Ho Wing Keung v. The Queen

CACC000277/1976

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Coram: Pickering, J.A.

Date of Judgment: 6th April 1976.

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JUDGMENT

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1. The appellant was charged with assaulting a police constable in the due execution of his duty contrary to s.36(b) of the Offences Against the Person Ordinance (Cap. 212). He was found guilty, bound over for three years and ordered to pay $500 costs. The appellant appeals against his conviction.

2. The sole prosecution evidence was that of the alleged victim, P.C. 13438 Kwok Chi-wah, who said that he was on plain-clothe duty at Block 43, Tsz Wan Shan Estate whence, as a result of a report made to him, he went with other police officers to Block 3 where he knocked on the door of the Kai Fong Welfare Association premises. He then heard someone inside shouting "Police" and heard a commotion inside; looking through a glass panel he saw persons inside the premises disappearing towards the rear and about ten minutes later the door was opened by the appellant. The witness revealed his identity whereupon the appellant ran towards the rear of the premises. Upon the witness following him and catching hold of him. the appellant took up a folding chair and struck twice at the witness, the second blow landing upon his left arm.

3. The above facts emerged in the learned magistrate's statement of findings. In those findings the only reference to the defence case is the sentence "the defence was one of a mere denial" and the learned magistrate went on to say that he did not accept the defence case. That defence, as put forward by the appellant who is a man of 26 years old with no previous convictions and whose father is the Chairman of the Kai Fong Welfare Association, was that he was sitting in the premises making a phone call when a group of people rushed in. He stood up and the prosecution witness, who was in plain clothes, pointed a gun at him and identified himself as "police officer", the incoming group consisted of six or seven persons and two guns were pointed at him; he was asked for his name and address which he gave and was then searched and handcuffed and told to give the names of two persons who could be arrested or otherwise he would himself be arrested. Upon the arrival of his elder brother his handcuffs were released and one of the police officers said "I give you face. I do not arrest you. Therefore get two persons". He Was thereupon taken to the police station and was charged upon the following day. He denied picking up a chair or assaulting the police officer. His evidence as to being asked to name two persons for arrest was corroborated by his brother who said after he himself entered the premises a police officer said "Ask your brother to hand out two persons" - a remark which the witness did not understand.

4. The learned magistrate was thus faced with two diametrically conflicting stories and there was a considerable weakness in the prosecution case in that, although corroboration of the sole prosecution witness' evidence was not necessary as a matter of either law or practice, no other witness was in fact called whereas six or seven policemen were said to have been present when the incident occurred.

5. Looking at the whole of the evidence upon the point, it would appear that when the prosecution witness entered the premises he had his gun in his hand and, seeing that only one person was present he replaced the gun in its holster but subsequently took it out again and pointed it at the appellant. According to the prosecution witness this was only after he had been struck with a chair but the improbability of a sole occupant of the premises, who was not then faced with arrest or accused of any offence, attacking a police officer who had already pointed a gun at him and who was accompanied by five or six others must be considerable. Again a ten-minute wait by a group of police anxious to enter the premises and apparently having cause to believe that something unlawful was going on in there, sounds far more inherently improbable than the appellant's version that the police party rushed in.

6. The learned magistrate said no more than that the defence was a mere denial. It was in fact a detailed denial persisted in throughout the cross-examination and, although the appellant's brother arrived in the premises only after the alleged assault, the peripheral matter of the appellant being asked to name two persons for arrest was corroborated by the brother.

7. In all those circumstances I find it difficult to understand how the learned magistrate, having described the defence in one short sentence as a "mere denial" could say, without giving any reasons, that he did not accept the defence case and that he was satisfied that the case against the appellant had been proved beyond reasonable doubt. In my view this conviction was unsafe and unsatisfactory and must be set aside. The $500 costs already paid by the appellant is to be returned to him.

Representation:

Gunston of Gunston & Chow for appellant.

Little, C.C., for respondent.