is about 50 seconds long and has been edited. Exhibit P4 is also a clip from “Now TV”. The whole video is about 20 minutes 34 seconds in length, but the prosecution merely relied on an extract of about 3 minutes. The prosecution also prepared screenshots from Exhibits P2, P3 and P4, and the defence did not object to their admissibility. Exhibits P5 and P6 are both footages from the police video camera(s), the shooting of which only started after the defendant had been subdued and handcuffed. They recorded the preliminary investigation of the defendant as well as how the aluminium baton in question and the defendant’s rucksack were seized by the police at the scene.

11. Here are the undisputed facts of the case. After the defendant attacked the inspector with the aluminium baton, the inspector hit back with his police baton in order to put the defendant under control. However, the defendant sought to escape and the inspector began to chase after him. Meanwhile, the defendant hurled the rucksack he was carrying over the hoardings at the roadside which was taller than him, so it landed on the inside of an open-air car park. He then jumped up and held onto the top of the hoardings with both hands, but then fell back down on the road. During that time, the superintendent also joined in the interception of the defendant, but he fell down immediately as soon as he came into physical contact with the defendant. At that juncture, the inspector managed to catch up, but he tripped over the superintendent on the ground and also fell onto the ground.

12. The prosecution case was that PW2 arrived at this juncture and hit the defendant once on the lower limb with the police baton, making him fall to the ground. Grasping the opportunity, PW2 straddled the defendant with one leg stretched across him and pinned his upper body down with both hands. However, the defendant was still resisting fiercely, wriggling his body in an attempt to break away from PW2’s control. PW2 was thus unable to straddle the defendant anymore. The defendant then pushed his hands against the ground and tried to stand up, creating a forward charging force. With all his might, PW2 tried to press the defendant down to the ground again, but to no avail. The superintendent then helped PW2 subdue the defendant by hitting the defendant’s lower leg(s) and upper leg(s) with the police baton. PW2 then stretched his left arm across the defendant’s neck and pressed the defendant’s shoulder to keep him under control. However, the defendant stuck out his right hand, grabbed the police baton in PW2’s right hand and pulled it towards himself. PW2 tried to snatch back the baton but failed. After that, in order to take back his baton, he gathered all his might and wrestled the defendant to the ground. Yet it turned out that after the defendant was wrestled to the ground, he was still holding the police baton tight and he even made PW2 fall. When the defendant once again tried to push himself up, the sergeant came and hit the defendant’s arm(s) with his police baton. As a result, the defendant again fell down. Eventually, PW2 retrieved his police baton and the defendant was pinned against the ground.

13. When PW2 tried to handcuff the defendant, the defendant was clasping his hands and fingers together and moving his body about, showing the strength of an attempt to get up. The sergeant had to pin him down with his knee. PW2 had to resort to pepper spray plus pressure point control tactics before he was able to loosen the defendant’s grip of his hands. It was only with the joint efforts of him and the sergeant that the handcuffing was done. After that, there was another police officer who declared arrest of the defendant.

The Defence Case

14. From the submissions by the defence and the cross-examination of the prosecution witnesses, it was gathered that the defence was questioning the credibility and reliability of the witnesses.  They also accused the prosecution witnesses of using excessive and unnecessary force in their apprehension of the defendant, saying that as a result, the witnesses were not in due execution of their duty. It was also submitted that the defendant’s behaviour during the incident was simply reflex action, without any intent to resist the police officers.”

The Magistrate’s Findings

6.The magistrate reminded herself of the burden of proof, standard of proof and other directions including those on the appellant’s clear record and election not to give evidence.  Having analyzed and considered all the evidence, including the discrepancies between the evidence of the prosecution witnesses, she was satisfied that they were all honest and reliable witnesses.

7.As the defence’s stance at trial was that the appellant’s actions might have been reflex response and they questioned whether the police officers were using reasonable force, the magistrate made the following analysis and findings:

“Were the prosecution witnesses using reasonable force?

23. As to whether the prosecution witnesses used excessive and unnecessary force during the incident, they never disputed having used force against the defendant at the scene and having used their police batons in order to subdue the defendant. Yet they all reckoned that it was reasonable force necessary in the circumstances. In court, during both the examination-in-chief and cross-examination of the witnesses, the relevant video clips (Exhibits P2 to P4) have been played back in slow motion many times. I have carefully considered the use of police baton and other forms of force by individual prosecution witnesses as well as the situation as a whole, to determine objectively if they had used against the defendant such force that was beyond what was reasonably necessary.

