HKSAR v. Ejegi, Edwin Robert

HCMA502/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 502 OF 2010

(ON APPEAL FROM KCCC 1071 OF 2010)

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Before : Hon Saw J in Court

Date of Hearing : 16 November 2010

Date of Judgment : 16 November 2010

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J U D G M E N T

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1.On 12 May 2010 the appellant was convicted after trial before Ms Ho Wai Yang, Deputy Magistrate of one charge of common assault. He was sentenced to be imprisonment for 14 days. That sentence was suspended for 12 months.

2.This is his appeal against conviction.  The matter was first listed before me on 29 September 2010.  The appellant was then, as he is today, unrepresented.  Having reviewed the magistrate’s Statement of Findings I considered that a transcript of the whole of the proceedings was necessary.  With the consent of the appellant and with no objection by the respondent I made orders to that effect.

3.The appellant was originally charged as follows :

(1) Charge 1—

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.

(2) Charge 2—

Obstructing a police officer in the due execution of his duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212.

4.The appellant pleaded not guilty to both charges.  The prosecution withdrew Charge 2.  The trial proceeded on Charge 1.  The appellant was then represented by counsel.

5.At the conclusion of the prosecution case, an application was granted, unopposed, to allow the prosecution to add an alternative charge of common assault, contrary to common law and punishable under section 40 of the Offences against the Person Ordinance, Cap. 212.  The appellant pleaded not guilty to that charge.

6.The magistrate found that there was a case to answer in respect of both charges.  The appellant elected to give evidence and called one witness.

7.The magistrate acquitted the appellant of assaulting a police officer in the due execution of his duty but convicted him of common assault of that same police officer.

8.The events which gave rise to the charges took place on 11 March 2010 outside a convenience store in Mody Road, Tsimshatsui.  Police officers, in uniform, attended in response to a complaint that there had been fighting.  As it transpired, this was not in fact the case but there had been a heated verbal dispute involving a number of persons.

9.Two police officers gave evidence in the prosecution case.  PW1 was the officer named in the charges and PW2 was another officer who was present at the material time.

10.It was the prosecution case that PW1 approached the appellant at this location and asked him in English to produce his identification document.  He said the appellant told him in English that he did not have it with him but that it was at the Mirador Mansion guest house which was nearby.  PW1 said that he requested the appellant to take him to the guest house so that he could inspect it. 

11.PW1 and PW2 set off with the appellant, on foot.  PW1 said that he was on the left hand side of the appellant and PW2 was on the right hand side.  PW1 took hold of the appellant’s arm because he was afraid that the appellant might escape.  The appellant, then, jerked his arm forward to break PW1’s grasp of him and then deliberately used his elbow to strike him in the chest with, as he said, “great force”.  The elbow strike to PW1’s chest was said to have resulted in tenderness and pain. 

12.The direct consequence of this was PW1 and PW2 subdued the appellant, handcuffed him and upon searching him found in his rear trouser pocket an identification document issued to him by the Immigration Department. 

13.The appellant gave a very different account. He had witnessed a loud verbal altercation between a Nigerian male (the appellant is a Nigerian Asylum seeker) and a pregnant African woman.  He said that when the police arrived he was standing nearby, the argument had subsided.  He spoke to PW1 and tried to explain what he had seen.  PW1 told the appellant that no offence had been committed and asked him for his identification document.  The appellant said that he did not immediately produce it because he told PW1 he was not involved.  It was his evidence that he saw no reason for him to produce it just because PW1 demanded it.  His response, he said, made PW1 angry.  PW1 insisted on him producing his identification document.  One of the officers grabbed his arm which was forced up behind his back.  He was then handcuffed.  As this happened he told tell them that his identification document was in the back pocket of his trousers which is where they found it.

14.He denied assaulting PW1 and said that he would never strike a police officer in uniform.  He said that he and his wife lived in Tokwawan in March 2010 and that he had never lived at the Mirador Mansion guest house.

15.This was a case where the credibility of the witnesses was the crucial issue for the magistrate to determine.  The two accounts were diametrically opposed.  The magistrate acquitted the appellant of assaulting a police officer in the due execution of his duty.  Her reasons for doing this are not relevant to this appeal.  She proceeded to convict him of common assault.  It is the process by which she reached this conclusion that has concerned me. 

16.In her Statement of Findings, the magistrate quite properly reminded herself that the appellant had no burden of proof and that it was for the prosecution to prove its case.  Prior to this she had uncritically recited the evidence of PW1, PW2, the appellant and his wife. 

17.The magistrate then said this at paragraph 32 :

“I had carefully considered the Defendant’s case. I found his version of events to be unreasonable. During his evidence in Court, the Defendant painted a harmonious picture where the police were friendly to the Defendant when they arrived at the scene. The police officers continued to be friendly during their enquiries with the Defendant. The police even told the Defendant that the case was just a dispute case and that it was not a crime. Despite the Defendant’s refusal to produce his identification documents because he thought there was no good reason, the Defendant described the conversation to be like friends. The Defendant also emphasized to this Court that during the whole process, even when the police subdued him, he was not violent and was cooperative. According to the Defendant, for reasons unknown the police suddenly changed their tone of voice and became angry with the Defendant. They proceeded to handcuff the Defendant despite the fact that the Defendant was all along peaceful and friendly. I found the described scenario to be unreasonable. If the Defendant and the police were on good terms (or were ‘friendly’ as described by the Defendant), was not violent and was told explicitly he was not a suspect, there would be no reason and no need for the police to handcuff the Defendant.”

By this process she had determined that the appellant was not a witness of truth before she went on to consider whether or not PW1 and PW2 were witnesses of truth. This she did at paragraph 36 when she said :

“I had carefully considered PW1 and PW2’s evidence. I found them to be honest and reliable witnesses. Their evidence was clear, consistent and detailed. Hence I accepted their evidence in its entirety.”

18.The magistrate did not, as she did with the appellant’s evidence apply the test of whether “the scenario they described was reasonable”. If a court is to determine whether one of two diametrically opposed accounts is more reasonable than the other, the trier of fact must apply the same test to both.  This was not done.

19.At no time did she consider, as she should have, the significance of the undisputed fact that the appellant’s identification document was found in his rear trouser pocket.  It makes no sense for him to tell the police officers that it was at the Mirador Mansion guest house and offer to take them there when it was in his possession all along.  The magistrate did not and should have considered the fact that PW2 on his own admission did not understand the conversation between PW1 and the appellant because it was in English — a language he did not understand, and the fact that much of what had been said was recounted to him later by PW1.

20.In this end result I am disturbed by the process by which the magistrate proceeded to conviction.  The magistrate determined that the appellant’s account was untruthful before she considered the prosecution witnesses’ evidence.  She did not apply the same test when doing this.  This is unacceptable.  It is imperative in my opinion that only in the most exceptional circumstances for example when the prosecution evidence is not contested, that a magistrate should consider the defence evidence before that of the prosecution.  To do as this magistrate did gives the impression that unless the defendant’s evidence or witnesses are believed then he/she will be convicted.

21.Having called for and examined the whole of the transcript of the proceedings, I am not satisfied so that I can be sure that the prosecution case was established to the requisite standard.  I am not satisfied so that I can be sure that the appellant assaulted PW1 as he and PW2 described, I am unable to say which of the two conflicting accounts is the truth.  Unlike the magistrate I am unable to say which of the two is the more reasonable.

22.The appeal must be allowed, the conviction quashed and the sentence set aside.

Ms Peggy Leung, PP of the Department of Justice, for the Respondent

The Appellant in person, present