HKSAR v. LEE TAK LUNG THEODORE

HCMA 107/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 107 OF 2012

(ON APPEAL FROM KCCC NO. 4029 OF 2011)

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BETWEEN

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JUDGMENT

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1.  The appellant was convicted, after trial, in the magistracy of one count of assault occasioning actual bodily harm (Charge 1) and one count of common assault (Charge 2). He was sentenced to 4 months imprisonment for Charge 1 and 1 month imprisonment for Charge 2 to run concurrently and both suspended for 12 months. The appellant now appeals against the conviction.

Evidence of the Prosecution

2.  The first and second prosecution witnesses (“PW1 and PW2”) were a couple living in a flat on the 8th floor, National Court, 16A – 16F Jordan Road, Kowloon and the appellant was staying in a guest house on the 2nd floor.  On 25 September 2011 at about 2330 hours the 2 prosecution witnesses and a female were inside the lift of the building which could accommodate only 4 persons. The appellant with smell of alcohol then dashed in.

3.  While ascending the appellant mistakenly thought that PW1 who was at his back had deliberately touched him.  He turned around and used abusive language at PW1.  When PW1 and PW2 walked out of the lift on the 8^th floor the appellant followed and suddenly attacked PW1 by pushing him to the wall, grabbed him at the throat and gave punches.  PW1 resisted and the scuffle moved near to the staircase and the appellant tried to push PW1 down the stairs.  PW1 pushed back to avoid falling down the stairs.

4.  The appellant took out a beer bottle from his shopping bag, gesturing to attack PW1.  PW1 immediately grabbed the appellant’s hand and the bottle was smashed on the wall.  PW2 squatted down to remove the glass fragments to avoid injuring other people and she also screamed.

5.  The appellant then attacked her, pushing or kicking her onto the ground.  The appellant then turned back to PW1 with another bottle in his hand.  The neighbour came out and the attack stopped, but the appellant kept swearing until the police arrived.  PW2 only realised that the hand she used to remove the glass fragments was in blood on arrival of the ambulance.

6.  PW3 was a police officer attending the scene and he saw glass fragments and beer all over the vicinity outside the lift.

7.  PW4 was the investigating officer.  She viewed the CCTV footage of the lift and saw that nothing special was captured.  The security guard promised to burn a disc for her, but it later turned out that the recording had been erased.  She denied there was a scene of PW1 assaulting the appellant and he also denied telling the appellant there was such a scene.

8.  PW1 was admitted to Queen Elizabeth Hospital and was diagnosed to have fresh injuries of neck and back abrasions and tenderness over the head.  PW2 was admitted to the same hospital at about 0337 hours and was diagnosed to have fresh injuries of left thumb laceration and left hand contusion.

Evidence of the Defence

9.  The appellant gave evidence that he entered the lift before the 2 prosecution witnesses and he was carrying a shopping bag containing beer and food.  PW1 entered the lift and grabbed his arm, pushing him inside to make more room for PW2 to come into the lift.  The lift door opened on 8^th floor.  PW1 threw him out, grabbed his collar and pushed him onto the ground, smashing his beer bottle.

10.  He demanded compensation for the beer and food but PW1 turned away.  He decided not to pursue and turned to leave.  PW1 attacked him from behind and PW2 at his front.  He tried to get away but he saw somebody holding a broom stick.  He tried to leave and when the lift door opened the police arrived.  He was not told by anybody the reason for his arrest.

Grounds of Appeal

11.  The grounds of appeal are as follows:

(a)     The CCTV footage of the lift was not available causing unfairness to the appellant in the trial;

(b)    The appellant did not attack PW1 and PW2 and if he had done so his hand would have been injured but there was no such injury;

(c)     There were discrepancies in the evidence of PW1 and PW2 who kept changing their evidence.

Unavailability of CCTV Footage

12.  It was not in dispute during the trial that there was a CCTV installed inside the lift and there was footage of the event which due to a misunderstanding between the police and the security guard of the building had been erased.  PW4, the investigating police officer, testified that she had seen the footage and there was nothing special captured.

13.  In the view of this court the footage could have been an important piece of evidence because the versions regarding what happened inside the lift given by PW1 and PW2 and the appellant were different.  PW1 and PW2 said that they were inside the lift first while the appellant said that it was the other way round.  The appellant said that PW1 had grabbed his arm, pushing him inward to make room for PW2 to enter the lift and had thrown him out when the lift arrived at the 8^th floor.  This, however, was not the evidence of PW1 and PW2.

14.  Although PW4 said that the footage had captured nothing special and that there was no physical contact as suggested by the defence, she certainly would not be able to tell the relative positions of the people inside the lift and their behaviour as accurately and vividly as a video recording.  The appellant was entitled to view the footage instead of merely relying on the words of PW4.

15.  The appellant said that because PW1 had grabbed his hand to push him into the lift he was unable to press the 2^nd floor button of the lift and had gone up to the 8^th floor.  What the appellant said appeared to be more consistent with what happened than the version given by PW1 and PW2 because if the appellant was the last one entering the lift as alleged by the 2 witnesses he could have no difficulty pressing the 2^nd floor lift button.  This is more the reason that he should have the benefit of the footage in his defence.

16.  This court is of the view that in the circumstances of the present case the unavailability of the footage did cause unfairness to the appellant in the trial.

Other Grounds of Appeal

17.  What happened inside the lift was the cause of the events ensued and therefore had a direct bearing on whether the appellant or the PW1 and PW2 were speaking the truth.  This relates to Appeal Ground (c).  The magistrate pointed out clearly that he had considered all the discrepancies and omissions in the evidence of PW1 and PW2 before coming to the conclusion that they were honest and reliable witnesses.  Although he did not give any details of such discrepancies and omissions and did not deal with each one of them specifically, he did conduct an analysis in general terms.  In view, however, of the conclusion of this court regarding the missing footage his finding is thrown in doubt and this results in the conviction being unsafe and unsatisfactory.

18.  It is not necessary to go into detail of Appeal Ground (b) which obviously does not hold water because punching another would not necessarily result in the hand of the attacker being injured.

19.  The appellant also points out that because of the conviction he would have his nursing assistant licence in Washington DC, USA revoked.  This of course does not constitute a ground of appeal at all and is certainly not a factor to be considered in this appeal.

Conclusion

20.  The appeal in respect of the 2 offences is allowed and the conviction is quashed and sentence set aside.