24. I am satisfied that the defendant in fact attacked the inspector from behind while the inspector was executing his duty. When the inspector felt the attack, he turned around and came face-to-face with the defendant. At that juncture, the defendant attacked the inspector with the aluminium baton in his right hand by wielding it downward, which the inspector warded off with his left forearm. At the same time, he aimed the police baton at the defendant’s left upper arm and hit back in order to subdue the defendant. The defendant was struck and he tried to flee. During the process, the defendant gave a heavy stamp on the inspector’s ankle. While running away, the defendant even hurled the rucksack he was carrying over the hoardings before leaping at the hoardings in an attempt to climb over and flee. When PW2 came, he saw the defendant who was being chased by the inspector fall down from the hoardings and continue to run albeit in a staggering manner. PW2 then gave the defendant a strike on the thigh with his police baton to bring him down and stop him from running further. After that, as a natural sequence of movements, PW2 stretched one leg across the defendant’s body and pinned him down on the ground by pressing on his upper body. Yet the defendant, intending to set himself free, kept twisting his body which was gradually moving towards the wall. Seeing that the defendant was still resisting robustly and that he refused to be arrested without putting up a fight, the superintendent struck the defendant’s leg muscle once with his police baton, but the defendant did not stop his vigorous resistance, making it impossible for PW2 to continue straddling the defendant to control him. The defendant even tried to get up by pushing his hands against the ground. PW2 then put his left arm across the defendant’s neck and grabbed his shoulder to pin him to the ground and keep him under control. PW2 had from the very beginning issued a number of verbal warnings to the defendant, but the defendant continued to resist arrest. When the superintendent saw that PW2 was unable to subdue the defendant with his bare hands, he struck the defendant’s upper leg and lower leg muscles some six to seven times with his baton, yet the defendant was still trying to stand up. Seeing that even the joint efforts of PW2 and the superintendent were insufficient to bring the defendant under control, the inspector then pressed his baton down on the back of the defendant twice, hoping to hold him down on the ground. Nevertheless, the defendant was still able to stand up fully. When the defendant was back on his feet, he stretched out his right hand towards the right, grabbed the baton in PW2’s right hand and pulled it to himself. Although PW2 grasped the baton tight and pulled hard, he was unable to pull the baton out of the defendant’s grip. In order to loosen the defendant’s grip on the baton, PW2 then summoned all his strength and turned his body clockwise to try to wrestle the defendant to the ground and snatch back his baton. However, even when the defendant had already fallen on the ground, he still refused to let go of the baton, as a result of which PW2 also fell. When the sergeant arrived, he found the defendant attempting to prop himself up, and therefore hit the defendant’s right arm twice with his baton. With the concerted efforts of PW2 and the sergeant, the defendant was eventually held down to the ground.

25. I believe that under the circumstances at the time, the defendant clearly knew that he was being chased by the inspector after committing the offence of assaulting a police officer. In order to escape, he attempted to climb over the hoardings and thought up the idea of first hurling the rucksack he was carrying to the other side of the hoardings. It was obvious that the defendant was anxious to evade capture. He refused to stop or to be apprehended even when PW2 hit him on the thigh and made him fall. He kept twisting his body, in the hope of freeing himself from PW2’s control. Having regard to the defendant’s stubborn resistance and PW2’s description in his testimony that he was violent and aggressive, I am of the view that the prosecution witnesses simply had no choice but to use appropriate force under the circumstances to stop the defendant from running off, resisting arrest and hurting himself as well as others. During the incident, when the witnesses used their batons, they only used them to hit the defendant’s big muscles, and the purpose was to cause numbness and soreness of his muscles in order to weaken his ability to resist. The defendant’s body parts where he received the blows were found to be red and swollen. As to the inspector pressing the police baton against the defendant’s back, it was part of police training and was meant to effectively subdue the defendant on the ground. In light of the defendant’s fierce resistance, it was necessary for the officers to pin him to the ground to control him.

