HKSAR v. CHENG WAI KWAN

bjbj HCMA 353/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 353 OF 2005 (ON APPEAL FROM KTCC 585/2005) ____________ BETWEEN HKSAR Respondent and CHENG WAI KWAN Appellant ____________ Before: Deputy High Court Judge Barnes in Court Date of Hearing: 3.6.2005 Date of Judgment: 3.6.2005 Date of handing down Judgment: 7.6.2005 _______________ J U D G M E N T _______________ Background 1. The Appellant was originally charged with the following 4 offences: Common assault, contrary to Common Law and section 40 of the Offences against the Person Ordinance, Cap. 212 (1st charge); Obstructing a public officer, contrary to section 23 of the Summary Offences Ordinance, Cap. 228 (2nd charge); Assaulting a police officer in due execution of his duty, contrary to section 36(b) of Offences Against the Person Ordinance, Cap. 212 (3rd charge); and Obstructing a police officer in due execution of his duty, contrary to section 36(b) of the said Offences Against the Person Ordinance (4th charge). 2. The 2nd charge was withdrawn prior to the trial. The Appellant appeared before Mr. Stephen Smout and pleaded not guilty. The Appellant was convicted of the 1st and 3rd charges after trial. He appealed against the convictions. 3. As the Appellant is Chinese and was not legal represented when he appeared before me, I conducted the hearing in Cantonese. After hearing submissions I dismissed his appeal and I gave oral reasons at the time. I now reduce those reasons in writing. Prosecution case 4. There were 3 witnesses for the Prosecution. PW1 was a senior housing assistant of the Housing Department, PW2 and PW3 were both police officers. 5. PW1 testified his job involved the issuance of tickets for unlawful parking. At the material time he was at an area (San Po Kong Factory Estate) where the buildings were due for demolition and 90% of the occupants had moved out. He issued a ticket in respect of a particular vehicle when the Appellant came over to him in anger, swearing at him and threatened to beat him to death if he did not permit the Appellant to unload good there. PW1 explained to the Appellant that he was carrying out his duties and asked the Appellant not to obstruct him. The Appellant used his right hand to push PW1 s left shoulder once. PW1 lost balance and back-stepped two paces. PW1 s colleagues persuaded the Appellant to calm down and the Appellant entered a nearby shop. PW1 reported the matter to the police and upon the police arrival PW1 pointed out the shop the Appellant had entered. 6. PW1 testified that before that particular incident with the Appellant, he had told a lady, who was there unloading goods, to drive away after unloading. He denied having told that lady to move the vehicle some 40-50 metres away. PW1 said he had frequently seen that lady inside the shop the Appellant had entered that day. PW1 confirmed that the Appellant had only pushed him once and he had told the police just so. 7. After PW2 arrived at the scene, PW1 pointed out the shop to him. PW2 then entered the shop to make enquiries. He found the Appellant and a lady inside. PW2 asked the Appellant what had happened. The Appellant lost his temper and scolded PW2 continuously with foul language, saying that his shop was a private place. PW2 then told the Appellant he was investigating an allegation that the Appellant had pushed someone. The lady, who was the Appellant s wife, tried to calm the Appellant down. 8. PW2 asked the Appellant to co-operate and requested the Appellant to produce his identity card. PW2 also told the Appellant if he did not co-operate he might be guilty of obstructing a police officer in due execution of his duty. The Appellant suddenly walked towards PW2 and elbowed PW2 once on the chest with his left arm. PW2 stepped backwards and bumped against a door. PW2 requested assistance through the console. The Appellant took an iron bar and pulled the rolling gate of the shop all the way down to the bottom, thus trapping PW2 inside the shop. 9. The Appellant approached PW2 and said If you want to play it big, I will play it big with you. The Appellant s wife stood in his way and the Appellant scolded her as well. Both PW2 and the wife sought to calm the Appellant down. Eventually the Appellant put down the iron bar and went inside a room in the shop to make telephone calls. The Appellant s wife then rolled up the gate. 10. The Appellant was later arrested by PW3. The Defence case 11. The Appellant testified that he was a diabetic who needed to have insulin injection everyday. At the material time he was conscious and not feeling ill. His family has operated a glass business at the shop for 40 years. The Appellant said he did not push PW1 nor elbow PW2. He said he did not know why the two made those allegations against him. He said he did not feel he had used foul language though it was possible that his manner of speech offended them. He said he only pulled the rolling gate half-way down to waist level. 