HKSAR v. OSBORNE, ASHLEY DALE

HCMA208/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.208 OF 2011

(ON APPEAL FROM ESCC 4006 OF 2010)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted after trial of two charges of “assault occasioning actual bodily harm”, contrary to common law and punishable under section 39 of the Offences against the Person Ordinance (Cap. 212). For that, he was sentenced to two $3,000 fines. He now appeals against conviction.

The Prosecution Case

2.  The prosecution called five witnesses.  Three of them were police officers who did not turn up at the scene until after the mayhem was virtually over.  PW1 and 3, on the other hand, were the victims named in Charge 1 and 2.  Their evidence was summarized by the trial magistrate in his Statement of Findings as follows :

“2. … PW1 is the victim of charge 1. He is 47 years of age and is a taxi driver. On the night in question, PW1 went to his parents’ home to visit his parents. When PW1 was chatting with his parents in the house, he heard some laud noise coming from outside. The noise sounded like someone smashing glass bottles. PW1 decided to go out to see what happened. He went out to the staircase and saw a foreign male (the Defendant). The Defendant was holding a bag of glass bottles and was descending the staircase. There was another foreign male at the bottom of the staircase who was leaving the building. As PW1 saw the Defendant holding the bag of glass bottles, he thought it must be the Defendant who made the noise. So PW1 said to the Defendant, ‘Keep silent. Don’t make noise.’ The Defendant said something to PW1 in reply but PW1 did not understand. PW1 thought the Defendant scolding him with foul language as he heard the word ‘fuck’ numerous times and the Defendant appeared to be very angry.

3. In the heat, the Defendant went towards PW1 and started to push him. PW1 was forced to step back. Then the Defendant used both of his hands to grab PW1 on the neck. At the same time, PW1’s mother (PW3) came out of the flat. When she saw the Defendant grabbing PW1, she tried to pull PW1 away. After a while, the Defendant released his hands. Suddenly PW1 heard PW3 shouted ‘indecent assault’. PW1 turned to look at PW3 and saw PW3’s upper garment being pulled up with her bra exposed. PW1 immediate shouted at the house to ask his father to call the Police. The Defendant began to leave and ran down the staircase. In order to stop the Defendant from leaving, PW1 chased and tried to catch the Defendant. When the Defendant reached one of the entrances of the building on the ground floor and tried to open the gate, PW1 caught the Defendant and the Defendant could not open the gate. Then the Defendant turned and ran to another gate that leads to Elgin Street. PW1 continued to chase the Defendant and the Defendant grabbed PW1’s neck with his right hand. The Defendant grabbed so hard that PW1 could not breathe. As he was unable to breathe, PW1 used all his strength to bite the right arm of the Defendant. The Defendant immediate released his right hand and pushed PW1 on the ground. PW1 got up and tried to stop the Defendant by pulling his T-shirt. The Defendant took off his T-shirt and continued to leave. Some foreign males suddenly appeared at the Elgin Street gate. They blocked PW1’s way and opened the gate to let the Defendant go.

4. PW1 followed the Defendant out of the building and saw some Police officers arrived. PW1 told the officers that he was assaulted by the Defendant and the Defendant also indecently assaulted his mother. He pointed out the Defendant to the officers and handed the Defendant’s T-shirt to the officers. Later, he was taken to the hospital for examination and injuries on various parts of his body were found.

5. Under cross-examination, PW1 said he has been working as a taxi driver for 20 years. He agreed he has one previous conviction of ‘Burglary’. It was committed when he was a teenager and he was sent to the children’s home. He said he has no mental problem and never received any treatment. He said he did not drink any alcohol at the material time and in fact he never drinks alcohol. He agreed that initially he was also arrested for ‘Assault Occasioning Actual Bodily Harm’ but no charge was brought against him. He disagreed that when he came out of his flat he was already very angry. He disagreed he had lost control and assaulted the Defendant. He agreed that at one stage the Defendant tried to leave the building and he stopped the Defendant from leaving. He thought that the Police were on the way. He agreed that when he bit the Defendant on his arm, there was already another bite wound on the Defendant’s arm. He did not see PW3 biting the Defendant but he was later told by PW3 that she did bite the Defendant once on his arm when the Defendant was pulling her clothes. He said he did not see the Defendant lifted up the T-shirt of PW3, he only saw her T-shirt was lifted up. When being asked what he did when the Defendant grabbed his neck, PW1 said he just tried to struggle. He agreed that he did not fight back. He said he only had one free hand as he was holding a cup with the other hand.

