Siu Pik Fai v. The Queen

CACC000296/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 296 OF 1971

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Coram: Huggins, J.

Date of Judgment: 4th June, 1971.

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JUDGMENT

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1. The Appellant was charged before the Magistrate with assaulting a police officer who was acting in the execution of his duty.

2. When he first came before the court, the Appellant pleaded guilty. The Prosecutor stated the facts alleged by the prosecution, including the fact that during a search the Appellant suddenly turned around and attacked two police constables who were searching him. The Appellant admitted those facts, but when asked whether he had anything to say in mitigation he said that he was attacked from behind and that he "was justified in retaliating". Presumably construing that as possibly indicating self-defence, the learned Magistrate not unreasonably entered a plea of not guilty.

3. At the subsequent trial the evidence was that these constables were on duty at 5.15 a.m., in uniform, when they saw the Appellant approaching them and carrying a gunny sack. They asked what was in it and he replied: "I do not know. Take a look yourself." They opened it and found plastic beads inside. They further questioned him and, being suspicious, they cautioned him and said that they suspected that the goods had been unlawfully obtained. They feared he might have a weapon upon him and told the Appellant to stand by a wall for his body to be searched. The constables said that as he was against the wall he suddenly struck out with his elbow and hit the body of one of the constables. He also punched the other constable with his fist in the face. They overpowered him and took him to the Police Station. The Appellant's story quite simply was that it was as the police constables had said up to the time that they began to search his body but that they suddenly made an unprovoked attack upon him from behind, that he tried to ward off their blows and that, if he hit them, he hit them accidentally. That was the substance of the dispute which the learned Magistrate had to resolve. The Appellant called his mother as a witness. She apparently came on the scene at some stage during the search, but did not, she said, see any fighting. She and the Appellant both said that one of the constables had drawn his revolver, although the constables denied that any revolver was drawn.

4. The learned Magistrate believed the police constables. He disbelieved the Appellant, but in so doing he did comment that there was a conflict between the evidence of the Appellant and the evidence of his mother as to who picked up the Appellant's spectacles, which had been knocked off his face. I think it is not clear that there was any discrepancy on the record. The Appellant did not say that he picked up his spectacles: he said: "I then had opportunity to repossess my spectacles" and it is not clear whether he picked them up from the ground or whether he recovered them from his mother - or from his sister who was also at the scene. The mother at first said that she picked up the spectacles but subsequently in her cross-examination she said she was "quite confused about it". This is a small point and I do not think that had the learned Magistrate appreciated the significance of the word "repossess" it could have made any difference to his decision. The substantial issue of fact for the learned Magistrate was to decide whether he believed the police constables and I am unable to say that he was wrong to believe them. Having seen the Appellant in Court I am not altogether surprised that he disbelieved the Appellant.

5. The appeal is dismissed.

4th June, 1971.

Representation: