HKSAR v. Hung Chi-kwan and Another

HCMA1093/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. HCMA 1093 OF  2004

(ON APPEAL FROM NKCC 5993 OF 2003)

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BETWEEN

Before:  Deputy High Court Judge Line, in Court

Date of Hearing:  16 March 2005

Date of Judgment:  16 March 2005

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J U D G M E N T

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1.The two Appellants were both convicted, each of one charge of obstructing a public officer, contrary to section 23 of the Summary Offences Ordinance.  Both seek to overturn their convictions.  The 2nd Appellant also appeals against his sentence which was 1 month’s imprisonment, suspended for 1 year. 

2.On 16 July 2003, a team from the Food and Environmental Hygiene Department were removing illegal signs in Mongkok.  The 2nd Appellant had a sign there; the 1st Appellant worked there. 

3.The case for the prosecution below was that, as one of the officers was about to cut the offending board, the 1st Appellant and another man arrived; that they stood in front of the board and started to argue with and verbally abuse the officers, and that by standing in front of the board, the 1st Appellant made it more difficult for the officer, who was PW4, to cut and remove it, thereby obstructing him in performing his duty. The 2nd Appellant then arrived; that the board was removed and placed upon a cart, that the 2nd Appellant then removed the board from the cart and thereby obstructed the officer who sought to take it away in the course of her duty.

4.The 2nd Appellant gave evidence.  The 1st Appellant did not.  The 2nd Appellant said in his evidence that he had consistently instructed his staff not to fall into conflict with the officers; that he did not obstruct any officer himself and he did not take the signboard from a cart; and that he did not wear a checked shirt which the witnesses had described as being worn by the man who had removed the signboard from the cart. 

5.The trial of this matter took 14 days. The statement of findings runs to 138 paragraphs, spread over 26 pages.  The defence sought to demonstrate that the Department had a vendetta against the 2nd Appellant, that they had acted in bad faith, that they had set out to entrap the 2nd Appellant and had deliberately provoked him.

6.The main issue was one of credibility. The Magistrate saw and heard the witnesses and found that those on the prosecution side, who spoke to what had happened at the scene, told the truth and were to be relied upon and that the 2nd Appellant was not an honest and credible witness.  He gave cogent and sensible reasons for making those findings.  He also dealt properly with the evidence of identification, bearing in mind all the proper considerations that such an issue required. 

7.With great patience and industry, the Magistrate dealt with all the points raised by Mr Allan in the defence of these two Appellants.  He assiduously considered each point and took them both individually and collectively, and he judged the matter with obvious fairness.  On occasion, he was not slow to criticise aspects of the prosecution’s case and he judged there was insufficient evidence to convict the 2nd Appellant on the joint charge that he then faced along with the 1st Appellant. 

8.Nothing has been said today that raises doubt in my mind as to those findings on credibility or as to the identification.  Nothing has been put forward or argued that can sensibly be said to attack those matters. The Appellants have merely restated their positions coupled, in effect, with an assertion that they were right. On the evidence before me, I have no doubt that guilt was properly proved in each case and I accordingly confirm the orders of the Magistrate and dismiss the appeals against conviction. 

9.As regards the sentence of 1 month’s imprisonment suspended for 1 year passed on the 2nd Appellant, I judge it to be entirely justified.  There was a long history of friction and, hopefully, this suspended sentence will put an end to it.  Public officers need the protection of the courts. The sentence of 1 month’s imprisonment was thus quite right, but in view of the lack of physical violence, it was also right to suspend it.  The Magistrate gave full and proper reasons for passing the sentence which I judge to be entirely right. The only thing I might have done, if I had been sitting there, was consider making the losing defendants in the Magistrates Court pay some of the very considerable costs that have been run up, but he did not do that. 

10.An application was made to me today by the 2nd Appellant that he have a transcript of the whole of the 14 days’ proceedings in the Magistrates Court and that the transcript thus produced should then be translated into Chinese for him.  We do have, in fact, some 148 pages of transcript already that is in English and he asked that that be translated.  I refused the application.  I did so because the 2nd Appellant was not able to demonstrate any need for any particular part of the transcript.  It was no more than a request for the opportunity to conduct some sort of fishing expedition.  If the 2nd Appellant, or the 1st Appellant for that matter, had been able to make any point which would be arguable on appeal which needed support from any part of the transcript, then I would have been sympathetic to the request for its translation, but that was signally not the case. 

11.The appeals are all dismissed.

Representations:

Ms Sally Yam, Government Counsel, of the Department of Justice, for the Respondent

2nd Appellant, Hung Chi-kwan, in person

1st Appellant, Fu Fook-ping, Tony, in person