HCMA 897/2003







HKSAR Respondent
YIP SHU KAI (葉樹佳) Appellant


Coram: Hon Beeson J in Court

Date of Hearing: 27 May 2004

Date of Judgment: 27 May 2004




1. This Appellant was convicted in the Magistracy of six charges, the first being Obstructing a Police Officer in the Due Executionof his Duty, contrary to section 36(b) of the Offences Against the person Ordinance, Cap. 212. The 2nd charge was Resisting a PoliceOfficer in the Due Execution of his Duty, contrary to the same section. Charges 3 and 4 related to his Assaulting a Police Officerin the Due Execution of his Duty, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212. Charge 5 was Driving while Disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap. 374 and Charge 6 was Using a Vehicle Without Third Party Insurance, contrary to sections 4(1) and 4(2)(a) of the Motor VehicleInsurance (Third Party Risks) Ordinance, Cap. 272.

2. The Appellant was convicted after a trial lasting several days. He was represented at trial. He was fined $2,000 on each of Charges1 and 2. On each of Charges 3 and 4, he was sentenced to 7 days imprisonment, which sentences were ordered to run concurrently. Oneach of Charges 5 and 6, he was sentenced to 28 days imprisonment to run concurrently with each other, but consecutively to Charges3 and 4; that made a total of 35 days imprisonment. He was disqualified from holding or obtaining a driving licence for all classesof vehicle for a period of 12 months on Charges 5 and 6. Both disqualification periods were to run concurrently with each other,but consecutively to an existing disqualification order. The Appellant appealed against his conviction on all charges.

3. The prosecution case alleged that police followed a car up Tai Mo Shan Road in the early hours of the morning, saw the car stop andthen saw the driver climb from the front driver’s seat into the rear passenger seat behind the front passenger. At that stage, thepolice investigated and found the Appellant in the nearside rear seat and a woman sitting in the front passenger seat. The car enginewas running and the lights were on. When asked why he climbed over to the rear seat the Appellant said: “It’s not me who drove thecar up here, Ah Sir, don’t force me to admit that – it’s my friend who drove the vehicle up here – I don’t even have a licence.”The Appellant was asked to alight from the car and to produce his driving licence. At that stage, he started to yell and shout repeatingthat he was not driving. He was warned for obstructing and ignored the warning. He was eventually handcuffed after a fracas and arrestedfor obstruction. Later a struggle ensued during which he assaulted two officers.

4. The Appellant’s case was that he had gone out with friends, initially to go fishing, but when that had been unsuccessful, they allwent looking for cows to stroke on Tai Mo Shan. Various witnesses were called on behalf of the Appellant and in a lengthy Statementof Findings the Magistrate dealt with the evidence. The standard Ground of Appeal initially relied on was that there was insufficientevidence to convict the Appellant.

5. At this appeal, more details of the grounds were given by the Appellant, who appeared in person. The first complaint was that attrial he had asked his lawyer to obtain police notebooks containing records made by the police at the scene. These were said to relateto a witness who, allegedly, saw the police beating up the Appellant. The Magistrate was said to have acted unfairly for not havingallowed the notebooks to be produced.

6. The Statement of Findings shows that this matter was dealt with at trial, after an extensive pre-trial review at which no requestwas made for production of the notebooks. The Magistrate made the decision, on the facts a proper one, not to allow further adjournmentof the trial for production of the notebooks. [B30 – paras 33, 34, 35 refers]

7. The second complaint was that the evidence of the police officers was contradictory because of discrepancies in their evidence andit was submitted, because they had lied to the court.

8. As the whole case turned on the credibility of the prosecution witnesses the matter was dealt with extensively by the Magistrate.It was for him to decide whose evidence he accepted and whose he rejected. The Magistrate gave himself the appropriate warnings andwas aware of the need for certainty. He was in a better position to assess the witnesses’ credibility than this court is now.

9. The Appellant’s third complaint was that the Magistrate had not accepted photographs which showed injuries on the Appellant, as supportinghis account of having been assaulted by the police. The Magistrate concluded, having taken the evidence and the photographs (ExhibitD1) into account, that the injuries, such as they were, occurred in the course of the struggle, not in the course of a beating-upas the Appellant alleged.

10. A further complaint was that the Magistrate had not made a proper finding in relation to the headlights of the police car illuminatingthe vehicle which the Appellant was allegedly driving. The Appellant suggested there was no way the police could have seen into thecar, if the car had been travelling up-slope ahead of the police vehicle. Again, that was a matter for the Magistrate and it wascanvassed fully at trial by the Appellant’s solicitor. The Magistrate accepted the police evidence.

11. The Appellant alleged that the Magistrate was biased against him because in his Statement of Findings he said that he did not havea good opinion of the Appellant’s witnesses, found them not to be honest and complained of gestures they made in court. Althoughit is correct that the Magistrate said that he found the defence witnesses not to be honest, there was no complaint by him of gesturesmade by the witnesses in court. Nor had he treated them as being disrespectful to the court by reason of gestures they made, or forany other reason.

12. What the Appellant was saying on appeal was that the Magistrate had acted unfairly and wrongly believed the police officers’ evidence.I am satisfied, however, there is no substance in any of the Appellant’s complaints.

13. The trial was lengthy; he was represented; he called witnesses. The Magistrate had given a detailed account of the facts, the witnessesand the reasons why he accepted the police evidence. It appeared that the Appellant wished to re-try the matter on appeal, but thatis not the function of this court.

14. No grounds of substance, or indeed any grounds at all, have been established and the appeal against conviction is dismissed.

(C-M Beeson)
Judge of the Court of First Instance


Miss Chan F S Denise, SGC, of Department of Justice, for the Respondent

Yip Shu Kai, the Appellant, in person