HKSAR v. BROOK EDWARD JOSHUA

HCMA 590/2019

[2020] HKCFI 1805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 590 OF 2019

(ON APPEAL FROM ESCC NO 2138 OF 2018)

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BETWEEN

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JUDGMENT

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Introduction

1.  The appellant was convicted after trial before Ms Veronica Heung, Magistrate, on 30 September 2019, of a single charge of Criminal Damage contrary to section 60(1) of the Crimes Ordinance, Cap 200.  He was fined $3,000 and ordered to pay compensation in the sum of $4,500.  By his notice of appeal, dated 30 September 2019, the appellant appealed his conviction on the grounds that it was against the weight of the evidence.

The Prosecution Case

2.  On 16 March 2018, the appellant and one other person, were attempting to hail a taxi outside of No 55 Wyndham Street at approximately 11.00 p.m. PW2, a taxi driver, had just dropped off a passenger in Wellington Street and intended to go for a meal.  As a result, he covered his ‘For Hire’ sign.  When travelling along Wyndham Street, he noticed the appellant and a lady who were standing on the left hand side of the road in between a line of stationary vehicles.  He could see that the appellant was trying to hail a taxi.  As the taxi approached the appellant, PW2 made a gesture to indicate he was not for hire.  As the traffic was congested, at the point the taxi was adjacent to the appellant, he wound down his window and told the appellant he was not in service.  As PW2 moved off, he heard a loud bang and looked to his rear to see the appellant stepping away from the vehicle.  There was no one else in the vicinity save for the appellant and his companion.  The taxi driver got out of his vehicle and noticed a dent to the left of the filler cap on the near side. The taxi driver accused the appellant of kicking his taxi to which the appellant replied “It’s me who kicked your taxi.  You didn’t drive me home.”

The Defence Case

3.  The appellant, as is his right, did not give or call any evidence in trial.  Mr Reading SC, who represented him at trial as he does today, put his case in this way.  He denied he had ever kicked the taxi in the manner suggested and he denied he had told the taxi driver he had done so.  The evidence of the physical state of the taxi prior to the event in question was equivocal.  PW1, the taxi owner, was of no assistance to the court in this respect and the evidence of PW2 was undermined.  He was not a man of good character and two of his previous offences related to his job as a taxi driver and were suggestive of a degree of dishonesty.  His oral evidence was inconsistent with his four witness statements and with the evidence of PW3 and PW4. The evidence alleged a dent of some 8 inches in length and one inch wide[1]. Its position was inconsistent with a kick by the appellant[2].  As to the event itself, it was suggested that the appellant was seeking to hail a taxi.  The ‘Not for Hire’ sign was not displayed (or not displayed properly) and the light from the ‘For Hire’ sign was illuminated.  The taxi drove so close to the appellant that he had to jump out of the way and when he realised the taxi driver was not going to pick him up he was angry.  Because the taxi had driven so close, he had lashed out with his foot and made contact with the bottom of the nearside rear passenger door.  He accepted that he had abuse at the driver in Cantonese.

The Grounds of Appeal

4.  In his perfected grounds of appeal, the appellant relies upon the single ground that there was a lurking doubt in this matter, the benefit of which should have been given to the appellant.  In summary he submits that doubt arose because:

(i) The only evidence that the appellant kicked the taxi came from a voluntary witness statement [P7], which the appellant provided to the police.

(ii) That voluntary statement was a mixed statement made in the course of a complaint being made against the taxi driver [PW2] for, inter alia, his manner of driving, and whilst the appellant admitted kicking the taxi, he did not admit kicking it in the place where the taxi was damaged, namely adjacent to the gas cap, but instead “near the bottom of the rear side door”, where there was no damage.

(iii) In considering the contents of the mixed statement made by the appellant, the learned magistrate did not properly evaluate the statement in that, she did not give sufficient weight to the explanation given by the appellant in the course of his admitting that he kicked the taxi.

(iv) The appellant is a person of previous good character.

(v) The taxi driver, PW2, was not a person of good character, having previously been convicted on two separate occasions of offences concerning the hiring of his taxi when he attempted to cheat would-be tourists, and part of the appellant’s allegation against PW2 was that he refused to accept the appellant and his distraught companion as passengers.

(vi) PW2 alleged he had checked the taxi before he commenced driving it that day, and had not seen any damage.

(vii) PW2 initially claimed $25,000 compensation for the damage to the taxi, when the cost of repairs to the taxi was $4,500.  He had previously told a police officer that part of the claim was for pain and suffering because the appellant had hurt his feelings, but gave a completely different reason for the exorbitant claim when giving evidence.

(viii) The taxis managed by PW1 were parked in the street in the one area – the first shift driver would park the taxi and the second shift driver would drive it away.  PW1 claimed that he usually inspected the taxi after it was parked and before the second driver drove it, for damage. He said in cross-examination, conceding that the damage to the taxi was slight, that he did not check all of the 50 taxis he managed – although he said in evidence in chief that he checked the taxi for damage before PW2 took over driving, he conceded in cross-examination that he was not sure that he had checked it on that day.  He said he relied on drivers to inform him if a taxi was damaged.

(ix) The appellant is 60 years of age and well over 6 feet in height [but not 7 feet as PW2 had suggested].  The evidence of PW2 was that he drove within 2 to 3 feet of the appellant and his companion – in this location because cars park on the nearside of the carriageway, there is only one lane available for traffic.  The damage to the taxi was about 2½ feet above the road surface, adjacent to the gas cap.  In these circumstances, it would be physically impossible for the appellant in a confined space, to raise his leg to kick the taxi with sufficient force to damage it as alleged.

Lurking Doubt

5.  It was perhaps unfortunate that the appellant relied upon the phrase ‘lurking doubt’ as opposed to simply stating that the prosecution had not proved its case ‘beyond reasonable doubt’, as it led Dr Mohamed on behalf of the respondent, down a path which, in the circumstances of a magistracy appeal, she need not have followed.  In deference to her considerable efforts in that respect, I will deal with whether the test for ‘lurking doubt’ on a magistracy appeal is entirely appropriate.

6.  The lurking doubt principle, as it has been called, arose as a result of the passing of the Criminal Appeal Act 1966, which empowered the Court of Appeal of England and Wales, to allow an appeal against conviction if it was of the view the verdict should be set aside on the ground that under all the circumstances of the case it is ‘unsafe or unsatisfactory’. In R v Cooper (1969) 53 Cr App R 82, Widgery LJ, in 1968, suggested, in respect of the type of case before it:

“…the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it”.

7.  In Tang Wai-tong & Anor v The Queen CACC 144/1979, Roberts CJ, on an application that the verdict of the jury was unsafe and unsatisfactory (following the amendment of section 83 of the Criminal Procedure Ordinance, Cap 221 in 1972) referred to R v Cooper supra and to the lurking doubt principle arising from the combination of a number of unsatisfactory features in the evidence.  In response to that principle, he said:

“70. We think that the lurking doubt formula must be applied with great caution. An appellate court, reading papers and not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have had the advantage of seeing the witnesses and assessing their credibility.

71. In our view, ‘lurking doubt’ means not an insubstantial doubt but a substantial remaining doubt.”

8.  The hurdle for an appellant in raising ‘lurking doubt’ was raised further in The Queen v Diu Lap-nin CACC 1439/1983 when Roberts CJ stated in respect of this same principle:

“48. Without wishing to lay down any rule that the lurking doubt principle should not be applied where a defendant gives no evidence, we do state our view that such a failure makes it much less likely that a court will feel that doubt, which is a matter of instinct and experience as well as of evidence”.

