The Queen v. Lo Sai-wing

CACC000198/1984

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Kempster, J. in Court

Date: 10th August, 1984

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JUDGMENT

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1. The appellant LO Sai-wing, a serving member of the Royal Hong Kong Police Force, appeals to this court against his conviction of assault at South Kowloon Magistrate's Court, by Mr. Sinclair, on the 16th of March last.

2. Following evidence given at the hearing the learned Magistrate found that on the 28th of December of last year the appellant had politely been requested by security officers and by a lady, assistant manageress to remove himself from an area of the Royal Garden Hotel restricted to the use of guests. He further found that the appellant had declined to accede to these requests and that a scuffle had followed. In the course of that scuffle the appellant's spectacles fell off.

3. In his evidence the appellant had suggested that he received a violent blow on the bridge of his nose. That was disbelieved and in accepting the evidence of one of the security officers and of the manageress, as opposed to that of the appellant, Mr. Sinclair had in mind, it would appear, the fact that at an earlier stage the appellant had given an account of the matter describing in some detail an attack upon him in the hotel by four men.

4. The learned Magistrate found that the security officers had used no more than reasonable force in restraining the appellant; that the appellant had drawn his revolver from its holster and that he wilfully and without justification pointed that weapon at one of the security officers.

5. It was contended on the appellant's behalf by Mr. Eddis, who said all that could possibly be said in support of this appeal, that the Magistrate had paid insufficient regard to the necessity for mens rea. Mens rea in the context of assault means a deliberate act; ruling out accident or inadvertence. But the Magistrate found in terms that the appellant wilfully pointed his revolver at one of the security men and that such action was accompanied by a hostile intent, as evidenced by his threatening words, calculated to cause apprehension.  There is nothing in this point.

6. Then it was contended that the Magistrate failed properly to consider the conduct of the two security officers from the point of view of the appellant himself. This plea was raised because the Magistrate, rather than the appellant, had canvassed the possibility of "selfdefence" being available in answer to the charge of assault. In this regard the Magistrate found:

"There was not a shred of evidence to support the appellant's protestations that he had been punched and partly strangled during the scuffle by anyone, let alone four men. And then I was satisfied beyond a reasonable doubt that they used no more force than was reasonably necessary and did not punch or strangle the appellant as alleged or at all. In such circumstances I found that the appellant was not acting in self-defence when he drew his revolver."

Thereby, in my view, the Magistrate did have regard to the circumstances in order to ascertain the degree of apprehension which the appellant might have felt when he was involved in the scuffle. The fact that a man is involved in a bout of fisticuffs or even in some sort of wrestling match does not entitle him to threaten another with a lethal weapon. There must be reasonable parity between any battery or assault inflicted or apprehended and the reaction. I find the submission that, the Magistrate, having raised the issue of self - defence, did not apply it with propriety so as to raise a doubt is also unsustainable.

7. The circumstances of this appeal call for certain further observations. A constable is under a duty to prevent the commission of crime, to protect life and property and to assist in the apprehension of offenders. For these reasons certain special powers of arrest and search are conferred upon him by ordinance. But a constable is just as much subject to law as any other of Her Majesty's subjects. The circumstances giving rise to this conviction appear to have resulted from the adoption by the appellant of an attitude suggesting that he regarded himself as a member of a privileged class. He was and is not. Further, the appellant's conduct must be a matter of concern both to the Secretary for Security and to the Commissioner of Police in the context of an overall policy allowing plain clothes officers to carry small-arms at all times.

8. The appeal is dismissed.

Representation:

Mr. Eddis, instructed by (D.L.A.) for Appellant

Mr. G. Jackson, Ag. Senior Assistant Crown Prosecutor for Grown/Respondent