HKSAR v. Ho Yiu Kee and Another

[English Translation – 英譯本]

HCMA 247/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 247 OF 2005

(ON APPEAL FROM KTCC NO. 156 OF 2005)

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BETWEEN

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Before: Hon Deputy Judge Barnes in Court

Date of Hearing: 2 June 2005

Date of Judgment: 20 June 2005

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JUDGMENT

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Background

1.The 1^st Appellant Ho Yiu Kee and the 2^nd Appellant Li Kam Hung were respectively the 2^nd Defendant and the 3^rd Defendant at trial. They faced 3 charges:

(a)      Charge 1, “assault occasioning bodily harm”, was against Choi Wai Fung (蔡偉峯) (the 1^st Defendant at trial) and the 1^st Appellant. The particulars of charge stated that, on 1 January 2005 and inside a “7-Eleven” shop on the Ground Floor of the shopping arcade at Choi Wan Estate, the two defendants assaulted a male named Wong Choi Lung (黃財龍), who sustained bodily injuries as a result. The assault was contrary to common law and punishable under section 39 of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong;

(b)     Charge 2, which was against the 1^st Appellant, alleged that he resisted police officers in the due execution of their duty, contrary to section 36(b) of the abovenamed Ordinance; and

(c)     Charge 3, which was against the 2^nd Appellant, alleged that he obstructed police officers in the due execution of their duty, contrary to section 36(b) of the abovenamed Ordinance.

2.At trial, the magistrate held that there was no case to answer on Charge 1. After trial, the magistrate convicted the 1^st and 2^nd Appellants for Charge 2 and Charge 3 respectively. The Appellants now appeal against their convictions.

Prosecution case

3.Although the magistrate held that there was no case to answer on Charge 1, mention has to be made of the facts pertinent to Charge 1 in considering Charges 2 and 3.

4.PW1, Wong Choi Lung, testified that, at about 2.30 a.m. on 1 January 2005, he was inside a “7-Eleven” shop at Choi Wan Estate, Clearwater Bay Road, when he was assaulted by a group of males. He chased the assailants until he arrived at the entrance to a car park, whereupon the 1^st Defendant and the 1st Appellants were intercepted by a police officer. Wong told the police officer that they were two of the males who had assaulted him.

5.PW2, Sergeant 50206, testified that, at the time of the incident, he saw a group of people running away from the scene. Police officers then alighted from their vehicle and chased those people, and in the end they intercepted the 1^st Defendant and the 1^st Appellant. PW1 then also arrived and said that the two males were those who had assaulted him. PW2 placed his hand on the 1^st Appellant’s shoulder, but the 1^st Appellant attempted to walk away despite warning. PW2 then handcuffed the 1^st Appellant on his left hand. When PW2 was about to handcuff the 1^st Appellant on his right hand, the 1^st Appellant forcefully resisted and attempted to push PW2 away. Despite another warning, the 1^st Appellant continued with his forceful resistance, and it became necessary for PW3 (PC 54809) to help grasp the 1^st Appellant’s right hand. The 1^st Appellant continued to struggle by violently moving his body. His right hand hit PW3’s face and also caused PW2’s glasses to fall onto the ground. At this time, the 2^nd Appellant suddenly appeared. He grasped PW2’s left hand and said, “It has nothing to do with my friend.” He then went on to pull PW2 away. Despite a few warnings, the 2^nd Appellant continued to pull PW2 away and stop him from arresting the 1^st Appellant.

6.As the 2^nd Appellant was of a more sturdy build than PW2, PW2 was unable to break free from the 2^nd Appellant, and it became necessary for PW4 (PC 58711) to assist. The 2^nd Appellant released PW2 only when PW4 took out his truncheon and told the 2^nd Appellant that force would be used against him.

7.Counsel for the defence put it to PW2 during cross-examination that the 1^st Appellant was at the material time seized by the police officers and pressed against the ground, but PW2 did not agree. Nor did PW2 agree that there were 3 to 4 onlookers at the time and that the 2^nd Appellant emerged from the crowd and said to the police officers “You cannot hit someone like that and cannot use force.” PW2 also disagreed that, when the 2^nd Appellant took out a mobile phone in order to make a phone call, a police officer swept the phone onto the ground. PW2 further said that he did not see the “boss” of Wong Choi Lung, who was allegedly assaulted, at the scene.

Defence case

8.Neither of the Appellants elected to give evidence. The defence called two witnesses. DW1’s identity was rather special, being the boss of Wong Choi Lung who was allegedly assaulted. He said that, on the day of the offence, he and his forki were drinking beer at the “7-Eleven” shop. At about 2 a.m., he and other friends walked out of the shop to have a chat. Suddenly he heard a lot of noise inside the shop and then saw 5 to 6 males fleeing from the shop and catching a taxi. He saw Wong Choi Lung’s face smeared with bloodstain and dirt. Wong Choi Lung told him (DW1) that he had been assaulted. Patrolling police officers who happened to be at the scene at that time inquired of Wong Choi Lung about the incident. Subsequently, he (DW1) heard the police officers say some people had been arrested, and Wong Choi Lung walked up and identified the two arrested males. Then a senior police officer shouted, “They are the ones, arrest them.” One of the two males said, “For what are you arresting me?” The police officer said, “Do not move, you have been fighting.” Then the police officer “put the handcuffs on” that male and kicked him, asking him to squat on the ground. DW1 said that male was the 1^st Appellant.

9.When DW1 identified the 1^st Appellant as the person who had been kicked, the magistrate asked whether there was any objection from the prosecution, and Counsel for the prosecution said that they would object to “dock identification”. Counsel for the defence made submission to the magistrate, saying that the application would continue but the defence would attempt to “lay foundation”. This notwithstanding, throughout the trial the magistrate never made a ruling on whether he allowed DW1 to make such “dock identification”.

10.DW1 testified that he saw a police officer kicking the 1^st Appellant once and then asking him to squat on the ground. He said he did not see the 1^st Appellant pushing the police officer or waving his right arm. He only heard the 1^st Appellant repeatedly shouting “For what are you arresting me?”

11.DW1 also mentioned that someone emerged from the onlookers and said, “You policemen cannot use such force to suppress him and ask him to kneel down. He has not moved.” An argument ensued. That passer-by said, “If this is the case, I will call the police and complain about you.” Then he took out a mobile phone, but a police officer swept it onto the ground. DW1 was unable to identify the passer-by who complained about the police officer.

12.DW2 was Choi Wai Fung, the 1^st Defendant at trial. He said he saw the 1^st Appellant kneeling on the ground for a reason unknown to DW2. He made no mention of the 1^st Appellant being kicked by a police officer. DW2 also said that someone’s mobile phone fell onto the ground but he did not know why.

Grounds of appeal

13.Mr Chan, Counsel for the two Appellants, has put forward 14 grounds of appeal. I see no need to set out all those grounds, and I will only set out the main grounds as follows:

(a)   Ground 1:

The magistrate wrongly believed that the dock identification by DW1 of the 1^st Appellant as the person being kicked was not made on any valid basis under the law of evidence.

(b)   Ground 2:

In assessing the credibility of the allegation that the 1^st Appellant had been kicked by a police officer, the magistrate wrongly considered an irrelevant factor, namely that DW1 had not made a dock identification of the 2^nd Appellant.

(c)   Ground 3:

In the absence of any express or implied evidence in support, the magistrate erred in thinking that, when asked whether the 1^st Appellant had resisted the police officers, DW1 said “I have no idea because everything was very chaotic”, and then relying on this as an indication that DW1’s evidence was not credible.

(d)   Ground 6:

The magistrate failed to properly consider DW1’s testimony, including evidence that one of the arrested persons had been kicked by a police officer, that a passer-by (not being the 1^st or 2^nd defendant at trial) had complained about the police officers on the spot, and that the mobile phone of the passer-by was in the end swept onto the ground by a police officer.

Statement of Findings

14.The contents of the magistrate’s Statement of Findings were divided into sections under various headings including “The charges”, “The prosecution case”, “The defence case” and “Assessment of and conclusions on the evidence”.

15.In the section headed “The prosecution case”, the magistrate succinctly set out the evidence of the prosecution witnesses. I will point out here that there is a clerical error in the magistrate’s statement on page 23 that “PW1 placed his hand on D2’s [i.e. the 1^st Appellant’s] shoulder” — it should be PW2 who placed his hand on the 1^st Appellant’s shoulder. Such clerical errors may cause confusion as to who were the relevant parties. I urge magistrates to watch out for these errors in proofreading their Statements of Findings.

16.Under the section headed “The defence case”, the magistrate had this to say:

D2 and D3 both elected not to give evidence, but D2 has submitted a report on assessment of his injuries and D2 and D3 has each called one witness. D2’s medical report, which contains the English words ‘Lower-leg tenderness’ on the top, is apparently adduced in the hope of advancing D2’s case by attacking PW2’s credibility. This, however, is not a positive finding and merely shows what D2 is alleging. In any event, each and every sentence in the medical report serves to support the prosecution case that ‘D2 struggled violently and moved his body and hands’.