…

7. PW3 is 67 years old and is a housewife. She is the mother of PW1. She did not receive any education and came to Hong Kong from Mainland when she was very young. She lives in a flat in the subject building with his 70-year-old husband. At the material times, she was at home with PW1 and her husband. When they were watching television and chatting in the flat, she heard some noises coming from outside. The noises sounded like glass bottles hitting the ground. PW1 went out to see what happened. As PW1 did not return after a while, PW3 went out to check on PW1.

8. When she went out of the flat, she saw PW1 was talking to a foreign man in the staircase. She did not know what they were talking about. Suddenly the foreign man used both of his hand to grab the neck of PW1. PW3 immediate went forward and tried to pull PW1 back. When PW3 was trying to pull PW1 away and separate them, the foreign man pulled up her T-shirt and her bra was exposed. PW3 bit the foreign man’s hand and shouted “indecent assault”. The foreign man eventually released his hand and tried to leave. PW1 chased the foreign man and stopped him from leaving. When the foreign man tried to open a gate of the building, PW3 pulled him to stop him from leaving. The foreign man then pressed PW3 on the ground causing injuries on her mouth and forearm. When she got up, she saw some Police officers had arrived. She said she refused to go to the hospital because she needed to take care of her husband. She said at the material times, PW1 was holding a cup of water with one hand.

9.       Under cross-examination, PW3 agreed at one stage the foreign man wanted to leave. She agreed she did not have very good memory.  She agreed that after the incident she told the Police officer that her memory of that night was blur. She said she did not remember the date of the incident but she recalled it was the Mother’s Day.  She disagreed that PW1 had drunk any alcohol on that night. She said PW1 does not drink at all.  She said she did not know whether PW1 was angry when he went out.  She disagreed that PW1 was acting aggressively towards the foreign man.  When the foreign man grabbed PW1’s neck, she shouted to his husband asking him to call the Police.  At the same time, she tried to pull PW1 away.  During the incident, she did not see any Chinese woman present at the scene and no one tried to pull her away from the foreign man.  She disagreed that she attacked the foreigner.  She said she never met the foreigner before. She bit the foreigner because he grabbed her.  About her husband, she said he was in poor health and she had to take care of him most of the time.  At the material times, he was using an oxygen generator to help his breathing.”

The Defence Case

3.  Turning to the defendant and his witness, the magistrate continued :

“12. … The Defendant is 34 years old and works in the business of real estate. He is an Australian national and is a person of clear record in both Hong Kong and Australia. He has been employed by his company for 6 years. Initially he worked in Australia and then in Singapore. In 2006, he was assigned to the Hong Kong office of his company and has been living in Hong Kong from then on. He was involved in a lot of charitable activities. His parents live in Australia. His father suffered from a stroke 4 years ago and is now permanently incapacitated. His mother was diagnosed of cancer recently and the Defendant would fly back to Australia to visit his mother on a regular basis.

13. On the material date, the Defendant went to the home of his friend, Kyle, for a social gathering. There were several friends present, including DW2. The Defendant arrived at 5pm and had 2 to 3 glasses of white wine. At about 9:30pm, he and one of his friends named Mark went downstairs to dispose some rubbish. When he was walking down the staircase carrying a bag of rubbish, he heard someone yelling from behind. He turned around and saw that PW1 was yelling and coming down towards him and Mark. As PW1 was yelling in Cantonese, the Defendant had no idea what PW1 said. PW1 appeared to be upset and angry and was moving towards the Defendant very quickly. PW3 also appeared behind PW1.

14. Upon seeing this, Mark suggested to leave and he immediately ran down the staircase and left the building through the exit. The Defendant intended to follow but was grabbed by PW1 on the wrists. He broke free and ran downstairs towards the exit on the ground floor. PW1 followed him closely from behind. When the Defendant reached the exit near the mailboxes on the wall and tried to open the gate, PW1 blocked the way with his body and grabbed the Defendant’s hand again. PW3 was on the side of PW1 and they were both yelling at him. During the pushing and shoving, PW3 suddenly bit the Defendant’s right upper arm. The Defendant pushed PW3 away. There were more pushing and shoving between PW1 and the Defendant and at one point PW1 also bit the Defendant’s right arm.

15. The Defendant tried to leave but PW1 was pulling his T-shirt. The Defendant bent his body and retreated himself from the T-shirt. He then punched PW1 once on his cheek and once on his neck to stop PW1 from grabbing him again. At that point, his three friends (two males and one female i.e. DW2) came down from the staircase. DW2 immediate grabbed PW3 and one of the male friends restrained PW1. He immediate opened the gate and ran out. He saw two Police officers and he went to them for help. He was later arrested and taken to the hospital. There were various injuries found on his body and they were caused mostly by PW1 and one bite wound by PW3. The Defendant said he never attacked PW1 and PW3.