26. In fact, before successfully pressing the defendant to the ground, PW2 had issued a number of verbal warnings to the defendant, which included showing his police identity, demanding him to stop moving and resisting, and threatening to use force otherwise. Nevertheless, the defendant had not paid heed to him and went on resisting, nor had he made any verbal response to any of the officer’s warnings. He just kept resisting.

27. In my opinion, up until they managed to pin the defendant to the ground, PW1 to PW4 had only used force which was appropriate in the circumstances to subdue the defendant.

28. Seeing what the defendant had been doing as the incident unfolded, it would not be hard for the officers at the scene to believe that as long as the defendant was not handcuffed, he would try and grasp every opportunity to flee. Having pinned the defendant to the ground, PW2 attempted to handcuff him, but the defendant then put his hands in front of his chest, with all the fingers interlocked. Meanwhile, PW2 had given repeated verbal warnings to the defendant, demanding that he loosen his grip and let the police arrest him without any more resistance, telling him that as soon as he stopped resisting, there would be no more force used by the police. The defendant was told that once he was handcuffed, the police would send for an ambulance to take care of him. He was advised to comply with the above warnings, but the defendant simply ignored the warnings and kept clasping his hands tight in front of his chest. PW2 tried to split his grip bare-handed in order to handcuff him, but to no avail. In the process, the defendant had once loosened his grip and covered his face with his hands. However, when the officer tried to grab his hands to carry out the handcuffing, he once again clasped his hands together. It was obvious that the defendant knew at the time that the officer wanted to handcuff him, and he also knew that by clasping his hands tight as he did, he would make it impossible for the officer(s) to properly finish the handcuffing procedure. Nonetheless, he just did it wilfully. In the end, when all the warnings and persuasions had failed, PW2 thus administered pepper spray on the defendant. But still, that was not enough to make him release his hands, not until the officer exercised pressure point control tactics (i.e. to put his fingers under the defendant’s nostrils and hold up the nose) when the defendant finally loosened up his hands. With the concerted efforts of PW2 and the sergeant, they eventually managed to handcuff the defendant behind his back.

29. I am of the view that under the circumstances, from the time the officers managed to pin the defendant to the ground, up until the time they handcuffed him, during the whole process, the prosecution witnesses had merely been using reasonable force appropriate to the situation.

30. The defence queried whether it was necessary for the police to separate his hands with force, saying that even though the defendant was clasping his hands together in front of his chest, the police could still have handcuffed him with his hands in front.

31. In my opinion, it was the professional judgment of the police under the circumstances as to how the defendant was to be handcuffed. What is more, the prosecution witness(es) said that according to the guidelines of the police force, unless a suspect’s body is deformed or disabled so that it becomes impossible to handcuff him behind his back, officers are supposed to handcuff a suspect with his hands at his back. Apart from that, I share the view of the sergeant that considering the situation, it was necessary to handcuff the defendant behind his back. Throughout the incident, the defendant indeed demonstrated violence, aggressiveness, powerful resistance and great physical strength just as what the prosecution witnesses said. I agree that handcuffing him behind his back was the only way to stop him from fleeing and using violence, and to effectively subdue him.

32. The defence submitted that during the whole course of the arrest, the prosecution witnesses had never told the defendant that the police was demanding him to lie prone, nor had they ever made it clear that they were to handcuff him with his hands behind his back. Therefore, chances are that the defendant simply did not know that those were what the police wanted.

33. My view is that under the circumstances, it was impossible for the officers to give him guidance patiently by explaining to him every detail of the arrest and the rationale behind each and every direction given by the police. According to what happened, the defendant obviously knew at the time that the officers were there to subdue and arrest him, that he was to be pinned to the ground, that the police was demanding him to loosen up his hands to handcuff him properly, and he knew that the officers were to handcuff him with his hands at the back, but he kept putting up resistance and clasped his hands and fingers tight to resist proper handcuffing. The officers had no choice but to resort to police batons, pepper spray and pressure point control tactics in order to subdue the defendant, handcuff him at his back and put him under arrest.

34. When cross-examining the prosecution witnesses, the defence queried them, saying that while chasing after the defendant, they had never told the defendant that they were to arrest him. In response to the accusation, the prosecution in their submission cited HKSAR v Ip Kenneth HCMA 1161/2005, in which McMahon J in turn cited Christie & Another v Leachinsky [1947] AC 573 and pointed out that the requirement that the person arrested be informed of the reason why he is seized is not applicable in certain circumstances. For instance, if the person arrested knows why he is seized, or if he himself produces the situation which makes it practically impossible to inform him of the reason.[4] In the present case, I am of the view that the defendant knew he was being arrested for attacking the inspector, and his stubborn resistance made it practically impossible for the prosecution witnesses to inform him of the reason for the arrest.

