HKSAR v. Wu Wai Hung

HCMA000345/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MAGISTRACY APPEAL NO. 345 OF 1997

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Coram: Hon. Wong, J. in Court

Date of Hearing: 22 January 1998

Date of Handing Down of Judgment: 13 February 1998

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J U D G M E N T

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1. The appellant, a police sergeant, was jointly charged with Wong Wing-lok, a police constable, with one charge of common assault. They were both convicted after trial before a magistrate. Each of them was sentenced to one month's imprisonment, suspended for 12 months and ordered to pay costs. Both lodged notices of appeal against convictions. The appeal of Wong Wing-lok was heard before Deputy Judge Gill who, on 9 October, 1997, allowed the appeal and quashed the conviction. The appeal of the appellant was adjourned. The appellant also faced one additional charge of common assault and another charge of theft. All the charges arose out of the same incident. He was acquitted of the latter two charges.

2. The evidence against the appellant comes mainly from one witness and that is Au Kui-leung, the complainant, who is no stranger to the courts with nineteen previous convictions for a variety of crimes. The prosecution case was that at about 8 p.m. on 14 January 1995, the complainant went to Anchor Street Playground to watch other people playing chess. A team of five blue berets led by the appellant were there to check identity cards. The complainant was made to stand aside and after he produced his identity card to the appellant, he was searched by the appellant and a bunch of keys, a phonebook and $600.00 were taken from him. The appellant only returned $100.00 to him. He asked the appellant where was the $500.00 and the appellant replied "what $500.00?" and hit him on the head. He felt dizzy and fell to the ground where he was kicked several times. These blows caused him to bleed both from the head and round the right eye and nose. The team of officers then left after returning the documents to him and told him to go. He went to the Po Wah Restaurant and dialled 999. This incident forms the subject of the charges of common assault and theft of which he was acquitted.

3. About ten minutes later, the same team of officers led by the appellant returned and the appellant asked if the complainant had dialled 999 to which he replied "yes". Another police vehicle and officers also arrived but left the scene after they were assured by the appellant that he would handle the matter. The appellant then took the complainant to a wall in a lane and said: "you dare dial 999." He was told to walk to the corner where he was assaulted. He reckoned that he was kicked as many as twenty times. After the officers had left he dialled 999 again. He was later taken to Kwong Wah Hospital in an ambulance. On examination, he was found to have a mild bruise over the right ride of nose. This incident forms the subject of the charge in respect of which he was jointly charged with Wong Wing-lok and convicted.

4. Mrs. Mok Sau Hong and a Mr. Leung who lived in the neighbourhood also gave evidence. Mrs. Mok said that she saw a police officer kicking a man who shouted "Ah Sir, don't assault me." She was looking out of the window of her 9th floor flat along Pine Street and Po Wah Restaurant. Mr. Leung looked out from his 6th floor flat in Pine Street opposite Po Wah Restaurant and saw two or three blue berets press a person to the ground.

5. The main thrust of the appeal is that the magistrate failed to resolve the conflicts and inconsistencies in the evidence and to properly evaluate the prosecution evidence.

6. In his very lengthy statement of findings, the magistrate first of all reminded himself of the long lapse of time which could affect the memories of those called to give evidence. He further reminded himself that each charge must be considered separately. Throughout the trial, he always had firmly in mind that the complainant was a man of bad character with as many as 19 previous convictions to his credit and his evidence must be viewed with caution. He believed that the complainant was quite capable of twisting the truth if he saw advantage in it. That is why he acquitted on the other two charges because there was no other evidence apart from the evidence of the complainant. The charge for which the appellant was convicted is different because there is supporting evidence from Mrs. Mok. In paragraph 33 of his statement of findings at p.204 the magistrate made these findings:

"I have examined P1 Annexure C with care; the timings. I take it as accurate and confirms PW1 when he said other officers - a Sergeant in the EU attended also in a van and were sent away. PW1 then says of course that he was dragged by the hair by D1, two other officers holding his arms and legs, 10 paces into a lane by Po Wah Restaurant and repeatedly kicked, after D1 said 'You dare dial 999'. I am satisfied in my own mind that this indeed occurred. It might have been at that lane entrance rather than 10 paces inside. I accept the evidence of PW5 Mrs. Mok Sau Hong. She was an entirely honest and truthful witness who at about that time - she thought 10:45, but I think that it was later - she heard a man shout 'police officers please don't assault' and looked out to see, as she marked on P7, a man lying near the Po Wah Restaurant and a policeman - a blue beret - kicking him. The man was seen by her at an oblique angle, from a 9th floor flat, at quite a distance and possibly as she said in cross examination the Po Wah Restaurant illuminated sign was off, but there were street lights and I am satisfied that in the 10 minutes she observed she did indeed witness an assault. The person assaulted, as a matter of common sense, could only have been PW1. I have of course the medical evidence which shows an injury to PW1's nose. I have seen P-2 which has blood stains on it and I am satisfied that when PW2 went to make his 2nd 999 call he had blood on him seen by Mr. Kong at the Wing Fat Store; and that PW3 saw more blood stains on PW1's face when he went with him in the ambulance to the hospital then he had seen when he went the first time to where PW1 had been and saw blood on his face there. All this evidence leaves me in no doubt at all that an assault took place close to or just inside a lane near the Po Wah Restaurant between 2250 and 2315 hours and I accept the identification made by PW1 of D1 as one of the perpetrators of this assault. I am satisfied there were others involved, and that they were confined to members of the PTU Team 7 Co Platoon or Column 2 (6 men). PW6 observed matters towards the end. He confirms Po Wah Restaurant sign off and that PTU appeared to hand matters to flat hatted officers (PW3 and PW4)."

7. I am satisfied that the magistrate was entitled to find as he did. He evaluated the evidence with care and there are no irreconcilable conflicts or inconsistencies that have not been resolved. There is no merit in the arguments advanced on behalf of the appellant. The appeal is dismissed.

Representation:

Ms. Evena Chan, DPGC for Director of Public Prosecution.

Mr. Gary Plowman, S.C. instructed by Messrs. Paul Cheng & Co., for the Appellant.