HKSAR v. Davies, Christopher Gareth Edward

HCMA 1232/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1232 OF 2006

(ON APPEAL FROM ESCC 1940 OF 2006)

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BETWEEN

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Before : The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing : 15 August 2007

Date of Judgment : 16 August 2007

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J U D G M E N T

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1.This Appellant was convicted after trial before Ms. L. K. Loh in the Magistrate’s Court at Eastern on three charges.  Charge 1 was of failing to stop on being so required by a uniformed police officer, contrary to s. 60 of the Road Traffic Ordinance, Cap. 374.  Charge 2 was of careless driving, contrary to s. 38(1) of that Ordinance.  Charge 3 was of assaulting a police officer acting in the execution of his duty, contrary to s. 63 of the Police Force Ordinance, Cap. 232.  On Charge 1 he was fined $1,500.  On Charge 2 he was fined $3,000 and disqualified from driving for 6 months.  On Charge 3 he was sentenced to 240 hours’ community service.  He lodged a notice of appeal against all his convictions and a notice of appeal against all his sentences.  But since then he had abandoned his appeal against his convictions except in respect of Charge 3 and has abandoned his appeal against sentence in its entirety.

2.The prosecution’s case was summarised as follows by the Magistrate in her Statement of Findings:

“	4.	Mr. Lam Chi Cheong, PC 54381 and PC 58106 gave evidence as to what happened on the night of 14th February 2006, at the material location, when the appellant was driving his car LY 6197.
	5.	Mr. Lam (PW2) testified that he worked for the theatre next door to the carpark, and his duties included directing traffic in the carpark.  The carpark is open for hourly parking, except from 4 pm to 10 pm when the carpark has been reserved for the use of the theatre.  The appellant had previous approached the management of the carpark, and he was allowed to park there during the evening hours, only if there was space available.
	6.	On the night in question, the carpark was crowded and full, and when the appellant arrived in his car, Lam held up his hand, said, “No parking”, but the appellant kept trying to drive and force his way into the carpark.  Lam then called the police over to deal with the matter.
	7.	PC 54381 (PW3) testified that he and his colleague PC 58106 arrived at the carpark where a large group of people was standing at the entrance.  Someone was shouting and pointing at the appellant’s car, and the car was moving forwards and backwards, and people were trying to avoid it.  The car park attendant then put traffic cones in the entrance to stop the car driving in, but the car drove over the cones and into the carpark.
	8.	On seeing this, the two officers ran to the front of the car, with PC 54381 signalling to the driver to open the window, but the appellant tried to wave him aside, and after several times of trying to wave the officer away, the car suddenly accelerated forward.  It then stopped and reversed.  The officer by now was at the side of the bonnet, gesturing to the appellant to stop and open the window, and also shouting, “Stop the car! Open the window!” but the appellant ignored him and the car suddenly spurted forward, hitting the constable on his right leg, and stopping on his foot.  The officer then pulled out his baton.  The car suddenly went forward again, and as the officer pulled his foot out from under the wheel, he fell onto the bonnet, and his baton struck the windscreen.  The officer then called for reinforcement, and other officers arrived.”

3.Turning to the defence case, the Magistrate summarised it as follows in her Statement of Findings:

“	13.	The appellant gave evidence.  He parked in that carpark on an ad hoc basis, and on that night, he arrived at the carpark, and Uncle Chung said something to him in Chinese (he does not understand Chinese), and pointed at the carpark.  As he drove into the carpark, Lam waved at him.  The appellant thought both these men were signalling to him to proceed with care.
	14.	He proceeded without driving over any traffic cones, and as he entered the carpark, two men ran to the front of his car, and put their hands on the bonnet, looking at him directly, but without saying anything.  They were in dark blue jacket and dark blue trousers.  He was shocked and startled, and his car jolted forward about 6-7 feet.  At this, both men moved to the side of the car, and PW3 appeared to have a baton raised over his shoulder.  The appellant felt threatened and tried to reverse out of the carpark, then the man hit his windscreen hard, with the baton, and to get out of the way of PW3, the appellant again tried to drive forward.
	15.	Then another man came from behind and knocked on his window, he wound it down a bit, and the man said he was a police officer.  The appellant asked this officer to get PW3 away from him before he alighted from his car.  He did not recall hitting PW3 with his car, nor did he intend to do that.”

