1. Background 1.1 The Appellant, then a serving Superintendent of Police, was charged with one charge of Assault Occasioning Actual Bodily Harm. He pleaded not guilty and was convicted after trial. The Principal Magistrate sentenced him to three months’ imprisonment. He appealed against the conviction and sentence. 1.2 On the day of the incident, the Appellant was deployed as the Company Commander in charge of Tier II New Territories South Company to conduct crowd control at Argyle Street, Mong Kok. It was alleged that, when the Appellant was discharging his duty, he hit with his baton a man (PW1) who was one of the persons in the crowd which the Police sought to control. 1.3 There was no dispute that PW1 had been hit by the Appellant with his baton though whether actual bodily harm had been caused as alleged was in dispute. The thrust of the defence case was that the action of the Appellant was conducted as a means to control the crowd and for prevention of crime. He did not have the mens rea required for the offence and in any case he was exempted from liability by operation of certain statutory provisions. 1.4 The grounds of appeal put forward on his behalf are: (1) The Magistrate erred in relation to the mens rea of the Appellant. (2) She failed to adequately consider whether the Appellant was mistaken as to the factual situation. (3) She erred in her finding of fact impacting on her assessment of the Appellant’s honest belief in the necessity and lawfulness of his conduct. (4) She wrongly accepted PW1’s evidence in its entirety. (5) She erred in finding that the Appellant’s blow caused the injury. (6) She erred in her assessment as to whether the strike was justified. 2. Application to adduce new evidence: 2.1 The Appellant sought to adduce for the purpose of the appeal additional evidence which is a CD-rom containing a video footage purported to be downloaded from YouTube depicting events that occurred in Mong Kok shortly before the incident. 2.2 Section 118(1)(b) of the Magistrates Ordinance provides: “… If the judge thinks additional evidence to be necessary he may receive such evidence, and for that purpose shall have the like powers under subsections (1) and (6) to (17) of section 83V of the Criminal Procedure Ordinance (Cap. 221) that the Court of Appeal would have had if the appeal had been an appeal to which that section applied, …” 2.3 The explanation for not adducing the evidence at the time of the trial was that it had not been found. The Court accepts the explanation as reasonable and is of the view that the evidence would have been admissible at the trial. 2.4 Nevertheless, as the proposed new evidence would not afford any ground for allowing the appeal, the Court considers it not necessary to receive it and refuses the application. 3. Appeal against conviction: 3.1 Assault includes battery which is an intentional or reckless act of the accused by which he applies unlawful force to another person. There are circumstances in which force may be applied lawfully to another person. Obvious examples are self-defence, prevention of crime or where the person consents to the force applied to him. If lawfulness of the act is a live issue, it is for the prosecution to prove the unlawfulness. The mental element to be proved is an intent to apply unlawful force. 3.2 In deciding these issues, if there is credible evidence which shows that the accused might have been labouring under a mistake of facts, he is to be judged according to his mistaken view of the facts, whether or not that mistake is, on an objective view, reasonable or not. 3.3 Reasonableness, however, is a factor in deciding whether the alleged perception or belief is to be accepted or not. 3.4 The law is not that if a person believes, or may be believing, that the situation requires him to use force, he can use whatever force to achieve the aim, say as in the present case, to prevent crime. Excessive force cannot be used, otherwise it would justify shooting of someone who is merely threatening to throw a punch. 3.5 Whether the force used is excessive has to be gauged in the light of what that person believes the circumstances to be. 3.6 In the present case, the relevant state of mind of the Appellant is what he had at the time he struck his baton and shortly before that. 3.7 The Principal Magistrate was aware that the Appellant was a senior police officer as well as his role and duties in the difficult time. 3.8 She found PW1 credible. The Court does not find her erred in accepting the evidence of PW1 in particular the part of his evidence which was material to her decision on what the Prosecution had to prove. 3.9 The video footages produced at trial, despite short, show a situation generally consistent with the finding of the Principal Magistrate. 