HKSAR v. Lau Sze Man

[English Translation – 英譯本]

HCMA 34/2021

[2022] HKCFI 849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 34 OF 2021

(ON APPEAL FROM KTCC 792 OF 2020)

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Before:  Hon Wong J in Court

Date of Hearing:  23 February 2022

Date of Judgment:  4 April 2022

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JUDGMENT

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1.The appellant was charged with one count of obstructing a police officer in the due execution of his duty[1]. She pleaded not guilty. After trial, the magistrate[2] convicted and sentenced her to three months’ imprisonment. She appealed against the conviction and sentence.

Prosecution case

2.On 14 November 2019 at an exit of Tseung Kwan O MTR station, while Police Constable 21417 (“PW1” whom the magistrate called Officer Cheung) was intercepting and subduing a woman, the appellant grabbed hold of the woman’s right upper arm with both hands and pulled her away from PW1.

Defence case

3.At the trial, the appellant gave evidence in court. She mainly stated that she had not committed the act alleged by the prosecution.

Evidence at the trial

4.At the trial, the prosecution called two police officers and one of them was PW1. Pursuant to the admitted facts[3], exhibits were also produced which included video footage[4] and screenshots[5] of the scene, photographs of the appellant’s injuries[6] and some other photographs.

Testimony of PW1[7]

5.About 10 pm that day, he received an instruction which said that about 150 protesters were gathering at Tong Chun Street near Po Yap Road in Tseung Kwan O and someone damaged an exit of the MTR station. He proceeded to go to the scene by a police vehicle. However, he got off the vehicle before reaching the scene as there were many bricks and miscellaneous items on the road ahead and vehicles could not proceed further. Having reached the scene, he heard many people shouting, “Here come the dogs. Run!” He saw about 150 people in black gathering there. He ran towards the gathering crowd and saw one of the women who was about 25 metres away from him outside the MTR station running together with the other people in black along Tong Chun Street towards Tong Tak Street. The woman had golden hair and was in a dark blue top, black trousers and black shoes. He suspected that the woman had committed the offence of unlawful assembly and damaged the MTR station, so he ran towards her intending to intercept her. When the woman ran to the junction of Po Yap Road and Tong Chun Street and turned left into Tong Chun Street, he lost sight of her for about five seconds. However, after turning left into Tong Chun Street, he recognised the woman by her build and clothing. To the woman (“the woman in black”, adopting the magistrate’s term) he shouted, “Police. Freeze!” On Tong Chun Street near Popcorn Shopping Mall, when he was about two to three metres away from the woman after the chase, he shouted again, “Police. Freeze!” The woman turned round to look at him, but she ignored him and continued to run. Later, he caught up with the woman. When he tried to pin her to the ground to subdue her, she lost balance and her upper body tilted forward. At that juncture, the appellant appeared at about one metre to the right front of the woman and pulled the right upper arm of the woman in black forward with both hands, thus he failed to subdue the woman in black on the ground. The action lasted for about five seconds. At the time, he intended to investigate whether the woman in black was involved in the unlawful assembly and criminal damage, so he had an urgent need to subdue her. Later, another police officer (PW2) ran forward to subdue the appellant, and he also successfully subdued the woman in black. During the chase, the woman in black pushed him off and continued to run forward. Therefore, he used a baton to hit her right thigh once and caused her to lose balance. He denied that the one he arrested was in fact the appellant as opposed to the woman in black.

Testimony of Police Constable 18836 (“PW2”)

6.This police officer had joined in to chase the crowd but decided to give up after taking into account the equipment on his person. When he was about to stop chasing, he saw PW1 run up from behind on the pavement of Tong Chun Street and grab hold of a person in black. At the time, he did not know the person was female. The person in black acted to flee, and PW1 could not subdue the person and someone to the right of the person in black was pulling the person whom PW1 wanted to subdue. At that time, he was about 10 metres away from PW1, and there was sufficient lighting with no obstruction of his view. He ran forward and in order to separate the person (the appellant) and the person in black, he pushed the appellant’s back with his left hand causing her to lose balance. He further pinned her back to the ground with both hands and subdued her. He asked the appellant why she had to run, who the person in black was and whose black face mask and crowbar they were nearby. After that, he arrested the appellant for the offence of unlawful assembly.

Video footage[8]

7.What was shown in the video footage[9] can be described briefly as follows[10].

8.The video footage showed that the police officers arrived at the scene on board a vehicle, got off and ran towards the place where people were gathering. The crowd dispersed and left. The police officers pinned two women to the ground and subdued them. One of them was the appellant while the other was the alleged woman in black by the prosecution.

9.The video footage that is relevant to this appeal case showed the following:

(1)  Two police officers were squatting in front of the alleged woman in black by the prosecution;

(2)  the face of the woman in black could be seen;

(3)  the appellant was behind the woman in black near a wall. Only a little part of her hair was seen whereas the other body parts could not be seen;

(4)  the video footage failed to show the alleged act of obstruction by the appellant; and

(5)  as the position was blocked by the woman in black, one could not see whether or not the appellant did the acts including using her mobile phone[11] as described by her at the time.

Testimony of the appellant

10.These are the main points of the appellant’s testimony[12].

11.On that day, she arranged with a friend (“Yeung”) to have dinner. At 6 pm, she went to the home of “Yeung” in Tiu Keng Leng to get souvenir and chat first. At 8 pm, the two of them went to have dinner together. As “Yeung” did not wear any makeup, she put on a black face mask. The appellant also borrowed a black face mask from “Yeung” and put it together with the souvenir in her carrier bag[13]. During dinner, “Yeung” took a photograph of her[14].

12.About 9 pm, after they had a walk in the vicinity, “Yeung” sent her home. When they reached the junction of Tong Ming Street and Tong Chun Street, she saw about 20 people blocking the road. There was no vehicle on the road nor signal from the traffic lights. She heard that people were gathering outside Tseung Kwan O MTR station, and “Yeung” suggested going to take a look to which she agreed.

13.They arrived at the flowerbed of the MTR station. At the time, there were 30 to 40 people blocking the road while other residents were having a walk or cycling. Later, she heard many people say “Here come the dogs. Run!” “Yeung” told her that she would go to take a look. Upon returning, “Yeung” told her to run immediately. Therefore, she held the left hand of “Yeung” in her right hand and ran towards Tong Chun Street with her back towards Po Yap Road.

14.When she reached the location on the left of the person as shown on the photograph of Exhibit D8, she fell and “Yeung” dragged her to run forward. Having run for two or three steps, she found that she had dropped her mobile phone at the location where she previously fell. Therefore, she released the left hand of “Yeung”, went back and stretched out her left hand to pick up her mobile phone. Right at this juncture, she was pushed on her left shoulder and pinned to the ground by a police officer. At the same time, she was hit on the right thigh once by the police officer with a baton, causing the bruises as seen on the photographs of Exhibit D13 and D13A. “Yeung” was also pinned to the ground and subdued. When she (the appellant) was pinned to the ground, her left hand was behind her back with her right hand stretching out. She unlocked her mobile phone with fingerprint and informed her boyfriend of her arrest[15].

Findings of the magistrate

15.The magistrate was satisfied that PW1 and PW2 were both honest and reliable witnesses and accepted their primary testimonies[16].

16.As to the appellant’s testimony, the magistrate found it unreasonable and considered it inconsistent with what was shown on the video footage. Therefore, he ruled that she did not give evidence honestly and her testimony was surely not the truth[17], which would not affect the credibility and reliability of the two prosecution witnesses[18].

17.The magistrate ruled that even though the appellant pulled the woman in black for only five to six seconds, this was only due to the timely response of PW2. Although PW1 could eventually subdue the woman in black, the magistrate did not think that the appellant’s act of pulling the right upper arm of the woman in black with both hands only caused inconvenience to PW1 or necessitated his exerting little additional effort.

18.The magistrate was satisfied that PW1 was in the due execution of his duty at the time and the appellant’s act obstructed him. The magistrate convicted her accordingly.

Grounds of appeal against conviction

19.At the appeal, the appellant was represented by Mr Chung Luen Chris Ng. The grounds of the appeal he put forward for the appellant are described briefly as follows:

(1)  It was erroneous for the magistrate to accept PW1’s testimony; and

(2)  it was also erroneous for the magistrate to reject the appellant’s testimony because—

(1)  The magistrate rejected the appellant’s testimony in the absence of any relevant cross-examination by the prosecution, which was contrary to the rule established in Browne v Dunn and also in violation of natural justice; and

(2)  the magistrate did not or did not fully analyse and assess the appellant’s testimony.

Discussions and considerations

20.Both grounds of appeal concern the magistrate’s assessment of the credibility of the witnesses’ testimonies and are interrelated. If the material exculpatory part of the appellant’s testimony is true or possibly true, it implies that it is impossible for the magistrate to be sure that the testimonies of the two prosecution witnesses must be true.

21.The magistrate totally rejected the appellant’s testimony. In the Statement of Findings, he said the followings[19]:

‘In my view, the evidence of [the appellant] is unreasonable. Firstly, in relation to the course of being subdued, [the appellant] stated that after she had fallen, “Yeung” dragged her to run two or three steps forward, and she found that she had dropped her mobile phone at the location where she had fallen. She released the left hand of “Yeung”, went back and stretched out her left hand to pick up her mobile phone. Right at this juncture, she was pushed on her left shoulder and pinned to the ground by a police officer. “Yeung” was also subdued by way of being pinned to the ground. She was pinned to the ground earlier than “Yeung”. Under cross-examination, she agreed that she did not move after being pinned to the ground. According to [the appellant], the location where she was subdued by the police officer should be closer to Po Yap Road when comparing to the location where “Yeung” was subdued because she and “Yeung” were running along Tong Chung Street towards Tong Ming Street away from Po Yap Road. She had just returned to the place where she had fallen to pick up her mobile phone shortly before she was subdued. However, one can see from 2:09 of the video footage D14 that the camera shooting from Po Yap Road towards Tong Ming Street only captured “Yeung”, and [the appellant] was blocked by the head and body of “Yeung”, thus the said camera did not capture [the appellant]. Therefore, the image at 2:09 of the video footage D14 was inconsistent with the version of [the appellant].’

22.Mr Ng submitted that as seen from the video footage, the appellant actually was only next to another woman, who the appellant said was “Yeung”, while the prosecution said was PW1’s target, the woman in black, and both of them were subdued by the police officers, with each having taken certain action. Their respective positions, which had changed due to their respective actions, should be reasonably expected to be different from those at the time when they first came into contact with the police officers. Therefore, Mr Ng criticized the magistrate for overly relying on what was shown in the video footage.

23.I agree with Mr Ng’s submission. Nevertheless, the submission set out in paragraph 22 was only one of the reasons listed by the magistrate for rejecting the testimony of the appellant. Further, in my view, it was not that the magistrate, in assessing the credibility of the appellant, could not have regard to the positions of both women, but that he could not rely too much on them.

24.The other submission Mr Ng made concerns how the magistrate dealt with the voice messages on the appellant’s phone.

25.In respect of this matter, the magistrate said[20]:

“In this regard, I noted that the prosecution only admitted, in paragraph 10 of P1 of the admitted facts, that the defendant’s boyfriend received messages sent from her mobile phone on the day of the offence, but did not admit that these messages were really sent and received at the time alleged on D12. The defendant’s boyfriend is not a witness of this case. Therefore, the time on D12 is hearsay evidence. I do not give any weight to the time on D12. In fact, the defendant relied on D12, D12A, D12B and D12C only to prove that before being subdued by the police, she was picking up her mobile phone. However, as stated above, I consider the version of the defendant that before being subdued, she was picking up her mobile phone to be inconsistent with what is seen at 2:09 in D14, the video footage. I therefore reject the testimony of the defendant. In my view, the testimony of the defendant is not the truth and could not be the truth.”

26.Mr Ng submitted that the testimony of the appellant was that she had sent the messages before she was handcuffed by the woman police constable at the scene, and her mobile phone also showed the time at which the messages were sent; it was unfair and a breach of natural justice for the magistrate to reject the testimony of the appellant when there was no cross-examination by the prosecution in this regard. In particular, in assessing the credibility of the testimony of the prosecution witness, the magistrate accepted the testimony of PW1 relying on the rule in Browne v Dunn as there was no cross-examination by the defence; but under the same circumstances the testimony of the appellant was rejected.

27.Mr Douglas Lau, Public Prosecutor, for the respondent cited the following two cases in support of the magistrate’s way of dealing with this. He submitted that the prosecution has no duty to supplement information for the defence during cross-examination:

(1)  HKSAR v Z of the Court of the Final Appeal[21]:

“The magistrate is said to have violated the rule in Browne v Dunn or to have breached the rules of natural justice by convicting on the basis of certain inconsistencies and weaknesses in the applicant’s evidence when some of those points had not been put to him. We do not think there is anything in this ground. The magistrate was not bound to accept any particular item of evidence because there had not been cross-examination on it. He made his findings on the basis of the evidence as a whole deciding to accept the prosecution version and rejecting the contrary evidence adduced for the defence. There was no unfairness and everyone was fully able to deal with the single issue of credibility.” [22]; and

(2)  HKSAR v Tsoi Sheung Ki of the Court of Appeal[23]

“87. … the trial judge is the final fact-finder. He has to make a finding on the basis of the evidence of both parties. In the course of making the finding, the trial judge certainly has to take into account the versions put forward by both parties in their cross-examinations and submissions. However, she was not bound to act merely upon the parties’ cross-examinations and submissions, but was entitled to decide in her own mind on the credibility of the witnesses, so as to make a finding of the truth of the matter. When there are weaknesses and inconsistencies in the testimony of the witnesses, including that of the defendant, the trial judge is entitled to reject the testimony of that particular witness without first giving the witness an opportunity to make explanation in respect of the weaknesses and inconsistencies in his testimony.

88. Putting to a defendant his testimony which is not credible and giving him the opportunity to make explanation, then making a decision against him only when he fails to make reasonable explanation, is to encourage the defendant to commit perjury to conceal his testimony which is originally not credible. It is definitely not what a fair trial requires.”

28.I totally agree that in the circumstances of the present case, the prosecution had no duty to cross-examine the appellant when she did not mention any evidence on time when she testified. The magistrate cannot be said to have erred in law when he considered the time shown on the mobile phone to be hearsay evidence.

29.Furthermore, concerning the evidence of the time at which the messages were sent, I have the following observations:

(1)  Although Mr Ng asserted that the relevant evidence was produced by way of admitted facts which indicated that the messages were sent on the day of the offence, the time, as the magistrate rightly said, was not set out in the admitted facts;

(2)  if the time shown on the mobile phone was adopted, it would breach the hearsay rule;

(3)  therefore, the evidence of the time at which the messages were sent only came from the appellant herself;

(4)  given that the contents of the messages were about the arrest of the appellant, it was reasonable to think that the messages were sent after the appellant had been subdued; and

(5)  as regards when they were actually sent, it depends on whether the magistrate accepted the version of the appellant. Objectively speaking, the messages could be sent any time from the time the appellant was subdued to the end of that day.

30.The significance of this item of evidence is that if, as the appellant said, she was holding the mobile phone in her hand when she was subdued, it would be difficult for her to do the act of pulling the arm of the woman in black with both hands as described by the prosecution witness.

31.The magistrate did grasp the significance of this[24]. He rejected the version of the appellant in this regard and gave the reason that he considered the version to be inconsistent with what was shown in the video footage.[25]

32.I watched the relevant video footage. Perhaps what was shown did not go so far as to be inconsistent with the version of the appellant. However, if it is said that the video footage did not show the appellant had acted in the way she described and therefore it would not be evidence in support of her version, I would agree.

33.At the same time, I have regard to what Mr Lau, Public Prosecutor, fairly told me that the police seized the appellant’s mobile phone from her the following day, which showed that the phone could be within the control of the appellant at the time of the offence. However, as to whether the mobile phone was held in the appellant’s hand at that time, the evidence still only came from herself.

34.At the trial, the appellant also produced a photograph of her bruised thigh. According to the appellant, the photograph was taken at 2 am on 17 November[26]. Mr Ng submitted that having rejected the version of the appellant on which there was no cross-examination by the prosecution, the magistrate violated the rule in Browne v Dunn, and was unfair.

35.In respect of the principle established in Browne v Dunn, the Court of Appeal pointed out in HKSAR v Leung Ka Yiu [27]:

“The main purpose of such principle is to afford the witness for the party which testifies first an opportunity to respond to the version made by the other party which testifies later to ensure that the fact-finder gets the complete evidence for the question concerned. However, this principle does not rigidly require a party of a plain and obvious stance to confront the witness of the opposing party by putting its case directly to the witness. Certainly, this principle also applies to the prosecution which gives evidence first in criminal cases, so as to prevent the defendant from mistakenly believing that certain core defence of his own is not challenged, thereby damaging his valid defence. However, the crux of it still lies in the question of whether it will mislead the opposing party.” [28]

36.It is expressly stated in the case that even if there was no cross-examination on the evidence of certain facts, the fact-finder was not bound to accept that item of facts as the fact.

37.As put forward by Mr Lau, Public Prosecutor, it was not that there was no cross-examination by the prosecution on how the injury was inflicted at the trial[29]. In any event, in assessing the credibility of the appellant, the magistrate was entitled to have regard to the circumstances of the date of the photograph taken and the appellant’s not seeking medical consultation. The magistrate also had regard to the version advanced by the defence counsel at the trial that there might be delay in the appearance of bruises. He rejected this item of evidence because there was no testimony from the appellant in this regard. In my view, it cannot be said that his approach was erroneous.

38.Having listed the aforesaid reasons as part of the reasons for rejecting the testimony of the appellant, the magistrate also gave the following reasons:

(1)  The date of the offence was not yet the time of the pandemic of coronavirus. Face masks were not the normality or necessity in daily life. The magistrate considered that not wearing make-up was not a reasonable explanation for having the need to wear a black face mask;

(2)  even if the appellant found the black face mask novel as she claimed, she could have asked “Yeung” where she had bought it without any urgent need to borrow it from “Yeung”. The appellant had no justification for having the need to bring a black face mask with her when showing up at “the location of the offence”;

(3)  under cross-examination, the appellant was asked: when she and “Yeung” arrived at the junction of Sheung Tak, upon seeing the unlit traffic lights and no vehicles on the road, which was blocked with bricks, why they did not think that they needed to go home. Her explanation was that because she still found it peaceful. The magistrate considered her version not reasonable;

(4)  being only one block away from home and having heard from someone that people gathered outside Tseung Kwan O MTR Station, she purposely walked along Tong Chun Street all the way down to Exits A1 and A2 of Tseung Kwan O MTR Station. The magistrate again considered it to be unjustifiable;

(5)  it definitely would not be peaceful when people gathered. It was also unreasonable for the appellant to go from somewhere not far from home all the way down to the scene, daring to take risks; and

(6)  if the appellant and “Yeung” only intended to be lookers-on and did not engage in any illegal conducts, they simply did not need to flee upon learning of the arrival of the police at the scene.

