R. v. Lo Man Yui

HCMA001355/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1355 OF 1996

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Coram: Hon Sears, J. in Court

Date of hearing: 27 May 1997

Date of judgment: 27 May 1997

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J U D G M E N T

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1. This is an appeal against conviction from Mr Lee. The magistrate carefully assessed all the matters. Normally speaking, these courts do not interfere in any shape or form with issues of fact.

2. The appellant had been watched by a plainclothed police officer going into a building and he was going to knock on a door, and clearly the appellant was going to be engaged in some form of robbery or burglary. The police officer approached him and revealed his police identity. He said he was looking for a friend. The officer saw that he had something sticking out from his clothes so he said he wanted to search him. He found some syringes and suddenly the appellant jumped on him. There was a fight and the appellant hit the police officer, banged his head and there was struggling. They fell on the floor and the officer felt him pressing on his holster a couple of times, no doubt during the fight. The question was whether or not this was evidence from which a court could safely infer that there was an attempt to rob the police officer of his revolver.

3. There clearly was evidence of assaulting the police officer and evidence of his attempting to resist a police officer in the execution of his duty for which he was given 16 months and six months. The position however was that he was also given 16 months which was concurrent with the resisting a police officer charge but consecutive with the other wounding for attempting to rob the revolver.

4. In my judgment, whilst I respect the views of the magistrate and though he saw the witnesses, the evidence does not make me sure that that is indeed what was happening. This was of course a violent struggle that was going on. In my judgment, this falls into the category of cases where the conviction is unsafe. The appeal is allowed.

Representation:

Mr Y.M. Liu, S.C.C., for Crown/Respondent

Mr C. Coghlan assigned by DLA for Appellant