HKSAR v. Tsoi Chi Man

HCMA642/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 642 OF 2006

(ON APPEAL FROM TMCC 797 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge Line in Court

Date of Hearing : 21 September 2006

Date of Judgment : 21 September 2006

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J U D G M E N T

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1.This is an appeal against a conviction for an assault upon a Customs & Excise officer.  The offence is created by section 17F of the Customs & Excise Service Ordinance.  What has to be proved is a wilful assault whilst the Customs officer was acting in the execution of his duty. 

2.As to the latter, there was no issue at the trial.  That was because the Customs officer in question had gone to a kiosk in a shopping plaza in order to make a test purchase concerning copyright goods for sale.  Having made his test purchase, he then sought to arrest the Appellant.  What happened was that the Appellant took up a pair of scissors and, holding them with all his fingers around the handle and the scissor blades protruding from the bottom of his clenched fist, he raised his hand to the height of his head and then struck forward at the officer.  The officer said he warded off the blow and he received a cut on his left hand.

3.It was a narrow kiosk and it was just this officer who was filling its space because it was one-person space wide.  There were two other officers, though, behind him, the second of which saw what happened and gave evidence as to it.

4.The Appellant did not give evidence; he called no witnesses.  It was thus the case that the evidence was all one way and conviction was bound to result unless the prosecution evidence contained the seeds of its own destruction.  On the material available to me, it palpably did not.  The magistrate found the prosecution witnesses, in particular the first two of them, to be honest and credible witnesses. 

5.Today, counsel for the Appellant does not point to anything, either in the original evidence or in the magistrate’s assessment of it, by which he would invite me to say that that finding was wrong.  This appeal is launched and argued on the basis that the magistrate did not sufficiently consider accident, and that accident is a material consideration here which should lead me to quash the conviction.  In paragraph 1 of the perfected grounds of appeal against conviction, it says that the issue for determination by the magistrate was whether the prosecution had proved beyond a reasonable doubt that the injury sustained by PW1 was not the result of an accident. 

6.As I pointed out in argument, in my judgment, that focuses on the wrong question.  The infliction of injury was not part of what the prosecution had to prove.  They had to prove that an assault took place.  Of course, it goes without saying that injury is no part of an assault - it often is but it does not have to be.  We all know the definition of an assault.  It is an act by a man, either intentionally or recklessly, which causes another to apprehend immediate and personal violence to himself.  The offence of assault was committed here when the Appellant, with the scissors in his hand, brought his hand down toward the Customs officer.  Whether he aimed for his hand, meant to hit his hand, hit his hand recklessly or hit his hand negligently, by accident, did not matter.  Accordingly, in my judgment, there is nothing in the first ground of the perfected grounds of appeal.

7.Counsel, having had this pointed out, then says that there is still room for accident here on whether or not the assault was committed in the way I have outlined.  Frankly, there is not room for accident here.  It must have been an intentional act to pick up the scissors, hold them in a way that demonstrated aggression, raising the hand to head height and to bring the scissors down.  There is no room for accident there. 

8.The only other thing perhaps I need to mention is that there are two matters referred to in the Appellant’s written argument which are relied upon as indicating that the Customs officer was not reliable.  The first was that when he was giving evidence, he was asked to demonstrate the action that the Appellant had made and he clenched his fist and did the action, but he did it twice when demonstrating.  His evidence had been that there was one lunge towards him.  The magistrate was well-aware, and the point was made to her, that the two were, on the face of it, at odds.  He explained, when it was put to him that he thought he was being asked to demonstrate the level the defendant raised the scissors to.  The magistrate accepted that explanation. 

9.Whether that was the right explanation or not, the mere fact that you are asked to demonstrate something happening, if you repeat it, does not mean that, in effect, you are warranting by that, contrary to what you had just said earlier on your oath, that it happened not once, but twice. 

10.The second matter was that there was no written record about the injury in the officer’s statement, or that of the other officer, PW2.  The explanation given for that was that it was known a medical report would be produced and relied upon. 

11.In the circumstances of this case, where all the evidence was one way and there was nothing in the evidence to contradict PW1 and PW2, the idea that this sort of point could destroy the prosecution case and let accident run in the face of an obviously deliberate act is completely untenable. 

12.On the material before me, I am sure the conviction was a proper one and the appeal against it is dismissed.

Representations:

Ms Ada Chan, Senior Government Counsel (Ag.) of the Department of Justice, for the Respondent (HKSAR)

Mr Francis Burkett, instructed by Ong Hean Cheng & Company, for the Appellant