HKSAR v. Ho Hiu Long

[English translation – 英譯本]

HCMA 202/2020

[2021] HKCFI 2245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 202 OF 2020

(ON APPEAL FROM KCCC 3043/2019)

____________

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JUDGMENT

A.  Background

1.The appellant was charged with an offence of assaulting a police officer, contrary to section 63 of the Police Force Ordinance of the Laws of Hong Kong. The appellant pleaded not guilty and was convicted after trial by Ms Chan Wai Mun, Magistrate of Kowloon City Magistrates’ Courts (“the magistrate”) and sentenced to three weeks’ imprisonment.

2.The appellant initially appealed against conviction and sentence and on 21 June 2021 informed the court that he abandoned the appeal against sentence and would appeal against conviction only. I formally dismissed his appeal against sentence.

B.  Facts

3.The magistrate recounted the cases of both sides in her Statement of Findings, which I adopt as follows:

“Prosecution case

7. On 24 December 2019, the first prosecution witness, Sgt A (“PW1”) and seven other police officers carried out an anti-crime task in plainclothes in Harbour City after receiving the information that some people were going to vandalize the shops and burn the Christmas tree inside Harbour City.

8. At 2000 hrs on the same day, PW1 led his team members and arrived at the atrium on Level 2 of the [Gateway] of Harbour City. They stood near Shop 2416 to make observation. They found that hundreds of protestors were shouting slogans ‘No rioters, only tyranny’ (沒有暴徒，只有暴政), ‘Five demands, not one less’ (五大訴求，缺一不可) and raising flags. Some protestors were dressed in all black and wore masks. The protestors walked along the oval-shaped passageways in the direction of Star Ferry Pier (see sketch P6). Suddenly dozens of protestors turned and walked back in the opposite direction, rushed from two directions along the oval-shaped passageways. They approached PW1 and his team members and provoked them, saying ‘Ah sir, please give way’ (阿sir，唔該借歪), ‘So fucking cool’ (好撚型呀), ‘Eat shit, dogs in plainclothes’ (食屎喇，便衣狗).

9. Since PW1 and his colleagues had to hide their identities for investigation purpose, they did not produce their warrant cards, but PW1 guessed that they were figured out to be police officers because their appearance differed from other protestors.

10. Seeing the deteriorating situation and feeling of danger while being surrounded, PW1 waved his hand (see D2, screenshot 4) to gesture his colleagues to leave together.

11. On reaching Shop 2417 (see sketch P7), PW1 suddenly felt the pain of being smacked on his back. He turned to take a look and saw a person wearing a black hooded long-sleeved sweater and a cap with his right hand raised in open palm, who was later known to be the defendant (see screenshot P3(6)).

12. At this juncture, the protestors still kept on yelling words like ‘Eat shit! Dogs in plainclothes’. Following this, the officer who was together with PW1, ie PC 107 (PW2), immediately stopped the defendant. The situation at the scene was chaotic (see screenshot P3(7)).

13. PW1 and other colleagues formed a temporary defence line to control and abate the situation and instantly requested reinforcement of the anti-riot police. At that time, the officers at the front of the defence line were attacked by people in black with throwing paper, hard objects and umbrellas, which did not die down until the arrival of the anti-riot police.

14. It is not disputed that there was a CCTV system near Shop 2417 in Harbour City, and the recordings were burnt onto a compact disc P2, from which some screenshots were captured (see P3). From screenshots 3 to 7 of P3, PW1 identified himself, PC 107 and the defendant and did markings correspondingly.

15. The second prosecution witness was PC 107 (“PW2”) who was on duty with his team members in plainclothes in Harbour City on the day in question. At around 2000 hrs, they were at the atrium on Level 2 of the [Gateway] of Harbour City. Seeing that there were more and more protestors and reporters, who kept on scolding, shooting and staring at the police officers and said that they were dirty cops (黑警), PW1 directed the team members to leave the scene.

16. PW2 followed PW1 at a distance of about 2 metres behind, and then he saw a man, ie the defendant, smack PW1’s back with his right hand to stick a poster. While PW1 turned to look at the defendant, PW2 immediately went up to subdue the defendant. Another sergeant 34076 assisted by the side, and the defendant was taken to the stone pillar beside the escalator and pinned on the ground. PW2 said, ‘Police, don’t move.’ However, the defendant kept on resisting. Afterwards, PW2 handcuffed the defendant’s hands at the back. After the defendant had stopped resisting, PW2 asked for the defendant’s name, and the defendant answered, ‘Ho Hiu Long.’ After that, PW2 produced his warrant card and declared arrest for the offence of ‘assaulting a police officer’. Finally, the anti-riot police arrived, and it was not until then was the situation under control. The defendant was taken to Tsim Sha Tsui Police Station.

Defence case

17. In order to answer the call on the internet of the activity ‘Shop with you’, on 24 December 2019, the defendant got to Harbour City at sometime between three o’clock and four o’clock in the afternoon. He had arranged with his friend Ah Fung to go there together. The defendant even dressed in the way as required by the organiser, ie wearing a black top, a cap and a black mask.

18. The defendant said that the atmosphere at the scene was peaceful, where a group of people gathered together to walk and shop, and shouted requests and slogans: ‘Liberate Hong Kong, revolution of our times’ (光復香港，時代革命), ‘Five demands, not one less’. The defendant even had prepared posters, showed them to the participants and the reporters, and distributed them to the people at the scene and put them up at the corners of the shopping mall.

19. In the course of the activity, a person who was carrying a violin box on the back agreed with the content of the defendant’s poster and asked the defendant to stick a poster on the violin box on his back. On seeing this, other people also asked the defendant to stick posters on their back. They cheered on each other.

20. The defendant also deliberately picked someone dressed in black for the purpose of sticking posters on them. He said that each time it was after or at the time of putting a poster onto a person’s back that he asked the person concerned of his wish, and those people appeared to be happy.

21. The defendant explained that sticking a poster on people’s back was a new way of promotion. The response at the scene was positive. The defendant stuck posters on the back of five or six persons.

22. The defence submitted a compact disc (see D1) which contained three clips of what had happened at the scene. See D2 to D4 for the relevant screenshots.

23. At that time, eeing that PW1 was also in black and waved to lead the crowd (see D2, screenshot 4), the defendant thought that PW1 was in the lead of the queue, ie leader in the activity. The relative positions of the defendant and PW1 at that moment can be seen in sketch D7.

24. When PW1 passed by the defendant, the defendant stuck a poster onto PW1’s back and raised his hand to cheer on PW1. However, before the defendant could ask PW1 where he was going to, he had already been pushed down onto the floor.

25. According to the defendant, had he known that PW1 was a police officer, he definitely would not have stuck a poster onto his back. He picked PW1 only because PW1 was dressed in black and wore a black mask, which were consistent with the clothing required by the organizer.

26. The defendant insisted that when he stuck the poster on PW1’s back, he did intend to ask PW1 of his wish, but before he had the chance to explain, he was attacked from behind forthwith, pushed against the wall and pinned down. No one had ever revealed any police identity to him or ever accused him of assaulting a police officer before the defendant was finally handcuffed. At that moment, he inferred that they were police officers.

27. Since it was very noisy at the scene, the defendant said he himself could not hear anyone shout out words like ‘Just a group of dogs in plainclothes’ (成班便衣狗), ‘Eat shit, Ah sir’ (食屎啦阿sir).

28. The second defence witness, Choi Min Kong (transliteration), (‘DW2’) was the one who took video recording, the clip D1-1 of the defence. He went to the scene to report the activity “Shop with you”.

29. DW2 said that in the course of filming, the flow of people was densely packed and stuck at the atrium. It was noisy at the scene. Many protestors were yelling and chanting slogans. There were overlaps of voices and sound.

30. It can be seen from the initial part of the clip D1-1 that someone shouted out, ‘Ah sir, please give way’ (阿sir，唔該借歪), ‘So fucking cool’ (好撚型), ‘Yes sir, don’t’ go away’ (Yes sir，唔好走) and ‘So scaring’ (好驚呀).

31. At the scene DW2 captured a person wearing a green outerwear who stayed at the same place for a long time, DW2 therefore inferred that that person was a police officer in plainclothes.”

B.1.  Magistrate’s gist of relevant legal principles

“34. Strictly speaking, assault may be divided into two distinct offences, namely ‘assault’ and ‘battery’. Their definitions can be seen in Archbold Hong Kong 2020, paragraphs 20-162 to 20-163.

35. The offence of ‘assault’ only requires to cause a person to apprehend; while the offence of ‘battery’ requires actual physical contact, however slight the force is[1].

36. Proof of intention or recklessness is required for proving the mens rea of both offences.

37. As to the offence of ‘battery’, the touching in question is required to be in a hostile manner: see HKSAR v. Ng Man Yuen, Avery, 2019 HKCFA 33[2]; and ‘hostile intent’ is not required.

38. ‘Hostile intent’ is applicable only to the offence of ‘assault’: see Hong Kong Archbold 2020, paragraph 20-162, and HKSAR v Ho Po Chun (transliteration)(香港特別行政區v何寶珍), HCMA179/2016, paragraph 17. In Ho Po Chun, the court recognised the legal principle raised by D Pang J in HKSAR v Chan Tak Cheung (香港特別行政區 v 陳德章), HCMA 741/2014, in that ‘hostile intent’ was applicable only to the offence of ‘assault’ and was not an element in the offence of ‘battery’.

39. In respect of the offence of ‘assaulting a police officer’ under section 63 of the Police Force Ordinance, Cap 232 of the Laws of Hong Kong, proof of the accused’s knowledge that the person assaulted was a police officer was not necessary, nor was it necessary to prove the accused’s knowledge of the officer being in the execution of his duty. However, if the accused had a genuine belief that the victim was not a police officer or that the police officer was not acting in the course of duty, then even if such belief was a mistake, the prosecution still failed in establishing the offence, provided that the belief was a reasonable one: see Hong Kong Archbold 2020, paragraph 20-285[3].” (Emphasis added)

B.2.  The magistrate identified the issues in the present case as follows:

“40. In this case, the defence does not dispute that the defendant had stuck a poster on PW1’s back (actus reus), which was an actual physical contact, and therefore it was a ‘battery’.

41. Throughout the event, PW1 who was in plainclothes had never revealed his police identity, but the defence did not dispute that PW1 and his teammates were in the execution of their police duty.

42. The crux of this case may be summarized into the following two points:

(1) whether the defendant had the mens rea, ie whether or not he battered PW1 on his back either with intention or recklessness; and

(2) whether or not the defendant genuinely believed that PW1 was neither a police officer nor acting in the course of duty.”

B.3.  The magistrate’s findings

4.After considering and analysing the evidence, the magistrate was satisfied with the testimonies of PW1 and PW2 and found that the appellant’s testimony was not true. The appellant did batter PW1 with intent. The magistrate found that even if the appellant did not have the intention, his act must be reckless. The appellant stuck a poster on the back of a person who he was fully aware to be a police officer, which was an act in a hostile manner. The magistrate held that the prosecution had proved all the elements of the offence committed by the appellant and found the appellant guilty as charged.

C.  Grounds of appeal

5.The appellant’s counsel, Mr Charles Chan, leading Ms Sharon Ng and Mr Brian Yu, put forward seven grounds of appeal in total with the eighth ground suggesting the conviction being unsafe and/or unsatisfactory in all the circumstances of the present case. The first two grounds involve questions of law and the third to the seventh grounds direct at the evidence of the case.

D.  Magistracy appeal

6.A magistracy appeal is conducted by way of “rehearing” on the evidence before the trial court (supplemented by such further evidence as the appellate court may admit): see Chou Shih Bin v HKSAR[4]. In respect of the facts, an appellant court has to take into account the advantage enjoyed by a trial magistrate of seeing and hearing the witnesses’ testimonies. The appellate court should be slow to interfere with the findings of facts made by the magistrate unless it is found by the appellate court to be “plainly wrong”: see HKSAR v Kevin Egan [5].

7.If the magistrate makes an error constituting “material irregularity” in dealing with a case, the appellate court may quash the conviction after considering whether it is “just” for such an order to be made. Even if the appellate court does not or cannot identify any error made by the magistrate or the grounds of appeal fail, the appellate court must still determine whether the evidence adduced by the prosecution establishes the guilt of the appellant beyond reasonable doubt, failing which the appeal must be allowed: see HKSAR v Ip Chin Kei and Others [6].

8.As I can see, a considerable part of the grounds of appeal put forward by the appellant are complaints about the magistrate’s findings of facts. I will first deal with the legal issues, and then consider if the magistrate has made any mistake in the findings of facts, and after that determine by way of “rehearing” whether the verdict is to be upheld or the conviction should be found unsafe and/or unsatisfactory.

E.  Ground of appeal 1: The magistrate was wrong in law to find that the “honest but mistaken belief” which the appellant relied on as his defence “must be reasonable”.

E.1.  The appellant’s submissions

9.The appellant relied on HKSAR v Tam Kon Chung & Anor [7], in which the Court of Appeal stated that the consideration on “genuine belief” in the case of rape was a subjective one. The trial judge pointed out in directing the jury that they had to consider all relevant matters from the applicant’s perspective, including the presence or the absence of any reasonable grounds on his part for such a belief. Nevertheless, the trial judge further directed the jury that they had to consider whether there was any evidence which constituted reasonable grounds for an honest belief. In doing so, he shifted the emphasis from whether the applicant had an honest but mistaken belief that the victim was consenting to sexual intercourse to the subsidiary consideration of whether there were reasonable grounds for such a belief[8].

10.The appellant also relied on Archbold Hong Kong 2020, paragraph 20-285:

“… if mistake of fact is available to a defendant to rely upon, then the authorities now clearly establish that the mistake does not have to be reasonable: Kimber; Willams (G); Beckford, above…” [9]

11.The appellant argued that he had to raise only his subjective genuine belief and was not required to prove that the belief was reasonable objectively.

12.Therefore, the magistrate was wrong to state in paragraph 39 of her Statement of Findings that “the belief however must be reasonable”. In view of the above mistake in law, the magistrate failed to consider if the appellant subjectively did not know PW1 was a police officer and if the requirement for relying on an honest but mistaken belief as a defence was satisfied.

E.2.  Respondent’s response

13.Mr Andy Lo, SPP acting for the respondent said in respect of paragraph 39 of the Statement of Findings that from the context thereof, the paragraph obviously made it clear that (1) as to the passage “police officer in execution of his duty” in relation to the elements of the offence, whether the appellant knew that PW1 was a police officer in execution of his duty was not crucial; and (2) the misunderstanding that the appellant claimed to have must be or might be an honest one (an honest misunderstanding).

14.“Honest misunderstanding” was not a criterion for judging if the belief concerned was held on a reasonable basis, but if it was or might be honestly held. However, in considering whether the belief concerned was an honest one, its “reasonableness” was definitely one of the factors to be considered: HKSAR v Ng Man Yuen Avery[10].

15.The respondent argued that the magistrate did clearly point out in paragraph 42 that “whether the defendant honestly believed…” was one of the crucial points in the present case[11]. After careful analysis, she refused to accept that the appellant had “honest misunderstanding” [12].

16.The respondent said that the magistrate had all along focused on considering if the belief concerned was honest, which was correct.

E.3.  Discussion

17.Admittedly, in respect of the charge in question, it was not necessary for the prosecution to prove the appellant knew that the person assaulted was a police officer, nor was it necessary to prove the appellant knew that the police officer was in the course of his duty, nevertheless, in dealing with the honest but mistaken belief, the magistrate did not mean that when the court was considering whether the appellant did or might honestly believe that PW1 was not a police officer, the court might consider if the appellant had any reasonable basis to have that honest but mistaken belief. She even directly pointed out that “however the belief must be a reasonable one”. She appeared to have erred in the legal principle.

18.Since a magistracy appeal is conducted by way of “rehearing”, I have to consider the evidence in the case before deciding if the conviction is unsafe or unsatisfactory.

F.  Ground of appeal 2: In dealing with the concept of “hostility”, the magistrate erred in distinguishing between “hostile intent” and “hostile manner” without sufficiently considering the absence of the element “hostility” in the present case.

F.1.  Appellant’s submissions

19.The appellant said that problems arose when the magistrate analysed the elements of the offence of assault. In paragraphs 37 to 38 of her Statement of Findings, the magistrate said that the offence of assault required the touching concerned to be in a hostile manner, and hostile intent was only applicable to assault.

20.The appellant contended that looking at Ng Man Yuen Avery cited by the magistrate as a whole, the Court of Final Appeal did not distinguish between “hostile intent” and “hostile manner”, nor regard them as two separate and different principles but used “with” in expressing them.

21.The appellant argued that “hostile manner” was an objective standard, but the wording used by the Court of Final Appeal was “state of mind in a hostile manner”; therefore the Court of Final Appeal would not require a purely objective standard for the relevant offence. On the contrary, “state of mind” was a subjective standard. It appeared that the magistrate did not regard “hostile manner” and “state of mind” as being in the same category. The appellant queried: Has the Court of Final Appeal indicated the existence of such a difference in the relevant law fully in such a short sentence?

22.Since Ng Man Yuen Avery was only a hearing of an application made to the Court of Final Appeal for leave to appeal, the appellant contented that whilst having no analysis or discussion in the judgment, has the Court of Final Appeal at the stage of leave application established that it is not necessary to consider “state of mind” in raising “hostile manner”?

23.The appellant submitted that Ho Po Chun and Chan Tak Cheung which the magistrate relied upon in fact did not deal with the issue of whether hostile intent was applicable only to assault. In Ho Po Chun, it was said that “hostile intent” was only applicable to the offence of assault and was not an element of the offence of battery, and that such principle was adopted by following the judgment in Chan Tak Cheung. However, in Chan Tak Cheung, D Pang J mentioned only the appellant’s complaint. He made no analysis on the issue of whether hostile intent was only applicable to the offence of assault.

24.Furthermore, the appellant said that the magistrate had not considered the principle in HKSAR v Shek Kwok Ngai [13]. In Shek Kwok Ngai, the Court of First Instance pointed out that hostility was not an element of either assault or battery, but only a factor which the court could take into consideration.

25.The appellant submitted that the judgment on the issue concerned in Shek Kwok Ngai might be different from the determination of the Court of Final Appeal in Ng Man Yuen Avery, and the court had to further clarify that in the offence of assault or battery whether the prosecution must prove that the accused had “hostility” (no matter it was hostile intent or manner), and whether the court must consider “hostility” (no matter it was an element of the offence or not).

26.The appellant contended that the magistrate’s analysis on whether the appellant was “hostile” was insufficient.

F.2.  Respondent’s response

27.The respondent in their written submissions first pointed out the elements related to “battery”:

“38. In ‘assaulting a police officer’, the actus rea in relation to the limb of assault includes ‘assault’ or ‘battery’. Both prosecution and conviction in the present case were made on the basis of ‘battery’, and the relevant elements are first set out:

(1) ‘Battery’ requires actual ‘unlawful force/violence’ inflicted on the body of the other party[14].

(2) ‘Force/violence’ is a neutral adjective which may be simply understood to be physical contact. Generally speaking, ‘force/violence’ is ‘unlawful’ if it is inflicted without consent or beyond the generally acceptable standard of physical contact in daily life[15].

(3) The mens rea requires the defendant to have inflicted on others unlawful force/violence intentionally or recklessly. The relevant legal principle for proving ‘recklessness’ has been illustrated in HKSAR v Sin Kam Wah (2005) 8 HKCFAR 192[16].

(4) The mens rea in the present case means:

i. The appellant inflicted unlawful force/violence on PW1 intentionally; or

ii. The appellant, having realized that his acts would cause PW1 to be subjected to unlawful force/violence, still took the risk, being regardless of the consequence, and continued with the act.

(5) If the court accepts that the defendant honestly misunderstood that his act was acceptable to the complainant (including consent and acquiescence), then even if the alleged act in itself might be defined as ‘unlawful force/violence’, the defendant’s defence still stood.”

28.The respondent submitted that “hostility” only assisted in analysing whether the “force” was a factor accepted by the complainant or reasonably accepted in daily life. “Unlawful force” broadly referred to aggressive/offensive contact. Whether or not certain contact was “in a hostile manner” or “intentional” or “accidental” were all factors for determining if the contact concerned was aggressive/offensive. “Hostile intent” was not the only indicator of whether certain “force” was “unlawful” and was never indispensable.

29.The respondent submitted that D Pang J in Chan Tak Cheung set out the definitions of assault and battery[17]:

“Assault: ‘Intentionally or recklessly causes another to apprehend immediate and unlawful personal violence’;

Battery: ‘intentionally or recklessly causes another to sustain immediate and unlawful personal violence’.”

The definitions were consistent with the respondent’s analysis, and the essence stated by the Court of Final Appeal in Ng Man Yuen Avery was the same.

30.The respondent’s stance here and that in Shek Kwok Ngai were the same. The respondent said that “hostility” was obviously a factor assisting in analysing whether the alleged acts were unlawful force. If there was substantially no mistake in the magistrate’s analysis, it would tend to be too superficial or academic to tangle up in individual specific term.

31.In respect of the appellant’s misunderstanding of Chan Tak Cheung and Ho Po Chun, the respondent pointed out the following in their written submissions:

“51. As to Chan Tak Cheung [Appellant’s authority 4], paragraphs 28 to 34 have to be read together. After pointing out the essence of ‘assault’ and ‘battery’ in paragraph 28, D Pang J set out the appellant’s complaints in paragraphs 29 to 30. In that case, the appellant complained that the magistrate was wrong because he had, in a case of ‘battery’, considered ‘hostile intent’ which was an element of ‘assault’. In D Pang J’s analysis in paragraphs 32 and 33, he found that the magistrate was definitely able to find out the difference between ‘battery’ and ‘assault’ and therefore there was no confusion. It was guessed that only because the case was not categorized as either assault or battery at the trial that the magistrate analysed the mens rea of both ‘assault’ and ‘battery’ as a matter of caution. Unfortunately, the relevant [Statement] of Findings became hard to be understood as a result. It can be seen that in the context of the case, the court did not criticize or overturn that ‘hostile intent’ is related to the consideration of ‘assault’.

52. It is even clearer in Ho Po Chun [Appellant’s authority 3], which is also a case of ‘battery’. The magistrate found that the appellant had deliberately pushed PW1 to vent his own discontent. The appellant said that he did not scold the witness when he performed that act and therefore he had no ‘hostile intent’. The respondent submitted that ‘hostile intent’ which was an element of ‘assault’ was not crucial in that case of ‘battery’, and he also cited some authorities and Chan Tak Cheung (paragraph 17 cited). After consideration, the court agreed with the respondent’s submissions and analysis (paragraph 17). Regarding that ‘hostile intent’ was not crucial in ‘battery’, there was [nothing] inconsistent between the two cases. The magistrate has understood both cases correctly.”

32.The respondent submitted that the magistrate had considered the related issue sufficiently and correctly, and his line of thought was not contrary to Shek Kwok Ngai.

33.The respondent submitted that when the court found the alleged “battery” to be “unlawful force”, the court must have concluded that the defendant had had “hostile manner” or even “hostile intent”, and whether or not the word “hostility” was written out was only a choice of expression.

F.3.  Discussion

34.I accept the elements listed by the respondent in respect of “the offence of battery”. In Shek Kwok Ngai, (a case of attempted indecent assault involving no physical contact), the judge of the Court of First Instance has made analysis in great detail on “hostility” in the magistracy appeal:

“43. It is submitted that hostility must be proved in the offence of non-physical contact assault. Exposure of genitals, even in close proximity as in the present case, is not sufficient to constitute hostility. The Appellant’s act cannot be proved to be hostile.

44. The Respondent adopts this stance: (i) hostility is not an element for the offence of assault, both battery and non-physical contact assault; (ii) alternatively, the hostile act “requirement” is limited to cases of battery; (iii) assuming that hostility is an element to non-physical contact assault, the test of hostility should be the Collins’ test; and the conduct of the Appellant in the present case was clearly hostile.

…

49. I was also referred to Smith and Hogan’s Criminal Law 14^th edition, it is said in pp.708-709:

‘In modern times, Lord Lane CJ described battery in expansive terms: ‘an intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile, or rude, or aggressive, as some of the cases seem to indicate.’ … it is submitted… the concept of ‘hostility’ is unnecessary and ambiguous; it could cause undesirable complications in an offence which, because of the volume and summary nature of prosecutions, needs to be kept simple… It is respectfully submitted that hostility is not an element of the offence and that the issue of consent ought not to be confused with it…’

…

62. I would respectfully agree with Ms Lai SC and the learned authors of Smith and Hogan’s Criminal Law (14^th ed) that hostility is not an essential ingredient in the criminal offences of assault and battery.

63. I would add that the presence or absence of hostility may be a relevant factor to consider whether an act can constitute an assault. Whether an act may constitute an assault will depend on the facts of the particular case.” (Emphasis added)

35.I agreed with the above analysis.

36.In Ng Man Yuen Avery, the Court of Final Appeal in dealing with the leave application had this to say in respect of assault and battery[18]:

“2. Common assault is an offence under common law. Section 40 of the Offences Against the Person Ordinance (Cap 212) makes it punishable by up to one year’s imprisonment. Any act which intentionally or recklessly causes another to apprehend immediate and unlawful violence is an assault. The relevant state of mind is intent or recklessness. Any beating, touching or laying hold of a person with the relevant state of mind in a hostile manner is a battery. The touching may of course be by an object thrown by the defendant. Common assault may consist of assault without contact or it may include contact so as to amount to battery. In either situation, the offence committed would be common assault.”

37.In my view, the Court of Final Appeal in Ng Man Yuen Avery defined “battery” as any beating, touching or laying hold of another person intentionally or recklessly in a hostile manner. I do not think that the Court has used “with” to show that “the offence of battery” requires a hostile intent.

38.Although the Court of Final Appeal appeared to have concluded that a hostile manner was required for battery, since the Court was only dealing with an application for leave to appeal, and “hostility” was always under consideration by the courts, the Court of Final Appeal only spelt out the usual definitions of assault and battery.

39.After [referring to] the definition of battery given by Lord Lane CJ as cited by the authors of Smith and Hogan’s Criminal Law, it was submitted that the concept of hostility was unnecessary and ambiguous and that hostility was not an element of the offence of battery. I agree with the above submission.

40.In respect of the appellant’s criticism on Chan Tak Cheung and Ho Po Chun, I agree with the submission of the respondent.

41.In the present case, in making findings of facts, the only reasonable inference drawn by the magistrate was that the appellant stuck the poster on PW1’s back in a hostile manner. This court would consider in the “rehearing” if such finding of the magistrate was supported by evidence - although I do not think that the concept of “hostility” or “hostile manner” was an element of the offence.

G.  Other grounds of appeal

42.Grounds of appeal (3) to (7) are about the magistrate’s findings of facts and how she dealt with the testimonies. I do not intend to deal with the submissions from both sides in great length, but will only first set out the grounds of appeal, followed by discussion and my ruling, because finally I have to conduct the “rehearing” to determine if the prosecution have adduced sufficient evidence in support of the charge.

H.  Ground of appeal 3: the appellant complained that the magistrate had failed to deal with the matters below sufficiently, leading to erroneous acceptance of the testimonies of PW1 and PW2

H.1.(a).  About identifying the police officers in plainclothes as the police

(i)  Regarding how the police officers in plainclothes were distinguished from other people at the scene, PW1’s evidence was obviously contradictory (T12S and T33M)[19]. In this regard, PW2 was evasive and elusive in his evidence (T99P and T100B), and simply blurted out strange and illogical answers in dealing with the cross-examination (T100G);

(ii)  PW1 had once speculated that the appellant or the people at the scene might identify his police identity because of seeing the bulge at his waist and thinking that to be a revolver, and such speculation subsequently changed, and what he said differed from the facts reflected from the footage (T33A-D);

H.1.(b).  Discussion

43.In respect of (i) and (ii), I agree with the appellant’s view after reading the transcripts. In fact, PW1 was wearing black and dark-coloured upper garment and a black mask, which did not differ much from the appearance of some of the people at the scene on that day. PW1 and his colleagues were carrying out anti-crime duty in plainclothes, and theoretically should not be easily identified as police officers, or their work would be hindered. However, in view of the circumstances at the material time, it was highly likely that PW1 and his colleagues might arouse the suspicion of other people at the scene because they did not chant any slogan.

H.2.(a).  Force applied by the touching

44.PW1 alleged that the appellant smacked his shoulder so forcibly that he was hurt, which did not accord with the objective facts and made no sense at all (T56P-S).

H.2.(b).  Discussion

45.It is not disputed that the appellant had indeed stuck a poster onto PW1’s back, I find it relatively difficult to judge from the CCTV footage the force applied by his touching on PW1. Whether PW1 was hurt was his subjective feeling. Although he did not lean forward or indicate any pain to others, I do not think it necessarily meant that he did not feel any pain at the material time.

H.3.(a).  Action of the appellant’s right hand after the “smack”.

46.As to the appellant’s action of raising his right hand after the “smack”, PW1 has changed his version more than once under cross-examination (T68H-I and 68Q).

H.3.(b).  Discussion

47.I take into account that it was only after the appellant had stuck a poster on PW1’s back by smacking that PW1 realized he had been hit, and he at the same time saw the appellant raising his right hand. PW1 simply could not possibly know why the appellant raised his right hand. I do not regard PW1’s testimony contradictory.

I.  Ground of appeal 4

I.1.(a).  The trial magistrate erroneously made the following findings of facts, without being invited by the prosecution to do so nor raising it to the defence for their response, putting the fairness of the trial in jeopardy

I.1.(b).  It was plainly wrong for the trial magistrate to find on her own initiative that as PW1 and his teammates were older and bigger in build than the people at the scene and looked solemn, they were identified as police officers (see §47.iv AB86K-L)[20]

I.2.  Discussion

48.Although the magistrate could watch the footage repeatedly by herself, as the appellant mentioned above, PW1 acknowledged that age was not sufficient to be a material factor to distinguish who were protestors. The magistrate appeared to have no sufficient factual basis to say that PW1 and his teammates were older and bigger in build than the people at the scene. As to their solemn facial expression, the people at the scene might not notice their facial expression at a glance. Furthermore, the magistrate did make such finding of fact without allowing the defence to respond, which was unfair to the appellant.

I.2.(a).  The trial magistrate erred in finding that the appellant had been standing and waiting for PW1 for at least 8 seconds (see §47.v AB87I-Q)

49.The appellant said that it could be seen from footage P2 that PW1 first waved his hand at 20:03:24, and at that moment the appellant looked over to his right without looking at PW1[21]; and it was only when PW1 waved for the second time, ie at 20:03:33, that he was seen by the appellant[22].

50.The trial magistrate said that at 20:03:28 of the footage, the appellant “was holding a poster in his hand, looking at PW1 and approaching him slowly”[23]. In fact, the footage showed that the appellant stuck the poster at 20:03:28. Therefore, her finding was completely wrong. Even more so, it could be clearly seen from 20:03:28 to 20:03:32 of the footage that the appellant was not looking over to PW1, and during that period, there was not any voice mentioning police identity[24]. It was not until 20:03:33 of footage P2 that PW1 was seen wave his hand for the second time, and it was not until then did the appellant look over to PW1’s direction, which was only 3 seconds before the time that the appellant stuck a poster onto PW1’s back at 20:03:36. This was totally consistent with the appellant’s version that the idea of putting up a poster suddenly popped up in his head only when PW1 walked close to him. Unfortunately, the trial magistrate made a finding that the appellant had 8 seconds to prepare to attack PW1. In addition, the trial magistrate found that the moment when the appellant saw PW1 waving his hand was screenshot 4 of D2[25], while there was never such evidence at trial, and hence it was wrong, whereas the defence on the contrary expressed clearly in the closing submissions that PW1 had waved his hand twice.

51.The appellant said that even on the basis that the time of screenshot 4 of D2 was 20:03:24[26], there was a time lapse of 12 seconds when the appellant stuck the poster. Therefore, how the trial magistrate worked out the 8 seconds was totally unascertainable and plainly wrong.

I.2.(b).  Discussion

52.When I watched the CCTV footage, I saw that the appellant appeared at 20:03:22, holding posters in his hand and looking around. At 20:03:28, the appellant was already standing on the other side of the crowd, facing towards where PW1 was (although PW1 was not captured by the camera), PW1 led his team and passed at 20:03:34, and the appellant stuck a poster on PW1’s back at 20:03:36. I agree with the magistrate that the appellant was already looking towards PW1 at 20:03:28, having a poster in his hand and approaching PW1 slowly.

J.   Ground of appeal 5

J.1.  The trial magistrate erred in refusing to accept the appellant’s testimony for the following reasons:

(i)  The trial magistrate erred in regarding whether the poster was related to the police as a material factor in assessing the appellant’s credibility (see §47.i AB85C-L).

(ii)  The trial magistrate erred in concluding that no one would like to or be willing to have a poster stuck on oneself and making such biased view a reason for not accepting the appellant’s testimony (see §47.ii AB85P-Q).

(iii)  It was not proper that the trial magistrate cross-examined the appellant on her erroneous consideration in (ii) above (see §47.ii AB85Q-R).

(iv)  In saying that the appellant’s case was “completely unconvincing”, the trial magistrate was obviously shifting the onus of proof to the appellant coupled with a standard of proof (see §47.ii AB86B).

(v)  The trial magistrate erred in regarding the difference between the clothing of PW1 and that of the teammates following him as a determinative factor of whether the appellant recognised PW1 was as a leader, and thereby considered the credibility of the appellant’s testimony (see §47.iii AB86C-H).

(vi)  The trial magistrate erred in that when she dealt with the issue of whether the appellant did not know of PW1’s police identity, she failed to give sufficient consideration to the legal concept of “true or might be true” and neglected that the question which she should deal with was whether the appellant did not or might not know such matter, instead of whether others knew or not (see §47.iv AB86J-87H).

(vii)  The trial magistrate erred in taking the time that the idea of sticking a poster on PW1’s back appeared in the appellant’s mind a conclusive factor of determining if he had a guilty intent, neglecting that the time when the idea popped up was in fact ambiguous and not indicative (see §47.v AB87I-R).

(viii)  The trial magistrate was wrong in that when she considered whether the appellant had the chance to ask for PW1’s permission if he so wished, she did not give sufficient consideration to the concept of mistaken belief because once the appellant thought that PW1 would consent (even if it was a mistake), then whether there was in fact a chance to ask in advance was irrelevant (see §47.vi AB87R-88G).

J.2.  Discussion

53.In respect of (i), the appellant testified that he had downloaded posters in two designs from the internet. One design had Lam Siu Por’s portrait, bearing the words “Thank you for your silent effort” (感謝你哋嘅默默耕耘), and the other one told people not to watch the movie “Ip Man”. A total of one to two hundreds posters were in these two designs.

54.He did not clearly see what were written above “Thank you”, and due to the long lapse of time, there was “not really any impression” [27].

55.Since the appellant had particularly downloaded posters in those two designs from the internet and prepared one to two hundred such posters for distribution to people in the activity “Shop with you”, he must think that such posters had certain unique features. He indicated that he had forgotten the content, whether this was or might be true is indeed questionable.