9.  In HKSAR v Chang Che Wei [2012] 2 HKLRD 1151, McWalters J (as he then was), in his inimitable style, simply succinctly reformulated the above into four guiding principles:

(i) an appellate court should apply the principle with great caution as it does not enjoy the benefit which the jury had of seeing the witnesses and assessing their credibility;

(ii) a ‘lurking doubt’ does not mean an insubstantial doubt but a substantial remaining doubt;

(iii) determining whether it ‘feels’ there is a lurking doubt the appellate court has regard not just to the evidence but also its instincts and experience; and

(iv) where a defendant fails to give evidence it is much less likely that a court will feel there is a lurking doubt.

10.  Of particular note though is paragraph 46 of that judgment, which is apposite here, where the learned judge stated:

“46. In respect of the fourth principle care must be exercised in how it is applied. The absence of any evidence from a defendant has two consequences. First it leaves the prosecution case uncontradicted by evidence from the defendant and secondly it may, by virtue of that reason, persuade a jury more readily to draw an adverse inference. But this does not mean that the jury is entitled to draw an inference that is not otherwise available to them to draw.”

11.  In all cases, the lurking doubt principle clearly applies to hearings upon appeal from the District Court and High Court where the Court of Appeal is dealing with appeals against conviction and/or sentence.  But does the lurking doubt principle apply to magistracy appeals?  In HKSAR v Ip Chin Kei [2012] 4 HKC 135 McWalters J also dealt with the test for quashing a conviction on appeal from a decision of a magistrate.  By way of summary the court found:

(i) An appeal under section 113 of the Magistrates Ordinance, Cap 227 is by way of rehearing[3] on the evidence before the trial court (as supplemented) as opposed to an appeal to the Court of Appeal which is an appeal in the strict sense i.e. whether there is found to be an error on the record.

(ii) In a magistrate’s appeal, the burden upon the prosecution is to uphold the conviction by showing the matter is proved beyond reasonable doubt and that of the appellant is to uphold the appeal by showing how the prosecution has failed to satisfy the burden placed upon them.  It is for the parties to determine the content of the appeal bundle with those burdens in mind, subject to the supervision of the Registrar and the discretion of the appellate judge.

(iii) The grounds of appeal should seek to persuade the appellate court on rehearing to depart from the findings of fact and law made by the magistrate.

(iv) The appellate court would only go behind the magistrate’s finding on credibility where it was plainly wrong.

(v) A finding that a magistrate has made an error of fact or law, which amounts to a material irregularity, does not automatically estop the court, on appeal, from exercising its statutory duty and rehearing the matter if it can properly do so, otherwise the appeal should be allowed.

(vi) The test for whether an error by a magistrate amounting to a material irregularity should lead to an appeal being allowed is whether it is just for such an order to be made.

(vii) Even where the appellate court found no such error on the part of the magistrate and even if no ground of appeal was made out, the court still has to carry out its statutory duty and conduct a re-hearing on the papers.  As a consequence, the grounds of appeal should not focus on errors that the magistrate has made, it should focus upon the argument as to why, on either the facts or the law or both, the prosecution has failed to establish guilt beyond reasonable doubt.

12.  That being the case, the court on a magistracy appeal has to be satisfied beyond reasonable doubt of the guilt of the appellant. If his case is or may be true, he must be acquitted.  The fact that the appellant does not give or call evidence is only one matter which falls to be considered, albeit it may be of some significance given that the court is not able to assess the witnesses for itself.  As a consequence of the above, I doubt very much whether the ‘lurking doubt’ principle is applicable to a magistrate’s appeal at all.

Rehearing on the Papers

13.  I am assisted in having a transcript of the evidence of PW1 and PW2 as well as the closing submissions of counsel and the magistrate’s Statement of Findings and I am cognisant of the fact that the appellant seeks to undermine the finding as to credibility of PW1 and PW2, which I must approach with considerable caution given this court has not had the opportunity to assess the witnesses for itself.

14.  This is an offence under section 60(1) of the Crimes Ordinance, Cap 200.  The relevant elements of the offence are:

(i) damage to property belonging to another;

(ii) intending to damage such property; or being reckless as to whether such property would be damaged; and

(iii) without lawful excuse.

