The Queen v. Tong Wai Shing

CACC000739/1983

BETWEEN:-

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Coram: The Honourable Mr. Justice Jones.

Date: 16th September, 1983

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J U D G M E N T

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1. The appellant was convicted on two charges of assaulting a police officer and one charge of resisting arrest contrary to Section 36(b) of the Offences Against the Person Ordinance Cap. 212 at the South Kowloon Magistracy on the 10th May 1983. He was sentenced to a term of imprisonment for two months on each of the two assault charges and one month's imprisonment for resisting arrest the sentences to be concurrent.

2. The appellant appeals against conviction. Originally the appellant also appealed against sentence, but today abandoned his appeal.

3. The appellant was acquitted of a third offence of assaulting a police officer, and with disorderly conduct whereby a breach of the peace was likely to be caused.

4. The facts reveal that a party of police officers were called to the Regal Meridien Hotel Kowloon in the early hours of the morning of the 13th April 1983. About 8-10 persons were behaving noisily and it appeared that a fight had occurred which resulted in a security guard being taken to hospital. The crowd were told to disperse, but although some complied five including the appellant remained. The appellant who was shouting went up to a police vehicle parked by the hotel where he struck the rear window twice with the palm of his hand. The appellant was told to quieten down and go home. However, a short while later the appellant was seen in the lobby of the hotel where he continued with his boorish behaviour. D.I. Ellis who was in charge of the police party was then struck by a bunch of keys thrown at him by the appellant. A struggle took place between the Inspector and the appellant after which the appellant was arrested. The appellant continued to resist but was eventually taken to a police vehicle where he continued to shout and lash out with his feet. He struck one of the police constables in the eye and chest. The police constable later received hospital treatment for a mildly swollen left lower eye lid.

5. The appellant gave evidence that he had been to the Holiday Inn Disco with three friends and left about 1.30 a.m. Subsequently he had an argument with a person who had alighted from a taxi which developed into a fight. The appellant claimed that he was then grabbed from behind and fell to the ground. When he realised that police officers were present he stopped resisting. He denied throwing keys at Inspector Ellis or using his knee to assault the police constable.

6. Two grounds of appeal have been argued on behalf of the appellant by Mr. Huggins.

7. The first is that the learned magistrate made two extremely offensive and wholly unjustified remarks to the effect that he thought it likely that the appellant was used to getting out of trouble by influence and money which is why the hotel staff did not give evidence, and that the security guard did not identify his assailant whom the learned magistrate suspected was the appellant. However, I am told that the hotel staff did attend Court and were prepared to given evidence for the Crown. It was submitted that the utterance of these remarks without evidence amounted to prejudice on the part of the learned magistrate which necessarily precluded a fair trial. The remarks were not made by the learned magistrate in the judgment delivered after the trial nor in the Statement of Findings but were only included in the Reasons for Sentence prepared after the trial for the purposes of this appeal. Mr. Huggins also referred to a passage in the judgment given by the learned magistrate in Court which he submits foreshadows what is said in the Reasons for Sentence.

8. Mr. Huggins cited R. v. Gash⁽¹⁾ where the Court of Appeal quashed a conviction in circumstances where the Court could not be satisfied that an utterly unbiased jury had tried the appellant. I do not in any way disagree with the submission on law made by Mr. Huggins. However, can it be said that the learned magistrate was biased and the appellant did not receive a fair trial. The remarks only arise in the Reasons for Sentence. Admittedly they amount to speculation and may not be justified. Nevertheless, he dismissed them from his mind when he considered the matter of sentence.

9. I am unable to agree that the learned magistrate showed any bias towards the appellant. In fact, upon a perusal of the record I have come to the conclusion that the appellant received a very fair trial. I am quite satisfied that these remarks in no way influenced his verdict. Accordingly, this ground of appeal must fail.

10. The second ground of appeal was that the learned magistrate drew an adverse inference upon the appellant's failure to call a witness. In the judgment delivered after the trial the learned magistrate merely stated that defence counsel had decided not to call a third witness. In his Statement of Findings the learned magistrate said that the appellant and DW1 made a bad showing in the witness box, and after the close of DW1's evidence defence counsel thought it best not after all to call DW2 who was apparently outside waiting to give evidence. I do not agree that the learned magistrate drew such an inference. He merely made a statement of fact that a witness was not called. This ground of appeal also fails.

11. The appeal against conviction is therefore dismissed.

(1) (1966) 51 Cr. App.R. 37

Representation:

Mr. A. Huggins (David K.W. Tsang & Co.) for Appellant.

Mr. McMahon (Legal Department) for Crown/Respondent.