The Queen v. Leung Kam-cheung

HCMA000086/1985

BETWEEN

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Coram:  Deputy Judge Sharwood in Court

Date of judgment: 9th April, 1985.

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JUDGMENT

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1. The appellant was convicted after trial of an offence under section 64(b) of the Police Force Ordinance, Chapter 232, and sentenced to 4 months' imprisonment. He now appeals against conviction and sentence.

2. It was the case for the prosecution that on the 13th June,1984, the appellant made a false statement to an officer of the Royal Hong Kong Police Force to the effect that he had been assaulted by PC 17292, NG Chun-wah, on the 12 June,1984, outside a lift at the Kowloon Canton Railway Station at Hunghom.

3. PC 17292 described the circumstances of a meeting with the appellant on 12 June, 1984. After making various observations, he decided that a certain vehicle be stopped because he suspected that it was involved in illegal "Pak Pai" business. Whilst attempting to reach this vehicle, he came out of a lift and intercepted the appellant, who was running. He asked him to produce his identity card, and when the appellant proved uncooperative, he said that if he refused to produce his card, he would have to take him to the Police Post to have it checked. The appellant continued to be difficult and suddenly "tore his clothes and lay on the ground" and began to shout that police were hitting "somebody". He shouted about ten times, simultaneously tearing his clothes.

4. He explained that he only wanted to see the appellant's identity card, and that he did not assault him in any way.

5. People gathered around and other police arrived. Eventually the appellant got up, made various allegations, and was taken to see a doctor.

6. There was evidence from a car park attendant (P.W.2) and a cashier (P.W.3). Both saw a man and a police officer arguing. Both saw the man sit down and both heard him shout out that the police were hitting him. Neither saw the police officer assault the man. Neither saw from whence the police officer and the man had come, nor what had transpired between them before they were seen in argument.

7. P.W.4 described the events of 13 June, 1984, when the appellant came in to the Complaints Against Police Office (C.A.P.O.), and made a complaint against P.W.1 in relation to the incident the date before.

8. That was the case for the prosecution. Briefly it amounted to this: that whereas the appellant had reported an assault, the police officer who was alleged to have assaulted him denied the assault, and that two independent witnesses who saw part of the confrontation, did not see any assault, but did see the appellant sit down for no apparent reason and shout that he had been assaulted.

9. The appellant's evidence was that P.W.1 came out of a lift, and hit him 7-8 times. He was standing there with a friend, D.W.2, who was told to "dial 999". He managed to rush out into an open area where he lay down, and was seen by the witnesses. At this stage he was asked for and produced his identity card. He said he was handcuffed on his left wrist, but other police who arrived told P.W.1 to remove the handcuffs which he did.

10. CHAN Yau-nin was D.W.2. He was warned by the Magistrate against committing perjury, even before he started giving evidence. He supported the appellant's version of the circumstances leading up to the confrontation with P.W.1. He confirmed that the appellant w, assaulted by P.W.1 for no apparent reason. He was asked to go and report to the police which he did. When he returned he saw the appellant's left wrist in a handcuff, and he saw P.W.1 holding his other hand. He wrote P.W.1's service number on his palm. No police had yet arrived and he went to "dial 999 again". This time, he returned to find the handcuff gone and other police present. He was taken to the police station and made a statement.

11. On the very next day, namely the 13 June, 1984, at about 3.20 p.m., as he was passing the Hung Hom Station "going down the stairs", he heard his name called, saw P.W.1, the "same PC 17292 who had assaulted my friend", and he ran. He boarded a bus, but P.W.1 stopped the bus, and P.W.2 "grabbed around my neck, dragged me up and handcuffed me. I was then taken to Hung Hom Police Station. On alighting from the bus he saw a station sergeant. At the Hung Hom police post he was told by P.W.1 that he was to be charged with robbery. (The prosecution admitted that D.W.2 was "arrested or questioned in the police station for touting". However, there is nothing to suggest that he was questioned.) "The Station Sergeant asked P.W.1 to come over to his room and shake hands with me." Then, the Station Sergeant said: "Now everyone is alright, you shake hands with my subordinate. The most important thing is that everyone keeps to their verbal promise. I am releasing you now and you remember what you said. Don't act against the police it would not be advantageous to you." (This Station Sergeant is now deceased.)

