HKSAR v. Yuen Fung Ping

HCMA958/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 958 OF 2005

(ON APPEAL FROM ESCC 2708 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 9 November 2005

Date of Judgment : 9 November 2005

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J U D G M E N T

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1.The appellant was convicted after trial of an offence of obstructing an assistant hawker control officer in the execution of the officer’s duties, contrary to sections 139 and 150 of the Public Health and Municipal Services Ordinance, Cap. 132.

2.The facts of the case as found by the magistrate were that the appellant, a 49-year-old female hawker, had been selling dumplings in a public place without a licence to do so and had been approached by a female assistant hawker control officer for the purpose of arresting her.  The appellant then attempted to leave and as soon as she was stopped by the officer, a small struggle amounting to a couple of pushes by the appellant against the officer then occurred.  It was the appellant’s case at trial and she repeated it before me today that she only pushed the officer away after she had been grabbed around the neck by the officer.  Subsequently the officer told the appellant she was under arrest, but the appellant then tried to take hold of a basket of her dumplings and again go away but the officer pressed the basket of dumplings to the ground and the appellant was then detained.

3.The evidence at trial against the appellant came from the arresting officer.  The magistrate accepted her as a witness of truth, he rejected the evidence of the appellant and two market workers she called as witnesses.

4.The unrepresented appellant’s ground of appeal was that the magistrate was wrong to accept the arresting officer as a witness of truth and to reject her own evidence and the evidence of her witnesses who were her fellow hawkers at the scene.   In supporting that assertion she has, more or less, retold me what she said to the magistrate in evidence in the course of her defence to the effect that she had not tried to run away but had been arbitrarily grabbed by the hawker control officer and had simply tried to free herself.

5.There is no doubt the sole issue in this case was the credibility of the witnesses.  The magistrate’s rejection of the appellant and her witnesses’ evidence and his acceptance of the prosecution witness must, as for all assessments of a witnesses’ credibility by a court of trial, be given considerable respect by an appellate court for the simple reason that the court of trial enjoys advantages in assessing the credibility of witnesses that an appellate court simply does not have.  Unless there is good reason not to, an appellate court, as a general principle, will defer to the trial court’s findings of fact.

6.No good reason to reverse the magistrate’s assessment of the credibility of the witnesses before him has been suggested to me by the appellant.  As I say all the appellant has done before me is to attempt to repeat her version of what happened at the scene. 

7.Accordingly, there is no basis for disturbing the magistrate’s findings as to the credibility of the witnesses nor, therefore, of his findings of fact, and the appeal is dismissed.

Mr Isaac Tam, SGC of the Department of Justice, for HKSAR

Appellant in person