The Queen v. Chow Sau-ming

CACC000606/1983

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Bewley, J.

Date: 14th June 1983

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JUDGMENT

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1. The appellant is a police constable who appeals against his conviction for common assault. It is alleged that he punched the victim in Sha Kok Estate Neighbourhood Police Unit at 11 p.m. on 11th August last year.

2. Wong Hak-ming and his friend, Wong Chi-choi, were at 6 skating rink, which is a few minutes' walk both from their homes and the estate police unit, when they were approached by the appellant and a colleague and asked for their identity cards. Mr. Wong had left his identity card at home and was arrested by the appellant and taken to the police unit.

3. The appellant contended that Mr. Wong said his father was a police officer and had told him there was no need to carry his identity card within 100 yards of his home. It is a fact that his father is a sergeant attached to Central Police Station. Mr. Wong admitted seeking the protection of the '100 yards rule', but denied saying his father was a police officer.

4. The appellant also alleged that there was a scuffle at the skating rink before Mr. Wong could be persuaded to leave. This was confirmed by the other PC present, but was denied by the victim and Mr. Wong Chi-choi.

5. Mr. Wong Hak-ming's complaint is that, on arrival in the police unit, the appellant took him into an inner room, where he punched him 10 times or so in the solar plexis. No reason for the assault was given and nothing was said.

6. Eventually, the victim's mother arrived with his identity card. An entry was made in the Report Book and they went home.

7. According to Mr. Wong's mother, she told him to have a bath when they got home, but he said his chest was too painful and she then noticed it was red and swollen.

8. They went to another police station, where they reported the matter, and Mr. Wong finally saw a doctor at Queen Elizabeth Hospital at 2.15 a.m. The doctor did not give evidence, which was perhaps unfortunate, but his report was admitted in evidence. He found that Mr. Wong had a mild abrasion over his right lower chest and a tender right elbow.

9. The appellant denied hitting Mr. Wong and suggested that the allegation was made because the latter, as the son of a sergeant, had lost face and was taking his revenge in this manner.

10. On this evidence I found the conviction to be unsafe and unsatisfactory for the following reasons.

11. Most importantly, the doctor's findings do not tally with the complaint. If the victim had been hit 10 times in the solar plexis, which is in the pit of the stomach, there would have been some evidence of the fact 3 hours later. A mild abrasion on the chest is quite inconsistent with such an assault.

12. Secondly, a mild abrasion could not be so painful that Mr. Wong would be prevented from taking a bath. This was not truthful evidence.

13. Moreover, there is total contradiction among the prosecution witnesses as to when and where any complaint was made. The victim says he told his mother, in the presence of the appellant, as soon as she arrived in the police unit. She did not seem to understand, but he repeated the complaint when they got home. However, his mother denies this and says he made no complaint at any time. Mr. Wong Chi-choi also says that no complaint was made in the police unit. The appellant asked them if they had any complaint when they signed the report book and neither he nor the victim made any reply.

14. There is also a major discrepancy in the evidence of the two main prosecution witnesses. Mr. Wong Chi-choi saw only 1-2 blows and these were on the chest, not the solar plexis. This may, of course, be the truth, which would tally with the medical evidence. The victim may be mistaken, or have forgotten, about where he was hit, but in a prosecution for a straightforward assault like this one, a conviction can only be justified where the prosecution witnesses tell roughly the same story.

15. Finally, it is difficult to believe that the appellant would have launched an assault that could be witnessed, not only by his colleagues, but by civilians in the next room. Nor has any motive for such an assault been suggested. According to the victim, absolutely nothing was said. This does not make sense. On the other hand, the prosecution witnesses did have a motive for inventing such a story, whether the abrasion was the result of the scuffle, or was suffered subsequently.

16. For all these reasons I was satisfied that this conviction could not stand. I, therefore, allowed the appeal and quashed the conviction.

Representation:

Mr. Alexander Lau (instructed by Messrs Chan & Lo) for the appellant

Mr. Sammuel Leung, Senior Croon Counsel, for respondent