HKSAR v. Lam Kin Chung

HCMA 908/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 908 OF 2008

(ON APPEAL FROM KCCC 4039/2008)

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BETWEEN

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Before:  Deputy High Court Judge Geiser in Court

Date of Hearing:  20 March 2009

Date of Judgment:  2 June 2009

Date of Handing Down Judgment:  2 June 2009

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J U D G M E N T

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1.On 28 August 2008 the Appellant was convicted in Kowloon City Magistrate’s count of two offences of assaulting a police officer in the execution of his duty contrary to section 63 of the Police Force Ordinance, Chapter 232 Laws of Hong Kong.  In respect of both offences, the Appellant was made the subject of a Community Service Order.  He now appeals against these convictions.

2.On 20March 2009 the matter came before myself and having heard arguments for the Appellant and Respondent respectively, I reserved my ruling to be handed down at a later date.  I do so now, and apologise to all parties for the lateness of this ruling which is due to circumstances entirely beyond my control.

3.The facts of this case were simple, and as the learned Magistrate alluded to in his statement of findings, not in the main, in dispute.  Briefly, they were these.  At the date and time in question both the Appellant and his co-accused D1 who pleaded guilty at trial were lying unconscious on the pavement outside the San Diego Hotel in Yaumatei.  They were drunk.  The police were called and tried to rouse the men.  PW2, one of the officers attempted to wake D1 who eventually woke up and pushed the other officer PW1.  The Appellant then got up and went over to help his co-accused.  PW1 tried to prevent the Appellant reaching his friend but the Appellant pushed PW1 away, and rushed towards his friend and PW2 pushing PW2 in the chest.  Both officers at the time were in uniform.

4.Whilst the Appellant elected not to give evidence at trial, the case as put on his behalf was that at the time the Appellant was drunk and due to this, he may not have realised that the two other men were police officers, that he had no ‘animus’ toward them and that he was merely intervening to separate his co-accused from PW2 in order to assist him from what he thought was an unlawful attack on the co-accused.

5.Four separate grounds of appeal were put forward on behalf of the Appellant and I summarise:-

(a)  The learned Magistrate had failed to address the fact that the prosecution had not established a hostile animus on the part of the Appellant;

(b)  It was clear from the evidence that the Appellant’s intention was to assist his friend, the co-accused;

(c)  The learned Magistrate failed to draw the overwhelming inference that the Appellant was motivated to help his friend and;

(d)  The learned Magistrate stated in his reasons for verdict on 9 separate occasions that the Appellant had not given evidence and therefore failed to take account of his belief that he was trying to assist his friend.

6.All four grounds of appeal are very closely related and I propose to deal with grounds “a” to “c” together and “d” separately.

7.Grounds “a” to “c” effectively say the same thing and complain that the learned Magistrate failed to address the fact that the prosecution had not established a hostile animus on the part of the Appellant.  With respect these three grounds are devoid of merit and completely misconceived.  The learned Magistrate had spelled out in paragraph 6 of his reasons for verdict precisely the contention of the Appellant.  The learned Magistrate is highly experienced and there is simply nothing in his reasons for verdict to suggest that he did not give this due consideration.

8.With regard to ground “d”, whilst I accept that the learned Magistrate did repeat on a number of occasions the fact that the Appellant had not given evidence, this is no way in my judgment prejudiced the Appellant.  The learned Magistrate was doing no more than merely stating a fact that the Appellant had not given evidence and as a consequence said this, “However, any invitation from counsel for the Appellant as to what may have been in the mind of the Appellant involved an examination of the prosecution evidence alone.”  And then later, “nothing in the prosecution case amounted to evidence that the Appellant went to the assistance of D1 because he was mistaken as to the identify of the police officers.”

9.Moreover, it must also be said that the learned Magistrate was quite correct in his application of the law as per DPPC Majewski (1977) AC 443, (1976) 2 ALLER 142, HL in that if a mistake as to fact occurs due to self induced intoxication, the person holding the mistaken belief is to be convicted if all the matters contended by the prosecution are otherwise proved.

10.In the present case, the learned Magistrate was satisfied that both officers were in uniform and clearly identifiable as police officers, they were both assaulted by the Appellant in the way they stated, and that at the material time they were acting within the execution of their duty.

11.Ground “d” fails.

12.The appeal is dismissed and I confirm the convictions.

Ms Grace Chan, Senior Public Prosecutor, of the Department of Justice, for the Respondent

Mr Edward L McGuinniety, instructed by Messrs Tang, Wong & Cheung, for the Appellant