HKSAR v. Chang Chi Lung

HCMA 328/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 328 OF 2005

(ON APPEAL FROM KTCC 7423/2004)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 3.6.2005

Date of Judgment: 3.6.2005

Date of handing down Judgment: 7.6.2005

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J U D G M E N T

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Background

1.The Appellant was charged with an offence of “Assaulting a police officer in execution of his duty”, contrary to section 36(b) of the Offences against the Persons Ordinance, Cap.212. He was convicted after trial and he appealed against conviction.

2.After hearing submissions I dismissed the appeal. I now give my reasons.

Prosecution case

3.The Prosecution case is relatively simple.  PC58504 (PW1) and his team members responded to a report of an assault at a fast food shop. Upon arrival he saw two groups, with two males in each group, scolding and pointing at one another. PW1 separated them and spoke to the males in one of the group. PC/Acting Sergeant 34374 (PW4) made enquires of the other group.

4.One member of that other group (the Appellant) was agitated and spoke loudly in foul language. The Appellant dashed forward pointing his finger at PW4. PW1 approached to assist and separated the Appellant and PW4. PW1 led the Appellant away. The Appellant was very emotional and kept yelling. PW1 gave a verbal warning to the Appellant and the Appellant calmed down.

5.When PW1 turned his body to leave he felt pain on his right cheek. He saw the Appellant hit him three times with his left hand. PW1 gave a demonstration (stretching out of the arm and hand with a forward pushing motion). PW1 said the Appellant ‘slapped’ him three times continuously with quick succession. When the Appellant hit PW1, the Appellant also swore at PW1, saying “Fuck your mother, damn cops”. PW1 said the ‘slapping’ was forceful. He was stunned by the first blow and did not react at all during the slapping. PW1 did not know why the Appellant hit him.

6.PW1 was later examined by Dr. Wilson Lee (PW2) whose finding was “redness on [PW1’s] right face.

7.PW4 testified how he was responsible in controlling the group consisting of the Appellant and another male. The Appellant used foul language, demanding to know what the police were doing there. The Appellant also pointed his finger at PW4 and dashed towards him. PW1 came over and gave a verbal warning to the Appellant. The Appellant then calmed down for about 10 seconds.

8.The Appellant then raised his left arm and hit the right cheek of PW1 three times continuously with the palm of his left hand, at the time saying “Fuck your mother, damn cops”. PW4 also demonstrated how the Appellant hit PW1 (raising his left arm to shoulder level and then made a wrist movement of an open left hand to the left). PW4 said the movement was just like patting, the force could not have been substantial.

The Defence case

9.The Appellant testified that he was a radiographer employed by the Hospital Authority. He had a birthday party on the night in question with some friends. While waiting for transport home he received a call from one of the friends present at the party (i.e. Cheung Kin Wing “DW2”). As a result of the call he went to the fast food shop. He was stopped by PW4. The Appellant explained to PW4 that he wished to see his friend. He also explained to PW4 that his friend had called him to tell him that the friend had been assaulted. PW4 ignored the Appellant. DW2 also asked PW4 why PW4 blocked the Appellant’s way.

10.The Appellant said PW1 then came over and asked the Appellant to walk aside. The Appellant then saw the friend he believed to have been assaulted about 15 feet away. The Applicant raised his hand to attract PW1’s attention to ask him if he (the Appellant) could go over to his friend. PW1 at that moment turned around and the Appellant’s left palm unintentionally touched PW1 between the neck and the face. The Appellant immediately apologized to PW1. PW4 shouted “You hit my colleague, I now arrest you for assaulting a police officer”. DW2 also asked PW4 not to frame-up the Appellant. 

11.DW2 testified that he and other friends celebrated the Appellant’s birthday that night. He later learned one of the friends had been assaulted in the fast food shop and he called the Appellant. DW2 arrived at the fast food shop and saw his friend having a scuffle with a man. The Appellant then arrived and was stopped by the police. DW2 approached the police and asked why the police block the Appellant’s way. DW2 was agitated and used foul language to the police, whereupon the police gave him a verbal warning that if he continued he would be arrested for obstruction.

12.DW2 saw the Appellant about to tap the shoulder of an officer who at that moment turned around and the Appellant’s hand brushed against the officer in the region of the face and neck.

Grounds of appeal

13.Mr. Geoffrey Chang, counsel for the Appellant, submitted four grounds of appeal. Basically Mr. Chang complained that the learned Magistrate has failed to direct himself sufficiently whether the Appellant had a hostile animas in his act towards PW1; that the learned Magistrate erred in relying on the number of three quick consecutive blows as supporting the inference that the Appellant’s act was intentional; that the learned Magistrate failed to reconcile discrepancies between the evidence of PW1, PW2 and PW4; and finally, that the learned Magistrate has failed to give proper assessment of the Defence case.

Judgment

14.The learned Magistrate, in his detailed Statement of Findings, set out the evidence before him. He was fully aware of the discrepancies between PW1 and PW4 as to how PW1 was hit and has fully dealt with and resolved this issue.

15.Quite apart from the fact that these witnesses were recalling something which happened very quickly some 4 months ago, the action of Appellant described by PW1 and PW4 were basically the same, i.e. the Appellant using his left hand to hit the right cheek of PW1. Whether the Appellant did so with his arm outstretched in a forward pushing motion (as demonstrated by PW1) or with his arm not stretched but moving at the wrist (as demonstrated by PW4), the action described was still a forward moving one. 

16.Mr. Chang submitted that the demonstration of PW4 was similar to the Appellant’s description so there is a real possibility that the touching was accidental. Mr. Chang particularly referred me to PW4’s evidence that the force used by the Appellant could not have been substantial.

17.PW1 was the one who received the blows. He was in the best position to tell the court whether the blows were forceful or not. There was also undisputed evidence before the court that when PW1 was examined sometime later there was redness on his right cheek.

18.Whether one has the hostile animus can be inferred from the circumstances surrounding the bodily contact. Both PW1 and PW4 described three quick successive blows. PW1 was stunned by the first blow and did not even react at all. The number and force of these three blows, together with the foul language uttered by the Appellant, were such that the only reasonable and irresistible inference to be drawn was that the Appellant delivered those blows intentionally, with the hostile animus.

19.There is nothing to show that the learned Magistrate has failed to properly evaluate or consider all the evidence before him. The conviction is neither unsafe nor unsatisfactory. For these reasons I dismissed the appeal.

Ms Mary SIN Pui Ha, Senior Assistant Director of Public Prosecution of the Department of Justice for the Respondent

Mr. Geoffrey P. CHANG  instructed by M/s Chan & Tsu for the Appellant