R. v. Cheng Man Yau

HCMA000095/1997

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 95 OF 1997

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Coram: Hon Gall J. in Court

Date of hearing: 29 April 1997

Date of judgment: 29 April 1997

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J U D G M E N T

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1. The appellant was convicted on 11^th December 1996 of two charges, one of possession of offensive weapon and the other obstructing a police officer in the execution of his duty. He was sentenced to two months' imprisonment suspended for 12 months in respect of the possession of offensive weapon and convicted and discharged in respect of obstructing a police officer.

2. The facts alleged were that on 27^th August 1996, a party of police officers went to premises occupied by the appellant at Sui Fai Factory Estate in Fotan and knocked on the door. They had with them a warrant of arrest issued by the magistrate at Shatin requiring them to apprehend the appellant for failing to appear on 7^th August 1995 at Court No.8, Shatin, in respect of a summons for obstructing other persons in the use of a place being a public area. The appellant conceded that he did not answer to that summons.

3. Upon entry, the police executed the warrant and the appellant walked out of the unit with his children and a banner. In the lift lobby, the appellant said he forgot to bring his identity card and wanted to go back to the unit to get it. He was not handcuffed. He walked to his unit, went inside and took a chopper and then approached the Inspector in charge of the party and said to him "I will fight to death with you". The appellant rushed from the unit holding the knife, stopped with the knife raised, weapons were drawn and he was ordered to put the knife on the floor. The appellant, on the evidence of the prosecution, put the knife on the floor and the officer picked up the knife and the appellant was seized and taken back to the police station. The knife was produced in court.

4. It was the case for the appellant that he was persecuted by the police on many many occasions, that he was innocent of any offence, that the actions taken by the police in the course were no more than a vendetta against him, that on the day in question five or six people rushed into his house, the door was damaged and that he was beaten on his chest and his back and all over his body. He said that he did not pick up a knife nor did he return home. He did not resist the police and the police were lying and that the evidence against him was fabricated.

5. His wife gave evidence that she was not at home and her first contact with this matter was at the police station. A daughter, 12 years of age, gave evidence that a group of people rushed in and beat her father. He was handcuffed and dragged out and taken to a police station. She was shown a chopper in court and agreed that it was a chopper from her home but denied that her father had threatened the police with it.

6. All these matters were firmly before the magistrate and the issue for him to decide was purely one of fact. He was satisfied that the prosecution witnesses were honest witnesses. The magistrate had considered the evidence for the appellant both from him and from his family. He looked to it to see if it raised a doubt in respect of the evidence for the prosecution and found that it did not. He had before him the warrant of arrest and the physical evidence of the chopper.

7. On matters of fact, an appellate court must be wary of seeking to replace a magistrate's findings with its own views and I see no reason to do so in this case. The appeal against conviction is dismissed.

8. The appellant was sentenced in respect of the possession of offensive weapon charge with two months' imprisonment suspended for twelve months and in respect of the second charge of obstructing a police officer was convicted and discharged. He did not seek to address me on those matters but maintained, in respect of quantum of sentence, an argument that no sentence is appropriate in as much as he is not guilty of the offences.

9. In all the circumstances, I have considered the appropriateness of the sentence and cannot say that they are in any way inappropriate. The appeal against sentence is dismissed.

Representation:

Mr Vincent Wong, C.C., for Crown

Appellant in person