56.The magistrate said, while the prosecution suggested that the poster was definitely not expressing gratitude to the work of the police, the appellant said he did not know if it was the original intention of the poster to include the police. The appellant on the one hand said that he had forgotten the words in small prints on the poster, but on the other hand said he did not know if the people making effort quietly included the police. In my view, the magistrate was entitled to find the appellant being evasive and delusive in facing the questions disadvantageous to him.

57.As to (ii), the appellant testified that he had successfully stuck a poster on a violin box carried on someone’s back and also the back of five or six other people, but these people all asked the appellant to stick the poster on them on their own initiative [28]. The magistrate said that [s]he “did not believe anyone would be willing to have a poster stuck on one’s own back, which looked like being tricked by a practical joke and utterly asinine”[29]. I consider that this objective view is reasonable and sensible, and there is nothing wrong.

58.The appellant testified that he, while feeling bored, thought out a creative method which was picking people dressed in black and sticking a poster on their back and in passing “cheering on them and having a chat”[30].

59.The appellant said that it was after he had stuck a poster or at the time when he was sticking one onto a person’s back that he indicated to the person a poster was already stuck on his back, [and said] “hope you will show it to others” (希望你俾人睇) and “your participation today is appreciated” (辛苦晒你今日嘅參與)[31].

60.The crux of the facts appeared to be whether or not the appellant really believed or might believe that PW1 agreed to have a poster stuck on his back, and this was related to the area of “honest but mistaken belief”.

61.In respect of grounds of appeal 5(iii) and (iv), on the face of it, the magistrate seemed to have interrupted the prosecution’s cross-examination and directly cross-examined the appellant, “Why not in the lead? Why did you not stick one on yourself?” Nevertheless, having regard that the magistrate had to consider and weigh what had to be taken into account on the honest but mistaken belief purported by the appellant, I think that she asked the said questions for the purpose of clarifying what the appellant believed.

62.I do not agree that the magistrate shifted the burden of proof to the appellant when she said the appellant’s case was “completely unconvincing”. Of course, I have taken into account the magistrate had in paragraph 39 of her Statement of Findings said that the appellant’s honest but mistaken belief that PW1 was not a police officer or not in execution of his duty must be reasonable, and I have indicated that the magistrate had made a mistake in principle.

63.In respect of ground of appeal 5(v), the appellant’s complaint was not unreasonable.

64.As to ground of appeal 5(vi), it was also related to whether or not the appellant was honestly or might be truly unaware of PW1’s police identity. I will examine the evidence again.

65.As to ground of appeal 5(vii), based on the appellant’s answer, it could hardly be criticized that the magistrate thought the appellant meant to say that “when he raised his hand” (當他舉咗手) indicated the thought of sticking a poster. The crux of the appeal remained whether a guilty verdict will be reached in the rehearing.

66.Ground of appeal 5 (viii) was also related to the appellant’s belief, and I will examine the evidence again.

K.  Ground of appeal 6

K.1.  The appellant said that the trial magistrate had assessed the evidence wrongly in the following aspects:

(i)  Even if PW1 felt that it was powerful touching, it did not mean that the appellant was not having the mistaken belief that PW1 would agree to his act, or alternatively the appellant might by accident use force beyond what was acceptable to ordinary people, and therefore no hostility actually existed in the matter (see §49 AB88M).

(ii)  Deciding whether it was purely for sticking a poster or it was a way of assault on the basis that someone directed at the target’s back was ambivalent and irrelevant (see §50 AB88O).

K.2.  Discussion

67.I agree that the intensity of force is not crucial. I have to consider if the prosecution has adduced any evidence to support that the appellant had no honest but mistaken belief.

L.  Ground of appeal 7

L.1.  The trial magistrate erred in concluding that the appellant had been reckless and thus culpable. The trial magistrate agreed that sticking the poster “required smacking” (see §51 AB88S) and found that it would cause pain to the target, which was regarded as the expectable risk that the appellant took willingly and as the basis of conviction. This totally disregarded the inherent contradiction between this analysis and the magistrate’s decision of refusing to accept that anyone would stick a poster on another person’s back, and her failure to sufficiently consider the defence case of having deliberate touching without “hostility”.

68.The appellant submitted that the magistrate, in subsequent discussion on whether the appellant had the mens rea of assaulting a police officer, found that the appellant’s act of sticking the poster must amount to criminal recklessness. The magistrate indicated the following in paragraph 51 of her Statement of Findings:

“51. In any event, even if the defendant did not have the intent, his act must be reckless. I find that the defendant must have anticipated that sticking a poster required smacking PW1’s back, which would cause pain to PW1, but he still took the risk to stick the poster forcibly, so doing was undoubtedly a reckless act which was sufficient to amount to criminal recklessness.”

69.The appellant submitted that the trial magistrate in finding the appellant reckless in paragraph 51 of her Statement of Findings had the following problems:

(i)  As stated above, the magistrate first in paragraph 47(ii) refused to accept that anyone would be willing to have a poster stuck on oneself and even subjectively inferred that the appellant also found his own version ridiculous and ludicrous, and therefore concluded that no one would stick a poster on another person’s back. Since the defendant knew well that sticking a poster on another person’s back was not acceptable according to the standard of people in general, he must have known that such act could not possibility be acquiesced by others, and hence the said touching must be intentional;

(ii)  On the contrary, the trial magistrate in paragraph 51 said that sticking a poster “required smacking” and concluded that so doing would cause pain to the target, wasn’t this a completely opposite conclusion[?]

(iii)  In respect of criminal recklessness, according to the standard of the state of mind of recklessness laid down in R v Cunningham [32], the prosecution was required to prove that the appellant could subjectively anticipate the consequence following the act of sticking a poster. As stated above, due to the experience of successfully sticking posters previously, the appellant believed that PW1[33] would consent to having a poster stuck, and he obviously had not [anticipated] the possibility of causing pain to the target. Nevertheless, the magistrate failed to sufficiently consider the appellant’s testimony before finding him “having taken the risk and stuck the poster forcibly”, which amounted to criminal recklessness.

