HKSAR v. Kuk Chui Heung

HCMA000510/2004

HCMA510/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.510 OF 2004

(ON APPEAL FROM NKCC1096 OF 2004)

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Coram: Hon Gall J in Court

Date of Hearing: 2 July 2004

Date of Judgment: 2 July 2004

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JUDGMENT

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1.The appellant was convicted on 10 May 2004 of assaulting a police officer in the due execution of his duty and was sentenced the same day to six weeks' imprisonment to run consecutively to a suspended sentence of two months, which the magistrate had activated, giving a total sentence of two months plus 42 days.

2.Some of the facts are not in dispute. On 4 February 2004, the appellant was a prostitute occupying a premises known as a one-woman brothel. The 1st prosecution witness was a policeman in plain clothes who came to the premises. The witness posed as a customer asking for sexual services and was admitted to the premises. Thereafter the account given by the officer and the account given by the appellant differs.

3.The police officer said he disclosed his identity, showed his warrant card and asked for the identity card of the appellant. He said the appellant demanded $100 for his entry to the room. She did not show her identity card and the officer said he tried to open the door to let his sergeant enter. He said the appellant grasped him by the neck and the jacket and a struggle ensued. The 2nd prosecution witness, another police officer, said he could see what was going on through the iron grille and warned the appellant to desist. Eventually a man from another room in the premises unlocked the iron grille and the appellant was subdued.

4.The evidence given by the appellant was that the police officer, having entered her room, did not reveal his identity; that he had indecently assaulted her by squeezing her breast and had asked him for $100 for that service. She said that he then went to leave without paying her. She told him that even though he was a police officer he had to pay or she would not let him go. She asked him from which police station he came and he said 'Wanchai'.

5.She did not believe him and he refused to show her his warrant card, she said. She did not let him go and when the man who opened the grille gate came out of another room, she told him she had been indecently assaulted and needed a telephone to call the police. He then let the police in through the grille gate and, when they came in, they grabbed her hair and hands and the man, the policeman from outside, kneed her in the left thigh. She was eventually released to dress and demanded $500 from the police.

6.The man who opened the gate was called as a witness by the appellant. He said he heard the noise and went out and heard someone say : 'Police, open the door'. He walked out and saw the appellant struggling with the man. She asked him to call the police. But one of the men showed him a police warrant card and he opened the door. He said, contrary to the evidence of the appellant, that at the time she was struggling with the man she did not tell him that she had been indecently assaulted. He said that she did not say that until they were about to go to the police station.

7.It is not for me to retry this matter but to consider whether the magistrate in his approach to the facts on the law has acted correctly. The appellant accepts that she was told by policeman that he was a police officer even though she denies having been shown a warrant card. She said : "Even if police check a licence, police have to pay as I greet you into the room".

8.The issues on the fact was for the magistrate to decide, having seen and heard all the witnesses, whether he was sure the evidence given by the police witnesses was the truth. He did so and there is nothing in the manner in which he reached that decision to cause me concern. The appeal against conviction is dismissed.

9.The appellant argues that the sentence of six weeks' imprisonment imposed upon her is too high. The basis upon which she argues that it is too high is that she did not commit the offence. Although there is nothing in that ground of appeal, I have considered in overall terms is whether the six weeks' imprisonment was manifestly excessive or wrong in principle. For assault of this nature on a police officer, I consider that it is neither wrong in principle nor manifestly excessive.

10.The appellant was, on 9 June 2003, convicted of common assault and sentenced to two months' imprisonment suspended for two years. It was entirely appropriate that that suspended sentence be activated and the appeal against sentence is dismissed.

Representation:

Mr W.S. Cheung, DPGC of Department of Justice, for the Respondent

Appellant in person