HKSAR v. Kwok Kwai Loi

HCMA632/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 632 OF 2007

(ON APPEAL FROM KTCC 1690 OF 2007)

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BETWEEN

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Before : Hon Nguyen J in Court

Dates of Hearing : 11 September and 11 December 2007

Date of Judgment : 4 January 2008

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J U D G M E N T

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1.The appellant was convicted after trial by Ms L.K. Loh of a charge of obstructing a police officer in the due execution of his duty and was fined $3,000.  He now appeals against the conviction.

The prosecution’s case

2.The prosecution’s evidence was mainly from a police sergeant who was said by the prosecution to have been obstructed by the appellant in the due execution of his duty.  The sergeant gave evidence that on the day in question he was on duty in uniform when he noticed that the red light on a particular parking meter on a street in Shamshuipo was lit.  Suspecting that the two vehicles were illegally parked he went to check the meter, but the appellant suddenly appeared and covered the screen on the meter with his hands and asked the sergeant in a loud and agitated voice not to prosecute those vehicles.  The sergeant explained that he wanted to check the meter but the appellant continued as before.  The sergeant asked the appellant for his driving licence, thinking that he was the owner of the vehicles, but the appellant said he was not the owner and he was only “buying parking time for his friend”.  

3.Because the appellant was talking so loudly and using his hands to cover the meter throughout, the sergeant was not able to check the meter.  Twenty people had gathered around to watch.  The sergeant then warned the appellant not to continue with his actions, otherwise it might amount to obstructing an officer from executing his duty, but the appellant continued as before.

4.The sergeant asked the appellant for his proof of identity but the appellant loudly asked in reply, “What power do you have to ask me for my identity card?”  When the sergeant tried to explain this the appellant shouted that the sergeant had abused his power. 

The trial

5.The trial concluded on 14 May 2007 when the magistrate adjourned the case for nine days for verdict.  On 23 May 2007 she gave brief reasons for her verdict, and she said that the evidence of PW1 was clear and reasonable and she found him to be truthful and reliable.  She said that any discrepancies in his evidence were minor and did not go to any material issue.  She accepted his account to be the truth.  She found the appellant who had given evidence in his own defence to be unreliable and also that he had exaggerated.  She said that his demeanour was consistent with that of an unreliable witness.

Grounds of appeal

6.The appellant, appearing in person, submitted the following general ground of appeal : there was no evidence or no sufficient evidence whereon to found the said conviction.  The appellant also relied on other grounds :

“	(1)	I purchased parking time on the meter (by using an Octopus Card).  The meter was located at a public area.  No obstruction to the police officer was caused.
	(2)	The court did not allow me to cross examine the 1st witness on why he had to use his personal telephone to record the situation at the scene.  Images of me might have been captured and that would infringe my privacy.  This is an inappropriate act.  Because of this I dialed 999 to notify his senior to come to the scene to assist in dealing with this incident.
	(3)	I had the right to request the senior of the 1st witness to come to the scene because that police officer had done unlawful things at the scene.  It was because he requested me to produce my driving licence.  I had told him at the time that I was not the driver.  He further requested me to produce my identity card.  It was not a normal practice.  Police officers have to act according to the laws.  Therefore I dialed 999 and requested his senior to come to the scene.  I was not obstructing the police officer in the execution of his duties.
	(4)	There was inconsistency in the testimony of the 1st witness.  Also it was claimed that he was nervous when giving evidence.”

7.When the appellant appeared before me on the hearing of the appeal, he basically repeated the matters mentioned above. 

The respondent’s reply

8.Mr Wong, for the respondent, submitted that there was nothing in the appeal bundle to show that the appellant was not given the full chance to cross examine PW1 or any other witness.  The magistrate found as a fact that when PW1 used his mobile phone to try to record the situation that was not an infringement of the appellant’s privacy.

9.Mr Wong submitted that the wilful act of obstruction was committed by the appellant when he pressed both his hands onto the screen of the meter to prevent PW1 from examining the meter to see whether the parking time had expired.

Conclusion

10.I agree with the submissions of counsel for the respondent.  I find that the appellant, in both his written grounds of appeal and in his oral submissions to the court, did not raise any matters which would cause any concern about the safety of this conviction.  There were no material irregularities during the trial.  The magistrate did not make any errors of law or fact. 

11.The appeal against the conviction is dismissed.

Miss Agnes Chan, Ag. SADPP of Department of Justice, for HKSAR (11 September 2007)

Mr Joseph Wong, SGC of Department of Justice, for HKSAR (11 December 2007)

Appellant in person, present