70.From the analysis of the above judgment in its context, the appellant submitted that the trial magistrate erred in finding the appellant’s act sufficient to constitute criminal recklessness. Her ruling meant that the act of any person who stuck a poster on another person’s body definitely constituted battery, apart from neglecting that recklessness in the offence of assaulting a police officer required the assailant’s subjective recklessness as the basis of conviction, she also failed to sufficiently consider the defence case of having deliberate touching with no “hostility”.

L.2.  Discussion

71.As it can be seen from the context of the Statement of Findings, the magistrate held that the appellant committed the offence “with intent”. She also stepped back to say that even if there was no such intention, the appellant’s act of taking the risk to forcibly stick the poster was a reckless act. However, the magistrate relied on the need for the appellant to “smack” on PW1 and the pain thereby caused to achieve the point of recklessness. I cannot see any connection between such reasoning and recklessness. I will analyse the recklessness involved in the present case later.

M.  My consideration and decision on rehearing

72.As I have stated, I have to consider all evidence at the time of “rehearing” to decide if the appellant has committed the offence as charged. In respect of all the circumstances at the time of the offence, if the evidence showed that the appellant knew or believed that PW1 was a police officer, then he could not possibly honestly but mistakenly believe that PW1 would give consent to his act of sticking a poster on his back under such circumstances. He himself also admitted that had he known that PW1 was a police officer, he would not have stuck the poster on his back.

73.The facts involved in the present case were in fact very simple. At the location of the offence, the appellant stuck a poster on PW1’s back without obtaining prior consent from PW1. PW1 specifically indicated that he did not consent the appellant’s act. The crux of the present case is whether or not the appellant believed or might believe that PW1 would consent the appellant’s act of sticking a poster on his back.

74.PW1 and his teammates were working in plainclothes, and their clothing did not differ much from how other people at the scene were dressed. As to why their identity was revealed, or to be more precise, why they were thought by other people at the scene to be “suspected” police officers (because they did not reveal their identity), is unknown. PW1 and his teammates could only “speculate” the reason why their identity was revealed. Therefore, I do not think that their testimonies about why their identity was revealed were helpful or impactful in the present case. In any event, it is unknown what reasons or clues which the people at the scene had based on, the fact is that they revealed the “suspected” police identity of PW1 and others and provoked them afterwards, repeatedly uttering insulting words to them.

75.In the present case, overwhelming evidence is provided by the clip of the CCTV at the scene (P2) and the video clips submitted by the defence (D2 and D3).

76.What I have to consider is whether what was seen and heard from the clips support the appellant’s case, casting doubt on the prosecution case.

77.After consideration, I find that the evidence adduced by the prosecution clearly showed that the appellant was holding a poster and facing PW1 and, as shown by his facial expression, paying attention to PW1’s acts. Although PW1 was dressed in black and wore a mask, it was only after the crowd had given way that he called others to follow him to leave, and they were leaving in a direction opposite to the crowd of “Shop with you”. Although there were overlaps of provocative words against the police, I do not believe that the appellant did not hear those provocative words. By that time, the appellant had already been aware of PW1’s “suspected” police identity.

78.The appellant said that when he was distributing posters, someone on his own initiative requested him to stick a poster on the violin box on his back. If what the appellant said was true or might be true, that person requested to have a poster stuck only on his violin box.

79.The appellant said that afterwards, some people asked him to stick posters on their backs; nevertheless putting a poster on one’s back is not a common act. It is even insulting to do so without the consent of a stranger, which is not a generally acceptable social behaviour. If what the appellant said was true or might be true, it only showed that someone was willing to have a poster stuck on his back and hence on one’s own initiative requested the appellant to do so.

80.The appellant said that afterwards he particularly picked people in black for the purpose of sticking posters, and on each occasion he first stuck a poster on a person’s back before asking or asked at the same time as he was sticking a poster, and those people all showed that they were happy to have it.

81.If what the appellant said was true or might be true, that means he stuck a poster on someone’s back before obtaining that person’s consent, which is “action before notification”. As I have said, sticking a poster on the back of another person (in particular a stranger) is not a common act and also goes beyond the extent acceptable or tolerated in general social occasions. The appellant stuck a poster on another person’s back before obtaining the consent from that person, such act was reckless as to whether the other person consented to his act. Even if it was or might be true that someone who had a poster stuck on his back indicated afterwards that he did not mind, it does not indicate or mean that other people would also consent to his act. Each time that the appellant stuck a poster on another person’s back before obtaining consent from that person who in fact did not consent, he committed the offence of battery.

82.The appellant’s allegation that he honestly believed that PW1 would consent to have a poster stuck on his back by him was, in my mind, not credible. In all the circumstances in the present case, the appellant must have been aware of PW1’s “suspected” police identity. In such circumstances, the appellant could not possibly believe that a suspected police officer would consent to let him stick a poster on his back.

83.Whether the appellant smacked PW1’s back with considerable force is not crucial. It was not in dispute that the appellant stuck a poster on PW1’s back, which PW1 did not consent. The only matter to be considered is whether the appellant honestly believed or might honestly believe that PW1 would consent. I have ruled that the appellant could not possibly have such honest but mistaken belief. And when the appellant stuck the poster on PW1’s back, he obviously did so with hostility and in a hostile manner.

84.It is held that the appellant intentionally imposed unlawful force on PW1 and therefore committed the offence of battery. I have analysed on the appellant’s alleged previous acts, indicating that the acts concerned amounted to being reckless as to whether other people consented, however, what the appellant had done to PW1 simply did not involve the area of “recklessness”.

85.I find the prosecution has also proved that the appellant did not honestly believe PW1 would consent to being imposed of unlawful force.

M.  Conclusion

86.I find that the prosecution has proved beyond reasonable doubt that the appellant has committed the “offence of battery”, and the appellant’s appeal against conviction is dismissed.

Mr Andy Lo, Senior Public Prosecutor, of the Department of Justice, for the HKSAR, the Respondent

Mr Charles Chan leading Ms Sharon Ng and Mr Brian Yu, instructed by Messrs Lo, Wong & Tsui, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Justin Yuen, solicitor.