HKSAR v. Tong Kwok Shan

HCMA 1015/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1015 OF 2008

(ON APPEAL FROM KTCC 4152/2008)

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  19 March 2009

Date of Judgment:  19 March 2009

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J U D G M E N T

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1.This is an appeal against two convictions, one for obstructing a police officer, the other for assaulting him.  There is also an appeal against the sentences imposed, the sentences being a fine of $1,000 on each charge.

2.The Defendant was represented at his trial, which took place before Miss L K Lo, but is unrepresented before me today.

3.The prosecution’s case was that three police officers, two in uniform and one in plain clothes, saw the Appellant in a public place on 14 August of last year.  By reason of the way he behaved when they saw each other, they were suspicious of him and they were suspicious of what was in his sling bag, which appeared to have a hard object inside.  According to them, they produced a warrant card, and asked, explaining why, to search the bag.  Notwithstanding the uniform there, the Appellant did not believe PW1 was a police officer, and asked for his warrant card again.  It is said that that was an indication of the Appellant being deliberately unco-operative, and that such unco-operative behaviour then developed into obstruction, because he refused to let the officer search his bag, making a loud fuss and attracting a crowd, who heard the Appellant shouting “Robbery.  Robbery”.  He was warned, and, according to the officers, ignored the warning, and so was arrested.  He was handcuffed and put in a police vehicle.  He calmed down, and the handcuffs were removed.  The officer said he then asked to see the Appellant’s identity card, which request prompted the Appellant to lose his temper, wave his hands around, one of those hands striking the officer on his left cheek.  It clearly was not just a glancing blow, because he saw a doctor, who found swelling and bruising there.

4.The Appellant gave evidence at the trial.  He agreed that he was intercepted, that an offensive weapon was suspected and that there was a request for a search.  He said that the officers were rude, and wanted him to face a wall and have the search conducted of his bag behind him; that the search took place; nothing suspicious was found; but that the officer then claimed that there had been an obstruction, and handcuffed him.  As regards what happened in the police vehicle, he said that he was handcuffed, and that the police said that he was a bad lad, and then punched him in the face about 10 times and on his back five times.  He asked why he was so assaulted, but received no explanation.  He denied ever hitting the officer.

5.The issue in the case was one of credibility.

6.The Magistrate found the officer’s evidence to be good, clear and credible.  She did not believe the Appellant.  She pointed out his lack of injury and some discrepancies on the evidence which were indications that she used in her assessment, such as saying that he was punched in the face and later changing that to a slap, of his claim of being surprised to be taken to a police station even though he knew he had been arrested, and the claim that the officer had used his right palm to slap him on the right cheek even though the officer was on his right side.

7.More importantly than points like those which I have just mentioned was the opportunity for the Magistrate to see and hear the witnesses in this context.  That is, of course, a benefit I do not have, and of course, even though this is a rehearing, I am bound to have some regard to a sensible and experienced Magistrate’s findings in relation to credibility where there is nothing on the papers to make one doubt her assessment.  It is not impossible to upset a Magistrate’s findings on credibility, but it is the case that the Appellant has been able to advance to me no cogent reason to do so today.

8.It follows that my decision is that the appeal against conviction must be dismissed.

9.As regards sentence, it was a merciful one.  There was a probation officer’s report, and the Magistrate quoted from it in her statement of findings.  It is this passage that was on point:

“He tried to portray himself being a sensible person with a bright mind, though not correctly reasoned.  He was irritated when others were not persuaded and his allegation was further questioned.  As observed, the defendant may have traits of personality disorder and paranoia.  Being headstrong and easily agitated, it was likely that the defendant overreacted and lost control, trying to argue against the police interception, which led to the present offences.”

10.The Magistrate clearly acted on that, because a sentence of $1,000 was a light one.  Of course, the Magistrate would have been unaware of the probation officer’s assessment at the time she was trying the Defendant, and I have put it out of my mind when deciding the appeal against conviction, but the fact is in the course of the trial, what the probation officer saw would have been available for the Magistrate to perceive, and of course it is matters that are mentioned in that passage that I have quoted which would explain how this unfortunate case arose.  It was her opportunity to assess that, when the witnesses gave evidence, that is important in a case like this and forms a significant part of the reason why the appeal against conviction had to be dismissed.  The appeal against sentence is also dismissed.

Mr Graham D Goodman, Senior Public Prosecutor of the Department of Justice, for the Respondent

Appellant, Tong Kwok-shan (唐國山), in person