HKSAR v. Bickett Samuel Phillip

HCMA 339/2021

[2022] HKCFI 288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 339 OF 2021

(ON APPEAL FROM ESCC 2692 OF 2019)

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Before: Hon Toh J in Court

Date of Hearing: 15 November 2021

Date of Judgment: 8 February 2022

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JUDGMENT

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1.The Appellant was convicted after trial of one charge of assaulting a police officer, contrary to section 63 of the Police Force Ordinance, Cap 232.

2.After obtaining background report, the learned Magistrate sentenced the Appellant to 4 months’ imprisonment and enhanced the sentence for 2 weeks, because the assault had occurred in a MTR station.       

3.The Appellant appeals against both the conviction and sentence. 

Background 

4.The incident occurred on 7 December 2019 at the height of the 2 years of social disturbances that plagued Hong Kong. Some forces in society were encouraging attacks against police officers and off-duty police officers were also attacked if recognised on the street.  That is why the police force issued extendable batons for off-duty police officers to carry with them as a form of protection.

Prosecution Case

5.The victim in this case who gave evidence as PW1, was a senior police constable who had been part of the police force since 1982.  On that day he was off-duty but on the way to going on duty at the Aberdeen Marine Base. 

6.Police officers who were off-duty or on duty were taunted, maligned and sworn atby some of the people on the street, and on occasions were unnecessarily beaten up.  So against this background, PW1 found himself at the Causeway Bay MTR station on his way to report for duty at the Aberdeen Marine Base. 

7.When PW1 was going through the turnstile, he saw that a Chinese male had jumped over the turnstile without paying.  Being a conscientious police officer despite being off-duty, he decided to approach the Chinese male and asked him why he had done that, and he then put his hand on the Chinese male who then turned around and struggled with him.  The Chinese male broke free and PW1 had to chase after him down the long corridor of the MTR towards Exit F of the station.  

8.Along the way, wanting to attract the attention of civic-minded persons in the crowd who may have been able to help him stop this Chinese male, he thus shouted out “indecent assault”.  Understandably he did so because that would grab the attention of people more than if he had shouted out a failure to pay for the MTR, which is a real mouthful in any event.

9.So he chased after the Chinese male up the escalator and at the top of the escalator, a civic-minded member of the public, that is PW2, turned around and stopped the Chinese male.  PW1 ran up, caught up with them, and took out his baton and tried to put this Chinese male under control, while telling the Chinese male that he was a police officer.     

10.From behind him, he felt that someone hit him twice on the head, he turned around and he saw a foreign male in a cap.  As he did so, he lost his grip on the Chinese male who took the opportunity to flee towards the Exit F staircase of the MTR station to the street level.  PW1 chased after that Chinese male to the street level but lost him in the crowd.  PW1 returned downstairs to the podium.

11.Then we see from the video, that was played in court that when PW1 came towards the foreign male, he asked that foreign male, “what are you doing” because PW1 said he believed that he was the person who had hit him on the back of the head when he was trying to control the Chinese male. 

12.At that stage, the foreign male asked PW1, “are you Po Po?”, initially his answer was no, but when he asked a second time, PW1 replied yes, loud enough for the video to record the question and the answer.  Then it can be seen that after that immediately or almost instantaneously, the Appellant reached over from the other side of the railing and tried to snatch PW1’s baton.  With the help of PW2, PW1 was able to wrest his baton back and then he extended the baton and stepped forward intending to ask the Appellant why he attempted to snatch his baton.

13.As PW1 moved forward, the Appellant tried to snatch the baton again with both hands.  And at that stage, as we can see from the video that was played in Court, either the Appellant pulled PW1 and/ or with the assistance of the foreign male pushing, somehow PW1 lost his balance and fell over the railing.  At that stage, PW1 again clearly said as we can see from the video, that he was a police officer. 

14.PW1 landed with his back on the ground, the Appellant was on top of PW1, and still continued to try to snatch the baton, and also hit PW1’s left side of his face 2 to 3 times with his right hand.  At this point, PW1 could be heard to be revealing his police identity.  The Appellantthen stood up and placed his left foot on PW1’s left abdomen.  Again, PW1 in the video was heard to be saying he is a police officer.

15.Later, the video showed PW1 on his feet and theAppellant continued holdingonto the baton.  Later the police arrived, and PW1 was taken to hospital where he was found to have sustained injuries to his left thigh, left shoulder and left face.

16.PW1 in Court testified that the tenderness and soreness on his face were caused by the Appellant.  While the injury on his left shoulder and left side were inflicted when he fell over the railing.       

Defence Case        

17.The Appellant testified that he saw PW1 chase the Chinese male and that he later saw PW1 together with PW2 holding onto the Chinese male, and he saw PW1 beat the Chinese male with a stick.  So he went up to them and heard the other foreign male asking PW1 and PW2 twice whether they were Po Po, both replied in the negative. 

18.Worried about the safety of the Chinese male, the Appellant asked both PW1 and PW2 again in Putonghua if they were police officers, again that was denied.  The Appellant was unsure as to what happened next, somehow the Chinese male and PW1 left the scene to the street level.  Subsequently PW1 returned, and came down the stairs and asked the foreign male, “what are you doing”. 

19.The foreign male asked PW1 if he was Po Po, and PW1 said no.  So the Appellant said he thought some other people may get injured and grabbed hold of PW1’s baton, but was unable to snatch it over.  PW1 retreated a few steps and then charged forward with his baton raised, and tried to hit his head.  The Appellant said he stepped back and he did not pull PW1 over the railing.  He said PW1 might have tripped or someone had pushed him over. 

20.As PW1 was falling down, he asserted that PW1 grabbed his sweat shirt and pulled him down.  The Appellant was on top of PW1 and he felt PW1 hitting his leg and buttock with a baton.  So in self-defence, the Appellant said he hit PW1’s face “lightly” and grabbed hold of the baton.  Once he had the grasp of it and then stood up, and he put his left foot on PW1’s abdomen, hoping that this would “hold him there”.      

21.Subsequently, the Appellant told PW1 to stand up and then he tried to calm PW1 down, both of them moved to the side.  That was the first time the Appellant asserted PW1 said he was a police officer.  Subsequently, the polices arrived, he felt that they would be hostile to him, and so he made a video which he produced in Court as Exhibit D4.

22.In the trial, the Appellant produced Exhibit D2, a compilation of the prosecution videos, and Exhibit D7.  

Magistrate’s Findings   

23.The learned Magistrate accepted PW1 and PW2 as honest and reliable witnesses and PW3, he accepted as honest but not reliable. The learned Magistrate found the Appellant’s evidence evasive and defied common sense, and rejected the Appellant’s evidence, and ruled that the Appellant was not acting in self-defence at the time.

24.The learned Magistrate gave extensive and meticulous reasons as to why he so found, and I will not repeat his reasons here.  So based on his finding of facts, the learned Magistrate found that the prosecution had proved all the elements of the charge and convicted the Appellant.

25.The learned Magistrate, after considering the facts of the case, and found all the matters relevant to sentencing, adopted a starting point of 4 months’ imprisonment and added 2 weeks as an aggravating factor that the incident happened in a crowded MTR station as the potential risk of violence could have resulted.  So the Appellant was sentenced to 4 months and 2 weeks’ imprisonment.     

Appeal      

26.The grounds of appeal are, in brief, that the learned Magistrate had not given sufficient weight to the Defence Exhibits or to PW3’s evidence, and was wrong in rejecting the Appellant’s evidence, and wrong in accepting PW1 as an honest and reliable witness. 

27.Finally, the complaint is that the learned Magistrate erred in not allowing disclosure and inspection of the Force Procedures Manual, the Police General Orders and a Notice Board message. Therefore, the conviction was unsafe and/or unsatisfactory. 

Discussion     

28.Before beginning a discussion of the facts in this case, I want to note that the offence happened in December 2019 and that was the time when the social disturbances in Hong Kong was at its height. Police officers who were off-duty and recognized on the street were beaten up, and that’s why in September 2019, the Hong Kong Police Force issued off-duty police officers with extendable batons for their safety. 