15.  The prosecution case turned upon the issue of whether

(i) there was damage to the taxi; and

(ii) that damage was caused by the defendant.

16.  The damage is alleged to have occurred on 16 March 2018.  The photographs of the damage were taken on 28 March 2018 by the investigating officer PW3, and not the officer who attended at the scene.  The officer who attended the scene PW4, was not asked to confirm the damage, if any, he witnessed on 16 March.  He had attended at the scene on a complaint of assault and not of criminal damage.

17.  Given the appalling state of the photographs Exhs P2 and P4 and the description given and accepted in trial by PW2 under cross-examination of the nature of the damage being an 8-inch longitudinal dent an inch wide, and not a circular dent, the learned magistrate would have had some difficulty actually identifying the actual damage upon which this prosecution was premised.  Indeed, I note that the magistrate only went so far as to say that “it was not in dispute that a dent mark on the fender (back nearside panel) near the gas cap was seen on the taxi as shown in the photos...[4]”. The lack of specificity of finding may have had a significant effect upon the inference the magistrate sought to draw in order to find that the appellant caused the damage in question.  In any event, on the basis that PW2 agreed the description put to him by the appellant, which was not undermined by any other evidence, this court and the magistrate should have accepted that the damage was characterised as suggested by PW2 in his witness statement and not resiled from under cross-examination.

18.  How then does the prosecution say that this damage was caused?  The prosecution submit that it was caused by a kick.  How does someone leave a mark of this nature by kicking the relevant panel?  It was, as Mr Reading SC suggested, some 2½ feet off the ground and adjacent to the filler cap.  It appears to run at its highest point closer to the passenger door and at its lowest point nearest to the filler cap but below it by some 7 or 8 inches.  If, as PW2 stated in his witness statement, this was a one inch wide longitudinal dent, it could not be caused by a flat foot or the toe of a shoe.

19.  There was no direct percipient evidence of the cause of damage.  There was however evidence, if proved, from which an inference could be drawn.  These appear to be:

(i) The taxi was intact at the start of the shift.

(ii) PW2 was driving away from the position of the appellant when he heard a loud bang (alternatively a ‘pop’) sound coming from the left hand side of his taxi.

(iii) PW2 turned around and saw the appellant in the vicinity of the rear nearside of his car.

(iv) He stopped, got out, saw the dent, remonstrated with the appellant, to which the appellant replied “It’s me who kicked your taxi. You didn’t drive me home.”

20.  In conflict with those facts was the following evidence:

(i) PW2 was not a man of good character.

(ii) PW2 had made four witness statements which conflicted with each other and with his oral testimony.

(iii) PW2’s oral testimony also conflicted with that of PW3 and PW4.

(iv) PW2 had reported a case of assault not criminal damage.

(v) PW2 had claimed in excess of $25,000 at the scene and later when dealing with the police and gave inconsistent evidence as to how he had reached such a figure.

(vi) PW2 was therefore unworthy of belief.

(vii) In support of that contention, he had not provided the car cam and the receipt for repairs had been produced several months later, which purported to show a repair to the vehicle in question, which took place some three months after the event and which did not reflect the damage alleged e.g. there would have been no need to replace the nearside rear panel and there was no evidence of damage to the paintwork.

(viii) The appellant was a man of good character.

(ix) The appellant had voluntarily made a statement in which he had admitted kicking the taxi but not in the damaged area [P7].

21.  The question therefore is whether the facts as found to be proved by the learned magistrate were sufficient to draw an irresistible inference that the appellant had kicked the taxi and caused the damage concerned and if so was that the only reasonable inference to be drawn from the facts given:

(i) The nature and position of the alleged damage.

(ii) The position of the appellant vis-a-vis the vehicle.

(iii) The fact the appellant had volunteered he had kicked the bottom of the car door and therefore would have caused the loud bang (alternatively ‘pop’) sound.

(iv) The implausibility of how the damage could have been caused.

Analysis of the Prosecution Case upon Rehearing

22.  The evidence of PW2 is that he spoke with the appellant when he rolled down his window to tell him that he was not for hire.  I infer from that that the appellant was adjacent to the front passenger window at that time.  Thereafter, PW2 says he heard a loud bang as he was driving away, looked around and saw the appellant take one step away which would have been after the bang and not before it.  He was then standing by the rear passenger door trying to get into the taxi and presumably was close enough to be handling the door lever in order for the taxi driver to have that view.  The appellant therefore appears to have been standing very close to the taxi at all material times.  There appears to be some merit in Mr Reading’s suggestion that it would have been physically impossible for the appellant, regardless of his height, to have kicked the vehicle at the height of and in the position of the alleged damage.  It also begs the question whether a kick by the appellant from that or any other position could have produced an 8-inch longitudinal dent adjacent to the filler cap unless the appellant was kicking a sideways blow with his foot which would in turn require a wholly different position vis-a-vis the vehicle.  The damage in the photographs is very difficult to see.  This was not a large dent.  In the words of PW2, “It’s just a slight dent mark”[5]. There was also evidence from PW4, the police officer who attended the scene, that the taxi driver had alleged he had been assaulted by the appellant, which PW2 accepted under cross-examination was not the case.  There was evidence from the same officer that PW2 had suggested that the repair costs would be $25,000. However the investigating officer PW3 said on 19 March, when he called PW2, PW2 had said that he wanted $25,000 as compensation for mental distress at having been scolded.  The officer asked for the receipt for repairs at that time and for a copy of the recording on the car camera.  Neither of which were produced then and there and no mention was made at the time of the request to the fact the car cam was not working.  The receipt [P5] dated 3 June 2018, for the repairs was not produced until November although the work was allegedly carried out a month after the event.  It did not reflect the nature of the alleged damage.  The camera recording was never produced.

23.  This court is not satisfied that the prosecution can maintain this conviction.  Quite apart from the manner in which PW2 gave evidence, which would have been important to an assessment of his veracity. There are far too many inconsistencies and too much implausibility for the magistrate to have been satisfied beyond reasonable doubt that his version of events as to the admission of the appellant at the time of the event was to be relied upon.  The inference which the learned magistrate drew was not the only inference which could be drawn and it was plainly wrong in the circumstances of this case to ignore entirely the exculpatory parts of the witness statement made voluntarily by the appellant [P7] when dealing with the issue of the drawing of inferences.

The Mixed Statement

24.  At paragraph 39 of the Statement of Findings, the learned magistrate refers to the mixed statement of the appellant dated 24 July 2018 [P7], which was not made under caution but was signed by the appellant and included the usual Pol 154 declaration.  It was intended to be used by the appellant as a complaint against PW2 for dangerous or careless driving.  The prosecution produced this document as part of its case against the appellant through the investigating officer PW3.  The only way they could do so was by showing that the statement contained admissions against interest for, if it was wholly exculpatory, it would be a previous consistent statement and inadmissible.  The prosecution are thereby reminded of the well-established and age-old principle that where a prosecutor uses the declaration of a prisoner, he must take the whole of it together, and cannot select one part and leave another.  When the prosecution adduce a statement relied upon as an admission it is for the jury to consider the whole statement including any passages that contain qualifications or explanations favourable to the defendant, that bear upon the passages relied upon by the prosecution as an admission, and it is for the jury to decide whether the statement viewed as a whole constitutes an admission.  If the defendant elects not to give evidence then in so far as the statement contains explanations or qualifications favourable to the defendant the jury, in deciding what, if any, weight to give to that part of the statement, should take into account that it was not made on oath and has not been tested by cross-examination.[6]