39.The evaluation of whether a certain witness is honest and credible, whether the testimony given is true and reliable falls within the scope of decision of the trial magistrate. The appellate court can only rely on the written transcript for making its decision and lacks the advantage of hearing the evidence and observing the demeanour of the witness in court. For such reason, unless the findings made by the magistrate are found to be unreasonable, illogical or the evidence was inherently improbable, or when dealing with evidence the magistrate had misquoted or omitted or failed to consider and analyse important issues, the appellate court would not easily interfere with the findings.[30] In HKSAR v Finan Boris Anthony[31], the Court of Final Appeal pointed out that only if the magistrate’s finding of fact or determination of a witness’s credibility is plainly wrong would the appellate court depart from the finding or determination concerned.[32]

40.After careful consideration, I am of the view that the magistrate’s determination of the credibility of the appellant’s testimony should not be interfered with or even overturned.

41.Even if the magistrate was entitled to reject the appellant’s testimony, considering that all the testimony against the appellant came from the prosecution witnesses, the magistrate had to be satisfied that the testimony given by the prosecution witnesses must be the truth before he could convict the appellant.

42.Mr Ng contended that the magistrate erred in accepting PW1’s testimony.

43.One of the points put forward by Mr Ng in his submission was that the magistrate had ignored what PW1 said about the woman in black being chased by him had golden hair. However, as shown from the video footage, the woman he eventually caught up with (referred to as woman A in the trial) had black hair. Also, PW1 stated in his evidence that the woman in black and woman A were the same person.

44.Mr Ng indicated that the defence counsel at the trial had already pointed out this in his submission. Yet, the magistrate cited Browne v Dunn[33]and rejected this submission on the ground that the defence had conducted no cross-examination on it.[34] Mr Ng submitted that the way the magistrate dealt with this was improper, particularly because the defence counsel at the trial had in fact raised the issue of different hair colour to PW1. He should not be regarded as having failed to cross-examine or raise the issue to the witness.

45.If indeed the defence at the trial had not cross-examined PW1 on the identification of the person being chased by him, then it was not groundless for the magistrate to suggest that the defence had breached the principle in Browne v Dunn.

46.After perusing the trial transcript[35], I agree that in fact the defence did not omit to raise this issue, but its approach was not explicit as it did not put this issue directly to the witness. When the magistrate raised his concern on the omission of cross-examination, the defence counsel at the trial did not point out the actual situation or make further submission[36], which had the effect of leading the magistrate to believe that his observation was correct.

47.In Chan Hing Kai[37], the Court of Appeal discussed in depth how to deal with the lack of puttage to the witness in cross-examination (namely the so-called non-compliance with the rule in Browne v Dunn). To put it simply, Zervos JA[38] pointed out that although the fact-finder is entitled to take into account any non-compliance with the rule in Browne v Dunn[39] while assessing credibility, it should be applied with considerable care and circumspection in criminal cases. Also, before taking such non-compliance into account, the fact-finder should contemplate if any remedies are available, for instance exploring the reason for such situation or recalling the witness.[40] That case concerned a trial by jury, but the principles equally apply to cases heard solely by a judge.

48.In any event, the defence did not omit to conduct cross-examination as perceived by the magistrate. However, the magistrate’s assessment of PW1’s credibility did not necessarily fall into error simply because of a failure to properly apply the rule in Browne v Dunn. The relevant evidence at the trial had to be considered as a whole.

49.According to PW1, the target woman chased by him had golden hair, but it was obvious that the woman in black who subsequently got arrested did not have golden hair. Mr Ng submitted that such discrepancy to a certain extent affected PW1’s credibility and, to an even greater extent, affected the assessment of the truthfulness and reliability of his testimony.

50.Mr Ng accepted that in the circumstances of the present case, even if the woman in black who eventually got arrested was not the target originally chased by PW1, it was not crucial because the prosecution’s allegation was the appellant’s actions had obstructed the police officer in arresting the woman in black. The fact that the police officer was entitled to make arrest under the circumstances is not in issue; therefore, whether the identification was mistaken or otherwise is not a crucial issue in this appeal.

51.Mr Ng submitted that the woman in black obviously did not have golden hair, yet PW1 insisted that the target chased by him was a woman with golden hair and it was before he watched the video footage when he said so. Since any mistakes in PW1’s testimony was a relevant factor in assessing his credibility, the way the magistrate dealt with this was erroneous.

52.The magistrate did not ignore the difference in hair colour and the issue arising therefrom. He pointed out that the defence, by relying on such discrepancy, challenged whether the woman in black was the original target pursued by PW1.[41] He also expressly stated that he did not accept the part of PW1’s testimony regarding the hair of the woman in black being golden in colour. Besides, the magistrate made reference to the fact that the appellant was intercepted together with a woman in black at the same time by the police. Since only two people were intercepted, he was of the view that this discrepancy did not affect the credibility and reliability of PW1’s testimony as a whole, nor did it give rise to any doubt.[42]

53.In light of the above, I do not agree with Mr Ng’s criticism that the magistrate had ignored this matter being relevant to the assessment of credibility or failed to consider this matter fully. If identification was a crucial issue in the present case, then it would have caused greater concern had the magistrate taken the omission of cross-examination into consideration. However, as stated in paragraph 50 above, whether the police officer was entitled to arrest the woman he eventually caught up with could hardly be a crucial issue, whether the police officer chased after the wrong person is only relevant to his credibility. Whether the magistrate’s assessment of the police officer’s credibility was erroneous or not would depend on the circumstances as a whole. I do not think this point alone is sufficient reason for me to interfere with his determination.

54.Mr Ng also pointed out that in relation to PW1’s admission to using a baton, which was something against himself, and offering an explanation, the magistrate erroneously regarded those as acts of frankness, which rendered his evidence more credible and reliable.[43]

55.I think that the magistrate was entitled to form such a view, which was not unreasonable given the circumstances of the present case.

56.In making the assessment, the magistrate not only set out the issues criticised by Mr Ng but also highlighted various matters that had transpired during the trial. The matters that were taken into account included the following:

(1)  On the question of whether there were any discrepancies between the video footage and PW1’s testimony, the magistrate was of the view that there was nothing crucial;[44]

(2)  as depicted in the video footage, someone in black running ahead of the police officers fell, yet PW1 failed to notice that, but the magistrate considered that it was beyond criticism because PW1’s focus would be on the person he set his mind to go after;[45]

(3)  on the question of whether PW1 had mixed up the woman in black with the appellant, the magistrate was satisfied with PW1’s version that he had not[46]; and

(4)  as observed by the magistrate, PW1’s evidence was clear, unequivocal and logical. His evidence was not exaggerated, nor was it shaken under cross-examination.[47]

57.The magistrate also accepted PW2’s testimony, which, objectively speaking, supported PW1’s version. Mr Ng did not submit that the magistrate had erred in his assessment of PW2’s credibility.

58.I do not think that the magistrate adopted different standards while assessing the testimony and credibility of the prosecution witnesses and the appellant.

59.In light of what is stated above in paragraph 38, I am of the view that Mr Ng has failed to raise sufficient grounds for the court to interfere with the magistrate’s determination of the credibility of the prosecution witnesses.

60.Since I am of the view that there are not sufficient grounds for me to interfere with the magistrate’s assessment of the credibility of the prosecution witnesses and the appellant, I should therefore consider this appeal based on the prosecution witnesses’ evidence as accepted by the magistrate.

61.It is clear from the evidence that the police officers gave chase after alighting from the vehicle, with a number of people in front running away. The chase continued for quite some distance, during which there was a time when the target person (namely the woman in black) was out of PW1’s sight. Subsequent to that, PW1 gave chase to a woman in a similar outfit and eventually caught up with her when the appellant turned up and committed the act as alleged.

Conclusion on the appeal against conviction

62.Given the circumstances, I am of the view that the conviction by the magistrate is safe and supported by ample evidence. I agree that under the circumstances of the present case, even though the appellant’s act was a brief one, taking into account the acts of both PW1 and the appellant as well as the action PW2 needed to take in response, I agree that the appellant’s act amounted to obstruction and PW1 was at the time in the due execution of his duty.

63.For this reason, the appellant’s appeal against conviction is dismissed and the conviction is affirmed.

Appeal against sentence

64.The magistrate was of the opinion that the act committed by the appellant was very serious. He pointed out the following:[48]

(1)  A hundred odd people gathered outside the exit of the MTR station with bricks and miscellaneous objects scattered on the ground, making it impossible for the traffic to move along;

(2)  the crowd ran away upon sight of the police, so the police needed to give chase to intercept people for enquiry; and

(3)  when the police officer caught up with a woman, the appellant pulled at the woman with the obvious intent of assisting her to escape from the police officer.

65.The magistrate considered the following matters:

(1)  The appellant is currently 21 years of age and lives with her parents;

(2)  she was currently a salesperson in a cake shop. Before that she studied Hotel and Catering Management at the Hong Kong Institute of Vocational Education and worked as an intern in the Hong Kong Jockey Club;

(3)  she was well liked by her colleagues. The cake shop manager also promised to continue to hire her full-time after the appellant had served her sentence;

(4)  in the present case, the appellant acted out of character and committed the offence without premeditation;

(5)  after her arrest, the defendant suffered from immense stress. While on bail, the appellant had also been observing a curfew order for more than 6 months, subjecting her to a certain level of mental torture;

(6)  the scuffle between the appellant and the police only lasted for a few seconds, which was of less serious nature than those in similar cases; and

(7)  the defence invited the court to consider non-custodial sentences such as a probation order or a community service order.

66.Having reminded the appellant that the court was not bound to accept the probation officer's recommendation, the magistrate called for a community service order suitability report.

67.The officer who compiled the report did not recommend the appellant to be sentenced to a community service order.[49] Having read the report, the magistrate was of the view that the appellant showed no sign of self-reflection nor any remorse, and that a community service order was not suitable.

68.The magistrate adopted three months as a starting point, and considered that there was no ground that would warrant a discount to her sentence. She was therefore sentenced to three months’ immediate imprisonment.

69.Mr Ng criticized that the magistrate erred in overestimating the seriousness of the case, resulting in an excessive sentence. He cited Secretary for Justice v Kung Yat Kan, Clifford [50] and submitted that the circumstances of that case were more serious than those of the present case. Yet the Court of Appeal, after reviewing the sentence, considered that a starting point of eight weeks was already sufficient. Mr Ng submitted that the facts of this case were similar to those of that case, but the present case was less serious in nature. The appellant’s act was brief whereas the accused of that case kicked towards a police officer who was running in high speed.

70.The main points of Mr Lau’s submission are as follows:

(1)  three months’ imprisonment is a harsh sentence, but it is not manifestly excessive;

(2)  the scale of the present case was relatively small, and there was no evidence to show that there was a risk of promoting violence. However, the issues and backgrounds involved in different cases are different. Even if the nature of the act involved is similar, the court must consider the facts and evidence of each case in sentencing;

(3)  the appellant’s act was very vigorous. She took the initiative to pull her friend's arm with both hands to get her out of PW1’s control. There was a high chance that such act would successfully help her friend evade the police’s arrest and the culpability of such act was serious;

(4)  the appellant did not act out of momentary impulse, but an intention to pull away her friend to evade the pursuit of the police, thereby obstructing the police from enforcing the law;

(5)  the probation officer pointed out that at the interview, the appellant admitted that her act was to prevent her friend from being subdued by the police[51], and she showed no remorse whatsoever.

71.In the case of Secretary for Justice v Wong Chi Fung[52], the Court of Appeal made the following observations:

“128. Under the rule of law, the law will not and cannot tolerate any act of violence or threat of violence. Those engaged in protests must not deploy violence against anyone: …

129. It is an aggravating factor if the offenders of an unlawful assembly inflicted violence, or threatened to use violence. In such a case, the sentence must provide adequate punishment and deterrence: … it is for the sentencing courts to ensure that the public is protected, so it is necessary to provide for both punishment and deterrence when passing sentence: …

130. For an unlawful assembly involving violence, the sentencing court will take into account an offender’s individual circumstances. However, for the purpose of punishment and deterrence, an offender’s personal welfare will not be a paramount consideration when compared with the public interest: ... when the court considers what is an appropriate sentence in the overall circumstances is, little weight will be given to an offender’s personal circumstances and rehabilitation. In extreme circumstances, no weight will be given at all.

131. When an offender used violence or, worse, engaged himself in wanton and vicious violence, even if he claimed he committed the offence out of deeply held moral or political convictions, that would not constitute a mitigating factor in favour of a lenient sentence. The major factor for the court to consider is the degree of violence, and the extent to which public peace was affected: …

…

134. … for cases of unlawful assembly involving violence, the main consideration in sentencing is for the offenders to be punished, and for others to be deterred from violating the law by breaking and disrupting public order in like manner. As to the offender’s personal circumstances, regardless of how honourable he perceives his motive or reason for committing the crime to be, or whether he thinks the other offenders are more culpable than he is, they will, generally speaking, not be regarded as a strong mitigating factor in favour of imposing a lenient sentence.”

72.When handling the said case, the Court of Final Appeal agreed with these observations.

73.I also agree with the observations made by Mr Lau in paragraph 70 above.

74.Taking into account the overall circumstances of the present case, it is reasonable and appropriate to consider a custodial sentence.

75.The appellant was aged 20 at the time of the incident. However, as the offence in question is an excepted offence[53], the provision under Section 109A of the Criminal Procedure Ordinance in relation to the sentencing of offenders under the age of 21 does not apply.

76.In any event, before sentencing, the magistrate had called for a background and community service order suitability report for the appellant. The comments in the report were not favourable to the appellant. The officer was of the view that she had no self-reflection and lacked awareness of her inappropriate act and still wanted to mitigate her culpability. Therefore, a community service order was considered not suitable. Moreover, the court has stressed in a series of incidents that whether an accused shows genuine remorse is an important factor to be considered in sentencing him to a community service order.[54]

77.I fully agree that a custodial sentence is appropriate with regard to the overall circumstances of the present case.

78.Mr Ng cited Secretary for Justice v Kung Yat Kan, Clifford[55] and submitted that there was room for reducing the sentence.

79.Kung Yat Kan, Clifford was a review of sentence by the Court of Appeal. The background of the incident was similar to that of the present case, involving an accused kicking towards one of the police officers who were carrying out sweeping operation, causing him to stumble forward for several steps before regaining his balance, but he did not fall. In that case, the Court of Appeal held that taking eight weeks as a starting point was appropriate. In considering the case, the Court of Appeal took into account the following matters[56]:

(1)  “Three major stoppages” was staged on that day. The accused was only a passer-by, but he should have expected a more chaotic situation;

(2)  at that time, a lot of citizens were gathering on the road and some carriageways were blocked;

(3)  when police officers in full protective gear were running towards the protestors behind the accused, he must realize that the police officers were in execution of their duty;

(4)  by kicking towards the police officer, the accused must be aiming to obstruct the enforcement of the law;

(5)  the accused had only acted on the spur of the moment;

(6)  but his act was likely to cause others to imitate, thereby leading to a violent conflict of a greater scale.

80.Mr Lau cited a recent case of the Court of Appeal, SJ v Leung Wing Hong[57], and submitted that the sentence imposed by the magistrate was within a reasonable range and was not manifestly excessive. The background of that case was also the social event in 2019. It also concerned the offence of obstructing a police officer in the due execution of his duty. The magistrate sentenced the respondent to a probation order upon his own plea. The Secretary for Justice applied for a review, and the Court of Appeal held that a starting point of seven and a half months was appropriate. The Court of Appeal reiterated[58] that in sentencing, the court must assess the culpability of the accused, taking into account the overall circumstances of the case, including:

(1)  The act of the accused;

(2)  the surrounding circumstances, time and place of the incident; and

(3)  the possible consequences of his act.

81.After citing SJ v Chung Ka Ho[59] and HKSAR v Tang Ho Yin[60], the Court of Appeal emphasized that the background of social event was important and the ripple effect of the accused’s behaviour must be taken into account, as it may lead to more serious consequences. Generally speaking, the deterrent effect of the sentence should be stressed.

82.The date of sentence in the present case was 6 January 2021. At that time, the magistrate should take into account the judgment of the Court of Appeal in Kung Yat Kan, Clifford. The judgment of Leung Wing Hong[61] was handed down only on 7 October 2021. However, the sentencing considerations in these two cases are the same in principle. The facts of Leung Wing Hong, in short, were that the respondent obstructed the police officers from arresting a person who yelled at the police officers. The force used was more aggressive than that of the appellant in the present case, requiring more effort and making it much more difficult for the police officers than those in the present case.

83.I agree with Mr Lau’s observation that the nature of the appellant's act was equivalent to “snatching the arrestee”. However, after all, the appellant's act was just an instantaneous reaction. What she did was pulling the arm of the woman in black with both hands, and they were both subdued immediately. The magistrate ruled that the appellant's act did more than causing inconvenience to the police officer or requiring him to exert little additional effort. I agree with the magistrate’s judgment, but at the same time, I believe that based on the appellant’s act alone, the present case is relatively minor among similar cases.

84.Nevertheless, as mentioned above, the background of the offence should not be ignored, and it is necessary to impose a deterrent sentence.

85.Therefore, when the magistrate did not consider a probation order as requested by the defence in the trial, he can hardly be faulted.

86.As to the community service order, having considered that the appellant did not plead guilty to the charge and appealed against the conviction, she can hardly be said to satisfy the prerequisite condition for a community service order, that is, showing genuine remorse. For the present case, when the report did not recommend a community service order, there is no reason for the court to impose such a sentence.[62]

87.I agree that taking the overall circumstances of this case into consideration, sentencing the appellant to imprisonment is appropriate.

88.Under Schedule 3 of the Criminal Procedure Ordinance, the offence in this case is an excepted offence, no order can be made pursuant to Section 109B(1) of the Ordinance that the sentence of imprisonment shall not take effect.

89.With regard to sentence, after careful consideration, I agree that there is room for downward adjustment. I am of the view that nine weeks is an appropriate starting point. Taking into account the personal circumstances of the appellant, I do not think there are sufficient grounds for further reduction. Therefore, the appeal is allowed and I order a sentence of nine weeks’ imprisonment instead.

Mr Douglas Lau, Public Prosecutor, of the Department of Justice, for the Respondent.

Mr Chung Luen Chris Ng and Mr Elson Tong assigned by the Free Legal Services Scheme of the Hong Kong Bar Association, for the Appellant.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Walter Lee, solicitor.