16. Under cross-examination, the Defendant said he wanted to get away with Mark but he was grabbed by PW1 and was unable to leave. He said he did not ask Mark to return and help him because it happened very quickly and he was taken by surprise. He denied that he chose to stay and quarrel with PW1. He said he had never assaulted PW3. He only pushed her away after being bitten by her. He had no idea why PW3 suffered injuries on her lips and arms. Concerning PW1, the Defendant said he did punch PW1 on his neck and chest. He did this to stop PW1 from grabbing him.

17. DW2 is a female friend of the Defendant who arrived at the scene with two male friends at the end of the incident. She is 30 years of age and works as a program manager in a hotel. On the day in question, she went to the subject building to join a party held in a friend’s flat. She met the Defendant at the party. She said they had met a couple of times before in other social occasions and they seldom talked. That night was the first time they engaged in conversation.

18. At about 8 or 9 pm, DW2 saw the Defendant left the flat with another person called Mark. About 5 minutes later, her friend Kyle received a call and Kyle said the Defendant was in trouble. So she ran downstairs with Kyle and another male friend. When she reached the ground floor, she saw the Defendant with a man (about 40 to 50 years old) and a woman (in her 60s). The man and the woman were holding the Defendant against the wall. The woman was screaming ‘Help’ in Cantonese and was grabbing the Defendant’s arm. Upon seeing this, DW2 immediately went to the woman. She said ‘No’ in Cantonese to the woman and pushed her away. Then the man bit the Defendant’s arm and was pushed away by Kyle and the other friend. When the Defendant broke free, he immediate ran out of the building. DW2 and her friends followed.

19.     During cross-examination, DW2 said the woman was about 5 feet tall.  She did not see the Defendant pushing the woman away and she did not see the woman being pushed on the ground.  She said she went forward to push the woman away because the woman was acting aggressively.  About her relationship with the Defendant, she said she first met the Defendant about 6 months before the incident and they had met twice before the incident.  She did not consider she knew the Defendant well.” 

The Magistrate’s Analysis

4.  In finding the appellant guilty, the magistrate observed (insofar as is relevant to the present appeal) :

“20. I bear in mind the burden of proof is on the Prosecution and the standard is beyond reasonable doubts. The Defendant does not have to prove his innocence. The Defendant is a person of clear record and I give myself the Vye directions on both credibility and propensity limps.

21. I have carefully considered the evidence of PW1. I find his evidence clear and straightforward. He was certain in giving evidence and was unshaken under very thorough cross-examination. There is no inherent improbability in his evidence. His evidence is well supported by medical reports and photos. In particular, it can be seen clearly in P4 Photo (1) and (2) there was erythema over the front part of his neck. The injury was consistent with the evidence of himself and PW3 that the Defendant grabbed his neck during the incident. Further, I do not believe as a son, PW1 would fabricate evidence about his 66 years old mother’s upper garment being pulled up and her bra was exposed. After carefully consideration, I am certain that he has told the truth. I found him to be an honest and reliable witness and I accept his evidence.

22. I have also considered the evidence of PW3. Though her evidence was not as clear as PW1, bearing in mind her age and education level, I am of the view that she had tried her best to tell the truth. Though she could not recall the detail of the incident, the version she gave was very consistent with the version of PW1. I am certain she did not fabricate evidence against the Defendant. I also do not believe she would fabricate evidence about her upper garment being pulled up by the Defendant. If she wanted to frame up the Defendant, she would not say to the statement taker and repeat in Court that she forgot a lot of details of the incident. Though she could not recall a lot of details, she was clear and firm on the material part of her evidence. She was unshaken under cross-examination and there was no inherent improbability in her evidence. After careful consideration, I found her to be an honest and reliable witness and I accept her evidence.

…

24. The Defendant elected to give evidence. After carefully consideration, I am sure he has not told the truth. According to him, what he did in the whole incident was repeatedly pulling his hand from PW1 and punched PW1 on the face once and the chest once. If that was the truth, why would PW1 suffered the injuries as shown in the photos and found by the doctor? Even if I accept that some injuries might be caused by the struggle and the two punches, if the Defendant never grabbed PW1’s neck, why would horizontal marks of erythema found on PW1’s neck and upper part of his chest? These marks clearly show that PW1’s neck was grabbed with force by someone.