35. The defence cited HKSAR v Osunwoke Ifeanyi John HCMA 369/2017 in their submission, saying that the force used by the officers in the present case was excessive and unnecessary, and therefore they were not in due execution of their duty. I think the salient details of this case are very different from those of that case. In that particular case, before the police officers used force on the defendant and hit him with the police baton, the defendant had not put up any resistance, nor had he done anything like pushing, bumping or struggling. It was on that basis that the appellate court decided that the officers had used excessive force beyond what was necessary in the circumstances.

36. The present case is different. By attacking the inspector, the defendant had already committed an arrestable offence for which he is liable to lawful apprehension. Besides, the defendant knew that the inspector and the other officers were chasing after him, yet he chose to run frantically to escape and do all he could to be rid of the officers who were pursuing him, and he never stopped resisting throughout. Pursuant to sections 50(1), (1A) and (2) of the Police Force Ordinance, Cap 232, “If any person who may lawfully be apprehended … forcibly resists the endeavour to arrest him or attempts to evade the arrest, a police officer or other persons may use all means necessary to effect the arrest.” In the instant case, it was necessary for the prosecution witnesses to use appropriate force to effect the arrest of the defendant, in the manner as aforesaid.

Was the defendant’s behaviour reflex response?

37. In fact, from the time PW2 joined in to arrest the defendant, as can be seen from the video clips, he had been trying his best to bring the defendant down and subdue him while pinning him to the ground. At the same time, he was seen repeatedly appealing to/warning the defendant to stop putting up resistance, saying he would use force otherwise. I am satisfied that the defendant was well aware of PW2’s reasonable request, but he did not comply. From the time PW2 began to straddle the defendant, PW2 had never used his baton on him. The baton was there only on standby. What is more, the defendant knew under the circumstances that he had to fall down (i.e. on the ground) following the same direction in which PW2 was putting pressure on his body and that he had to stop resisting. Nevertheless, he did not comply. Instead, he exerted himself to dash forward and stretched his arm to grab PW2’s baton. I am of the view that all of these, including the snatching of the baton, amounted to deliberate resistance, and they were not reflex actions.

38. No doubt, as shown by the video clips, the defendant’s head was injured and bleeding at the time. Yet, there was no evidence to prove how the injury came about. Even when the defence were cross-examining the prosecution witnesses, they were unable to point out with certainty how the defendant sustained the head injury. I am of the view that it was in a state of chaos during his vigorous resistance that the defendant injured his own head which ended up bleeding. However, even though the defendant was injured, he was still conscious and was able to, time and again, clasp his hands together in front of his chest. That was a deliberate action. Besides, it was the sergeant’s evidence that the defendant, after he had been subdued, shouted out his own full name more than once. I find that all that the officers had used on the defendant during the incident was reasonable force under the circumstances to put the defendant under control and arrest. However, that was countered by the defendant’s deliberate and stubborn resistance. It was not self-defence that he had put up, nor was it reflex response as the defence suggested in their submission.

8.In the end, the magistrate found the appellant guilty of Charge 3.

Grounds of Appeal

9.Mr. Steven Kwan, counsel for the appellant, put forward three grounds of appeal in total, and they were all concerned with the appellant’s head injury:

(1)  Ground 1: The appellant’s serious head injury

Before finding PW1 to PW4 honest and reliable and the force used by them reasonable and appropriate, the magistrate had not considered their failure to explain the appellant’s serious head injury (i.e. a deep linear laceration 5 cm in length over the left occiput which was still bleeding upon arrival at the hospital)

(2)  Ground 2: Burden of proving the cause of the serious head injury

The magistrate erred in placing on the appellant the burden of proving the cause of the appellant’s serious head injury (see para 38 of Statement of Findings).

(3)  Ground 3: Assumption on the cause of the serious head injury

The magistrate assumed without any evidential basis that the cause of the appellant’s serious head injury was that the appellant “in a state of chaos during his vigorous resistance, injured his own head which ended up bleeding” (see para 38 of Statement of Findings).

10.Mr Kwan argued that according to the officers’ evidence which the magistrate accepted, all the officers said that they had hit (a) certain part(s) of the appellant’s body with the baton, but none of them admitted hitting the appellant’s head with the baton or witnessing anyone doing so. The appellant was sent to Ruttonjee & Tang Shiu Kin Hospitals at around 11:13 p.m. and on the following day (16^th September 2019), he was transferred to Pamela Youde Nethersole Eastern Hospital (Eastern Hospital). The medical report (Exhibit D2) showed that upon examinations, a deep linear laceration 5 cm in length was found over the left side of his occiput, and the wound was still bleeding.[5]  Mr Kwan submitted that there was no evidence from the prosecution to prove how the laceration on the appellant’s head came into being.  The video clips produced in court showed that the appellant’s head was not yet injured while he was attacking the inspector and running away, but by the time PW2 and the sergeant managed to pin him to the ground, he was already bleeding all over his face.

11.Citing para 38 of the Statement of Findings (i.e. paragraph 38 in paragraph 7 of this Judgment), Mr Kwan submitted that apparently the magistrate was of the view that the appellant was only allowed to resist the police officers if he was putting up a self-defence. It was pointed out that she seemed to have neglected that the officers would not have been in due execution of their duties if the force they used was beyond what was reasonably necessary. He submitted that the appellant should not be held criminally liable for resisting a police officer not in due execution of his duty in circumstances not involving self-defence.

12.On Ground 1, Mr Kwan pointed out that there was evidence that the appellant’s head was bleeding, but all the witnesses claimed that they had not used force on the appellant which caused his serious head injury. Although the prosecution witnesses all admitted having hit the appellant with a police baton, none of them admitted that he himself or his colleague(s) had struck the appellant’s head with the baton. The evidence of the prosecution witnesses was therefore unable to give a reasonable explanation as to why the appellant’s head got injured. Mr Kwan argued that if the appellant had injured his own head in a state of chaos during his vigorous resistance, the prosecution witnesses would definitely have seen it. He submitted that if the law enforcement officers did use the baton on the appellant’s head, the force used by the officers would then be rendered unreasonable. The magistrate was said to have accepted all the prosecution witnesses as honest and reliable without giving thorough consideration to the fact that their evidence was in fact undermined by the appellant’s head injury.

13.On Ground 2, Mr Kwan submitted that the magistrate failed to analyze Exhibit D2 (i.e. the medical report issued by Eastern Hospital).  Mr Kwan, citing para 38 of the Statement of Findings, argued that the burden of proof was not on the appellant to prove how he sustained his head injury.  The magistrate appeared to have misunderstood the principle in Browne v Dunn when pointing out that the burden was on the appellant.

14.Mr Kwan submitted that under the Browne v Dunn principle, a party seeking to establish its case is not allowed to rely in their closing submission on evidence which have not been put to the other side’s witnesses.  That said, it does not mean that a defendant in criminal proceedings is under any obligation to make known to the prosecution witnesses the cause of his injury.

15.Mr Kwan pointed out that the appellant was almost fainting at the time when he was apprehended. He queried how the appellant could have been expected to tell the prosecution witnesses the cause of his head injury and submitted that the magistrate has reversed the onus of proof by shifting the burden onto the appellant.

16.On Ground 3, Mr Kwan quoted the magistrate as saying, “I am of the view that it was in a state of chaos during his vigorous resistance that the defendant injured his own head which ended up bleeding.” He submitted that her remarks were devoid of any evidential basis, and that the magistrate’s finding was no different from sheer speculation.

17.Mr Kwan submitted that the three grounds of appeal, considered individually or as a whole, all showed that the conviction was unsafe.

