HKSAR v. Kwok Yau on

HCMA001237/2000

HCMA 1237/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1237 OF 2000

(ON APPEAL FROM SPCC 6076/2000)

____________

____________

Coram: Deputy High Court Judge Toh in Court

Date of Hearing: 29 May 2001

Date of Judgment: 29 May 2001

_______________

J U D G M E N T

_______________

1.The Appellant was convicted after trial of one charge of assaulting a police officer and one charge of being drunk and disorderly in a public place. He was represented by his own lawyer in the trial before the learned trial magistrate and he represents himself today on appeal.

2.The grounds of appeal advanced by the Appellant orally as far as I can tell is that the learned trial magistrate convicted him on insufficient evidence. He made the point that the police in his view lied and therefore the learned trial magistrate should not have believed them. He also says that there is no medical evidence to prove that the police officer was bitten on his arm.

3.The fact of the case was at about 11:00 p.m. on 11 August 2000, the Appellant boarded the taxi of PW1 carrying a rucksack. PW1 noticed that the Appellant showed signs of impending vomiting so PW1 offered him a bucket. The Appellant declined the offer and vomited out of the right rear window thus soiling the inside and outside of the taxi. PW1 said that the Appellant had been drinking and smelled of alcohol. He stopped the taxi and then gave some equipment to the Appellant and asked the Appellant to clean up his vomit, which The Appellant refused to do. The Appellant also refused to pay the fare of $96.20 plus an additional $10 for tunnel surcharge. The Appellant was only willing to pay $100. The taxi fare receipt was produced in evidence as Exh. P1. Then there was a dispute between the Appellant and PW1. PW1 then called the police. The Appellant also called the police from his mobile phone.

4.When the police arrived, PW1 said that he noticed the Appellant appeared to be struggling with the police officers and was finally subdued by them. This happened whilst PW1 was relating to a police officer what happened. On cross-examination PW1 did agree that he did not see the Appellant attack the police with hands, fists, feet or teeth.

5.PW2 is a police officer who was in uniform who arrived at the scene. He asked the Appellant for his identity card. The Appellant did not produce it and asked to see his superior officer. PW2 also said the Appellant said he would not pay more than a $100 of the taxi fare. Then the Appellant spoke in a loud and vulgar manner speaking foul language and that is why PW2 formed the opinion that the Appellant was drunk.

6.PW3 was also another police officer who arrived at the scene. He saw the Appellant scolding and pointing at police officers. He said that the Appellant smelled of alcohol. He saw Sergeant 23410 ask the Appellant for his identity card but the Appellant just tried to walk away. The Sergeant warned him several times not to walk away or risk being arrested. The Appellant ignored that warning and Sergeant 23410 then declared arrest on the Appellant for non-payment of taxi fare.

7.PW3 was one of the two officers who wanted to grab the arm of the Appellant to arrest him, the Appellant struggled and bit PW3 on his right forearm. The Appellant was subsequently subdued. PW3 said that there was a redness and a depression where he had been bitten on his arm.

8.After that the Appellant had elected to give evidence and the Appellant said that he had been drinking beer before he boarded the taxi. He agreed that he did vomit and that on arrival at his destination, he saw that the fare was $92 and that is why he produced a $100 note to pay. He said that the taxi driver refused to accept the $100 and wanted to make him wash up the vomit from the car. When the police arrived the Appellant said there were ongoing discussions and disputes over the fare. The Appellant said he, at one stage, moved away because he wanted to check if his tape measure was in his rucksack for work the next day. He alleged that at that stage the police then framed him saying he was picking up tools and they all assaulted him. He was subsequently taken to hospital and it was produced on his behalf two medical certificates Exh. D2A and B. From the medical report, it appears that some tenderness was found over his right knee and left lower chest wall, that was on 12 August in the early hours of the morning and then on 1st September, he went again to Kwong Wah Hospital and complained of chest pain. A chest X-ray was done, nothing was found and he was discharged with oral analgesics.

9.At the end of the evidence the lawyer representing the Appellant made a full submission on all the evidence in this case and all the points that could possibly be said on behalf of the Appellant. It is clear from the learned magistrate's statement of findings that after analysing the evidence of the prosecution witnesses he found them to be reliable and truthful witnesses. He was well aware that there were some inconsistencies in their evidence but he decided that they were minor ones and did not affect the credibility of the prosecution witnesses. He also took into account the fact that at the time of the arrest things were happening very quickly and so to some extent there was some confusion and chaos. He also analysed the Appellant's testimony and he found that what the Appellant said was inherently improbable because he concluded that whilst a dispute was going on over the fare, it was improbable that a man in the Defendant's position would try to move away and rummaged through his rucksack for the tape measure that he would need the next day.

10.He also found, after having observed the Appellant giving evidence, that he found him an evasive and dissembling witness. So at the end of the day, he found that the prosecution had proved their case beyond the reasonable doubt that the Appellant had acted in an irrational and disorderly manner and that the place where this happened was a public place. He also found that the Appellant was drunk at that time.

11.The learned trial magistrate also found that the police officer was acting in the execution of his duty when he attempted to effect the lawful arrest of the Appellant and it was at that time when he was trying to effect the lawful arrest that the Appellant had bitten him. So the learned magistrate therefore convicted the Appellant also of this charge of assaulting a police officer.

12.I have gone through, carefully, the statement of findings made by the learned trial magistrate and also the transcript. The learned trial magistrate was careful in analysing the evidence and he acted properly after convicting the Appellant, realising the Appellant had a clear record, he then reviewed himself. Having reviewed himself he confirmed his earlier conviction of the Appellant.

13.Having gone through the transcript and the statement of findings, I find that the learned trial magistrate had committed no error in his finding of fact or in law and that he came to a proper conclusion on the evidence.

14.So the appeal against conviction is dismissed and I should add also that having observed the Appellant's conduct today, he is a man who certainly has to work on controlling his emotional outbursts.

Representation:

Ms Fanny Wong, SGC, for DPP

Appellant in person