25. Further, according to the Defendant, when PW1 got agitated and angry his friend Mark suggested to leave. It was when the Defendant about to leave PW1 suddenly grabbed his wrist. I do not believe that was the truth. If that was the case, why didn’t the Defendant shout for help? Why would Mark just leave the Defendant in such situation? When Mark found the Defendant was not following him out of the building, why didn’t he return? It was not the case where PW1 was so threatening and dangerous that Mark did not dare to return. PW1 was alone at that moment and apparently was unarmed. If Mark stayed, I do not see why they could not subdue PW1. I believe the version of PW1 was the truth. According to PW1, when he first saw the Defendant at the staircase, Mark was already on his way out of the building. At that moment, nothing had happened between PW1 and the Defendant. I believe that is exactly why Mark did not return because there was nothing to intervene. It was the Defendant who stayed behind and caused the trouble. After careful consideration, I find the evidence of the Defendant unreasonable and unbelievable. I do not believe he has told the truth and I reject his evidence.

26. Concerning DW2, I am of the view that she did not tell the truth either. She said at the material time the Defendant was just a casual friend to her. She did not know much about the Defendant. Then why would she so eager to help the Defendant at the material time? When she arrived, all she saw was PW1 and PW3 holding the Defendant against the wall. She did not know whether the Defendant had done anything wrong. Why did she go so far as to push PW3 away without knowing the reason why the Defendant was held? What if the Defendant had committed a crime? Even if she wanted to help a friend, why didn’t she let her two male friends to intervene? For these reasons, I am of the view that she has not told the truth and I reject her evidence.

27.     Though I reject the evidence of the Defendant and DW2, the burden of proof is still on the Prosecution and the standard remains the same.  I have considered whether the Defendant was defending himself when he caused the injuries on PW1 and PW2.  After careful consideration, I am of the firm view that the Defendant was not acting on self-defence.  In the contrary, it was PW1 and PW2 who were defending themselves when they bit and injured the Defendant.”

This Appeal

5.  Ground 1 complains that the magistrate erred in implicitly criticizing the appellant for failing to call a potential defence witness hence shifting the burden of proof to the defence. 

6.  This potential witness was “Mark” (paragraph 13 of the Statement of Findings) and by asking himself the rhetorical questions that he did (paragraph 25 of the Statement of Findings), but whose answers only Mark could provide, the magistrate is said to have committed the above mistake. 

7.  Thus put, this ground has overreached itself. 

8.  Properly understood, the magistrate was merely explaining why in his judgment the appellant was lying.  In effect, he was saying — if this person Mark was really just steps away, things would certainly have taken a different course.  This is important because according to PW1, the other “foreign male” was already at the bottom of the staircase exiting the building (paragraph 2 and 25 of the Statement of Findings) which, on the face of it, is a better explanation why the appellant was alone during the scuffle. 

9.  The problem is, and this is really Ground 5 of the appeal, I am not convinced that the magistrate has got his reasoning right.  I am not persuaded that if Mark was present, Mark must necessarily have stayed and intervened.  In this regard, there is no standard human reaction.  There is nothing inherently improbable about Mark hastening down the stairs at the first sign of trouble, which is the defence version.  It could be that he had expected the appellant to be able to follow.  

10.  But did Mark just leave his friend (the appellant) to his own fate? Or is he the one who phoned Kyle and told him that the appellant was in trouble (paragraph 18 of the Statement of Finding)?  These are highly relevant questions.  Their answers, particularly on the identity of Kyle’s caller, could affect the magistrate’s view on Mark’s true position — possibly in the appellant’s favour. Unfortunately, they were never dealt with, which only goes to aggravate the magistrate’s dubious reasoning in disbelieving the appellant. 

11.  Before leaving this ground, a word is called for on PW1’s injuries.  In the absence of expert opinion, conclusions about the erythema on PW1’s neck must not be made without the utmost caution or at all.  On its own, the word means nothing more than red patches.  The same patches were found on PW1’s left chest and right forearm (his medical report).  It is difficult to imagine how all those patches were caused by “grabbing” if “grabbing” was the conclusion to be drawn about the cause of the erythema on the neck (paragraph 24 of the Statement of Findings).  The appellant is entitled to ask if it is not an open question whether they too are just marks “caused by the struggle”. 

12.  Ground 2 criticizes the magistrate for failing to have regard to the appellant’s “positive good character” (the appellant’s words exactly). 

