HKSAR v. RAJU SHEIKH

HCMA 284/2019

[2020] HKCFI 2350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 284 OF 2019

(ON APPEAL FROM WKCC NO 513 OF 2019)

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J U D G M E N T

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Introduction

1.  The appellant was convicted after trial by Deputy Magistrate Yao Kwok-sun, Eric on 14 June 2019 of the offence of common assault, contrary to section 40, Offences against the Person Ordinance, Cap 212.  He was sentenced to 14 days’ imprisonment.  He was on bail throughout and was granted bail pending appeal on 17 June 2019.  By his Notice of Appeal dated 14 June 2019,  the appellant appeals against conviction alone.  His sole ground of appeal being that:

“The magistrate erred in accepting PW1’s evidence as direct and reasonable when PW1 gave three different versions of the incident, all of which contradicted the CCTV footage.”

The Charge

2.  The particulars of the charge were as follows:

“RAJU Sheikh, you are charged that on the 29^th day of December 2018, inside Caritas Medical Centre, 111 Wing Hong Street, Cheung Sha Wan, Kowloon, in Hong Kong, you assaulted CHAN Chung-keung, Cary.”

The Prosecution Case

3.  The prosecution case consisted of two witnesses, one set of Admitted Facts [P2] and CCTV evidence [P1].  In simple terms, the appellant had injured his hand with glass, having spent the previous night drinking heavily.  He went to the Caritas Medical Centre in Cheung Sha Wan to have his hand treated in the early hours of the morning of 29 December 2018.  He was placed on a trolley bed in the accident and emergency (“A&E”) waiting area.  At some point, the appellant moved off the medical trolley bed upon which he had been resting. PW1 was the on‑duty Medical Officer in A&E that evening.  PW1 heard shouting in the A&E waiting area and went to investigate.  The appellant was shouting and complaining that he had not been seen.  PW1 explained to the appellant that A&E operated on a “first come first served” basis.  And I have to say I actually watched that occurring during the CCTV where the beds are lined up and each bed in turn is taken off to be dealt with.

4.  The appellant yelled and shouted at PW1.  PW1 then intended to go to the registration area to check upon the appellant’s medical condition, but to do so he had to pass his bed, at which point PW1 heard shouting from behind him, from other members of the public, and became aware that the appellant had got off the bed and was shouting something loudly at PW1.  The appellant then used his left hand to push PW1’s left shoulder or chest area around, which caused him to lose balance and fall to the floor, causing dizziness and pain, although he did not lose consciousness.  PW1 felt the appellant’s attitude was aggressive and therefore when the appellant appeared to move towards him to offer him help to get up, PW1 refused as he did not know if the appellant wished to help or to do something else.

The Defence Case

5.  The defendant elected to give evidence but did not call any defence witnesses.  He said he was drunk before arriving at the medical centre as he had drunk a whole bottle of vodka and, whilst waiting for an ambulance, had drunk a further two bottles of beer to help with the pain.  He had arrived at the medical centre at 2 am but had been waiting for an hour for his hand to be treated prior to the incident.  He wanted to ask PW1 to look at his hand and he felt that PW1 had been ignoring him for some time.  When he saw PW1 push his bed and move to walk away, he had placed his left hand upon PW1’s right shoulder merely to gain his attention by turning him around in order that he could look at his injured hand.  PW1 had fallen down immediately but he did not know why he had done so. He agreed that he had been shouting at PW1 for help.  He agreed that it was not necessary to touch PW1, but he denied intending to assault him.  In court today, the appellant accepted that he had previous dealings with PW1 and that he had been frustrated because his hand had not been tended to.  He knew PW1 was walking away from him and he intended to turn him around in order to make him deal with his hand.  He had not intended that he should fall over, but he did accept that PW1 wished to walk away so that seeking to make PW1 turn around was against PW1’s wishes.

The Grounds of Appeal

6.  The appellant represented himself in his appeal and therefore his grounds of appeal were limited to those identified upon his Notice of Appeal which complained that the magistrate should not have accepted the evidence of PW1, given that he had provided three different versions of events, all of which were contradicted by the CCTV footage.

7.  The appellant must be reminded of the remarks made by the magistrate upon conviction and his Statement of Findings where the magistrate remarked:

“I found the doctor, PW1’s evidence, direct and reasonable. There were no exaggerations. His evidence was not shaken under cross-examination. It is true that the doctor said in court the defendant assaulted him by pushing onto his left shoulder or left chest area. This differed from what was captured in the CCTV recording. The doctor had also stated in his first witness statement that the defendant used the right hand to push his right arm. The doctor changed to state in his second witness statement that the defendant used the left hand to tap his right forearm. Such discrepancies would have seriously undermined the doctor’s credibility if we did not have the CCTV recording but the clear images of the recording must prevail.”[1]

But the magistrate also said:

“PW1 admitted that he made two witness statements for this case, the first one on 7^th January 2019 and the second one on 3^rd March 2019. PW1 agreed that, in his first witness statement, he stated the defendant used his right hand to push PW1’s right arm, causing PW1 to fall. PW1 also agreed that, in his second witness statement, he stated the defendant used his left hand to tap PW1’s right forearm. He also stated in his second witness statement that he could not remember correctly which hand the defendant used because it was late at night and he felt pain. PW1 denied that he made the second witness statement to correct which hand the defendant used because the police showed him the CCTV recording which revealed that the defendant’s right hand was injured. PW1 said he had not seen the CCTV recording before he came to court, but it was the police who asked him to clarify whether the defendant used his right or left hand.”[2]

8.  The magistrate was fully aware of the attack on the credibility of PW1.  His initial version of events was inconsistent with the CCTV footage, which was unassailable.  Nevertheless, given the evidence of PW1, the magistrate took the view that the witness was not clear about which hand was used by the appellant and that this was a matter of poor memory rather than any suggestion of advancing a case reported to him by the police.  In any event, the CCTV was in evidence and upon that evidence alone the magistrate was entitled to convict or acquit. It is trite law that the issue of credibility is best left in the hands of the original trier of fact unless his findings can be shown to be plainly wrong.  Witnesses do not necessarily fall into categories of black and white.  A study of the history of the now well-known principles of R v Turnbull [1977] QB 224 are an example of this.  Several honest witnesses can be genuinely mistaken.  It does not necessarily follow that the trier of fact does not find them to be honest and reasonable but mistaken.  Just such a case occurred here.  Both the witness himself and the magistrate identified that fact. The magistrate did not therefore rely upon the evidence of the mechanics of the assault given by PW1.  The magistrate relied upon the CCTV, exhibit P1[3], and he said so.  As to that evidence, the magistrate noted:

“The defendant is seen using his left hand to grab the doctor’s right upper arm and then swung or pulled the doctor’s arm forcibly to the left in one swift motion, the defendant himself turning his body to the left as he did the swinging or pulling. It can be clearly seen, the doctor lost his balance and fell backwards as a result of the defendant’s act of swinging or pulling the doctor’s right upper arm.”[4]

9.  The magistrate went on to say:

“One must not lose sight of the fact that the recording was an objective piece of evidence. I gave full weight to what was captured in the recording. To the extent that a witness’ evidence in court was at variance with what was captured in the recording at the time of the incident, the evidence could not stand.”[5]

10.  I have had the opportunity to study the same CCTV evidence and I take exactly the same view of it as did the magistrate.  I also accept the magistrate’s view of the remainder of PW1’s evidence where it is relevant to my determination, that is, that he was considered a reasonable and honest witness. There is nothing before me to suggest that he was being anything other than reasonable and honest when he made his various witness statements and when he gave evidence.

The Procedure on Appeal

11.  An appeal under section 113 of the Magistrates Ordinance, Cap 227, is by way of rehearing of the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power so to do (section 118(1)(b)): Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70.  It allows the judge on appeal to make whatever order the judge thinks just (section 119(1)(d)).

12.  On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standand: HKSAR v Ip Chin Kei & Others HCMA 301/2011.  It follows that the appellate court is also required to ensure that all proper safeguards were put in place as to the admissibility of such evidence as was relied upon by the court below.

