The Queen v. Lee Koon Chuen

HCMA000809/1989

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 809 OF 1989

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 24 October 1989

Date of Delivery of Judgment: 24 October 1989

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J U D G M E N T

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1. The Appellant pleaded not guilty to a charge of assaulting a police officer in the execution of his duty.

2. The prosecution evidence was that at about 9.00 p.m. on the date of the incident, a police officer in uniform apparently performing traffic duty on a motorcycle stopped in Austin Road because he saw a taxi stationary at a place which was not a taxi stand and with his display light on in such a way as to indicate he was there waiting for a fare.

3. The police officer said he observed for about 2 minutes and, when the taxi did not move off, he signalled the driver to approach him. When he did, he told the driver that he had been waiting at a place which was not a taxi stand. The driver replied that he did not know how to get back to Hong Kong. The officer said that he would then charge him with the offence of 'stopping too long to set down or pick up a passenger'. When the officer asked the Appellant for his identity card and driver's licence, the Appellant ignored him and began to move the taxi slowly ahead. He told the appellant to stop the vehicle. The Appellant did, got out of the taxi through the driver's side door and pushed the constable. According to the constable, during this altercation the Appellant grabbed hold of the constable's belt or sash and pulled at it. They both struggled. The constable was able eventually to push him away and use his beat radio to summon assistance.

4. Assistance duly arrived and the officer who came was the 2nd Prosecution Witness. His evidence was that when he arrived he saw the clasp of the first officer's belt had fallen off. He cautioned the Appellant and arrested him and in the caution said he was arresting him for assaulting a police officer on duty. He said that the Appellant in reply said "I know".

5. The appellant gave evidence and he was in agreement with the officer as to the initial part of this incident, namely that the Appellant had stopped his taxi in Austin Road at a spot where there was no taxi stand, and that he was there waiting for passengers. He said he saw the policeman arrive on his motorcycle and that he then started to move off. When the police officer waved him to stop, he did so. When the officer asked him what he had peen doing there, he, the Appellant, replied. 'Sir, I am sorry, I have just got my licence. I am not quite familiar with the roads here. I am looking for my way back to Hong Kong.' In his evidence in chief, he went on and added. "I was, in fact, waiting for passengers, I agree." He said that the police constable uttered a very unpleasant word which the Appellant was reluctant to repeat in court. This made him annoyed and they eventually began to stare at one and other. He switched off his engine, and the constable told him to alight. He became exasperated because the constable continued swearing at him. When he alighted from his vehicle, the constable came towards him 'weighing his chest on me and dumping me'. He said he tried to ward the constable off. He gave a description of the constable putting his arm around the Appellant's neck and the Appellant struggling with him and, eventually, managing to free himself. His evidence was in accordance whit the 2nd Prosecution witness about the 2nd Prosecution Witness arriving. He said that he never pushed the constable at all. All he did was to try to ward him off, that he never held the belt of the police officer and before he was taken to the police station, he saw the officer's belt had not fallen off nor was it out of place at all.

6. There was medical evidence admitted by way or admitted facts to the effect that the Appellant was subsequently medically examined, and he was found to have suffered two superficial abrasions over his inner lip, each about 1 cm long.

7. The learned magistrate accepted the evidence of the police officers and found that the incident had occurred in the may that the 1st officer described and he rejected the Appellant's version of the altercation between the two of them. As a result he convicted the Appellant and imposed a fine of $2,000.

8. The Appellant now appeals against that conviction and relies on 4 grounds to support the general ground that the ocnviction was unsafe and unsatisfactory.

9. Each of those grounds in an attack on the magistrate's findings as regards the credibility of the witnesses who appeared before him. Mr. Pow for the Appellant sought to argue, for instance, that the magistrate was wrong in finding the suggestion that PW1 had damaged his belt himself was completely unacceptable.

10. Mr. Pow seeks to persuade me that the magistrate was wrong to come to that conclusion. I mean no disrespect to Mr. Pow when I say that the submissions were interesting, but in my view, cannot overcome this difficulty, as far as he is concerned, namely, that the learned magistrate accepted the evidence of the two police officers and accepted evidence that that belt was damaged at the scene, and concluded that because of that, as well as for other reasons, that the Appellant must have been lying in his evidence when he said the belt wasn't damaged at the scene. It seems to me notwithstanding the interesting arguments submitted by Mr. Pow, that, once the magistrate accepted that the traffic policeman's belt was damaged at the scene, and did not accept the Appellant's evidence, as he was entitled to, the case against the Appellant was made out.

11. The submissions which Mr. Pow make today are an updated version of his submissions before the learned magistrate. The only criticism that I can find which has any validity is that the learned magistrate in his statement of findings mentioned that the Appellant in his evidence described the traffic policeman as grabbing him around the neck from behind, and held that that was a complete invention on the basis that not one whisper of it had been put to PW1 in cross-examination.

12. It was not right to say that not one whisper of that had been put to PW1 in cross-examination because it had been put that there was an altercation between PW1 and the Appellant. However, form the way that the altercation was put, It is understandable that the learned magistrate would have envisaged a confrontation between the two with the Appellant endeavouring to escape from whatever the constable was doing in that confrontation. It was never put that the constable had grabbed the Appellant around the neck from behind. The learned magistrate's observation is quite accurate, but it was not right to say that there was not one whisper of it because, as Mr. Pow has been able to demonstrate before me on the way he put the Appellant's case, it did not necessarily rollow that the altercation involved a confrontation throughout.

13. However, notwithstanding that criticism, nothing has been put before me which would enable me as an appellate court to set aside a finding on credibility made by the seeing and hearing tribunal of fact, particularly bearing in mind that the 2nd Prosecution witness confirmed the evidence of the 1st Prosecution witness on a matter in issue in the trial namely that the 1st Prosecution witness' belt had been damaged before the 2nd Prosecution witness reached the scene.

14. The issue, as I say, was one of the credibility. Nothing has been put before me which would warrant my interfering with the magistrate's findings in relation to the credibility of the witnesses. That being so, I can find no merit in the appeal and It must be dismissed.

Representation:

Mr. Jason Pow instructed by M/s Fairbairn, Catley Low & Kong for Appellant.

Mr. Derek Pang, C.C. for Crown Prosecutor.