29.It is at that time also a fact that much disruptions were made inside MTR stations and that there was a breakdown in law and order, particularly with some small part of the public, not paying the fare and jumping over the turnstile. Thus, against this background on 7 December 2019, PW1 was on his way to report for duty and was at the Causeway Bay MTR station.

30.In relation to Ground 1, Mr Choy SC submitted that the learned Magistrate should have paid closer attention to the compilation of the prosecution video exhibits by the defence, that is, Exhibits D2 and D7.  As had been noted by the learned Magistrate, he had in fact viewed all the videos very carefully. 

31.As Mr Lee pointed out at paragraph 32 of Statement of Findings, the learned Magistrate said:

“32. …As a result of enhancement and stabilization, the speed of the videos were altered. Part of a video were added to the middle of another video. The colour of the video was tuned. More importantly, some of these videos, for example D7, only focused on a certain part of the whole incident. The images of D7 were rather blurry because of image enlargement. The actions were less than fluent because of slow-motion.”

32.That would explain why the learned Magistrate said that these defence videos were supplementary to the prosecution videos.  From the above paragraph, it is also evident that the learned Magistrate had explained his reasons clearly, so Mr Choy’s complaint that the learned Magistrate had “failed to properly justify his reasons for doing so” has not been made out. 

33.The learned Magistrate also observed that the Appellant did not see the whole of the struggle between the Chinese male and PW1 as noted in paragraph 39 of the Statement of Findings and Exhibit D7 only started at 12:44:11 whereas the prosecution CCTV video started way before that time. 

34.It is clear that the learned Magistrate, after viewing all the videos, had sound reasons to conclude that PW1 and the Chinese male did have a vigorous struggle at the top of the escalator. 

35.As for Mr Choy SC’s submission that there was a discrepancy between PW1’s evidence and Exhibits D2 & D7 in that the Chinese male was man-handled by PW1 and PW2, and that while PW2 held the Chinese male’s arm from behind, PW1 extended his baton and beat the Chinese male.

36.We must not forget that the struggle had happened over a period of seconds, and the Chinese male was struggling so hard it took PW1 and PW2 together to try to restrain him.  So it was not unusual that the parties involved in the struggle may not have a blow by blow recollection of what they did.  It all happened very quickly and the thoughts running through PW1’s mind must had been to try and put the Chinese male under restraint.  So he would not be committing to memory everything he did at the time.

37.As a fact finder, the learned Magistrate was entitled to therefore consider the background and what he saw, and putting it all in context to consider whether this affected the credibility of PW1.  As can be seen from the video when PW1 turned his head around to say something to the foreign male and the Appellant, it was at that time that the Chinese male took his opportunity and escaped.

38.Mr Choy SC pointed out that when PW1 returned, he was holding the baton and raised it and shook it at the foreign male, asking him, “what are you doing”.  The foreign male asked PW1, “are you Po Po?”, and the time was 04:26 to 04:29 when PW1 answered “no”.  But moments later at 04:30 to 04:34, the Appellant tried to take the baton away from PW1 and failed, when the foreign male again asked, “are you Po Po?”, PW1 then said “yes”, which could be heard clearly from the video.      

39.As can be seen from the video, PW1 managed to step back, extended his baton and raised it above his head and went towards the Appellant. Mr Choy SC said he charged at the Appellant, I would not use the word “charged”, he did go towards the Appellant, who was at that time on the other side of the railing and when PW1 went forward, the foreign male was seen with his back to the camera going very close to the back of PW1 and the Appellant was in front of PW1.  At that stage, PW1 fell over the railing.  He was either pulled by the Appellant or pushed by the foreign male, or both, it is evident that he fell over the railing onto the ground.

40.Then one sees from the video that the Appellant was on top of PW1 and PW1 still had the baton in his hand, and was flinging it about when the Appellant was pressing on PW1 and then punching PW1 on his face, and then grabbed hold of the baton.  The Appellant then stood up and put his foot on PW1’s abdomen and tried to snatch the baton which PW1 held onto tightly. 

