HKSAR v. Benig Derrick

[English translation - 英譯本]

HCMA 468/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 468 OF 2012

(ON APPEAL FROM ESCC 1198 OF 2012)

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JUDGMENT

1.The appellant Derrick BENIG was charged with two counts of assaulting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Cap. 232, Laws of Hong Kong.

2.The particulars of the charges were that on 1 October 2011, at the junction between Connaught Road West and Western Street, Hong Kong, the appellant assaulted a police officer acting in the execution of his duty, namely PC 33650 Lin Wai-ho (Charge 1), and on the same day, inside Police Vehicle AM 6332, the appellant assaulted a police officer acting in the execution of his duty, namely PC1558 Leung Tsz-shun (Charge 2).

3.The appellant pleaded not guilty to both charges and stood trial before magistrate Mr Joseph To.  The appellant was convicted after trial on both charges and sentenced to imprisonment for 5 months and one month respectively, which were to run consecutively, making a total term of 6 months.

4.The appellant appeals the convictions and sentences.

Prosecution case

5.On 1 October 2011, a public meeting and public procession was held by the League of Social Democrats, encompassing the area from the Statue Square in Central to the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region (the “Liaison Office”) in Western District.  The police did not receive any prior notice from the organizer for holding the public meeting and public procession.

6.At 2:20 p.m. or so, there were 30-odd participants in the public procession.  At 3:10 p.m. or so, when the procession reached the “designated public activity area” in the vicinity of the Liaison Office, there were approximately 63 participants in the procession.

7.The police erected mills barriers stretching from near the Liaison Office to a footbridge farther away from the Liaison Office and enclosing the pavement and lay-by in an area of about 50 to 60 metres long.

8.At the footbridge, the police set up barriers separating the pavement and the roadway.  One of the barriers was movable to facilitate police access.

9.The section of road beside the “demonstration area” was a two-lane carriageway. At that time, there was no vehicle on the first nearside lane while there were still vehicles travelling on the second lane.

10.At the time of the incident, a protestor left the demonstration area and went onto the first lane of the roadway.  Several police officers then led him away in the direction of the footbridge with the intention of taking him back to the demonstration area.

11.The appellant climbed over the barrier beside the concrete base under the footbridge in an attempt to move out to the roadway but was stopped by PC 33650.

12.According to the original prosecution case, the appellant pushed the barrier upward from the bottom in an attempt to remove it, and PC 33650 gripped it with both hands to hold it in place and verbally warned the appellant repeatedly to stop what he was doing.  The appellant suddenly released his grip and slapped PC 33650 on his left face near the lower jaw.  The appellant said to PC 33650, “Bloody cop, piss off,” and immediately moved backwards in an attempt to leave but was caught by PC 33650.  Sergeant 52734, who was by the side, witnessed what had happened and grabbed the appellant’s rucksack.  The appellant put up a fierce struggle but was eventually subdued and taken to a police vehicle nearby.  With the appellant on board, the police vehicle proceeded to North Point Police Station.

13.While the police vehicle was in motion on the way, PC 1558 arrested the appellant for assaulting PC 33650.  The appellant became agitated.  He unbuckled the safety belt and stood up.  PC 1558 demanded the appellant to sit down.  The appellant swore at PC 1558 with foul language and thumped his body towards PC 1558, causing his head to bang on the wall of the vehicle.  A struggle ensued between the two of them, and they both fell onto the floor inside. Subsequently, Sergeant 49937 successfully handcuffed the appellant.

14.On the above facts, the appellant was charged with the two offences in question.

15.Although the prosecution had a video recording made by the police at the time of the incident, the recording was not produced in court and was instead listed as “unused material”.  While cross-examining PC 33650, the defence showed him the recording.  PC 33650 conceded that the slapping incident alleged by him was not shown in the recording.  He said that the appellant at that time lifted the mills barrier from the bottom up and “pulled it towards him”.  Realizing that the mills barrier was rather heavy, he considered that if he did not “pull it back” with force, the barrier would “smash onto” the appellant and injure him (page 151L-M of the appeal bundle).  In other words, PC 33650 never mentioned that the appellant had pushed the mills barrier towards him.

16.During re-examination on the same day, PC 33650 said that he had not viewed the recording before.  When the prosecutor asked the police officer to point out when he was assaulted after viewing the recording again, the police officer only said that he had been hit by the appellant and still made no mention of having been pushed by the appellant (pages 163L to 164L of the appeal bundle).

17.After PC 33650 and Sergeant 52734 had finished testifying, Magistrate To adjourned the case until 12 June so that he could view the recording again.  At the resumed hearing on 12 June, Magistrate To started by informing the defence that the court was not bound by the prosecution’s opening submissions and would consider the case on the basis of the evidence.  He further pointed out that according to the recording, apart from the allegation made by the two police officers that the appellant had slapped PC 33650, another part of the recording showed that the appellant had pushed the barrier and PC 33650 had had to “ward it off”. Magistrate To asked the defence counsel if they would need to recall any witness.

18.On the afternoon of that day, PC 33650 re-appeared in the court for cross-examination.  When asked about how the appellant pulled the mills barrier towards himself, PC 33650 said that what the appellant actually did was probably “push out” the mills barrier, and then “both of us were applying force” (page 194M-N of the appeal bundle).  He also recalled, based on his memory and after viewing the recording, that the appellant had tried to push the mills barrier towards him and, for fear that the mills barrier would be “pushed down” onto him and out of the need to protect himself from danger, he applied force to “push it back” to the appellant (page 195S-T of the appeal bundle).

Defence case

19.The appellant had a clear record.  He said in his testimony that he had participated in procession(s) and demonstration(s) in the past.  He was arrested during a demonstration on 14 March 2010 and charged with the offence of assaulting a police officer in the execution of duty.  He was acquitted after trial.  With that experience, he realized that he had to be careful when taking part in processions and demonstrations and that an arrest and criminal prosecution would cause him much inconvenience.  For this reason, he would try to avoid any physical contact with police officers.

20.On the day in question, the appellant witnessed a senior member of social movement being taken away by 4 police officers from the roadway outside the demonstration area in the direction of the footbridge.  Being concerned that the police officers would do something harmful to that member, the appellant followed the group along the demonstration area towards the footbridge.

21.Under the footbridge and at the concrete base near the Liaison Office, he tried to step over the mills barrier so as to reach the roadway but was stopped from doing so.

22.The appellant then followed the said group.  When he reached where the movable barrier was, which was farther away under the footbridge, he tried to step over the barrier and was stopped by PC 33650. The appellant moved to the left, pushed up the movable barrier and pulled it towards himself.  At this juncture, the police officer on the right side tried to separate him from the barrier.  Someone also pulled the appellant from behind.  The appellant grasped the barrier with his hand(s), refusing to give in to PC 33650.  He did not have any physical contact with PC 33650.  The appellant alleged that he did not assault PC 33650 but PC 33650 grabbed the back of his neck, pinned down his head and yelled, “Derrick hit me, arrest him!”

23.PC 33650 grabbed hold of the appellant while the person behind the appellant pulled him backwards.  The two sides confronted and chaos ensued. Eventually the appellant was lifted up and taken away by the police and pushed onto a police vehicle.

24.After getting onto the police vehicle, the appellant did not buckle up. He had a row with PC 1558.  He admittedly swore at the police officer with foul language, who did not swear at him in return.

25.The appellant alleged that while he was arguing with the police officer, the police officer who was driving the police vehicle accused him for being arrogant and uttered something like “push him down”.  PC 1558 then grasped the appellant’s clothes at the chest, pushed him down to somewhere between two rows of seats and slapped his face twice.

26.The appellant said, “Come on, hit again.”  PC 1558 immediately hit the appellant once again.  The appellant repeated, “Hit again,” but the police officer said something like “Hit you as you ask me to do, you think I’m crazy?”

27.The appellant also alleged that the police officer had snatched his mobile phone and returned it to him only upon arrival at North Point Police Station.

Magistrate’s findings

28.Having considered the evidence, the magistrate found, in respect of PC 33650’s evidence that the appellant had slapped him and that his colleague Sergeant 52734 had witnessed the slapping, that “the court cannot rule out the possibility that the [appellant’s] right hand, while trying to grasp the vertical bar of the barrier again, accidentally touched the left side of the witness’s face”, but as the recording in question “did not capture the very moment when the [appellant’s] right hand ‘swiped across’ the witness, the court holds that what both witnesses said is not wholly supported [by the recording] in this regard, and their evidence in this regard cannot be given full weight”.

29.The magistrate held that the recording showed that the appellant, while knowing full well that PC 33650 was standing on the other side of the movable barrier, still pushed up the barrier and thrusted it towards PC 33650.  As a result of what the appellant did, the police officer had to grip the barrier and take one step back, and in order to protect himself from being knocked down by the barrier, he even had to push the barrier in the opposite direction, i.e. back towards the pavement.  The magistrate said that the appellant obviously intended to attack PC 33650, who was acting in execution of his duty, with the barrier.

30.As to what happened on the police vehicle, the magistrate accepted the testimonies of the prosecution witnesses and rejected the appellant’s evidence.  He held that the appellant’s act of knocking down PC 1558 was deliberate and not possibly accidental.

31.The magistrate convicted the appellant on both charges of assaulting a police officer.

Grounds of appeal (conviction)

32.The appellant was represented by Mr Randy Shek of Counsel both at trial and on appeal.  Two grounds of appeal have been put forward on behalf of the appellant.

33.The 1^st ground is directed at Charge 1.  The appellant contends that he has not received a fair trial and justice has not been seen to be done.

34.In essence, Mr Shek raises the following complaint: having received the testimonies of PC 33650 and Sergeant 52734, having watched the recording and having learnt about the defence case from cross-examination by the defence, it was only after 5 days that the magistrate suggested that the court was not bound by the prosecution case and informed both parties of another period of time during which the appellant might have assaulted PC 33650 (i.e. pushing the barrier towards the police officer).  Eventually, the magistrate convicted the appellant on the basis that he had pushed the barrier towards the police officer. In such circumstances, one is left with the impression that the magistrate had subjectively concluded that “the appellant was guilty” of the offences as charged.

35.Referring to the transcripts, Mr Shek points out that, the first day on which PC 33650 gave evidence in court, nowhere in his examination-in-chief, cross-examination and re-examination did he mention that the appellant had pushed the barrier outwards.  When the police officer was recalled for cross-examination, Mr Shek only put it to the police officer again that the images captured in the video recording represented what happened at the material time, and with this the police officer agreed.

36.Mr Shek did not question the police officer in respect of what the magistrate was concerned about (namely the appellant had pushed the barrier).  Mr Shek contends that, as the prosecution bore the burden of proof, it was not for the defence to cross-examine the police officer on the section of the recording referred to by the magistrate.  Mr Shek complains that, as such, the magistrate had “entered the arena” and assumed the role of the prosecutor by replaying the section in question many times.  The magistrate even spelt out his own understanding of the actions between the appellant and PC 33650 as shown in that section of the recording and took a proactive role in looking for evidence.  Subsequently the police officer said he recalled that the appellant had pushed the mills barrier towards him and that he had to protect himself for fear of the potential danger to which the appellant’s act might expose him (pages 193T to 195T of the appeal bundle).

37.Mr Shek submits that what the magistrate had done in the process was extremely unfair and also rendered the police officer’s evidence incredible and unreliable.

38.Mr Shek also says it had all along been the prosecution case that the appellant had slapped the police officer.  In the end, the magistrate said that the recording did not show that the appellant had “swiped across” the police officer with his hand, and found that the evidence of the two police officers in this regard was not supported by the recording.  However, full weight was given to the evidence of the police officer, which was given following repeated interruptions by the magistrate, that the appellant had “pushed the barrier towards him so that he had to protect himself”.  Mr Shek submits that the appellant’s conviction for this offence is unsafe and unsatisfactory.

39.The 2^nd ground is directed at Charge 2.  Mr Shek frankly concedes that, the magistrate being the arbiter of facts, it is difficult to seek to have the magistrate’s findings of fact overturned by the appellate court.  Mr Shek’s principal contention is that the magistrate’s approach and conduct in respect of Charge 1 plainly suggested that he was set on convicting the appellant, which rendered the trial unfair to the appellant.  Therefore, the magistrate’s decision to accept the testimonies of the prosecution witnesses in respect of the incident on the police vehicle must have been tainted by an apprehension of bias towards the prosecution, and a reasonable and informed bystander would not consider that justice had been seen to be done.  Therefore, it is submitted that the conviction on Charge 2 is unsafe and unsatisfactory.

Respondent’s response (in respect of conviction)

40.Ms Winnie Lam, Senior Public Prosecutor for the respondent, responds by stating that the magistrate clearly knew that the burden of proof lay on the prosecution, and that the critical issue in the present case was whether the evidence of the witnesses was credible and reliable.

41.Ms Lam submits that the magistrate did not “enter the arena”.  The present case has its unique feature, namely the recording and the section thereof in question.  Ms Lam says that most of the questions raised and statements made by the magistrate were to describe the video footage in question or respond to the case put to the witnesses by Mr Shek.

42.The respondent contends that the questions raised and statements made by the magistrate were fair and impartial and would not cause a reasonable and informed bystander to think that he was biased towards any one party.