3.10 The Principal Magistrate also found: (1) The Appellant did not honestly believe PW1 was actively aggressive to his colleague; and (2) Even if he did, he was not justified in the circumstances in hitting PW1 from behind with his baton as he was seen to do. 3.11 The Appellant said it was his perception and belief that PW1 was aggressive and / or not complying with police order. The Principal Magistrate was entitled to find on evidence in particular the video footages that PW1 was not aggressive and was complying with order. As regards the state of mind of the Appellant, the Court agrees with the Principal Magistrate that it was not reasonable for the Appellant to have the perception and belief he alleged to have. There is no sufficient reason for the Court to interfere with the decision of the Principal Magistrate in rejecting the asserted perception and belief of the Appellant. 3.12 Further, the Principal Magistrate was entitled to find the required intent: the intent to apply unlawful force, being the only reasonable inference supported by the evidence. It was not necessary for the Principal Magistrate to find that the Appellant had some sinister or improper motive. 3.13 The Principal Magistrate found that PW1 had suffered actual bodily harm at the left side of his neck and this was caused by the strike with the baton by the Appellant. She found that “the force applied by the Appellant on PW1 with his baton was neither technical nor trivial and the accompanying pain PW1 suffered was neither trifling nor transitory.” 3.14 Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury need not be permanent but must be more than mere transient or trifling. 3.15 The Court does not consider the Principal Magistrate erred in making the finding that by striking his baton on PW1, the Appellant had assaulted PW1 occasioning him actual bodily harm. 3.16 Sections 45, 46 and 53 of the Public Order Ordinance were put forward to justify the actions of the Appellant. 3.17 The key words in section 45(a) are “may use such force as may be necessary” and “to prevent the commission or continuance of any offence”. 3.18 The Principal Magistrate found that the appellant was not justified to use any force at all, it follows that the question whether the level of force was reasonable did not arise. In any case, she did consider further and found the level of force used was not reasonable in the circumstances. The court finds her conclusion justified on evidence and also agrees that section 45 and section 46 are not applicable in the circumstances. 3.19 As regards section 53, the Court agrees with the Principal Magistrate that it only covers civil proceedings and not criminal proceedings. 3.20 Having considered the evidence and the reasons for the verdict, the Court considers the findings and conclusion of the Principal Magistrate reasonable and sufficiently supported by evidence. The conviction is neither unsafe nor unsatisfactory. 3.21 The appeal against conviction is therefore dismissed. 4. Appeal against sentence: 4.1 It was an unlawful act performed by a senior police officer in the course of duty. A law abiding citizen is entitled to expect no such thing to happen on him. If that happens, public confidence is shaken. That the act was done by a senior police officer in the presence of other officers including his subordinates further aggravated the matter. There is a reasonable expectation from the community of what a senior police officer should do and not do. What the Appellant did failed to meet the expectation. He also set a very bad example to his subordinates. 4.2 There is no doubt that the Appellant and his colleagues were in a very difficult situation. However, at the moment before the strike, PW1 was amongst a crowd of people moving steadily on the pavement and there was no sign of non-compliance, let alone any aggressive or abusive behaviour either on the part of PW1 or the people around him. 4.3 A police baton is a potent weapon. On this occasion, the baton was raised high and the strike was not applied without force, it landed near the neck of PW1. Despite there was only one strike, it was not a strike as a gesture. It occasioned actual bodily harm which was not serious. Had PW1 not put the clothing on that part of the body the consequence would have been more harmful. 4.4 There is substantial element of public interest in the present case. In all the circumstances, the Court is of the view that it is not wrong in principle to impose an immediate custodial sentence. 4.5 Four months as the starting point is a heavy penalty. However, taking into account the whole circumstances, it is within the reasonable range. The discount of one month is sufficient in the circumstances of the case. 4.6 As the Appellant does not show he has genuine remorse, it is right not to impose a Community Service Order. 4.7 It is also correct not to suspend the sentence. 4.8 No matter how much sympathy the Court has on the Appellant, and despite the Appellant had already spent 16 days in custody, the Court cannot accept that it is correct to order conditional discharge as the Appellant urged the Court to do. 4.9 The Court does not find the sentence imposed wrong in principle or manifestly excessive. The appeal against sentence is therefore also dismissed.