41.It was clear, therefore, as I have expressed to Mr Choy SC at the hearing that, in these circumstances, it was difficult to see how the Appellant could rely on self-defence as a defence.  It was clear from the CCTV video that the Appellant was in a dominant position over PW1 when he was on the ground.  The Appellant could have got up and left if he was so afraid of the baton, but when he got up, PW1 was still on the floor, the Appellant not only did not leave, but he got up and placed his foot on the abdomen of PW1. 

42.Meanwhile, the crowd was getting hostile towards PW1.  Offensive remarks could be heard shouted by the crowd at PW1, who was, by that time, known to the crowd as a police officer.  The situation was getting quite difficult for PW1 and he was certainly at that time outnumbered and overpowered.  It was therefore, fortuitous that PW2 was present at the scene and the police arrived just in the nick of time. 

43.Much had been made by the defence as to why PW2 got his Good Citizen’s Award and it is clear to me that PW2, without thinking of any self-preservation or safety for himself, stood out and helped PW1, as any good citizen would.  A commendable act of courage, indeed, under the circumstances.

44.Much was also made by the defence that PW1 had lied when he shouted “indecent assault” during the pursuit. It was a perfectly understandable situation for PW1 to have done so in order to attract the attention of the people in the MTRto try and see if anyone could assist him to stop the Chinese male and indeed, PW2 heard the cry and managed to stop the Chinese male. 

45.So that complaint by Mr Choy SC was without merit as it was in the exigency of the moment that PW1 uttered that falsehood in order to attract attention.

46.As Mr Lee very helpfully pointed out, Stock J, as he then was, in R v Kwong Wing On and another[1] at paragraph 12 said:   

“Pausing at this juncture, I would say this : that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

47.Mr Choy SC also pointed out that PW3’s evidence was important because he gave evidence that both PW1 and PW2 told him that PW1 had placed his baton on the Chinese male’s neck[2]. The learned Magistrate had doubts about the reliability of this note made by PW3, and that what he claimed both witnesses said to him, was not subsequently verified in any statement.  Also, the learned Magistrate was entitled to deduce from the evidence that had the baton been placed on the Chinese male’s neck, he would not have so easily got away.    

48.Mr Lee pointed out that it was strange that both PW1 and PW2 used the same description in Chinese characters to describe how the baton was placed.  The learned Magistrate was therefore entitled not to give much weight to what PW3 said, which I agree. 

49.Mr Choy SC also submitted that PW1 claimed he tried to stop the Chinese male after he jumped over the turnstile near the ticketing office, and that PW2’s evidence was that he had no impression of anyone fighting or struggling when he passed the ticketing office.  These discrepancies, he submitted, should have been noted by the learned Magistrate when finding whether either were honest and reliable witnesses.  I do not find this point has merit as PW2 could have been unattentive to what was going on around him or he had passed the ticketing office before the attempt by PW1 to stop the Chinese male.    

50.Mr Choy SC complained that PW1 had many opportunities to produce his warrant card, a point I find no merit in, because as can be seen from both the videos from the defence and prosecution that the time was short, much struggling had been going on, much shouting and physical interaction, PW1 was in fact, outnumbered and overpowered, and I failed to see how he could have at any of those times taken out his warrant card to show the Appellant.

51.Mr Choy SC in Ground 4 also complained that the prosecution had failed to prove the elements of the offence, because of PW1’s refusal to show his warrant card, and his denial of the question of whether he was a police officer, said by the Appellant in Putonghua to him.  But it is clear as I have said earlier that from the video that the first time when the foreign male, at the bottom of the stairs at the scene where PW1 was pulled over the railing, he was asked by the foreign male if he was Po Po, he said “no”, but the foreign male asked him again within seconds whether he was a Po Po and PW1 said “yes”.  So it was clear that prior to PW1 falling over the railing, whether pushed or pulled, it was clear to both the Appellant and the foreign male that PW1 had already admitted he was a police officer. 

52.Mr Choy SC submitted that PW1 came down the stairs towards the foreign male in an aggressive manner, with his baton extended, and when the foreign male had displayed no violence towards him.  Mr Choy SC had forgotten that when PW1 was trying to restrain the Chinese male, PW1 had felt someone hit him on the back of his head and he turned around and saw the foreign male.  So I cannot see how Mr Choy SC could say that the foreign male did not pose “any imminent threat of violence”.

53.Mr Choy SC submitted that the videos showed that PW1 was not acting in due execution of his duty because of the unreasonable force he used.  The force was indeed reasonable as the Chinese malewas seen jumping over the turnstile without paying the MTR ticket.  It was the duty of PW1 to stop the Chinese male to question him, and so he was acting in the due execution of his duty.  But when he was trying to restrain the Chinese male, he was distracted by the foreign male who had apparently hit him on the back of his head, causing him to loosen his grab on the Chinse male who then took the opportunity to flee. 

54.PW1 was therefore acting reasonably to come down the stairs and asked the foreign male what was he doing.  And at the same time, while he was doing that, the Appellant across the railing extended his hand to snatch PW1’s baton unsuccessfully.  Therefore, PW1 was within his right as a police officer when someone was trying to snatch his baton to come forward towards that person to ask him what was he doing.  And at that stage, the Appellant not only did not desist but continued to stretch out his hand to snatch the baton with the foreign male helping.  PW1 was pushed over the railing and/or was pulled over the railing, and fell onto the ground.

55.After PW1 fell on the ground, he was overpowered by the Appellant and so Mr Choy SC’s submission that PW1 was striking the Appellant’s leg and buttock was not in execution of his duty was wrong, because he was overpowered, he was in danger of losing his police issued baton and he was outnumbered in front of a hostile crowd.  So it was understandable therefore, that he would try to defend himself in that way.

56.I therefore, do not see any merit in Mr Choy SC’s accusation that PW1’s action was in any way unlawful or disproportionate, nor was the level of force unreasonable.  So this ground of appeal is also dismissed.

57.The last ground which is to complain that the pre-trial application for disclosure of the Force Procedures Manual Chapter 29, the Police General Orders and Notice Board message regarding the issue of extendable baton while off-duty were refused by the learned Magistrate as being irrelevant to the trial and also subject to public interest immunity.  As is noted, the sought material is available publicly, however, the Appellant wanted the official version. 

58.Mr Choy SC submitted that the sought materials would have effectively allowed cross-examination of PW1 regarding his use of the baton when no “physical assault not intended to cause serious bodily injury” was present, and that PW1 had to display “self-discipline and exercise a high degree of restraint when dealing with the public and shall not resort to the use of force unless such action is strictly necessary and he is otherwise unable to effect the lawful purpose”.  And also that he had to give a warning if he intended to use force and that the force must be minimal and reasonable in the circumstances. 

59.As I have already pointed out, the event of that day took place during a most violent chapter in the history of Hong Kong where violence on the streets were meted out on ordinary citizens day after day, and police officers, when off-duty, if recognized were also beaten up, which caused the issue of the batons to off-duty police officers in September 2019.

60.All the rules and requirements are of course reasonable and should be followed, but it must depend on the circumstances adhering to a particular time and place.  In the circumstances of this case, it would be spurious to point out that PW1 was reacting to the actions of the people he was facing, and therefore his reactions were entirely natural and appropriate in the circumstances.

61.To offer an analogy, the road traffic rules are there for all drivers to observe when the traffic is running normally. But in the circumstances of an emergency, for example, a child runs into the road, the driver may have to avoid the child by driving his vehicle onto a pavement, which he is not allowed to do under normal circumstances. 

62.So one has to look at the circumstances of a particular case and that is what a fact finder like the learned Magistrate would have to do. Clearly, he had made the right decision that these rules are not relevant to the circumstances of this case, or to the cross-examination of PW1.  As enough material is available publicly on the rules and regulations which a police officer has to follow.  Therefore, the learned Magistrate did not err in refusing to allow the defence to inspect the materials sought. 

63.As Mr Lee correctly pointed out the learned Magistrate made no error as to the legal principles of relevance and public interest immunity. The learned Magistrate, having considered the prosecution evidence and the defence, and the law governing the use of force (i.e. section 101A(1) of Cap 221 and HKSAR v Chu Frankly[3],  the learned Magistrate adopted the test of “reasonable in circumstances” instead of rules in any of the manuals. 