43.The respondent also says that where appropriate, the court is entitled to consider a case on a basis different from that presented by the prosecution, and that what is most important is that both parties have been given the opportunity to be heard on the new basis of conviction and the defendant has neither suffered any prejudice nor been deprived of a fair trial.

44.The respondent submits that the magistrate was perfectly entitled to consider the case on a basis different from that presented by the prosecution, and that the magistrate had already given both parties the opportunity to make submissions and also allowed the defence to conduct further cross-examination on the relevant recording. Therefore, the appellant had not suffered any prejudice, and there was nothing improper with what the magistrate had done.

45.The respondent submits that, having viewed the relevant recording, it was by drawing on his own recollection that PC 33650 testified that the appellant had pushed the barrier towards him and that he moved back as he sensed danger.  This part of his evidence did not result from the magistrate’s questions.

46.The respondent submits that the magistrate’s analysis of Charge 1 is reasonable and sensible and that the conviction thereon is not unsafe or unsatisfactory.

47.In respect of Charge 2, the respondent emphasizes that what happened on the police vehicle involved another period of time and other police officers, and that the magistrate had clearly explained why he was satisfied with the police evidence but not with the appellant’s evidence.

48.The respondent contends that the findings of fact by the magistrate were reasonable and there was no bias towards any prosecution witness.

Legal principles

49.The question of whether a trial judge/magistrate can consider a case on a basis different from that presented by the prosecution has been discussed in judicial authorities with which neither party has taken issue.

50.In Hau Tung Yingand Another v HKSAR (2011) 14 HKCFAR 453, Chan PJ, applying cases such as R v Landy and Others (1981) 72 Cr App R 237, R v Lunn [1985] Crim LR 797, R v Japes [1994] Crim LR 605 and R v Chan Kang To [1997] 1 HKLRD 412, pointed out that:

“A trial judge could as a matter of law refuse to accept the prosecution’s election in the conduct of a trial. In appropriate cases, the judge had the power to consider or direct the jury on the case on a basis different from that presented by the prosecution, provided that this was open on the indictment and the evidence, and the parties were first given an opportunity to address the court. Such situation must be rare and exceptional. Convictions had been quashed mainly because the defence had not been given the chance to address the court on the new basis and had thereby suffered a disadvantage or prejudice and an unfair trial.” (at 454)

It can be seen that the prime concern of the appellate court is whether a defendant had suffered prejudice and been deprived of a fair trial as a result of the change in the basis of prosecution.

51.The legal principles governing the propriety (or otherwise) of interruptions by a trial judge in the course of taking evidence have been discussed in detail in the Court of Appeal case of R v Yeung Mau Lam [1991] 2 HKLR 468 at 473.  In HKSAR v Tsang Wai Man (unreported, CACC 190/2001, 5 July 2002), Yeung JA (as he then was) expressed agreement with the legal principles set out in Yeung Mau Lam to which he referred as follows:

“19. In his judgment [in Yeung Mau Lam, at 473] Power JA made the following observations:

‘We are satisfied that the authorities establish the following five propositions apposite to our considerations:

(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena [instead of remaining objective];

(5) The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge’s duty throughout to ensure that a trial is properly and coherently conducted.’ ”

52.In Tsang Wai Man, Yeung JA also elaborated on the relevant legal principles, as follows:

“13. In an adversarial system, the role assumed by a judge in a trial is primarily one of listener. Findings have to be arrived at by a judge on questions in issue based on the evidence and submissions adduced by both parties. A judge should not over-participate in the questioning of witnesses lest he might give an impression of favouring any one side.

14. The above fundamental principle is beyond question. However, as the judge of fact, a judge must hear sufficient evidence on the questions in issue before he could come up with the findings on the facts.

15. Under normal circumstances where both parties are represented, counsel from both sides would have elicited from witnesses all relevant evidence through examination-in-chief, cross-examination and re-examination, thereby allowing the judge to have sufficient evidence to reach his findings on the questions of fact at issue.

16. However, very often, things go athwart. Due to factors like different perceptions of matters, tactics deployed in the course of the trial, the demeanour of witnesses when answering questions, the competency of individual counsel etc., a judge may not necessarily be able to obtain the requisite information through the examination-in-chief, cross-examination and re-examination of witnesses by counsel on both sides, rendering it necessary for the judge to put questions directly to witnesses in order to get a better grasp of the evidence before reaching his findings.