DW1, Mr Chan, was PW1’s boss at the material time. D2 has called DW1 for the purpose of attacking the credibility of the prosecution witnesses, in other words, ‘D2 had been kicked by a police officer’. However, the quality of DW1’s evidence is far from satisfactory because (1) DW1’s dock identification of D2 as the victim who had been kicked was not made on any valid basis under the law of evidence; (2) he did not make a dock identification of D3 as the person who complained on the spot about the police’s assault, and Counsel for D3 also knew that there was no basis on which such a dock identification could be made; (3) on being asked whether D2 has resisted the police officers, DW1 said ‘I have no idea because everything was very chaotic’; (4) furthermore, if DW1’s evidence on what D2 said were true, i.e. D2 had all along fully cooperated with the police, then PW2 and PW3 would not have been injured. I rule that DW1’s testimony is not reliable, and in any event, his testimony is of no assistance in resolving the core issue in the present case.

Judgment

17.I do not understand why the magistrate made an assessment of and conclusions on the evidence and expressed his negative views of the defence witness when he was setting out the defence case, instead of leaving such assessments and comments to the section headed “Assessment of and conclusions on the evidence”. What the magistrate did creates the impression that he was “judging by first appearance” instead of presenting the evidence of the defence witnesses in an impartial manner.

18.I also fail to understand why the magistrate said “DW1’s dock identification of D2 as the victim who had been kicked was not made on any valid basis under the law of evidence”. DW1’s involvement in the present case was rather unusual. He was not a prosecution witness. He was in fact the boss of the person who was allegedly assaulted at that time. He said that he was accompanying PW1 to the court, and this had not been disputed. When DW1 made a dock identification of the 1^st Appellant, the magistrate took the initiative to ask whether the prosecution had any objection thereto. But after he knew that the prosecution was objecting to the “dock identification”, he never made a ruling on this.

19.Generally speaking, “dock identification” is not necessarily inadmissible as evidence, but where a prosecution witness is identifying a defendant for the first time, the court should reject such evidence unless there are compelling reasons to exercise its discretion to the contrary. This is to ensure a fair trial.

20.In the present case, the background to the “dock identification” was dissimilar to the usual circumstances. The “dock identification” was made by a defence witness upon request of the defence, and this was different from the ordinary case in which the identification is made by a prosecution witness. The evidence shows that DW1 was not called to attend court but accompanied PW1 to the court. That witness had never been invited by the police to participate in any identification parade; and neither the 1^st Appellant nor the 2^nd Appellant had refused to participate in that parade. In order to ensure that a defendant receives a fair trial, the law requires that a stringent and fair set of legal procedure has to be followed before evidence against the defendant can be admitted. In the present case, I see nothing unfair in the “dock identification” made by DW1. The “dock identification” raised by the defence only concerned the quality of the evidence and had nothing to do with its admissibility.

21.The magistrate considered DW1’s testimony “far from satisfactory” because DW1’s “dock identification of [the 1^st Appellant] as the victim who had been kicked was not made on any valid basis under the law of evidence”. I am not sure whether the magistrate meant that the defence was not allowed to require DW1 to make a “dock identification”. If this was the case, I do not concur with the magistrate’s view.

22.And indeed the magistrate had erred in dealing with DW1’s evidence. DW1 had never said that he had no idea whether the 1^st Appellant had resisted the police officers “because everything was very chaotic”. On the contrary, as I have mentioned earlier on, DW1’s evidence was that, upon being kicked, the 1^st Appellant immediately squatted on the ground and did not show any resistance, etc. The magistrate had therefore been mistaken about the factual aspect of DW1’s evidence.

23.As regards the fact that DW1 did not identify D3 (i.e. the 2^nd Appellant), the magistrate had, in my view, also mistakenly relied on that fact in rejecting DW1’s evidence. In his evidence, DW1 made mention of “a passer-by” complaining about the police and his mobile phone being swept onto the ground. The police witnesses, on the other hand, only mentioned about interference by one person and did not agree that the person’s mobile phone had been swept onto the ground. Although the two Appellants did not testify, the defence did make its case clear in the course of cross-examining the prosecution witnesses and had called DW1 to give evidence in support of the defence case. The magistrate should have properly considered the evidence in this respect.

24.The magistrate observed that, had the incident occurred in the way described by DW1, the prosecution witnesses would not have been injured. In my judgment, however, the magistrate had erred in dealing with DW1’s evidence and had given the impression that he was “judging by first appearance” instead of properly and thoroughly considering the defence evidence. Furthermore, the magistrate had been mistaken about DW1’s evidence.

25.In view of the material errors made by the magistrate, the convictions of the two Appellants were in my view unsafe. For the above reasons, I allow the appeal, quash the convictions and set aside the sentences.

Mr Isaac Tam, Senior Government Counsel, for the HKSAR.

Mr Charles Chan, instructed by Ivan Tang & Co, for the 2^nd and 3^rd Defendants.

Translated by Mr. Edmund Cham, Solicitor