64.As Mr Lee went on to point out the learned Magistrate when considering whether a police officer was duly exercising his duty and whether excessive or unreasonable force was used, the Court has to consider the situation as a whole.  So whether the officer was following the manuals or not was irrelevant as these manuals had no legal force, as they were simply internal guidelines and therefore, he ruled that these materials were irrelevant in the disclosure sense.        

65.Having considered all the grounds raised by Mr Choy SC on behalf of the Appellant, I find no merit at all in any of the Grounds of Appeal against conviction.  I find that the learned Magistrate did not err either in law or on the facts in convicting the Appellant. 

66.So, the appeal against conviction is dismissed.

Appeal against Sentence   

67.The Appellant’s counsel, Mr Choy SC submitted that the sentence was manifestly excessive as the learned Magistrate’s adoption of 4 months as a starting point was excessive taking into account the injuries sustained and that in previous cases, the starting point was not higher than 3 months’ imprisonment.

68.As observed by Mr Lee, there is no sentencing tariff for this type of offence.  The maximum sentence under this offence is 6 months’ imprisonment and a fine of HK$5,000. 

69.As observed by the Court, time and time again, police officers or any public officers who are carrying out their public responsibilities must be protected when in the execution of their duties.  Most recently as observed by the Court of Appeal in Secretary for Justice v Chan Lincoln[4]:

“24. Although there is no sentencing tariff for this type of offence, the courts have repeatedly held that the offence whether under s.63 of the Police Force Ordinance or s.36(b) of the Offences against the Person Ordinance (Cap.212) is a serious one and the sentencing norm is one of immediate imprisonment. In Wong Chun Cheong, the case relied on by Mr Reading concerns only with unlawful lion dance without a permit, a trivial offence which the Court of Final Appeal held that the magistrate erred in sending the defendant to the Training Centre. As a matter of fact, it is very rare that a probation order will be imposed for assaulting police officers. Police officers or indeed any public officers who are merely carrying out their public responsibilities must be protected in the execution of their duties. If contemptuous and abusive behaviour towards police officer is tolerated, law and order will be compromised.”

70.The Court of Appeal in HKSAR v Choi Ping Chiu[5] made a similar observation:

“28. Police officers, in the due execution of their duties, are symbol[s] of law and order, and must be respected and protected from abuse. If contemptuous and abusive behavior towards police officers were tolerated, law and order would be compromised.”

71.In this case as Mr Lee correctly pointed out, the learned Magistrate had to not only consider that PW1 was trying to prevent his baton from being snatched, he was pulled over the railing, he landed on the ground and the appellant knelt on his chest, punched his left temporaland even stepped on his abdomen.  Therefore, the sentence is hardly excessive, let alone manifestly excessive. 

72.Mr Choy SC also submitted that the learned Magistrate had failed to consider the background of the Appellant.  He should not have enhanced the sentence by 2 weeks. 

73.As Mr Lee correctly pointed out, a sentencing court should also consider all the facts of the case, not only the acts of the defendant when determining an accused’s culpability, and that would include the time, place, surrounding circumstances, and the reaction or any possible consequences which could be caused at the scene.[6]  

74.As Mr Lee astutely noted in his submission, this incident took place on 7 December 2019 when Hong Kong was undergoing widespread social unrest and turmoil.  Therefore, the learned Magistrate was correct when considering sentence, to take into account that this offence took place in a MTR station during its busy hours, and as we can hear from the video taken of the episode that the emotions of some of the spectators were high and voices swearing at the police could clearly be heard.  Therefore, the potential risk for conflict cannot be underestimated.  It was lucky for PW1 that the police arrived on time and also very lucky that he had the assistance of PW2 at the time. 

75.I am therefore, not persuaded at all that the 4 months starting point was in any way excessive, or that the 2 weeks’ enhancement was improper or unjustified in the circumstances.  

76.So in the event, I also dismiss the appeal against sentence.      

Mr Vincent Lee, SPP of the Department of Justice, for the Respondent

Mr Edwin Choy SC leading Mr Philip C.L. Wong, instructed by Robertsons, for the Appellant