17. So long as a judge adopts an impartial attitude when questioning a witness such that the reasonable and informed bystander listening to the case would not have had the impression that the judge is showing favour to one side, the conduct stated above gives no cause for much criticism.  Not only is there nothing to be said against it, it is also reasonable and necessary, albeit a more proper way of obtaining the requisite information is to leave the questioning of witnesses to counsel on both sides.”

53.In determining whether the trial judge was biased, it has been established by the Court of Appeal in Aaron Patrick Nattrass v Attorney General [1996] 1 HKC 480 that it is not sufficient to prove that there was a “reasonable suspicion” that the defendant did not have a fair trial, and that the correct test should be whether there was a “real danger” that the defendant might not have had a fair trial.

54.Another important general principle is that, however culpable a defendant may appear to be on the evidence, the appellate court must never sacrifice the need for a fair and impartial trial.  In Michel v The Queen [2010] 1 WLR 879 at 886 para. 27, the Privy Council quoted the following passage from the judgment of Lord Bingham of Cornhill in Randall v The Queen [2002] 1 WLR 2237 at 2251 para. 28:

“But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”

My considerations and views

1^st ground of appeal

55.The basis presented by the prosecution throughout was that the appellant had slapped the police officer.  It was never the prosecution case that the appellant had pushed the barrier towards the police officer, which constituted the offence of assaulting a police officer.

56.A special feature in the present case is that the prosecution had never intended to produce the recording in question to the court.  And nowhere in his examination-in-chief had PC 33650 indicated that the appellant had pushed the barrier towards him and caused him to feel he was in danger.  The assault referred to by the police officer was that the appellant had slapped him.  Sergeant 52734 also said that the appellant had slapped PC 33650.  The relevant recording was played by the defence in the course of cross-examining the police officer, with a view to showing to the witness that the alleged act of slapping was simply not seen in the recording, thereby undermining the credibility and reliability of the witness’s testimony.  It was because the defence played the recording, which would otherwise not have been produced in court, that the magistrate had the opportunity to watch the recording of the entire incident.  The magistrate formed his own view and interpretation of what he saw.

57.I have also repeatedly viewed the recording, both in normal speed and frame-by-frame.  As I can see, the event took place instantaneously, and the pushing of the barrier by the appellant was a split-second act.  What concerns me is not only that PC 33650 made no mention that he felt being attacked while the appellant pushed the barrier towards him, but also that, having viewed the recording more than once on the first day of trial, PC 33650 still said nothing about the appellant having attacked him by pushing the barrier.  His sole allegation throughout was that the appellant had slapped him.  Even in the re-examination, when the prosecution requested him to watch the recording again and then point out the time when the appellant attacked him, he still said nothing about the appellant pushing the barrier towards him.  On the contrary, the police officer emphasized that he was worried that the appellant, who was pulling the barrier towards himself, might be injured.

58.I appreciate that the witness might not be able to describe all details of the incident which took place instantaneously, but if the police officer had really felt that the appellant had assaulted him by pushing the barrier and then slapped him, then as a matter of common sense he would not have been completely silent about the assault prior to the slap.  In addition, during the first day of cross-examination and re-examination, he had the opportunity to watch the recording once and again, so even if he had hitherto forgotten what happened, he should, with the help of the recording in refreshing his memory, be able to recall and say that the appellant had not only slapped him but before then had also attacked him by pushing the barrier.

59.When the trial resumed on 12 June, the magistrate informed both parties of his observations.  At that time, Mr Shek obviously did not agree with the magistrate’s description of the situation. And the police officer was present when the magistrate and Mr Shek offered their respective “interpretations” on what they saw:

“ (At 2:38 p.m., the court played the video tape.)

Court: This act. You have no question for him, right? Any more question for this witness? Just now, it was 34:40.

Q: 40 to 40 -- within the period between 30 and 40, you and him, the defendant, while he was with the mills barrier, pulled it towards himself?

A: Do you mean that the defendant at that time pulled the mills barrier to somewhere behind him?

Q: It was towards himself …

Court: Watch it frame by frame from 34:38 onwards.

(At 2:39 p.m., the court played the video tape.)

Court:You say he was pulling [the barrier] towards himself, right? This is how the defence puts it.

Mr Shek: Yes.

Court:All right, this movement.

Mr Shek: I understand Your Worship is saying that you see his hands push forward once and then pull. But what we are saying is that he withdrew his hand and then pulled, which means he lifted the mills barrier to pull it towards himself.

Court: Play it at normal speed and watch those few seconds. Play it at the speed, the normal speed.

(At 2:40 p.m., the court played the video tape.)

