HKSAR v. QADEER, ABDUL

HCMA 427/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 427 OF 2013

(ON APPEAL FROM KCCC 4438 OF 2012)

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BETWEEN
	HKSAR	Respondent
and
	QADEER, ABDUL	Appellant

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Before: The Honourable Mrs Justice V Bokhary in Court

Dates of Hearing: 29 January 2014

Date of Judgment: 29 January 2014

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J U D G M E N T

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1.  This Appellant appeared in the Magistrates' Court on two charges, one of criminal damage, to which he pleaded guilty, and one of resisting a police officer, of which he was convicted after trial. He now appeals against this conviction.

2.  Two perfected grounds of appeal have been filed on his behalf. They read as follows:

“(1) Having recognized "that there were discrepancies among the evidence of the prosecution witnesses" and then, in finding that such discrepancies "were of insignificant materiality", the Learned Deputy Magistrate failed to give due, proper and sufficient weight to the evidence of PW2 (being the security guard at the time of incident at the concerned location and the only independent civilian prosecution witness) in that PW2 clearly and unequivocally agreed that the Appellant did not resist, struggle, or the like, there being no basis to discredit his evidence whatsoever or otherwise.

(2) While it is accepted that PW2 was watching the police investigation and "keeping order" as security guard, the Learned Deputy Magistrate erred in assuming, in her Statement of Findings dated 2^nd July 2013, that PW2 "[o]bviously… was not paying full attention to what was happening between the police officers and the appellant" and also that PW2 "misunderstood part of the sequence of the arrest process and that led to some minor confusion as to part of his evidence", there being no basis (evidential or otherwise) for the drawing of such conclusions, inferences and/or findings.

By reason of the foregoing grounds, the conviction is unsafe and unsatisfactory.”

3.  These grounds have been very fully and ably argued on the Appellant's behalf. At the end of the day, however, I think that the Magistrate was entitled to accept the evidence of the police officers that the Appellant had resisted even though the security guard agreed with

the suggestion put to him by the defence in cross-examination that the Appellant did not resist, struggle or the like. It is the experience of the courts that some witnesses do not observe things as clearly as others, especially when those others were more closely involved in what was happening. Certainly the police officers were far more closely
involved in what was happening than the security guard. The Magistrate had the advantage of seeing and hearing all the witnesses, and I do not find a sufficient basis on which to overturn her view of the facts.

4.  In the result, despite the skill with which this appeal was argued on the Appellant's behalf, I dismiss the appeal.

(V Bokhary) Judge of the Court of First Instance High Court

 

Mr MohammedJawadullahShah, instructed by Massie & Clement (assigned by Legal Aid Department),for the appellant

Mr Franco Kuan, of the Department of Justice, for the respondent