25.  In her Statement of Findings, the learned magistrate attached no weight at all to the exculpatory parts of the statement.  The reason she gave for so doing was “that it had not been made on oath, had not been repeated on oath and had not been tested by cross-examination”.  However, she did give full weight to the incriminating parts of the statement.  The learned magistrate did not give her reasons for so doing.  Unfortunately, the learned magistrate fell into error in her reasoning for rejecting the explanation or qualification of the appellant.  It would appear that, because the statement had not been made on oath, repeated on oath and tested under cross-examination, it was not worthy of consideration at all.  The authorities, of which there are many, do not suggest such a draconian approach.  They, rightly, suggest that the weight attributed to a self-serving statement may be given less, and indeed considerably less, weight than the weight attributed to an admission against interest, but they do not suggest that because they are not made on oath, repeated on oath and tested under cross-examination, that they should not be considered at all.  Indeed, they go out of their way to suggest the opposite[7].

26.  A mixed statement is an out of court statement made by a defendant which contains both inculpatory and exculpatory parts.  It might be of assistance to first identify which parts of P7 could be considered to be inculpatory or admissions against interest and which exculpatory.  In so doing, I have in mind HKSAR v Poon Hoi Wing & Anor CACC 313/2000, per Stock JA (as he then was), in which the court stated that where admissions are such as the defendant is bound to make and which do not go to the central issue, may lead the court to the conclusion that the statement is wholly exculpatory.  The Court of Appeal considered R v Garrod [1997] Crim LR 445 in which the Court of Appeal of England and Wales stated that where the statement contained an admission of fact which was significant to any issue in the case i.e. capable of adding some degree of weight to the prosecution case material to an issue which was relevant to guilt, the statement must be regarded as mixed.  The first question one must therefore ask is: what is the nature of the statement relied upon?

27.  The inculpatory parts of the statement as relied upon by Dr Mohamed on behalf of the prosecution were:

(i) the appellant’s presence at the side of the road;

(ii) that he sought to hail a taxi and did hail PW2’s taxi;

(iii) that the taxi stopped; the taxi driver got out and there was a conversation.  That conversation included the taxi driver asking why the appellant had kicked his taxi;

(iv) that the appellant responded by saying he had refused to pick him up and asking why the driver had not stopped;

(v) that he had been shown the alleged damage by the police officer.

28.  The exculpatory (self-serving) parts of the statement which the appellant sought to rely upon through counsel, and which he says should have been taken into consideration, were:

(i) that the flag of the taxi was up and illuminated;

(ii) that the taxi drove close to the appellant;

(iii) therefore the appellant jumped out of the way;

(iv) that because the taxi veered very close to the appellant, the appellant lashed out with his foot and kicked the taxi;

(v) that the impact was with the bottom of the rear passenger door and not to the left of the filler cap some 2½ feet above the ground;

(vi) that he had been shown the alleged damage and had said that was not the part he had connected with as he had kicked the bottom of the rear nearside passenger door and his foot “never reached that high”;

(vii) that he had reported the taxi driver for dangerous and careless driving.

29.  The appellant was charged with criminal damage which was effected by kicking the taxi.  In his statement he admitted being present, kicking the taxi and having words with the taxi driver over the allegation that he had in fact kicked his taxi.  Those were all matters which went to the prosecution case even though, at the end of the day, the issue to be determined was limited to whether the appellant kicked the taxi in the place alleged and whether that kick resulted in the alleged damage.  As such, it was clearly a mixed statement.

30.  What use should then be made of it?  There is no doubt that both the inculpatory and exculpatory parts of a mixed statement may be admitted as an exception to the rule against hearsay as evidence of the truth of its contents.  Although the two parts may not carry the same weight.  It is trite law that an admission against interest is more likely to be true than a statement which is self-serving.  But this is not an inviolable rule, it is rather, a rule of thumb and the court must look at the statement in context to fairly evaluate the relevant parts and decide what weight to apportion to which parts[8]. If that exercise had been carried out here, it would have raised a doubt as to how and when the damage in question was caused and the appellant was entitled thereby to be acquitted.

Conclusion

31.  Accordingly the appeal will be allowed.  The conviction is quashed and the sentence set aside.  There will be no order as to costs.