R. v. Li Lai-ying and Others

HCMA001036/1993

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1036 OF 1993

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Coram: Hon Patrick Chan, J. in Court

Date of hearing: 3 May 1994

Date of judgment: 3 May 1994

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J U D G M E N T

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1. This is an appeal by the 1st, 2nd and 5th defendants against their convictions by the magistrate of various charges of obstructing police officers in the execution of their duties.

2. The Crown's case came from the officers. On the 31st May 1993 at 1 a.m. in the morning, the officers of the Kowloon West Anti-Triad Squad led by Inspector Wong in plain clothes conducted an anti-triad operation at 3 defendants and 4 other friends who were also defendants, were having their time there, drinking and playing finger guessing games.

3. PWI said that the officers revealed their identity, asked to see the defendants' identity cards, but no one was prepared to do so. The 1st defendant was standing up all the time when she tried to reason with him. According to PW1, he wanted to look at their ID cards but the 1st defendant used foul languages at him. He saw the 1st defendant throw a glass on the floor and later bend down to sweep certain items from the coffee table. The officer said that apparently some broken glass had injured his ankle, and when the 1st defendant tried to bend down and sweep the other items from the coffee table again, he grabbed her hands and tried to stop her. Then a struggle ensued and 2 or 3 other defendants rushed at him, accusing him of assaulting the 1st defendant. Another officer helped him, that was PW2, but these few women pushed them to the wall.

4. Later Inspector Wong came in, calmed them down and arrested them later for obstructing the police and disorderly conduct.

5. Another officer confirmed the evidence of PW1 and the other officers also gave evidence.

6. The 1st, 2nd and 5th defendants gave evidence which was quite different. They said that when the officers came in, they said they wanted to check the licence but never revealed their identity. So the 1st defendant tried to reason with one of the officers but he grabbed and pulled her hair down the table. The other women tried to help and free her but another officer assaulted them. A European officer came in and assaulted some of them with a short stick, presumably with a truncheon. Finally the struggle stopped. They were all brought back to the police station.

7. In the police station, the 1st defendant was cautioned and in her statement, she complained against the police. In her evidence, she said that the two officers who came into the room were not PW1 & PW2. She and the other defendants also said that the European officer was PW5. But the officers and PW5 denied that PW5 was ever in the room.

8. The magistrate accepted the officers' evidence but rejected the defendants'. In dealing with the defence evidence, he commented on p.65 that in the cautioned statement, the 1st defendant did not deal with the other officer. He also said that the evidence on the identity of the European officer given by these defendants was doubtful. He remarked that the defendants never mentioned the pulling of their hair in the 1st defendant's statement or to the doctor.

9. Obstructing police officers in the execution of their duties were the charges. In the Statement of Findings, the magistrate seemed to suggest that it was not the noises made by these defendants or their refusal to produce identity cards which constituted the offence, because if he had thought so, then all defendants would have been convicted or acquitted together. He said the other defendants were only standing by. So apparently he seemed to have relied on the struggle by the 1st, 2nd and 5th defendants as constituting the obstruction. But there is no direct evidence linking the alleged struggle to the 5th defendant. No officer had identified her. There was the 5th defendant's own evidence and the medical report of her injuries. The magistrate had rejected her evidence, and there is nothing to link her to the obstruction. The magistrate seemed to infer from the injuries that the 5th defendant must have been involved in the struggle and therefore took part in the obstruction. I do not think such inference could be the only reasonable inference before him. So on the evidence, at least there is a clear doubt on the 5th defendant's part. The convictions of the 5th defendant cannot stand.

10. I note that notwithstanding that the reasons for the police going to the Karaoke Bar was to check identity cards, subsequently this was not done apart from a check on probably one of the defendants who wanted to go to the toilet. So the very purpose of the exercise in the room was not carried out. It could be that because they were all subsequently arrested, this could be done in the police station. But this is a matter which I should bear in mind.

11. What causes me concern was the medical evidence. According to the evidence, there was an examination of the 2nd defendant and the medical report said as follow : 3 centimetres diameter bruise over right lower abdomen; tenderness over left posterior neck region with decreased range of neck movement. With regard to the 5th defendant, the examination revealed that there were bruises over her right hand ring and little fingers' knuckles regions; tenderness over her left posterior neck and right anterior arm. The magistrate said that there was nothing in the statements and in the medical reports about the pulling of the hair. I am not surprised that there was no such mention because they were examined for injuries such as bruises and pain. What I am surprised is that there was nothing else in the Statement of Findings of the magistrate about the medical evidence except one sentence on p.67 which said he was "fully satisfied that D2 & D5 who were also injured had received their injuries during the struggle at the time". How it was that he came to this conclusion is not clear. When I consider PW1's and PW2's evidence, it appears that these defendants only pushed them to the wall. The coffee table was low because the 1st defendant had to bend down to sweep the items. There is no evidence as to how they struggled with the police. So I find it difficult to see how injuries of this nature could be sustained through pushing. There is nothing to suggest that the two defendants, D2 & D5 had bumped into the coffee table or any other object. I also bear in mind that the officers said it was the females who were pushing the officers and not the officers pushing the females. How then could such injuries have been sustained? In my view, the injuries did not seem to be consistent with the struggle alleged by the officers. That raises some doubt on the evidence given by the officers.

12. The magistrate also dealt with the 1st defendant's cautioned statement apparently to assist him in considering the credibility of the 1st defendant. That statement was taken very shortly after the incident at about 2:15 a.m. in the morning and finished at 4:10 a.m. That already contained a complaint against the police officers, particularly a European officer using a stick. The magistrate referred to the statement but did not seem to have considered whether the statement would support the 1st defendant's evidence. If the 1st defendant and the other defendants had concocted the story, they must have done so within an hour or two that early morning. They would have to make up a story about a European officer using a stick even as early as that time. Why would she have done so against an officer who did not even enter the room?

13. So at the end of the day, I think the magistrate has failed to consider this part of the evidence. It is not for the defendants to prove or disprove anything but for the prosecution to prove the case beyond reasonable doubt. I agree that it is a matter of credibility of the witnesses. But having looked at all the evidence and the Statement of Findings, I do not think one can be satisfied beyond reasonable doubt that the officers had given a full picture of what happened. I bear in mind particularly the injuries on the 2nd and the 5th defendants. I am not sure that the officers were telling the court the whole truth.

14. In the circumstances, I find that the convictions were unsafe and satisfactory and I would allow the appeal. So all the convictions are quashed and the sentences set aside.

Representation:

Mr Graeme A. Mackay, instructed by Messrs Wing-sum Lo & Co, for Appellant

Mr W.S. Cheung, Senior Crown Counsel, for Crown