HKSAR v. Wong Wing Wong

HCMA429/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 429 OF 2008

(ON APPEAL FROM TWCC 449 OF 2008)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  25 July 2008

Date of Judgment:  25 July 2008

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J U D G M E N T

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1.This is an appeal against three convictions:  one for assaulting a police officer in the execution of his duty; one for carrying a lit cigarette in a designated no smoking area; and one for throwing rubbish in a public place without lawful authority or excuse.

2.The prosecution case was that the Defendant had walked into a playground with a lit cigarette in his hand and thrown it to the ground; that a police officer, PW1, stopped the Defendant, and asked him about what he had done, whereon the Appellant suddenly used his leg to kick out at the police officer.  The officer stepped back, and the kick missed him.  The Appellant was warned to calm down or the officer would use his baton.  The Appellant paid no heed to that, and kicked out again at the officer, who then used his baton to hit him on the leg, causing him to fall to the ground.  Another officer arrived who had seen what had happened, and there was a violent struggle, where they subdued and arrested him.

3.The Appellant gave evidence and called his girlfriend, who had been with him, as a witness.  His case was that he was so drunk at the time that he had to be helped and held by his girlfriend when walking.  He described his mental state as being “not that conscious”.  He said that he had just had an argument with his girlfriend outside the playground, and whilst there he had extinguished his cigarette by using his fingers to put out the burning end; that accordingly, when he entered the playground, he had an unlit cigarette butt in his hand.  He did not know what had happened to that, but he had not thrown it onto the ground as alleged.

4.He said that he and his friend moved towards an exit, but mistakenly as, it was an entrance; and as he approached that area he was pulled away by his girlfriend, and he says before me today that by losing his balance there, the police officer who was approaching him may have mistaken that for an assault upon him.  He denied ever kicking out at the police officer, and he said that for some reason that he could not work out , other than that supposition of the police officer mistakenly thinking he was under attack, he was set upon and hit with a baton and that he then received injuries.

5.The case clearly turned upon who was telling the truth.  The Magistrate was in a much better position than I to judge that in a case like this, because he saw and heard the witnesses.  He has written a detailed statement of findings in which he gave clear and sensible reasons as to why he came to the conclusions he did.  The Appellant is able to point to nothing in those reasons which would make me think that they were not sound ones.

6.I will not decide the case just on that basis, because this is a rehearing, but of course it presents the Appellant with an uphill task, upsetting findings about credibility.  But applying my judgment to the facts as they appear, the inherent probabilities were hugely on the side of the prosecution below.  On the Appellant’s own case, he was exceedingly drunk.  He had been angered by differences with his girlfriend, and that is just the sort of state where you find a man of hitherto good character, for such the Appellant was, doing something stupid like this.

7.The idea that the police officer drew a baton and, in effect, attacked the Appellant for no good reason, is one that, whilst not impossible, is hard to believe. I find it to be wholly unrealistic that the officer might have misinterpreted a stumble as an attack.

8.Today the appellant has, in effect, retold me his case.  He also points out that his witness was not believed.  That is correct, and obviously the bonds of loyalty between the defendant and his witness at the trial was something which the Magistrate was well entitled to consider when it came to looking at the weight to give to her evidence.

9.He took the view that the girlfriend was not frank with the court, and in particular he focused on an answer the witness gave to the effect that she did not know whether or not the Appellant had been smoking, and he was very sceptical about her evidence of seeing a cigarette butt on the ground that was out and not glowing.

10.It comes to this:  that there was strong evidence to implicate the Appellant, and that nothing he has been able to put before me today or point to in anything that occurred below or exists in the Statement of Findings raises any reasonable doubt in my mind as to the correctness of the conviction.

11.Accordingly, the appeal against it is dismissed.

Representations:

Ms Sheroy Tam, Public Prosecutor of the Department of Justice, for the Respondent

Appellant Wong Wing-wong (黃永煌), in person