Court: Witness, you -- the defence is now saying that in respect of that movement, he put his hand on the mills barrier and pulledit towards himself, what would you say? Do you need to watch it again? You saw what the defendant was doing at that time, that is to say, that movement, …

A: In fact …

Court: … the act at 34:40?

A: In fact, that act was probably one of pushing the mills barrier outwards, and then everyone was applying force, as far as I recall, everyone was applying force at that moment.

Court:All right.

Q: Witness, so what you are saying is that the defendant pushed the mills barrier with both hands, and then you pushed, pushing it in return, and that was why the mills barrier tilted towards the defendant?

A: (No audible answer)

Court: Need to watch it once more?

A: You ask once again, and let me think about it first.

Q: I would like to ask you whether you are saying that the defendant, having moved two steps to the left, pushed with both hands the mills -- pushed the mills barrier towards you, and you pushed the mills barrier back in the opposite direction, and for this reason the mills barrier, as we can see, subsequently tilted towards the defendant. Is this what you are saying?

A: Yes, it is.

Court: All right, I would like to watch the moment at 40 once more, 15:34:40.

(At 2:42 p.m., the court played the video tape.)

Court: All right, at 39, the witness’s hand was still away from the mills barrier, this witness’s hand was away from the mills barrier. Move on slowly.

(At 2:43 p.m., the court played the video tape.)

Court: The witness’s hand was still away from the mills barrier, the witness’s hand was still away from the mills barrier. Right, now, at this moment, the defendant’s hand was on the mills barrier pushing it forward, and only after that did the witness’s take it with his hand, at 40, is that right? That is to say …

Mr Shek: Your Worship, I believe -- actually the submission --in respect of time, the analysis of this video footage may be more appropriate, but what we are saying is that, regarding the series of acts, the defendant moved two steps back and then held the mills barrier with both hands. At the moment of coming into contact, the mills barrier would certainly move. But you see, the series of actions was that he held the mills barrier with both hands and then backward, pulled it backward.

Court: Mr Shek, just now I -- I just now saw, saw on the screen that the act was that this witness’s hand had not yet touched the mills barrier most of the time.

Mr Shek: That’s right.

Court:The reason why his hand came into contact with the mills barrier was that it was only at the moment when the defendant pushed outthat he put his hand back on the mills barrier and pushed it back. You may again -- the tape is here, and everyone can see it. The question is, witness, you also agree that he probably pushed the mills barrier outwards and then [you] both applied force. I don’t want to be in a situation where I have watched it and before the witness -- and then the witness is gone, and then in making a decision I only rely on what I myself have seen. If you think I’m incorrect in any respect, put it to the witness and see what the witness says.

Q: Witness, want …

Court:Because I believe you have watched this part many times.

Mr Shek: That’s correct.

Q: Witness, please watch this part once more.

(At 2:45 p.m., the court played the video tape)

Q: Witness, I put it to you that …

Court: This one, 41.

Mr Shek: 15:34.

Court: 15:34:41.

Q: At this point of time, you saw the defendant move two steps back and then he was about to lift up the mills barrier, is that correct?

A: I should put it this way, it was the def -- now, from my memory and upon watching this tape, in my memory, I can recall that at that time the defendant was trying to push the mills barrier outwards, and as for me, since he -- for fear that the mills barrier pushed by him would fall onto me, in which case I would be in danger, and in order to protect myself, I applied force and pushed [the barrier] back to him.

Q: Whether or not the defendant was about to push the mills barrier onto you, you didn’t really know, and you just guessed, is that correct?

Court: This he could see, Mr Shek, he said it while he was watching, he -- this is what he said, he was watching the screen here and then said he had such recollection. Why do you say that he would not know if he was pushing it out?

Mr Shek: This is what the def -- this witness inferred what the defendant intended to do and what the purpose of his act was. What we are saying is that, at this point of time, the defendant had moved two steps back and then held the mills barrier with his hand.

Court: But this is already -- what I mean is that it was after the 40^th second, and now we’ve already got to the 41^st second. I have been talking about the very moment at the 40^th second.

Mr Shek: Right.

Court: Not the moment of the 41^st second. At the 41^st second, this witness has now said, ‘I had to protect myself, so I pushed back, I had to push it back, push the mills barrier back in.’ This already went past that, the moment – the moment I referred to just now, which was at 40, the very moment at 34:40.

Mr Shek: I understand what Your Workship has said.

Court: He had just jumped down and then moved two steps. At the moment of his first act, what exactly was the witness himself doing[?] The witness had both hands on the barrier, this witness.

Mr Shek: Right.

Court:Both hands on the barrier, and that is -- I see that the defendant -- I myself see that, I’m not sure if it’s correct, you may -- ask if the witness, he, agrees such description, the witness -- the defendant forcibly pushed the barrier forward once. You may put it in whatever way you like. You may repeat it in your submission. But this is what I see now. Now the witness also says that after watching it, he says that he probably pushed it out, that he was trying to push the mills barrier out. Why then do you say that this is his -- an opinion that he gave? Because I also see that.

Mr Shek: It’s because …

Court: You rewind it and watch.  I can only write down what the witness’s answer is.  However, as to what I see, I also have to make a record, otherwise when it comes to my verdict, it may turn out that you all still don’t know why I hold such view, which is because I have seen it.  You, at the very moment of 39, you see that the witness’s both hands were on the barrier and the defendant’s both hands were on the horizontal bar of the barrier, and then at this very moment he pushed forward once forcibly.  You may watch it again.”

60.First of all, having considered the principles set out in the abovementioned cases of Yeung Mau Lam and Tsang Wai Man and what happened at the trial, I am of the view that the so-called “intervention” made by the magistrate would not cause a reasonable and informed bystander to think that the magistrate had entered the arena, taken over the function of the prosecution or been biased towards the prosecution.  Plainly the magistrate had paid particular attention to any part of the recording that the prosecution did not rely on because the recording had already be adduced as evidence, and he sought clarification from the police officer on that part of the recording which in his view showed that the appellant had pushed the police officer.   In my view, the magistrate had, in focusing on that part of the recording, overlooked the reason why the recording was produced to the court.

61.As I have already mentioned, had it not been the prosecution’s original allegation that the appellant had slapped PC 33650, the defence would never have shown the recording to the police officer for the purpose of weakening his evidence.  On the basis of the recording, the magistrate refused to give any weight to the testimony alleging that the police officer had been slapped by the appellant, but instead found that the appellant had pushed the barrier to hit the police officer and hence committed the offence of assaulting a police officer.  In the special circumstances of the present case, I find that it was unfair to the appellant for the magistrate to convict him, as he did, on a basis different from that presented by the prosecution.

62.Furthermore, it was only after repeatedly watching the still frames in the footage that the police officer “recalled” that the appellant had pushed the barrier and made him feel he was in danger.  As I have said before, had the police officer indeed felt being in danger, he should have mentioned that much earlier, or at the latest, while he was watching the still frames of the recording repeatedly on the first day of his testimony.  However, it was only after a few days, when he was recalled and heard what the magistrate and Mr Shek said they saw in the recording (namely his and the appellant’s acts) that he said he “recalled” the appellant had pushed the barrier and he had felt he was in danger.  Coupled with the fact that the incident happened instantaneously, it is doubtful whether his evidence was credible and reliable.

63.For the above reasons, the conviction on Charge 1 is unsafe and unsatisfactory.

2^nd ground of appeal

64.Although Charge 2 can be said to have arisen from the appellant’s alleged assault on PC 33650, it concerned a separate incident which occurred on board the police vehicle and which involved different police officers.

65.I consider that the way in which the magistrate dealt with Charge 1 resulted in the appellant not receiving a fair trial, and that there are doubts about the credibility and reliability of PC 33650’s evidence that he felt he was in danger because the appellant pushed the barrier towards him.  Nevertheless, there is no information or basis in the present case to show that the magistrate had been biased against the appellant or towards the prosecution.  The verdict returned by the magistrate on Charge 2 was based solely on his findings of fact.  As Mr Shek has conceded, the appellate court will not easily interfere with a magistrate’s findings of fact, and in the present case I see no reason for interfering with the magistrate’s findings of fact.

66.This ground of appeal is not made out.

Conclusion (conviction)

67.I allow the appellant’s appeal against the conviction on Charge 1, quash that conviction and set aside the sentence therefor.  The appeal against the conviction on Charge 2 is dismissed.

Appellant’s background

68.The appellant is 24 years of age and has no criminal record.  His parents have divorced.  After completing secondary education, he studied at the Institute of Vocational Education and then at the Hong Kong Art School, but subsequently had to cease his studies because of financial difficulties.  Since then he has been doing design-related work, but the work is not stable and he also works as a waiter to make both ends meet.

Grounds of appeal (sentence)

69.As I have allowed the appeal against Charge 1 with the conviction thereon quashed and the sentence therfor set aside, I only have to deal with the appeal against sentence in relation to Charge 2.

70.In essence, Mr Shek contends that when the magistrate considered the appropriate sentence in respect of Charge 1, he had improperly included the offence of “unlawful assembly” and the sentence therefor in his consideration and then pointed out that there was a significant aggravating factor in that the appellant had turned a peaceful procession and demonstration into an unlawful assembly.  On this basis, the sentence of 5 months’ imprisonment imposed on the appellant in respect of Charge 1 is, it is submitted, wrong in principle and manifestly excessive.

71.Mr Shek points out that the analysis made by the magistrate had predominantly gone to Charge 1, and in respect of Charge 2, he had merely mentioned that the appellant was on board a vehicle in motion at the material time, that his act of thumping into the police officer was extremely dangerous and obviously antagonistic, and that the seriousness of the present offence was not at the bottom of the scale, and in the end sentenced the appellant to one month’s imprisonment.  Mr Shek submits that the magistrate appeared to have applied the aggravating factor in respect of Charge 1 (namely, unlawful assembly) to Charge 2, and therefore the sentence for Charge 2 is also wrong in principle and manifestly excessive.

72.Mr Shek has relied on HKSAR v Yeung May Wan and others (2005) 8 HKCFAR 137; HKSAR v Lam Kin Chung,unreported, HCMA 908/2008, 2 June 2009; HKSAR v Choy Pun Kim, unreported, HCMA 101/2009, 6 March 2009 and HKSAR v Yiu Chi Shing, unreported, HCMA 350/2010, 29 June 2010 to support his argument.

My considerations and views

73.When Mr Shek made submissions in mitigation, the magistrate referred to the legislation governing unlawful assemblies. This was done for the purpose of showing that disorderly conduct by someone might turn an assembly into an unlawful assembly.  For this reason, the magistrate took the view that the assault committed by the appellant might implicate the peaceful protestors and turn what was initially a peaceful procession and demonstration into an unlawful assembly, and was therefore a significant aggravating factor.

74.A sentencing magistrate must take into account all the circumstances of the case, in particular the circumstances under which the defendant assaulted a police officer.  In the present case I do not think that the magistrate had made any error in principle in considering sentence.  That said, on the facts found by the magistrate (assuming the conviction on Charge 1 had not been quashed), and in light of the appellant’s background and clear record, the term of 5 months’ imprisonment would seem to me to be too severe.  Be that as it may, as the conviction on Charge 1 has been quashed and the sentence therefor set aside, I am only required to deal with the sentence in respect of Charge 2.

75.Viewing his reasons for sentence as a whole, I fail to see that the magistrate had applied to Charge 2 the reasons for sentence in respect of Charge 1.  Although he did not say much in respect of Charge 2, he obviously did separately consider the sentence therefor.  The question now before me is whether the sentence of one month’s imprisonment is too severe.

76.There is no sentencing guideline for this type of offence.  The circumstances of the offence and the backgrounds of defendants differ from case to case, and other decided cases are of limited assistance for sentencing purposes.  For this reason, I do not propose to set out the facts and sentences in the authorities cited by the appellant.

77.I think the court must convey a correct message to the public, that is to say, the court will not be lenient with a defendant who assaults a police officer in the execution of his duty.  Although the appellant is a first offender and still young, his conduct was indeed antagonistic and also dangerous in the circumstances at the material time.  There is no reason to reproach the magistrate for considering an immediate custodial sentence of one month.  Nevertheless, I have taken into account the fact that the original basis of prosecution, namely that the appellant had slapped the police officer with his hand, was not established after trial.  Furthermore, when the appellant was arrested by PC 1558 on board the police vehicle for the “assault offence”, he might be too agitated and, blinded by rage, committed the act of assaulting a police officer in which formed the subject-matter of Charge 2.

78.The appellant has been detained for 14 days and I am of the view that, in the special circumstances of the present case, such detention has sufficiently reflected the defendant’s culpability.

Conclusion

79.For the above reasons, I allow the appeal against sentence in respect of Charge 2.

Summary

80.In respect of Charge 1, the appeal against conviction is allowed, and the conviction is quashed and sentence set aside.  In respect of Charge 2, the appeal against conviction is dismissed but the appeal against sentence allowed, and the sentence of one month’s imprisonment is set aside and the appellant is sentenced to imprisonment for 14 days.

Ms Winnie Lam, Senior Public Prosecutor of the Department of Justice, for the HKSAR

Mr Randy Shek, instructed by Messrs. Ho Tse Wai, Philip Li & Partners, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.