HKSAR v. Tsui Moon Loi

HCMA 623/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 623 OF 2006

(ON APPEAL FROM FLCC 2555 OF 2005)

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BETWEEN

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Before : Hon Barnes J in Court

Date of Hearing : 30 November 2006

Date of Judgment : 8 December 2006

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JUDGMENT

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1.The appellant was convicted after trial of an offence of “assaulting a police officer in the due execution of his duty”, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212.  He was sentenced to 3 months’ imprisonment.

2.The appellant originally appealed against both the conviction and sentence but he withdrew his appeal against sentence when the matter was heard before me on 30 November.  I proceeded to deal with the appeal against conviction only.

Prosecution case

3.A group of police officers, including PW1 and PW2, went to look for someone called So Wai-man (So) in connection with an offence of Assault Occasioning Actual Bodily Harm (AOABH) but failed to locate him at a particular address in Tai Yuen Estate.  PW1 and PW2 then patrolled to a park in the same estate.  There they saw four males and one female sitting on a stone bench.  Both PW1 and PW2 “recognised” one of the four males being So.  PW1 revealed his police identity and asked all those sitting on the bench to produce their identity cards.  So then said he had forgotten to bring his identity card and would go to fetch it.

4.After So got up and walked a few steps, PW1 went up to intercept So.  PW1 declared arrest on So for the offence of AOABH.  When PW1 was about to handcuff So, a male originally sitting with So on the bench went up to grab PW1’s hand to stop PW1 from handcuffing So.  The man also said to PW1 “Don’t tamper with the child”.  PW2 went up and told the man not to obstruct a policeman in carrying out his duty.  The other two men originally sitting on the bench with So then joined in and pulled PW2 away.

5.While PW2 was having a scuffle with those two males, PW1 tried to stop So from getting away and the man tried to separate PW1 from So.  Eventually the man succeeded in throwing away PW1’s handcuffs and punched PW1 once in the face, he also pushed PW1 to the ground.

6.So ran away and PW1 gave chase after he got up.  PW2 also gave chase after the two males stopped pulling at him.  PW1 stopped chasing So after taking 10 odd steps as he was mindful that his handcuffs and the man were still “at the scene”, and that when he got up to chase So the man also followed him.  When he returned he immediately intercepted the male and arrested him.  The male did not put up any resistance.  When PW2 returned, having failed to catch So, he saw that PW1 was with “that male in the park”.

7.Both PW1 and PW2 described the name of the male being “Tsui Moon Loi”.  PW1 formally identified the appellant as the male Tsui Moon Loi in court.  No identification was made by PW2.

Defence case

8.The appellant elected not to give evidence nor call any defence witnesses.

9.The defence case, as suggested during cross-examination, was that the appellant was indeed among the group sitting on the stone bench with So, and that the appellant duly complied with PW1’s request to produce his identity card.  It was suggested that the appellant never assaulted or obstructed PW1, but that PW1 was obstructed by two other men not belonging to the same group.

Grounds of Appeal

10.Mr. Oliver Davies, counsel for the appellant at the trial and on appeal, submitted two grounds of appeal.

11.The first ground of appeal was that the learned magistrate erred in accepting that PW1 had correctly identified the appellant as the assailant.

12.Mr. Davies submitted that the learned magistrate had wrongly concluded that the only people present in the park were the five people sitting on the stone bench and relied on such to confirm the identification.  He further submitted that the learned magistrate wrongly concluded that the brief loss of sight of the assailant was not significant.

13.The main thrust of Mr. Davies submission was that while PW1’s evidence was that “there were other people in the park but not in the close proximity” when he requested the group to produce their identity cards, PW2’s evidence was that “there were some neighbours there but not many”, indicating that the group was not alone.  In any event, as the assault did not take place right at the stone bench, there was no evidence before the learned magistrate whether there were other people around at the time of assault.  As neither PW1 nor PW2 had seen the assailant before, bearing in mind the lighting condition (not too bright but enough to see clearly), and the fact that the man does not have any special or particular features, the circumstances of identification by PW1 (several glimpses, looking out of the corner of his eye, briefly losing sight of assailant when he gave chase, etc.) were such that the identification of the appellant as the assailant was not safe.

14.Mr. Davies further submitted that as PW2 did not see the assault and no identification was made by PW2 in court in relation to the appellant, the learned magistrate had wrongly accepted the identification by PW1 as correct.

15.Mr. Davies relied on the well-known case of R v Turnbull [1977] QB 224 in support of his submission.

16.The second ground of appeal was that the learned magistrate had failed to address discrepancies in the evidence of PW1 and PW2, in that both PW1 and PW2 had given different versions in court as compared to their witness statements, and that the evidence of PW1 and PW2 in court also contained discrepancies.

