Hui Chi-yuen v. The Queen

CACC000213/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 213 OF 1975

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Coram : McMullin J. in Court.

Date of Judgment: 16 May 1975

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JUDGMENT

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1. The appellant in this case appeals against a conviction for being in possession of an offensive weapon contrary to Section 33(1) of the Public Order Ordinance and upon a second count of resisting arrest. Both charges arise out of an incident which occurred upon the 22nd of January 1975. It was the case for the prosecution that the appellant and another man who was tried together with him were approached and searched by three police constables who gave evidence that they thought that the two men were behaving in a suspicious manner. One of the police officers who searched the present appellant said that the appellant had upon his person within the waist-band of his trousers a knife and upon this being discovered the appellant ran off. He was pursued by that police officer and arrested a short time later. He was then brought back to where the two other officers were dealing with the other defendant who according to those officers had also been found in possession of a knife.

2. The memorandum of appeal was not prepared by counsel who expressly abandoned one of the grounds. The other grounds are not well formulated and are indeed somewhat confusing. In effeet one point only was made upon the appeal. One of the police officers who was in the party of three gave evidence that the appellant had received an injury apparently in the course of the arrest. That evidence was not given by the arresting officer but by one of the other two who arrested the second defendant. He said that the appellant's forehead was bleeding when he was brought back by the police officer who had arrested him. It is common ground that both of the defendants were taken to the police station and that subsequently the present appellant was taken to have his scalp stitched.

3. When the appellant was first brought before the court Mr. Leong who now appears for him was then appearing for the other defendant and he asked that his client should be examined by an outside doctor. Counsel informed this court that both appellants had bandaged heads on that occasion and the magistrate certainly made an order that the defendants should be examined and that a report should be made available to the court upon the hearing. Subsequently to that occasion, which was the 24th January, pleas were taken upon the 29th and the defendants denied the charges. At that stage Mr. Leong was no longer appearing for either of the defendants who were remanded in custody until the 19th of February when the case was heard. It would not appear that any medical report was seen by the magistrate who tried the case and who was not the magistrate who had ordered the report.

4. It was alleged by both of the defendants when giving evidence upon the trial that they had been assaulted by the police officers who arrested them when they were taken to the police station, and the only point made upon the appeal was that if the magistrate who tried the case had been in possession of the medical information relating to the injuries of the defendant he might have been slow to accept, as he did accept, the evidence given by the three police officers involved in the arrest of both defendants.

5. At the hearing of the appeal I was shown a report which had, I understand, been obtained at the instance of the Director of Legal Aid from the Medical Department. It is a report made by a doctor who examined the appellant and it would appear that it was asked for by the police on the very day, the 24th of January, upon which Mr. Leong had originally made his request that his client to be examined. From this report it appears that the appellant was admitted to Queen Mary Hospital on the 24th of January and was then examined and discovered to have a sutured wound in the scalp. He was kept in hospital for several days and released on the 28th which was the day before his second appearance when pleas were taken. Whether or not the magistrate, Mr. Tung, who had called for the report had it in his hands on that occasion we do not know.

6. The story of the present appellant is that he was not in company with the other defendant at all but that on the occasion in question he was approached by a police officer when he was walking in the vicinity of the place in King's Road where he was arrested and that he was looking for some friends. He said that he was searched but that nothing was found upon him and he was then taken to the police station, stripped off his coat, given a cold bath, handcuffed and then beaten by the arresting officer who used three large books to strike his head and that of the other accused who was by then also in custody. A similar story was given at the trial by the second defendant.

7. I have considered the submission of counsel but I am satisfied that the magistrate rightly relied upon the evidence of the police officers in this case. I think it is a matter of considerable importance that the allegation that the injury of the appellant was received in the way he described it in court was never put to any one of the police officers who gave evidence. Although it is true that the appellant was not represented at the trial this part of his story was so vitally connected with the tale of total innocence which he wished to present that it seems unlikely that he would not have challenged the arresting officer on it. He did not do so, and, although he did cross-examine him as to the finding of the knife, he did not put to him any of the circumstantial account of mistaken arrest which he later gave in evidence himself. It is noteworthy also as Mr. Amey points out that in the case of the other appellant, who was then represented by a lawyer, questions were not put to any of the police officers concerning the alleged police brutality although both defendants gave a strikingly similar account of it. It is to be noted also that although both defendants stated that they had been beaten and that thereafter they had been forced to sign in police notebooks no evidence was produced concerning any statement made as a result of the alleged beating. The appellant himself admits that he was medically treated upon the very day he was arrested and that his head was stitched upon that day that is the 22nd of January, i.e. two days before he was examined at Queen Mary Hospital at the instance of counsel. Had he received his injuries as a result of police beating it seems unlikely that the police would have been disposed, upon the very same day, to put themselves in jeopardy of discovery in such a matter by securing him prompt medical attention when the injuries were not of such a serious nature as to necessitate that course being taken. Although therefore no evidence was given by the prosecution as to how the injuries upon the head of the appellant were received and I think that is something upon which evidence should have been adduced, I am satisfied upon what is before this court that the magistrate legitimately rejected the story that the injuries had been received as a result of beating at the police station and I do not believe that had he been in possession of the medical reports which are now before this court that he could have formed any different opinion. I am indebted to Mr. Leong for ventilating the matter as thoroughly as he did but in the upshot I find that the appeal must fail.

Representation: