HKSAR v. Fseil Sabri

HCMA1117/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1117 OF 2008

(ON APPEAL FROM KCCC 3794 OF 2008)

---------------------------

BETWEEN

---------------------------

Before : Hon Saw J in Court

Dates of Hearing : 27 February and 29 October 2009

Date of Judgment : 9 December 2009

-------------------------

J U D G M E N T

-------------------------

1.On 28 November 2008, the appellant was convicted after a trial before Miss W.Y. Ho, Deputy Magistrate of :

(i)  assaulting a police officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap.212; and

(ii)  resisting a policed officer in the due execution of his duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap.212.

2.On the 1^st charge he was sentenced to be imprisoned for 3 months. On the 2^nd charge he was sentenced to be imprisoned for 2 months. The sentences were ordered to be concurrent one to the other. This is his appeal against those convictions. He has already served the terms of imprisonment.

3.The appellant is represented by Ms M. Panesar, Barrister who also appeared for him in the lower court. The appellant is an Algerian national aged 35. In 2008 he visited Hong Kong from time to time on business. It was from Hong Kong that he would obtain a visa to enter the Mainland.

4.It was the prosecution’s case, as found to be established by the magistrate, that on the morning of 20 June 2008 at about 9.45 the appellant was seen by a security guard at 56-64 Nathan Road Tsim Sha Tsui a building called Mirador Mansions which contains a number of guest houses over many of its floors.

5.PW1 was a security guard who described how he had seen the appellant sitting on the floor of the corridor on the 7^th floor at about 9.45 a.m. He was sitting in such a way that he was obstructing the passageway. PW1 indicated to the appellant that he could not remain there and had to move on. As it transpires PW1 spoke only Cantonese and the appellant French and possibly some English. PW1 thought that the appellant was drunk. Notwithstanding their inability to communicate in the same language there was a dispute between them. The appellant left the 7^th floor and ran up the staircase to the 13^th floor.

6.PW1 followed him but also made a report to the management office who in turn called the police. Two police officers in uniform attended in response to that call; they were PW2 and PW3 in the trial. They arrived in the company of ambulance officers as they had been advised that they were to be dealing with a “drunken person”.

7.Having been advised that the subject of the complaint was on the 13^th floor PW2 and PW3 together with the ambulance officers took the elevator to that floor. As they exited the elevator they saw three security guards and the appellant. The two police officers attempted to make enquiries of the appellant. This they did in English.

8.There was obviously no communications between them as the appellant spoke little if any English and they spoke no French. They, it would appear, thought that he was being uncooperative. They did however, as had the security guard, noticed that the appellant was to an extent affected by alcohol.

9.At one point the appellant did speak in English. According to both police officers he pointed to his own face and said to them “Hit me, Hit me.” Subsequent to this he fled down the corridor of the 13^th floor. The officers gave chase and one of them (PW2) was able to catch hold of his clothing which in turn caused him to fall to the ground. That appeared to be the end of the matter as the appellant then remained quietly seated for a couple of minutes.

10.Without warning the appellant again ran away and the police officers chased after him. PW2 followed the appellant onto a staircase where the appellant confronted him wielding a silver aluminium floor mop. This he used to strike PW2 on his arm. The following appears in the magistrate’s reason for verdict :

“16.  PW2 immediately stepped back and took out his OC Foam.  He warned the Defendant in simple English, ‘Don’t move, I will use the OC Foam.’  The Defendant ignored the warning and rushed towards PW2.  The Defendant used his right hand and punched PW2’s left face one.

17.  PW2 then sprayed the OC Foam at the Defendant but missed.  PW2 said in simple English, ‘I arrest you for assaulting police officer, don’t move I will use the OC Foam.’  After a while, the Defendant rushed towards PW2 again and PW2 sprayed the OC Foam on the Defendant’s face.  PW2 warned the Defendant again, ‘Don’t move, I will use the OC Foam.’

18.  The Defendant replied in English, ‘Come on, come on.  Fight me.’  PW2 responded, ‘Stop.  I will use the OC Foam.’  The Defendant rushed towards PW2 again and PW2 sprayed OC Foam on the Defendant’s face but the Defendant caught hold of PW2’s hands.  The Defendant used his hands to bend PW2’s little finger and caused PW2 to be in great pain.

19.  PW3 tried to catch hold of the Defendant’s hand but, due to his struggle with the Defendant, he fell a few steps off the staircase.  After PW3 regained his balance, he used his baton to hit the Defendant’s left thigh 3times.  Each time before PW3 his the Defendant he gave the Defendant a verbal warning by saying, ‘Stop, I will use the baton.’

20.  After the 3^rd hit by PW3, the Defendant knelt down and released PW2’s hands.  PW2 then proceeded to handcuff the Defendant without success as the Defendant put up a struggle.  Eventually PW2, PW3 and Sergeant 46327 subdued the Defendant.”

11.After he had been arrested and taken back to the police station, an interpreter was called for. In the course of an interview under caution, the appellant denied that he had assaulted the police officer nor had he resisted being arrested. He said that he had gone to Mirador Mansions that morning to find accommodation.

12.The appellant did not give evidence nor call any witness. The substance of the defence case which emerged in the cross‑examination of the prosecution witnesses was that the two police officers had, when they were unable to communicate with the appellant, dragged him into a staircase away from the sight of the security guards and ambulance officers. There they had savagely beaten him and to conceal their conduct had falsified the allegation of assault and resisting arrest.

13.The magistrate found that the police officers were truthful witnesses. She rejected the defence allegations and found the charges proved.

14.In her Statement of Findings the magistrate made it clear that she was alert to the fact that it was incumbent upon the prosecution to prove the case it alleged against the appellant. She found that PW1 the security guard was an unreliable witness. She chose therefore not to accept his evidence. She however observed that his evidence which was in part in direct conflict with that of the police officers, related to events which took place before the incidents involving the appellant and the two police officers (PW1 and PW2).

15.In her Statement of Findings, the magistrate concluded that the appellant was aware that PW2 and PW3 were police officers. This is perhaps not surprising as they were on the day in question in uniform. She also made a specific finding that the appellant was not drunk. That was a conclusion she said based upon the evidence of PW2 and PW3 and the medical report of the appellant which was produced as part of the defence case (Ex D1). That was a conclusion in direct conflict with the evidence of PW1 who had described the appellant in such a way that made it apparent that he was very intoxicated.

The grounds of appeal

16.Ground 1 of the perfected grounds of appeal asserts inter alia that the magistrate failed to consider whether the police officers when they were attempting to remove the appellant from the premises were acting in the execution of their duty given that there was evidence that he was at these premises looking for accommodation.

17.This ground of appeal is misconceived. If the police officer’s evidence was accepted, it was only after the appellant had assaulted one of them that he was arrested. Prior to this he had fled from the police officers whilst they were making legitimate enquires of him. The evidence that the appellant was at the premises looking for accommodation only emerged later in the cautioned statement. The police officers had been called to the premises to investigate a complaint directed at the appellant. They attempted to obtain information from him and he ran away from them. Their pursuit of him was in the execution of their duties as police officers and his attempts to run away interfered with that. All of the above however is predicated upon the credibility of the two police officers.

18.Ground 2 alleges that the magistrate failed to considerwhether in all of the circumstances of the case the appellant intended to resist and assault PW2 and PW3. This ground can be dealt with succinctly. Irrespective of the language difficulties and the fact that the appellant was affected by alcohol, it is clear from the evidence of the police officers that when they sought to make enquires of, the appellant he must have been alert to the fact that they were police officers. They were after all in uniform. If their evidence was accepted the description of events given by them clearly established that he intended to both resist and assault them.

19.Another ground of appeal is to the effect that the magistrate should have rejected or have had cause to be concerned about the evidence of PW2 because it was alleged that he had improperly spoken to PW1 whilst the latter was in the course of giving evidence. This matter was ventilated during the trial. It was an unsupported allegation. No witness who had seen such a discussion was called in the defence case. PW2 for his part denied the allegation. Whilst the magistrate had reservations about PW1’s evidence and found that he had in the latter part of the giving of his evidence “become evasive” there was no basis for her to conclude that this had anything to do with PW2. The ground of appeal is without merit.

20.The real nub of this appeal however is this. Ms Panesar submits that the magistrate improperly rejected the evidence of PW1, the security guard and that his evidence properly evaluated should have caused her to have reservations about the evidence of PW2 and PW3.

21.Integral to this complaint is the finding that the appellant was “not drunk” at the time of his arrest. This is said to be because the medical report tendered in the defence case described his condition as “acute alcoholic intoxification”. This is a criticism with merit. The police officers evidence was that the appellant was affected by alcohol but not to the extent that PW1 described and as was revealed by the medical report.

22.Both PW2 and PW3 were consistent in their description of the appellant as being no more than a “bit drunk”. PW1 on the other hand described a person, staggering and swaying and obviously “very drunk”. It suffices to say that having considered the transcript of the proceedings which includes the submissions and evidence I am satisfied that the magistrate was in error in rejecting the evidence of PW1. The consequence of that is that there were significant discrepancies between the description given by PW1 and supported by the medical report as to the state of the appellant’s intoxification and the descriptions given by PW2 and PW3. On the face of it these were material inasmuch as the magistrate failed to consider at all whether or not this had any affect on (i) the reliability of the evidence of PW2 and PW3 and (ii) the intention of the appellant at the time of these incidents. It is not now possible for me to properly determine the consequences of this failure save to say that it is an error which undermines the integrity of the convictions.

23.Approaching the matter as I must as a rehearing on the material before the magistrate see Chou Shih Bin (2005) 8 HKCFAR 70. I am unable to conclude that the conviction is safe and satisfactory.

24.The appeal is allowed and the convictions and sentences set aside.

Ms Winnie Lam, SPP of Department of Justice, for HKSAR

Ms M. Panesar, instructed by Messrs Jal. N. Karbhari & Co., for the appellant