HKSAR v. Cheung Dick Hung

HCMA 433/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 433 OF 2011

(ON APPEAL FROM ESCC 1319 of 2011)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 23 September 2011

Date of Judgment: 23 September 2011

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J U D G M E N T

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1.The car which the Appellant was driving collided with a van. Arising out of what happened after the arrival of the police at the scene of the accident, two charges were laid against the Appellant. Charge 1 was of failing to provide specimen of breath. Charge 2 was of resisting a police officer. The Appellant pleaded guilty to Charge 1. He was convicted after trial on Charge 2. He now appeals against that conviction.

2.At the trial, the van driver gave evidence as PW1.  The police officer whom the accused was charged with resisting gave evidence as PW2.  The two other officers who were at the scene gave evidence as PW3 and PW4.

3.Five perfected grounds of appeal have been filed on the Appellant’s behalf.  Grounds 1 and 2 deal with the difference between PW2’s evidence and PW 3’s evidence.  So I will deal with these two grounds together.  They read:

“Ground 1

The conviction of the Appellant was unsafe and unsatisfactory on the ground that the learned trial magistrate erred in limiting and confining the crux of the case solely to ‘as the defendant (appellant) came out of his car (regardless whether he was grabbed and pulled by PWs 2 and 3 or he walked out voluntarily), he pushed PW2 on his chest’ (paragraph 14of Statement of Findings), that was not the prosecution which that was presented, nor the evidence of PW2 (the police officer allegedly being resisted) which was testified, nor the particulars of the offence which was drafted, in order to ignore or overcome the contradictory evidence testified by PW3 (the other police officer who assisted PW2 to facilitate the arrest).

Ground 2

The learned trial magistrate erred in law by virtue of the failure to give sufficient weight on the material discrepancies amongst PWs, in particular between PW2 and PW3, and gave their evidence full credence and/or the failure to resolve the said material discrepancies which touched upon important aspects of the case and/or are part and parcel of the offence per se.”

4.In paras 13 and 14 of his Statement of Findings, the Magistrate said:

“13. Defence counsel Mr. Reading submitted that PWs 2 and 3 gave 2 different versions of the event. PW2 said the defendant refused to alight from his car, whereby PWs 2 and 3 had to grab and pull the defendant out. As defendant was struggling all along, he pushed PW2 on his chest during the struggle. On the other hand, PW3 said after repeated warnings, the defendant slowly walked out of his car. PW3 assisted him since he believed the defendant was drunk. As the defendant came out of his car, he pushed PW2 on his chest.

14.    I am aware that there is a discrepancy between the evidence of PW2 and PW3 on this part.  However, the crux of the matter is as the defendant came out of his car (regardless whether he was grabbed and pulled by PWs 2 and 3 or he walked out voluntarily), he pushed PW2 on his chest.  According to PW1, he saw the defendant struggling with some police officers and refusing to get out of his car.  PW1 also saw a police officer falling onto the ground during the struggle.  The evidence of PWs 1 to 3 adds up to one and only one conclusion – the defendant pushed PW2 on his chest causing him to fall.”

5.The Magistrate did not, in my view, limit or confine anything as contended in Ground 1 or at all.  He showed himself aware of the issues in the case.  Nor do I think that the Magistrate failed to give due consideration to the discrepancies in question.  These discrepancies did not preclude him from finding, after giving them due consideration, that the Appellant pushed PW2 on the chest.  Grounds 1 and 2 fail.

6.Ground 3 reads:

“The learned trial magistrate erred in making the finding that ‘all police officers who handled the defendant have behaved properly and acted in accordance with all applicable standard police procedures’ (paragraph 17 of Statement of Findings) without considering all the circumstances of the case and thereby rendering the said finding was made without proper appraisal of all the evidence and/or based on insufficient evidence.”

The argument advanced in support of this ground also depends on the complaint that the Magistrate failed to give due consideration to the discrepancies between the evidence of PW2 and that of PW3.  That complaint is not made out.  Ground 3 fails.

7.Ground 4 reads:

“There is a real danger of bias and/or an appearance of danger of bias and/or an impression of bias as the learned magistrate had come to the conclusions that the appellant was irrational people based on the appellant's irrational and insensible act prior to the commission of the alleged offence in question and that irrational people carry out irrational acts and therefore the appellant was deprived of a fair trial according to law.”

To understand this ground, it is necessary to look at paras 18 and 19 of the Magistrate’s Statement of Findings, where he said:

“18. It is common ground that at one point during the breath test, the defendant asked Madam LAW to buy her a bottle of whiskey. Madam LAW complied with his request but could only return with a bottle of vodka. Both PW s 2 and 3 said Madam LAW came back with a transparent bottle with transparent liquid.

19.    In my view, both the defendant and Madam LAW must have been out of their minds.  For whatever reason (be it to calm someone's nerves or other exotic purposes), asking for more alcohol during a series of police breath tests has to be the most irrational and insensible thing to do.  The defendant was irrational enough to make the request and Madam LAW was foolish enough to comply.  Irrational people carry out irrational acts.  As a juror, I have all the reasons to believe that the defendant was agitated after 4 unsuccessful attempts of the breath test (deliberate or otherwise).  Furthermore, he was uncooperative with PWs 2 and 3 and put up a struggle when invited to alight from his car.  During the struggle, the defendant pushed PW2 on his chest causing him to fall.  As a result, PW2 was injured (see Exhibit P1).”

8.In my view, none of that justifies any of the complaints made in Ground 4.  That grounds fails.

9.Ground 5 reads:

“The learned trial magistrate failed to give sufficient weight on the discrepancies arose out of PW4's evidence and/or failed to clarify what were actually recorded in PW4’s notebook and witness statement which in turn affect the credibility of all the police as a team or as a whole.”

The Magistrate, I am satisfied, tried the case with due care.  Ground 5 is rightly described by the Respondent as far-fetched.  It fails.

10.There is no proper basis for quashing the conviction appealed against.  The appeal is dismissed.

Mr Warren Louis Tang, instructed by Messrs Simon Wong & Co, for the Appellant

Mr Martin Hui, of the Department of Justice, for the Respondent