HKSAR v. Lo Chi Keung
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HCMA 890/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 890 OF 2007 (ON APPEAL FROM KTCC 8204/2006) ----------------------
---------------------- Before: Hon Beeson J in Court Date of Hearing: 11 April 2008 Date of Judgment: 11 April 2008 Date of Handing Down Reasons for Judgment: 17 April 2008 ------------------------------------------------------- REASONS FOR JUDGMENT ------------------------------------------------------- 1.The Appellant was charged with one count 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 convicted after trial in the Magistracy, before Madam Merinda Chow, and was sentenced to 2 months imprisonment. He had served that sentence by the time of this appeal, which was against conviction only. 2.On 11 April 2008 I heard and dismissed the Appellant’s appeal against conviction and advised that I would hand down my reasons for such dismissal at a later date. My reasons follow. 3.The genesis of the incident giving rise to the charge was very simple and the basic facts were not in dispute. The victim of the charge PC 24129 (PWl), was carrying out his duty giving a traffic summons to the Appellant’s elder brother who, during that process, pushed the officer twice. PW1 warned him that if he continued to push him he would be arrested. The Appellant who was present became very agitated on his brother’s behalf and began to question the officer’s right to deal with the matter and demanded to know why he had a right of arrest. 4.The officer tried to explain the situation to the Appellant who became very emotional and demanded to know why and by what authority the officer could arrest his brother. The officer advised the Appellant to calm himself, but his advice was ignored. The Appellant approached the officer and put his face about 2 inches from the officer’s face. 5.The Appellant was heard by the officer to make a “coughing and spitting” sound and saw the Appellant spit fluid out of his mouth into that of the officer. The officer immediately spat the fluid from his mouth and grabbed the Appellant’s left arm. 6.When he asked the Appellant why he spat into his mouth the Appellant replied “Which of your eyes saw that happen?” Thereafter the Appellant continued to behave in an agitated manner and broke free of the officer’s grasp. 7.The Appellant gave evidence at trial that he did not spit saliva into the officer’s mouth. He agreed that he was very agitated and emotional at the time and was speaking rather loudly because the officer was accusing his brother of assaulting a police officer. He said that the closest ever proximity of his face to that of the officer was 6-8 inches. Initially the distance between them was ‘at least 1.5 feet the distance between 2 normal persons having a conversation’(B65). 8.The Appellant denied making the ‘coughing and spitting’ sound and denied that he had intentionally spat saliva into the mouth of the officer. His explanation was “Because at that time I was quite agitated, then maybe in the midst of our conversation some saliva [was] flying about in drops.”(B62) 9.The Magistrate accepted the evidence of PW1 and was satisfied beyond reasonable doubt that the Appellant had acted deliberately in spitting fluid into the officer’s mouth. She gave herself the appropriate directions, took cognizance of the Appellant’s clear record and convicted him. PERFECTED GROUNDS OF APPEAL 10.Ground one alleged that the Magistrate had failed to properly consider that the Appellant’s saliva could have fallen into the mouth of PWl accidentally. 11.Ground two was that the Magistrate had fallen into error in repeatedly finding that PWI spat ‘phlegm’ from his mouth. This ground was not tenable - there had been no analysis of the fluid ejected by the officer and the words ‘saliva’, ‘fluid’ and ‘phlegm’ seem to have been used interchangeably at the trial - and I rejected it. The nature of the fluid was immaterial. What was relevant was whether any fluid had been discharged intentionally by the Appellant onto the officer, or into his mouth. 12.As for Ground one, Mr Cheng Huan SC, challenged the basis on which the Magistrate found the Appellant’s act deliberate and not accidental. He submitted that the officer had agreed that the act of the Appellant could have been accidental and that it was only because of the confrontational remark “Which of your eyes saw that happen?” that he believed it was a deliberate act. 13.Counsel for the Appellant submitted that this question was the sole basis on which the Magistrate found the Appellant’s act was a deliberate one and that in doing so she erred as the remark in itself was not probative of intention and thus guilt. 14.Clearly the remark in itself was not probative of guilt but then, the Magistrate did not treat it as the sole indicator of what eventually she found to be the Appellant’s deliberate act. Her Statement of Findings shows that it was merely one of several factors she took into account when considering the evidence. 15.She accepted the account given by the officer and noted relevant matters including the very close proximity the Appellant adopted vis-a-vis the officer; his highly agitated state; the combined sound of coughing and spitting which preceded the Appellant’s projection of fluid, as well as what, in the circumstances, was a deliberately confrontational remark by the Appellant on being questioned about his act. 16.Mr Cheng Huan submitted inter alia that the Magistrate had failed to take into account the inherent probabilities relative to the incident, which indicated the spitting was accidental. However, commonsense shows that the inherently probable reaction of someone who had acted accidentally in spitting fluid onto or into the mouth of another person, would be to offer an apology. 17.The Magistrate heard the evidence, observed the witnesses and found the officer a credible witness on whose evidence she could rely. She was aware of the claim that the Appellant had acted accidentally but having heard his evidence, did not find him a credible witness. This was an inherently simple case, where credibility was the sole issue. 18.Nothing put before me by way of submission shows that the Magistrate erred in dealing with the case, or that she failed to take appropriate matters into account. This appeal is merely an attempt to re-try the case because the Appellant was not satisfied with the original verdict. 19.There is no merit in this appeal, which is dismissed.
Ms Winsome Chan, SGC, of the Department of Justice, for the Respondent Mr Cheng Huan, SC and Mr Francis M B Cheng & Mr Bernard Cheng, instructed by Messrs Winnie Leung & Co., for the Appellant |