The Respondent’s Reply

18.In his written submission, counsel for the respondent, Senior Public Prosecutor Mr Ivan Cheung, recapped the main points canvassed at trial by the appellant’s counsel in his closing submission as follows:

(1)  With regard to the physical force involved in the trial of Charge 3, the appellant first raised a defence that it was the body’s reflex actions (not self-defence) in response to the physical force [Appeal Bundle pp. 95S-96A];

(2)  The defence, while agreeing that it was not known how the appellant sustained his head injury, did take the following stance: The appellant’s head injury could have been caused during the time relevant to Charge 1, and when the appellant arrived at “the outside of the shop” (i.e. the time when the police officers managed to catch up and make contact with the appellant), he was obviously already injured [Appeal Bundle pp. 96B-F];

(3)  In respect of the physical force complained of, up until the stage of closing submission, there had never been any accusation against the officers of hitting the appellant’s head. In a nutshell, the defence was saying that it was the hitting of the appellant with the baton, the administration of the pepper spray and the use of pressure point control tactics and the like that brought about the appellant’s body movements, which did not come about as a result of resisting any police officer proactively or with intent [Appeal Bundle pp. 96F-101E]. The defence simply said that the appellant’s head injury might have some bearing on the issue of his mens rea.

(4)  The appellant’s second ground of defence was on whether the force used was more than what was necessary for the police to subdue the defendant, but the complaint was likewise about the force applied at “the outside the shop”, without complaining that the appellant’s head injury was caused by the officers’ unlawful use of force (not admitted by the respondent) [Appeal Bundle pp. 101G-102L].

19.The respondent does not agree with the appellant’s “piecemeal and stance-making approach” in making submissions. Charge 3 only involves PW2. It was only necessary for the prosecution to prove that PW2 was in due execution of his duty.  The appellant’s injury might well have come into being at the stage of Charge 1.

20.The respondent submitted that the defence adopted the same stance during the trial. It would give rise to injustice if the Court allowed the appellant to go back on his original stance on appeal. Moreover, Exhibits P2-P4 (the video clips) for all intents and purposes have captured what happened in relation to Charge 3 in an unbroken manner. Not a single part of the video clips showed any officer attacking the appellant’s head with the police baton or any other form of physical force during the stage of Charge 3.

21.The respondent submitted that the conviction could not be said to be questionable simply because the appellant had a head injury, and that there was no evidence to show that the appellant’s head injury was consistent with one caused by an attack with a long and hard object.

22.As to whether the force used was reasonable, the respondent relied on Lee Sin Chee[6] as authority, saying that the relevant test was whether it was “reasonable force under the circumstances”.  The magistrate, having taken into account the circumstances of the incident, including the appellant’s behaviour throughout, decided that the force used by the officers were reasonable.

23.The respondent disagreed that the magistrate had violated the principles on the burden and standard of proof, submitting that if the appellant had anything to say in relation to the cause of his head injury, the onus was on him to point it out.

My Considerations

24.First of all, having carefully considered the magistrate’s statement of findings and having viewed the relevant video clips time and again (including playing back in slow motion), I do not agree with the appellant’s contention that the magistrate had not fully considered the appellant’s head injury before deciding on a blanket acceptance of all the prosecution witnesses as honest and reliable.  The appellant’s head injury is an important piece of evidence in the instant case. It is implausible that the magistrate would have come to her finding that all the prosecution witnesses were honest and reliable without having taken the appellant’s head injury into account.

25.Nor do I agree with the appellant that regarding how the appellant sustained his head injury, the magistrate had reversed the burden of proof by shifting the responsibility to prove the cause of his head injury onto the appellant.

26.The magistrate had thoroughly analyzed all the evidence before her. As a matter of fact, none of the video clips produced in court showed any police officer hitting the appellant’s head with a baton. The magistrate, as the tribunal of fact, had the advantage of receiving the evidence at first-hand, and she had viewed all the relevant video clips. Therefore, I see no reason to interfere with her finding that all the prosecution witnesses were honest and reliable witnesses.

27.It is true that according to the medical report, after the appellant was transferred to the Eastern Hospital on 16^th September 2019, the doctors there found a 5 cm long deep linear laceration on his head which was still bleeding. However, the laceration itself is unable to show how the appellant got injured.  In this case, there was no expert evidence suggesting getting injured under what kind of circumstances the aforesaid injury was consistent with, not to mention any evidence to show consistency with an injury caused by the police baton.

28.Although the appellant stressed that it was not his allegation that the appellant’s head injury was caused by an attack with a police baton, by looking at Ground 1 of the grounds of appeal, one can see the emphasis over the claim by all the officers that they had not hit the appellant’s head with the baton. If the appellant did not mean to suggest consistency between the appellant’s injury and one caused by an attack with a police baton, I really cannot see why the appellant chose to highlight such evidence from the police officers.