13.  The appellant had nine character witnesses.  Their statements were all admitted under section 65B of the Criminal Procedure Ordinance (Cap. 221).  Evidence was also adduced that the appellant was a sponsor in one of World Vision’s support-a-child programmes.  Yet all the magistrate said was “The defendant is a person of clear record and I give myself the Vye directions on both credibility and propensity limbs” (paragraph 20 of the Statement of Findings).  That is the gist of the appellant’s complaint. 

14.  This ground is not made out. 

15.  It is trite law that unless otherwise indicated, a professional judge sitting alone will be assumed to have given a defendant’s good character whatever weight he thought it warranted.  That is even when the judge failed to make mention of any such evidence and/or consideration. 

16.  Here, the magistrate has expressly recognised that the appellant had a clear record, said he would give himself a full two-limb Vye direction and stated in his summary of the appellant’s evidence that the latter was “involved in a lot of charitable activities” (paragraph 12 of the Statement of Findings). 

17.  I should also say that I have gone through all nine of the relevant statements.  Their common and pertinent-most theme is that the appellant was a temperate person not easily given to paroxysms.  Whatever weight those remarks carry as evidence of positive good character, they could and must be taken to have come under the propensity limb of the Vye direction that the magistrate professed to have given himself.  The latter was a judicial statement and I will not dismiss it as mere lip service. 

18.  That said, it should be remembered that standardized directions baldly given do sometimes give rise to misgivings on the part of defendants. Even single judges will be well advised to not only do but demonstrate that they have done justice to a raised subject — in a way that is proportional to the force with which it has been advanced. 

19.  The magistrate could have said that he noted what those nine witnesses said but did not think they were helpful.  When two people of different background, culture and languages are caught up in a situation then given the right degree of incivility from either side, temper could uncharacteristically flare up. 

20.  According to Ground 3, the magistrate erred in failing to address whether the prosecution had proved that the appellant was not in fact acting in self-defence. 

21.  In a nutshell, the magistrate is said to have been too scanty in his treatment of the subject, spending no more than five lines on it altogether (paragraph 27 of the Statement of Findings).  In particular, he has left the relevant incidence as well as burden of proof wholly unarticulated.  

22.  On its own, this ground may not amount to anything.  

23.  Both the prosecution and the defence had claimed to be a reluctant party to the scuffle so whatever injury they might have inflicted on the other must have arisen from self-defence.  By accepting self-defence in relation to one but rejecting it in relation to the other, the magistrate was simply saying that he believed PW1 and 3 but not the appellant and his witness.  Indeed, if PW1 and 3 were to be believed, no issue of self-defence would arise for the appellant and no directions of the kind presently argued would be necessary.  

24.  The trouble is, the rejection of the appellant’s evidence has now been called into question (see Ground 5 above), hence also the acceptance of PW1 and 3 as truthful witnesses.  The issue of self-defence is alive again with zero discussion on it by the magistrate. 

25.  Ground 4 alleges that the magistrate’s findings of facts are contrary to evidence. 

26.  Examples of inherent improbabilities and inconsistencies are given from in and amongst the prosecution case.  Of particular interest is the proverbial cup (paragraph 5 and 8 of the Statement of Findings) which allegedly survived the incident though remaining throughout in one of PW1’s hands.  They were all included in the defence written closing submissions. 

27.  On its own, this ground may again come to nothing.  

28.  Nevertheless, I must say that I find the magistrate’s approach to these questions precarious, which is to rise above them in brave taciturn.  If the stilts and piles begin to give way from under his major analyses, such silence on the peripherals will only lend weight to the bringing down of his final conclusion. 

29.  Ground 6 alleges that the magistrate has dismissed the evidence of DW2 for all the wrong reasons (paragraph 26 of the Statement of Findings).  

30.  I agree. 

31.  What the magistrate said was partly gender-based and unjustified in the context of a low to medium scale scuffle (e.g. DW2 would have left it to the men to intervene).  It was also superficial and ignored the fact that DW2 had explained to the court (p. 263M–264L of the appeal bundle) why she thought PW3 was the aggressor (e.g. PW3 was obviously belligerent whilst the appellant had had his shirt off and hands against the wall in a defensive position).  Whether or not she knew the appellant well or whether or not the appellant had done something wrong, DW2 could still be concerned about his safety. 

Judgment

32.  The magistrate’s reasons for rejecting the defence case have been found wanting.  There are other issues which he should have but did not cover in much greater scope and subtlety.    

33.  The appeal must be allowed.  It is unsafe and unsatisfactory to uphold the convictions.  They are quashed and the sentences are set aside.