12. The Appellant called a Defence witness Ho Shing (DW2) to give evidence. DW2 operated a business close to the Appellant s. DW2 was present when the Housing Department staff and the police were at the Appellant s shop. He said there was an altercation. The person from the Housing Department issued a ticket preventing the Appellant from unloading goods and said, I have never been scared of anyone. DW2 said he did not see the Appellant pushing that person but that person still made a report to the police. That person also said to the Appellant, Now let s see you get out of this. DW2 subsequently saw the police entering the Appellant s shop. DW2 said he could see inside the shop. He also said the rolling gate was pulled down to about waist high. Grounds of appeal 13. The Appellant reiterated that he was innocent, saying that he did not push PW1 or elbow PW2. He said he came to appeal because he wanted justice and the truth. He felt aggrieved that he was framed-up by PW1 and PW2. 14. The Appellant pointed out the discrepancies between PW1 and PW2 as to how many times he had allegedly pushed PW1. Further, the Appellant submitted that since the elbowing was done, according to PW2, before he pulled down the rolling gate, there is no reason why PW1 did not witness that from outside the shop. He said the learned Magistrate should have believed his testimony and not blindly accepted those of PW1 and PW2. 15. He complained against his counsel, saying that his counsel had failed to put questions to the witnesses and/or point out discrepancies. He also accused the learned Magistrate of failing to ask him questions or to let him address the court. Judgment 16. In his detailed Statement of Findings the learned Magistrate set out the evidence. The learned magistrate was fully aware of the discrepancies between PW1 and PW2, particularly as to how many times PW1 was pushed. PW1 clearly said there was only one push. PW2 in his evidence said PW1 told him that the Appellant pushed him twice. The learned Magistrate found that there was indeed only one push. He said the discrepancy arose as a result of PW2 either having misheard PW1 or remembering incorrectly what was said. 17. The learned Magistrate was also aware of the fact that when PW2 gave evidence in court he said there was some redness to his chest, when in PW2 s witness statement PW2 had written down he found no mark or injury upon examination. The learned Magistrate accepted PW2 s explanation in court, i.e. by the time he made his witness statement at the police station the redness had gone. 18. The learned Magistrate has fully evaluated all the evidence before him and dealt with the discrepancies. He rejected the Appellant s version of the event. He also found DW2 not a witness of truth. In short, the learned Magistrate has not blindly accepted the evidence of PW1 and PW2, as alleged by the Appellant. 19. Although the Appellant appeared to be dissatisfied with the performance of his counsel and alleged that counsel did not put questions to the witnesses and/or raised discrepancies, it is quite clear from the cross-examination set out by the learned Magistrate that his counsel did test the testimony of the Prosecution witnesses and did raise the issues of discrepancies with the learned Magistrate. 20. The Appellant submitted that the learned Magistrate should have asked him questions to find out the truth, and should have given him the opportunity to address the court so that the Appellant could point out all the discrepancies. The Appellant said he has come to the appeal court to seek justice and the truth due to the learned Magistrate s failure to do so. 21. The Appellant was legally represented at the trial. That being the case the Appellant could not expect the learned Magistrate to ask him questions to find out the truth, as he put it. Further, being legally represented the Appellant has chosen to have his counsel addressed the court on his behalf. He could not expect the learned Magistrate to let him have another go after his own lawyer has made the final submission. 22. It is apparent to me that the Appellant felt extremely aggrieved. However, the reiterations that he has not committed the offences charged and/or that he was framed-up do not amount to grounds of appeal. The Appellant has to show me that the conviction was either unsafe or unsatisfactory. 23. Having read the Statement of Findings I can find no fault. The conviction was neither unsafe nor unsatisfactory. For these reasons I dismissed the appeal. Judianna Barnes Deputy High Court Judge Ms 1udk P Q R S T U V A B C D E F G H I J K L M N O P Q R S T U V &`#$ &`#$ HCMA 372/2005 setup Normal.dot setup Microsoft Word 9.0 Judiciary Hong Kong SAR HCMA 372/2005 Title Microsoft Word Document MSWordDoc Word.Document.8