29.As submitted by the respondent, during the trial of the case, the appellant’s main points were that it was his reflex response and he questioned whether it was appropriate for the police to use that kind of force. The appellant did not mention to any one of the officers that his head injury came as a result of an attack with a police baton. The defence also said during their closing submission that they “do not have any means to find out exactly at which stage the appellant sustained the head injury”.[7]

30.That the onus of proof was not on the appellant was something which the magistrate was clearly aware of. When she said that “the defence was unable to pinpoint the cause of the injury when cross-examining the witnesses”, she was merely pointing out the fact. I do not agree with the appellant’s submission that the magistrate appeared to have misunderstood the principle in Browne v Dunn.

31.The magistrate clearly knew what the appellant relied on during the trial, i.e. reflex response and that the appellant’s resistance amounted to self-defence if the force used by the officers had gone beyond what was reasonable.[8]  The magistrate took both arguments into account.

32.I would like to mention that according to exhibit D2, the appellant told the medical staff that he had been pushed to the ground violently and assaulted by police officers with batons on multiple body parts including his head.  He also said that he almost fainted at the scene and was suffering from dizziness and nausea.[9] As the appellant exercised his right to elect not to give evidence, what he told the medical staff naturally did not become evidence of this case, and the Court was unable to assess whether his remarks reflected the truth or not. It is interesting to note that although the appellant had told the medical staff on 16^th September 2019 that he had been assaulted with batons on multiple body parts including his head, he never put to any of the police officers in the witness box that he had been assaulted on the head with the police baton. It is of course a decision to be made by the defence as to how the appellant was to conduct his defence. But the fact is, the defence never put to any of the prosecution witnesses during the trial that they had beaten the appellant’s head with their batons.

33.As pointed out above, the appellant never mentioned to the police officers during the trial that his head injury was caused by an attack with the police baton. On appeal, the appellant actually relied on his medical report to prove that his injury could have been caused by an assault with the police baton.  But the medical report per se does not support the appealing party’s allegation.  What is more, as the respondent has submitted, the appellant only claimed during the appeal that his head injury could have been caused by an attack with the police baton. Such a stance clearly differs from that taken during the trial, and is unfair.

34.Even assuming that I do not find any unfairness in such an argument put forward by the appellant during the appeal that his head injury could have been caused by an attack with the baton, the fact is that prosecuting counsel did ask the prosecution witnesses when they gave evidence whether they had hit the appellant’s head with the police baton, and the witnesses all answered the question. It was up to the magistrate to accept, after taking all the evidence into account, what was said by the prosecution witnesses: that the prosecution had proved that the appellant’s head injury was not caused by an assault with the police baton.

35.Mr Kwan submitted that the appellant “was on the verge of fainting at the time of his arrest. How could he possibly have told the prosecution witnesses the cause of his head injury or made it clear to them how he got his head injured?” I have to point out that as the appellant exercised his right to elect not to testify in court, there was simply no evidence during the trial to prove what he claimed to have happened.  It seems that the appellant is relying on the “hearsay evidence” of what the appellant told the medical staff to support the allegation that the appellant was in a near-syncope state.  I cannot and would not take that into account.

36.I agree with the magistrate’s findings.  It is an indisputable fact that the appellant injured his head, but there is no direct evidence to show how he got injured. The magistrate was satisfied that the prosecution witnesses were honest and reliable witnesses, that they did not hit the appellant on the head with the police baton and that given the appellant’s fierce resistance, the force they used was reasonable force. According to the videos I have watched, the appellant did put up a very fierce resistance, and he fell to the ground more than once. Due to the confusion at that time, it is understandable that the prosecution witnesses were unable to say why or when the appellant suffered his head injury. In light of the appellant’s fierce resistance, it is reasonable to infer that it was during his stubborn resistance that the appellant broke his own head which ended up bleeding.  I agree with the magistrate's findings.  They are not speculations.

37.A magistracy appeal is to be conducted by way of a "rehearing". Upon “rehearing”, I agree with the magistrate's findings and I am satisfied that the conviction was not unsafe.

38.The appellant's appeal against conviction is dismissed.

Mr Ivan Cheung, Senior Public Prosecutor of the Department of Justice, for the Respondent

Mr Steven Kwan, instructed by Ho Tse Wai & Partners, assigned by Director of Legal Aid, for the Appellant

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