4.The Magistrate accepted the evidence of the prosecution’s witnesses and rejected the accused’s evidence.  The facts which she found in convicting the Appellant on Charge 3 are set out in her Statement of Findings as follows:

“	31.	The way that the appellant drove his car was deliberate and threatening, and he must have foreseen that the car might hit one or both of the officers, and yet he accelerated his car to go forward suddenly three times, and backward.  In short, he was reckless as to whether the car might hit one of the men, and the car did hit and injure PC 54381, who was at the time acting in the execution of his duty.  After the car stopped on his foot, the officer pulled out his baton, trying to control the situation.  When the car went forward again, he fell on the bonnet and his baton hit the windscreen.  Neither of the officers had ever used force in the execution of their duty that night.
	32.	No doubt arose, and after careful consideration of the evidence, I found all elements of the charges proved by the prosecution beyond reasonable doubt, and the appellant was convicted guilty on all three charges.”

5.Two perfected grounds of appeal against his conviction under Charge 3 have been filed on the Appellant’s behalf.  They read as follows:

“	1.	The learned magistrate erred in failing to properly and/or adequately consider whether the contact between the Appellant’s car and the police officer involved an element of hostility on the part of the Appellant, and therefore the conviction of the Appellant on the third charge of assaulting a police officer cannot be sustained.
		Particulars:
		i.	An element of hostility on the part of a defendant is essential to an assault offence.
		ii.	In her Statement of Findings, the learned magistrate did not consider whether the contact between the Appellant’s car and the body of the police constable was tainted by a sense of hostility on the part of the Appellant.
		iii.	The learned magistrate merely concluded that the Appellant “must have foreseen that the car might hit one or both of the officers (para. 31AB 39).
		iv.	This was the basis of the finding that the Appellant “was reckless as to whether the car might hit one of the men.”
		v.	There is no finding that the Appellant’s act was accompanied by any hostility towards the constable.
	2.	Therefore, the conviction of the Appellant on Charge 3 (Assaulting a Police Officer) is unsafe and unsatisfactory.”

6.An assault in the full sense of an assault and battery, is any act that intentionally or recklessly causes unlawful personal violence to another.  An assault in the sense of one that does not actually proceed to battery as well, is any act that intentionally or recklessly causes another to apprehend immediate and unlawful personal violence.  In the context of an assault, whether accompanied by battery or not, recklessness can be proved by a process of inference: provided that the only reasonable inference is that the accused person was reckless.

7.The conduct, to constitute an assault, whether accompanied by battery or not, must be hostile.  That does not mean that it must be motivated by animosity.  It only means that it must go beyond what is acceptable in society.  In this context, the examples commonly given of what is acceptable in society are things like the sort of jostling that is ordinary in a crowd or touching someone on the shoulder to engage his or her attention.

8.What happened in the present case was viewed by the Magistrate, and justifiably so on the whole of the evidence, as the causing of injury by at least a reckless act on the part of a person who did not want to stop his car when duly ordered by a uniformed police officer to do so.  The personal violence done through such an act, whether intentional or reckless, is not acceptable in society.  In law, it is hostile conduct.

9.For these reasons, both grounds of appeal fail.  The appeal is therefore dismissed.  I appreciate that the Appellant, a man of previous good character, would understandably be very concerned that this blemish on his character may unduly hamper him in his future life and particularly his career.  As to that, I can only hope that people will understand that this was an unfortunate and uncharacteristic incident, and that they will not be unduly influenced by it when forming their view of him.

Mr Andrew Bruce, SC, instructed by Messrs Haldanes, for the Appellant

Ms Rosaline Leung, of the Department of Justice, for the Respondent