13.  This court is entitled and indeed bound to come to its own conclusion about the evidence on contested issues of fact and law.  Per James J in Histollo Pty Ltd v Director-General National Parks & Wildlife (1998) 45 NSWLR 661:

“It is not incumbent upon the appellant to show that such conclusion (whether at half time or on a verdict[6]) was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the rehearing there is a reasonable doubt of guilt, the appeal must be upheld.”

14.  Because this is a rehearing upon the evidence as it was before the magistrate and is not a retrial, there are practical constraints placed upon the court in the exercise of its duties in making findings of fact and determinations in respect of the credibility of witnesses: HKSAR v Ip Chin Kei & Others supra. So far as the facts are concerned, this court recognises that it does not have the advantage of having received evidence at first hand which the magistrate enjoyed.  The same applies to the opportunity to see and hear witnesses.  To offset that constraint, the court is entitled to have regard to the magistrate’s Statement of Findings to ascertain what determinations the magistrate made as to the credibility of witnesses and the reasons given for such determinations.

15.  As this is a rehearing, it is for the appellant to persuade the court that the prosecution should not have succeeded in the court below as there is a reasonable doubt as to his guilt.  It is therefore for the prosecution to persuade the court that this is not the case.  Following Lam Kau v The Queen [1962] HKLR 234:

“It is as much for the Crown to sustain as for the appellant to seek to disturb the conviction.”

That does not mean that all of the evidence before the magistrate is repeated once more in this court.  Only that evidence which the parties determine is necessary to satisfy the burden placed upon them is required to be revisited.  Some leeway may be necessary where the appellant is unrepresented upon appeal.

The Law

16.  Common assault is a single offence which can be committed in two ways, that is, by way of assault and by way of battery.  An assault is “any conduct by which the appellant, intentionally or recklessly[7] causes PW1 to apprehend immediate unlawful personal violence”[8].  The requirement here is for “apprehension”, not fear.  There is no requirement for a “battery” per se for the offence of common assault to be made out.  Battery is defined as “any conduct by which the appellant intentionally or recklessly inflicts unlawful personal violence upon PW1”[9].  The term “violence” includes the unlawful touching of another, however slight[10].  In Faulkner v Talbot [1981] 3 All ER 468 at 471, Lord Lane CJ said:

“...any intentional touching of another person without the consent of that person and without lawful excuse. It need not necessarily be hostile or rude or aggressive, as some of the cases seem to indicate.”

17.  The magistrate proceeded on the basis that the prosecution rested its case on the “battery” element of common assault, that is, the forcible touching of PW1’s arm and thereafter swinging him round which resulted in his being off balance and falling to the ground.  There is no requirement for actual harm to have occurred in a charge of common assault.  For that matter, as can be seen from the comments above, there is no necessity for the touching to be forcible either.  Any touching without the consent of PW1 will suffice.  The evidence of that comes from the CCTV footage and the oral evidence of PW1.

18.  What then is the mens rea which is required to be proved beyond reasonable doubt?  The mens rea of assault is an intention to cause PW1 to apprehend immediate unlawful violence or recklessness as to whether such apprehension is caused.  That might have been evidenced in the reaction of PW1 when approached by the appellant after his fall, but this court is concerned with the issue of battery.  The mens rea for battery is an intention to apply force to the body of another or recklessness whether such force is applied.  That is subjective, Cunningham recklessness[11].  The appellant must actually have foreseen the risk of causing the application of immediate unlawful violence of the nature outlined above, and gone on unjustifiably to take that risk.

19.  Given the appellant’s own evidence that he had approached PW1 to speak to him, had sought to turn him round to look at his hand because he believed PW1 was ignoring him, I fail to see how his touching and the forcible turning around of the doctor did not amount to an intentional battery.  It matters not whether, as a result, the doctor fell to the floor or not.

Conclusion

20.  I find the charge of common assault against the appellant proved.  This appeal is dismissed.  This was a most unfortunate assault against a doctor in a public hospital.  The courts have no choice but to mark that with a period of custody.  It can never be acceptable to use any form of force against any public servant carrying out his or her duty, let alone members of our health services.  The appellant is to serve a period of imprisonment of 14 days, which I understand is to be reduced by three days that he spent in custody prior to his release on bail pending appeal.

21.  There will be no order as to costs.