Yuen Shu Kan @ Chan Chi Ming and Another v. The Queen

CACC000430/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 430 OF 1975

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Coram: Huggins & McMullin, JJ.

Date of Judgment: 2nd September 1975.

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JUDGMENT

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Huggins, J.:

1. In this judgment we are concerned only with the first Appellant's application for leave to appeal against his conviction on a charge of assault with intent to prevent lawful apprehension. The victim of the alleged assault was a police officer. The circumstances were as follows. The Appellant committed a robbery together with another man in a resettlement area. The alarm was raised and a number of persons gave chase. The Appellant made chopping movements with a knife in the direction of his pursuers and this was seen by the police officer who is named in this charge. He shouted at the Appellant but could not say whether the Appellant heard that shout. He then joined in the chase and fired two shots at the Appellant. He was at this time ahead of the other pursuers. The Appellant ran down some steps and then turned to face the officer. It was at this point that the assault is alleged to have taken place. The evidence of the officer in his examination-in-chief is recorded in these words:

"He ran down the staircase and turned and looked at me. I thought he was going to chop me so I fired a third shot. He was then three to four paces from me. His knife was held in his right hand in a threatening manner."

The officer was never asked to explain or demonstrate what he meant by "a threatening manner" and in cross-examination he said that at the time of the alleged assault the Appellant was too far away to have struck him with the knife even had the Appellant's arm been fully extended. No-one else apart from the Appellant spoke to this incident. The Appellant's story was that he merely turned round with the knife in his hand and that when the constable fired his third shot, he (the Appellant) turned back and continued to run away. Eventually he stopped and threw away the knife after receiving an assurance from the constable that he would protect the Appellant from the other pursuers.

2. The learned judge appreciated that the real issue in the case was whether there was an assault. He found that the Appellant did threaten the constable just prior to the time that the third shot was fired and he continued:

"The apprehension of force on the part of the police officer, was, I find justified by the act of the defendant in threatening him with the knife. The fact that had his arm been extended to the full the knife would not have reached the police officer is, in my judgment irrelevant. Such niceties cannot be seriously considered in the circumstances as then prevailed."

We think the learned judge correctly understood the elements of the crime of assault: what has concerned us is whether the evidence justified the conclusion that there was an assault. The evidence was not, as the judge suggested, that the Defendant threatened the police officer with the knife but that he held the knife "in a threatening manner". One can hold a knife in a threatening manner without having an intent to assault and therefore without committing the crime of assault. If the Appellant turned round to face his pursuers while holding a knife in his hand it could well be that he then was holding the knife in a threatening manner even though he had no intention to threaten. It is true that he had earlier threatened his pursuers with the knife by making chopping movements but there is no evidence that at this stage in the chase he made such movements. One cannot criticise the constable for thinking that he was threatened or for firing the third shot in consequence but it is just possible that he was mistaken. It was not, of course, for the Appellant to prove that he had no intention to assault but for the prosecution to prove that he had. We regard assault with intent to resist arrest as a very serious offence and nothing which we say should be thought to indicate the contrary. Indeed it is because of the seriousness of the offence that we think it is important that the evidence brought in to prove it ought to be unequivocal. The point is one which would not have arisen if the witness had been asked, as he should have been, to explain what he meant by saying that the Accused held the knife in a threatening manner. The learned judge assumed that the witness meant that the Accused had threatened him with it and probably he did mean something of that sort, but it was vital to make it clear just what, over and above a mere pause in his flight, the prisoner did to give the impression of an intent to threaten the constable. The evidence certainly reads as though he did nothing more than pause, knife still in hand, to see who was still pursuing him. If that is what happened there was clearly no assault: if it is not, the matter should have been made clear. Not without considerable hesitation we have come to the conclusion that the evidence in the present case fell short of what was required to make a verdict of Guilty safe. Treating this as the hearing of the appeal we allow the appeal against conviction and quash the sentence on the second charge.

2nd September 1975.

Representation: