HKSAR v. TUNG MAN KEUNG

HCMA000175/1998

HCMA175/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO.175 OF 1998

—————

BETWEEN
HKSAR Respondent
AND
TUNG MAN KEUNG Appellant

—————

Coram : Deputy Judge Muttrie in Court

Date of Hearing : 14 October 1998

Date of Judgment : 10 November 1998

———————–

J U D G M E N T

———————–

1. The Appellant was found guilty after trial of obstructing a police officer in the due execution of his duty, and sentenced to paya fine of $10,000. He appeals against conviction.

2. On 18th July 1997 at about 4.45 in the morning the Appellant, who was D2 in the court below, and his girl friend Miss Lam Wai Ching,Michelle, who was D1, were in the Appellant’s motor car, No.FH 149. Miss Lam was driving. The car went out of control on WaterlooRoad and struck the central divider. Police came on the scene. Both Defendants smelt of alcohol. Ultimately an attempt was made tosubject Miss Lam to a screening breath test, colloquially known as a “breathalyser”. She refused to give a specimen of breath. Itwas alleged that the Appellant obstructed PC 19993 Kung Cho Ping, who was trying to obtain the specimen. After trial the Appellantwas convicted of this offence. Miss Lam was convicted of careless driving, but not of the breath test offence. The learned Magistrateaccepted that the request for the test had been deficient.

3. The learned Magistrate in particular found that the Appellant was increasingly and persistently abusive, aggressive and hostile upto the time of the deficient request and that by leading Miss Lam, who had up to then not refused to give a specimen, away from theinvestigation, he went “way beyond any reasonable exercise of any legal rights which he might have had, whether as a friend or solicitorof Miss Lam.” (The Appellant is a practising solicitor). He further found that the Appellant’s removal of Miss Lam actually and deliberatelyprevented the requesting officer from carrying out his duty.

4. There is no dispute that the prosecution evidence as to the Appellant’s actions was sufficient for the Magistrate, having acceptedit, to convict the Appellant. The evidence of the Appellant and Miss Lam was to the effect that the Appellant supported Miss Lam,in his role as her friend and her solicitor, in the exercise of her rights. The learned Magistrate accepted the evidence of the policeofficers and rejected that of the Appellant and Miss Lam. The appeal is brought on the basis that the learned Magistrate erred inlaw and in fact in so doing.

5. In brief the grounds of appeal are :-

1. The learned Magistrate erred in law and fact in rejecting the evidence of the Appellant and Miss Lam in that he relied heavilyon their demeanour rather than testing their evidence against all the evidence;

2. he erred in law and in fact in accepting the police witnesses as truthful when a video tape of the scene did not corroborate consistentlywith their evidence;

3. he misdirected himself on the burden of proof when he rejected the evidence of Miss Lam because he believed the officers;

4. he misdirected himself by comparing the evidence of the police to that of the Appellant on the basis that the police are less likelyto lie;

5. he erred in law and fact when finding that the Appellant’s complaints as to lack of courtesy by the police were irrelevant in thatsuch complaints were substantiated by the tape and an admission by PW8 under cross-examination;

6. he misconceived the Appellant’s case in finding that provocation was not an issue;

7. in all the circumstances the conviction is unsafe and unsatisfactory.

6. Much of the argument in this case was based on what appeared on the video tape. This tape was taken by a police traffic camera mountedat the road junction. I have had the benefit of seeing it in court and, with the agreement of Counsel, I have viewed it on my ownsubsequently. I have to say that the tape, as I have viewed it, seems to be in no way inconsistent with the overall finding of thelearned Magistrate that the Appellant was “increasingly and persistently abusive, aggressive and unseemly hostile in the minutesleading up to the deficient request”. Nor is it in any way inconsistent with the finding that the Appellant led Miss Lam “purposefullyaway from the requesting officer in the middle of his investigation into a possible drink-driving offence”. It is argued that shewalked to the car of her own accord, and no doubt she did; but that was after the Appellant put his arm around her and effectivelyled her, in this way, out of the group of police officers surrounding her.

7. The first ground of appeal goes to the learned Magistrate’s reliance on demeanour. In support of this ground, Counsel cited the casesof R. v. Ng Wing-ming [1995] 1 HKCLR 64 and R. v. Chong Luen-shing [1994] 3 HKC 451. Of course it must be accepted that a magistrate should look first at the inherent probabilities as the first point of reference,before considering demeanour; but he is entitled to consider demeanour. In fact he did say that he found the Appellant’s evidenceto be inherently improbable, and further that the evidence of Miss Lam coincided to a great extent with that of the Appellant, whomhe found to be untruthful.

8. D1 said that she felt unwell at the scene. When she was asked how the accident happened, she refused to answer on the Appellant’sadvice, and asked the officer to let her see a doctor. Later, she told screening test officer PW7 that she had a stomach-ache, wantedto see a doctor and did not want to conduct the breath screening test. In fact D1 was taken to the Kwong Wah Hospital and complainedof epigastric pain. She was given antacid tablets and a pain-killer injection.

9. I was also shown a scene from the video tape in which, after the Appellant had been arrested and D1 had been sitting in the car forsome time, she got out, apparently retched and then leant against the car door, as indicating that she obviously felt unwell. I haveto say that I could not see any clear indication that she retched, though she did lean on the car door.

10. Much was made of this evidence as indicating an inherent probability that she had been unwell throughout and had indeed indicatedthat she wanted to see a doctor rather than answer questions or give a breath specimen.

11. It has to be noted, however, that there was no evidence from the doctor as to when the Appellant’s stomach pain might have come on,and certainly from her first appearance on the video tape up to the time of her being put into the car by the Appellant after therefusal of the breath test, there is nothing obviously wrong with her. She spent a lot of time apparently talking on a portable telephoneand her condition looked somewhat agitated as it might well have been, but there was nothing to indicate that she was in need ofmedical attention.

12. So the argument that the learned Magistrate in effect missed an inherent improbability while concentrating on demeanour does not,it seems to me, have merit.

13. There is of course nothing inherently wrong in the learned Magistrate’s having watched the demeanour of Miss Lam, in giving her evidence,as she looked towards the Appellant before she answered questions. There is certainly nothing wrong in his considering the evasiveanswers of the Appellant on the question of the advice given by him to Miss Lam and the effect of solicitor-client privilege on hisreplies. I did not have the benefit, as did the learned Magistrate, of seeing and hearing the witnesses; but having read the relevantpassages to which he refers, I cannot say that I am surprised that he made the findings as to the credibility of the Appellant whichhe did.

14. The learned Magistrate went through the evidence in some detail and while he obviously relied strongly on demeanour, I do not seethat it can be said that he neglected the inherent probabilities or improbabilities in the situation. I have dealt above with theargument on the evidence of D1 and further, it must be said that the inherent probability in the scene shown on the tape favouredrather straightforward obstruction by a truculent and aggressive defendant rather than the protection of the legal rights of a driverwho may have committed an offence of drink-driving.

15. I turn to the second ground of appeal. Of course it may be said that the tape did not “corroborate consistently” the evidence ofthe officers. This is not surprising in that the evidence was not itself entirely consistent. There were discrepancies in that evidence.That there should have been, when there were a number of witnesses all milling around at the scene, was not surprising. The learnedMagistrate dealt properly with those discrepancies and having done so accepted the evidence of the police officers as he was entitledto do. Of course it is possible to go through the tape and the evidence, and compare them minutely and find inconsistencies. Thelearned Magistrate heard the police officers cross-examined at great length and with great skill. He saw the video and heard considerableargument about it. It cannot be said that he failed properly to deal with the discrepancies in the evidence and on the tape and havingdone so, he accepted the evidence of the police officers, as he was entitled to do.

16. The third ground of appeal may be answered quite simply as Mr Wong, Senior Government Counsel, answered it before me. The learnedMagistrate was writing his Statement of Findings after the event. He had reminded himself before reaching his verdict of the continuingonus of proof which lay on the prosecution, and he had at that stage given himself a good character direction in respect of boththe defendants. Perhaps his choice of language was infelicitous but it cannot be taken as indicating that he misdirected himselfas to the onus of proof.

17. The fourth ground relates to the terms used by the learned Magistrate in referring to the conduct of PW8 as against that of the Appellant.This should perhaps be considered along with the fifth ground which also relates to the actions of PW8. Now it is true that PW8 appearsto have lost his temper and to have departed from the standards expected of the police. He can clearly be seen on the tape “givingthe finger” to the Appellant. One cannot condone this and the learned Magistrate did not, but given the rest of the scenario as depictedon the tape, one is not entirely surprised to see it. The point is that the learned Magistrate dealt with this. He dealt with itspossible effect on the credibility of the police generally and PW8 in particular. It was his function to do that and he did it andit cannot be said that he took the stance that the police were more likely to be telling the truth. The point is that courtesy andveracity do not necessarily go together. Failure to admit a lapse in courtesy may impugn credibility; but it cannot be said thatthe learned Magistrate failed to consider that possibility or that having considered it the conclusion to which he came is not supportable.

18. The sixth ground relating to provocation goes to the question of credibility. Of course provocation was not an issue in the sensethat it might have afforded some kind of defence. The point of the ground seems to be the credibility of the police and I think thiswas adequately dealt with by the learned Magistrate.

19. Overall I have come to the conclusion that the learned Magistrate’s verdict cannot be said to be unsafe or unsatisfactory. Ultimately,the case depended on credibility; he considered the various issues relating to credibility and came to his decision; and it cannotbe said that that decision was reached in a faulty way.

(G.P. Muttrie)
Deputy Judge of the Court of First Instance,
High Court

Representation:

Mr Wesley W.C. Wong, SGC, inst’d by DPP, for HKSAR

Mrs Lily Yew, inst’d by M/s George Tung, Jimmy Ng & Valent Tse, for the Appellant