12. He was released and went straight to C.A.P.O. to complain, about his arrest.

13. There was medical evidence which did not throw much light on anything.

14. Finally P.W.1 was recalled "in rebuttal", to describe the circumstances surrounding the incident on 13 June, 1984, involving D.W.2.

15. I fully appreciate that the Magistrate saw and heard the witnesses, and must have formed views as to their demeanour and credibility. He appears to have found inconsistencies in the defence version of the events of 12 June, 1984, and to have believed and accepted the evidence of P.W.1, partially supported as it was by P.W.2 and P.W.3.

16. However, nowhere in his judgment is there to be found any reference to the events of 13 June, 1984.

17. P.W.1 said in evidence in chief that when he first saw the appellant, he was alone. He made no mention of seeing D.W.2. Later, in cross-examination, after his rebuttal evidence, he said that he saw D.W.2 at a very late stage (on the 12 June), "because that evening he said he had to be a witness."

18. Was it purely coincidental that the very next day, i.e. 13 June, 1984, P.W.1 just happened to arrest D.W.2, the very person whom he then knew wanted to be a witness for the appellant? (P46-47) On the evidence, apparently this was so, because P.W.1 saw D.W.2 "about 30 yards from me at the entrance to the station in On Wan Road. He had stopped two persons who had just returned from China from their visits asking them something. From my experience this Chinese male was engaged in 'Pak Pai' touting. That was my suspicion at the time. The two passengers were females."

19. With this in mind, he left the Station Sergeant and chased D.W.2, who ran away. He followed him onto a bus, approached him and said to him. "CHAN Yau-nin, I now suspect you of touting you had better be co-operative and follow me to the Police Post Hung Hom to assist me with enquiries." In some miraculous way, the Station Sergeant had also managed to get on the bus, and he too urged D.W.2 to be co-operative and "follow us back because my officer has seen you and suspects you of touting."

20. I did not see or hear this witness, but I am bound to say that this is the most unlikely story that one could ever encounter. Firstly, he did not yet know his name, because he said at page 45 that he "later learnt that the name of the person whom I suspected of touting was CHAN YAU-NIN." "Later" surely means after the arrest, and not when he approached him. Secondly, what is the point of chasing a man on suspicion of touting when no arrangements are made to interview the females, either by him or the Station Sergeant? D.W.2 was already known to P.W.1 and could have been arrested later. Thirdly, there is no suggestion that D.W.2 was ever interrogated subsequently about touting, and the only enquiry appears to have been a check of D.W.2's I.D. card. P.W.1's evidence that he said to D.W.2: "Be co-operative, if we have enough evidence we would take you to court. If we do not have enough evidence we would release you after enquiries" sounds like utter nonsense, as does his assertion that "afterwards I could not find the female passengers. I looked with no result."

21. One wonders where a police officer goes to look for two total strangers he had briefly seen in a public place, in a city like Hong Kong! Did he think they would be waiting at the Hung Hom Station?

22. Whereas on its face, the account given by D.W.2 makes sense and reads as if it might have happened, I cannot say the same for the account given by P.W.1. It starts with a remarkable coincidence and ends on a note of utter unreality with the release of D.W.2 because "there was not enough evidence to substantiate the suspicion of his touting."

23. I reminded myself of the words of Widgery L.J. in R. v. Cooper (1968) 53 Cr.App.R. 82, 86, where he said:

"That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it."

24. In this case the reaction was produced both by the evidence and by the general "feel of the case".

25. I was left with a "substantial remaining doubt" about aspects of this case.

26. In the light of P.W.1's conduct on the 13 June, 1984, any conviction based even partly on his evidence is, in my view, unsafe and unsatisfactory.

27. I allowed the appeal against conviction.

Representation:

Mr. Allison, Crown Counsel for Crown/Respondent.

Mr. Peter Chan (W.S. Lo & Co.) for Appellant.