17.I do not think it necessary to list out in detail those alleged discrepancies, save to indicate that in court, PW1 did not mention So calling out to those originally in the group to come and assist; and that there was no mention in his statement that he was holding So’s hand.  As to the discrepancies between PW1 and PW2’s evidence, it is in relation to the failure on the part of PW1 to mention PW2 having stopped or pulled the assailant away.

18.Mr. Davies relied on R v Wu On Shing [1983] 2 HKC 626 and submitted that it is incumbent on any magistrate to demonstrate that he has fully considered the evidence at trial and identified and resolved any significant discrepancies.

Judgment

19.An appeal under section 113 of the Magistrates Ordinance, Cap. 227 is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so: see Chou Shih Bin v HKSAR, FACC No. 11 of 2004.

20.In my view, it must be acknowledged that a magistrate has the advantage of observing witnesses giving evidence in court, the judge on appeal could only rely on a written transcript.  The credibility and reliability of any particular witness is solely within the assessment of the magistrate.  Where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or that the magistrate has misunderstood, or misquoted, or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.

21.I have the opportunity to read the full transcript of the hearing.  It is clear on the evidence that the four males and one female were a distinctive group sitting on the stone bench.  While there were other people around - other so-called ‘neighbours’ nearby - there were no other people at the stone bench.  The assault occurred just a few steps away from the stone bench.

22.Both PW1 and PW2 clearly stated that it was one of the men from the group originally sitting on the stone bench who had come up to PW1 and said words to the effect “Do not tamper with the child”.  It was this same man who tried to stop PW1 from handcuffing So, it was this same man who managed to throw away PW1’s handcuffs.  PW1 did see, though briefly, the man when he struggled with him and he was punched in the face by that man.  Although PW1 lose sight of the man when he gave chase, it was only a matter of seconds as he returned immediately after taking 10 odd steps.  The very same man was following him when he gave chase and he intercepted this man immediately when he returned.  Although PW1 said he intercepted the man “at exactly the same spot he was assaulted”, it is clear from his evidence that it was within the area of the 10 odd steps he had taken when giving chase.

23.Further, while this man does not have any special features, he was obviously older than the other males in the group (he being in his 40’s and the other two were in their 20’s).  PW2 clearly saw that it was one of the group who went up to obstruct PW1 and he went up to tell the man not to obstruct a policeman.  When he returned he saw that PW1 was with “that male in the park”.  There is no dispute that the appellant was indeed the male named Tsui Moon-loi arrested by PW1 at the scene.

24.The appellant, through cross-examination, admitted to be among the group.  There was no evidence of any other group approaching PW1 and So.

25.The learned magistrate was mindful of the circumstances of the identification and he reminded himself of the case of Turnbull.  On the evidence, I am satisfied that the magistrate was fully entitled to rely on the identification of the appellant by PW1 as the assailant.

26.I find no merit on the first ground of appeal.

27.I appreciate PW1’s testimony of the event in court does not tally completely with what he had said in the statement.  If anything, the version in court was a fuller one.  They are not the kind of discrepancies I would describe as significant.

28.In relation to PW2’s testimony, I do not find that there were discrepancies between his testimony in court and his witness statement. They are just different ways of expression.

29.I will now come to the alleged discrepancies between the evidence of PW1 and PW2.  It is true that PW1 had never mentioned PW2 having grabbed or pulled the man, however, PW1 did mention PW2 coming up to ‘warn” the man “not to obstruct a police officer”.  I do not find that there are glaring or significant discrepancies between the testimony of PW1 and PW2 as alleged.  The slightly different versions are indicative of witnesses trying to recollect what have occurred without concoction.

30.It is true that the learned magistrate did not say anything about the so-called discrepancies.  From the transcript I can see that Mr. Davies had drawn the learned magistrate’s attention to this matter.  It would appear that the learned magistrate did not find the discrepancies significant either.

31.For the avoidance of unnecessary arguments on appeal, I would suggest magistrates to state in their Statement of Findings whether there were discrepancies in the evidence, and whether they found such discrepancies, if any, to be significant or otherwise.

32.I find no substance in the second ground of appeal.

33.For the reasons stated, the conviction is neither unsafe nor unsatisfactory and I would have come to the same conclusion as the learned magistrate.  The appeal is therefore dismissed.

Ms CHAN Suk Wai, Winsome, Senior Government Counsel of the Department of Justice, for the Respondent

Mr Oliver DAVIES, instructed by Messrs Christopher K.Y. Wong, for the Appellant