HKSAR v. TONG CHOY TING STELLA

HCMA 4/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 4 OF 2010

(ON APPEAL FROM ESCC 1316/2009)

------------------------

-------------------------

J U D G M E N T

--------------------------

1.  The Appellant was charged with one charge of “Assault Occasioning Actual Bodily Harm”. After trial, she was convicted.

2.  At trial she was represented by Senior Counsel and in this appeal she appears in person.

3.  First of all, at the beginning of this appeal, the appellant applied for an adjournment of the hearing because of financial difficulties.  She had on 9 previous occasions applied for adjournment from 29 April 2010 to 24 November 2011.  On the last occasion, Madam Justice Bokhary had told her that it should be the last adjournment that will be granted.  However, the appellant sought to apply for another adjournment on the basis of financial difficulties.  She did not want to go to legal aid to have her private affairs scrutinized .

4.  In court she said she did not trust legal aid to be fair because it is a government department.  She claimed that she cannot represent herself properly on the appeal because she has no litigation experience although she is a qualified solicitor for 24 years.

5.  Having heard and read the appellant’s letter to the court which she’d fax to the court yesterday afternoon at 5:44 pm.  I do not find that there is sufficient grounds to grant her a tenth adjournment in this case.  So I refused the appellant’s application for an adjournment.  The application is also opposed by the respondent. 

6.  This matter arose according to the prosecution evidence which not challenged by the defence at trial, when the appellant’s employment was terminated by her company. PW1 in this case, a practising solicitor, was acting on behalf of the appellant’s ex‑employer, to oversee the termination of the appellant’s employment by the company. 

7.  According to the employment contract (Exhibit P4), the appellant had to return all the property belonging to the company.  PW1 met up with the Appellant and discussed the settlement package, and the return of the Company’s confidential information on 10 March 2009.  The company sought the return of the Company’s confidential information which was stored inside the appellant’s laptop (“the computer”). The arrangement was that the Appellant would return to the Company on the following day to pack her personal belongings.  There was also to be a meeting about how best to extract the company’s information stored in the appellant’s laptop (“the computer”).  There was a discussion about enlisting the assistance of another company called Ferrier Hodgson  because they had the advanced forensic technology to do that, whereas PW1’s company did not.  In order to ensure the safety of the confidential information, the appellant agreed with PW1 that PW1 would retain the computer locked inside his briefcase overnight.  And they would meet up on the 11 March 2009.

8.  PW1’s evidence about 11 March 2009 and how the parties came to be in the Hong Kong Club Building was not accepted by the learned Magistrate.  The learned Magistrate accepted the evidence of PW2 as to how it came about.  I will be referring to that evidence shortly. 

9.  In any event, PW1 said he was waiting in the lift lobby at the Hong Kong Club Building when the appellant arrived and shouted at him that he had stolen her computer.  She tried to pull the briefcase from him.  When they got inside the lift, there was a struggle in relation to the briefcase.  PW1 alleged that at that time, the appellant bit his hands.  An employee of Ferrier Hodgson, Mr Liu, was inside the lift and so was PW3, the Senior Property Manager of the Hong Kong Club Building.

10.  The struggle continued and when the lift arrived at the 1^4th floor, there was evidence from PW3 that when the lift door opened, he thought the appellant bit the hand of PW1.  His evidence was that that was the only time he saw the appellant bit the hand of PW1.  The police arrived later and PW1 said by that time he had let go of the briefcase.  After discussing the matter, the computer was returned to the appellant.  PW1 said that he did not apply any force on the appellant.  PW1 sustained injuries and those injuries to his hand was evidenced in (Exhibit P3) photo (1) to ( 3).

11.  PW1 was cross-examined extensively by counsel representing the defendant.  It was clear that PW1’s memory of what the party had agreed to on 10 March was inconsistent with what PW2 remembered.  PW2 was an assistant solicitor of PW1’s company.  She was present on 10 March 2009 together with PW1, and her evidence was that the party had spoken about the termination of the appellant’s employment.  The appellant was not willing to give up her computer.  It was suggested by PW1 that the computer should not be taken away by the appellant in order to ensure the safety of the confidential information of the company, and that the hard disk should be screened by Ferrier Hodgson because of their advanced technology equipment.  It was agreed that PW1 would keep the computer overnight and that the party could decide what to do with it on 11 March, and that discussion on 11 March would take place in the office of Laracy Gall which is the office of PW1 and PW2. 

12.  PW2 said she would meet the appellant on the following day at her company.  At that time the appellant would collect her personal belongings. On 11 March 2009 when she said she was with the appellant, and when the appellant found out from PW2 that PW1 would not be coming along to the company.  Pw2 said the appellant became very agitated, yelled and screamed accusing PW1 of stealing her computer. PW2 reminded the appellant of the agreement of previous day. The appellant said that she would report the matter to the police and the Law Society.

13.  PW2 called PW1 at about 10:20 am and the appellant spoke to PW1 directly.  PW2 and the appellant then hired a taxi heading towards the office of Laracy Gall.  PW2 called PW1 again, telling him that they were on the way to the Laracy Gall offices.  PW1 subsequently told her to go to Ferrier Hodgson instead and that he was on the way there.

14.  The appellant, PW2 and Desmond Liu proceeded to the Hong Kong Club Building.  During the journey, the appellant called the police. The Appellant told Desmond Liu of Ferrier Hodgson to call another person in Ferrier Hodgson, telling him that the matter had been reported to the police.  However, Mr Liu was unsuccessful in reaching that person.

15.  Subsequently, the appellant managed to reach the person she wanted to contact in Ferrier Hodgson, Mr Tudorovic, and told him about the police report.  When the taxi arrived somewhere in the vicinity of the Hong Kong Club Building,  PW2 said she was together with the party that entered the Hong Kong Club Building lift lobby.  At that time, she saw PW1 was inside the lift and the Appellant was beside him.  PW3 from the management office, was also there.  PW1 was holding the briefcase at his chest level.  PW2 tried to calm the appellant down and said they could sort out the matter in Ferrier Hodgson’s office.  The Appellant continuously try to pull the briefcase towards her.  According to PW2, the appellant started biting PW1’s hand after the lift door closed.

16.  The CCTV footage (P5) was played in Court.  The learned Magistrate made the observation that from the CCTV footage, one couldn’t actually see the appellant biting the hand of PW1. PW2 saw the relevant footage, one said it was because the camera angle was not at the angle where one could see it, and so the biting could not be shown.

17.  Upon reaching the 14^th floor, the struggle continued and eventually the appellant successfully grabbed hold of the briefcase.  PW2 said the appellant was crying and screaming loudly and the staff of Ferrier Hodgson came out.  Soon after that, the police officers arrived.

18.  The police advised PW1 to return the computer to the appellant.  At last, the computer was passed to the police.

19.  PW2 was extensively cross-examined by Senior Counsel on behalf of the appellant.

20.  PW3, Senior Property Manager, said he noticed that the appellant was shouting loudly, trying to get back a briefcase from a male.  He said the appellant was grabbing the briefcase, as the lift door opened on the 14^th floor, PW1 walked out of the lift and the appellant rushed out and bit his hands.  About 1 odd minute after PW1 and the appellant went out from the lift, the police arrived.  The appellant had then managed to grab hold of the briefcase.

21.  After the prosecution witnesses all given evidence.  The appellant elected to give evidence.  She informed the court she had a clear record, and her Curriculum Vitae (CV) was produced as (Exhibit) D2 for the Court’s reference.

22.  The appellant agreed that there was a termination of her employment on 10 March 2009.  The outstanding matter between the parties was the handling of the confidential information that might still be in her computer.  In this regard, the Appellant gave PW1 her computer on condition that he would not open it and bring it back to the offices of her employer on the following day (11 March 2009) at 10:00 am.  They would all meet and discuss how to deal with the computer and Ferrier Hodgson would source an individual IT specialist in order to perform the work. 

23.  The appellant stressed that it was never agreed that the computer would be brought to the Ferrier Hodgson on 11 March 2009.  That evidence is supported by the evidence of PW2 and also by the notes which she had been compiled, which was used by Senior Counsel to cross-examine the prosecution witnesses.  The appellant said on 11 March 2009 when they were inside a taxi heading towards Laracy Gall’s office.  PW2 told her that it was their intention to copy her hard disk.  The appellant said she was shocked.  She told PW1 that she would take back the computer, and report the matter to the police and the Law Society.  On the journey, she also did make a report to the police. 

24.  She did learn that PW1 was on his way to Ferrier Hodgson , and she believed that PW1 was going to proceed to copy her hard disk. 

25.  When the taxi arrived, she went to Hong Kong Club Building, and met PW1 outside the building near the MTR exit.  PW1 ignored her, she pulled the briefcase from him.  The appellant said she genuinely believed that she was entitled to have her computer back. 

26.  When they were inside the lift, she pressed the open button in order to stop PW1 going up to the 14^th floor where the offices of Ferrier Hodgson were situated.  She was afraid that PW1 would have her hard disk copied.  She could not wait for the police’s arrival.  She bit whatever hand PW1 was using to hold the briefcase. She said PW1 let go of the briefcase, and she sat on it.  Two minutes later, the police arrived.  The appellant did not have the time to consider the consequences as she was biting PW1.  It was only for a second, and her only aim was to get back the computer.

27.  The learned Magistrate, having heard all the evidence, and submissions of Counsel, in her analysis of the evidence, she properly identified that the appellant did not dispute that she did bite PW1’s hand, but her defence was that it was in self- defence as she wanted to protect her property.  Therefore, she was using reasonable force in order to do that. 

28.  The learned Magistrate also properly identified the fact that under caution the appellant’s account was consistent with her testimony in court.  The learned Magistrate had carefully considered the inconsistencies in this case.  She was impressed by PW2 as a reliable and truthful witness, and she accepted her version of events.  She also said that PW1’s evidence as to the place to meet the next morning was different from that of PW2.  But the learned Magistrate said that given the chaotic condition that the events had happened some months ago, there is possibility that PW1 could have misunderstood the agreement or been mistaken when he gave evidence in Court.  She rejected his evidence in relation to the agreement reached on 10 March 2009, particularly as to where the parties were to meet, she accepted, at the end of the day, the evidence of PW2 on this point.  However, she did accept PW1’s version in relation to other matters.  At the end of the day found that both PW1 and PW2 were honest and reliable witnesses.

29.  The learned Magistrate went on to find that there was no dispute that during the incident inside the Hong Kong Club Building, the appellant did bite PW1.  But there was inconsistency as to where the actual biting took place.  The learned Magistrate said at the end of the day, she accepted the evidence of PW1 and PW2 in regard to where the biting had actually taken place.  The learned Magistrate found as a fact that the agreement reached between the parties on 10 March 2009, was that

(i)  the appellant on 11 March 2009 would go to collect her personal belongings at her employer’s company, whilst her laptop computer would be kept by PW1 overnight;

(ii)  there was a possibility discussed on 10 March 2009 that her laptop computer may be screened by Ferrier Hodgson ;

(iii)  they had agreed on 10 March 2009 to further discuss the matter of the computer and the extraction of the relevant information at Laracy Gall’s office.

30.  The learned Magistrate accepted that PW2 had only reminded the appellant that the previous evening’s agreement, was that there was a possibility that the hard disk of the computer may be screened or imaged by Ferrier Hodgson  .  She did not accept that PW2 told the appellant that they intended to image the hard disk, and therefore her computer was being taken over to Ferrier Hodgson by PW1.

31.  The learned Magistrate having found the relevant facts went on to discuss the legal principles involved, and she correctly identified that the law is that a person may use force to defend himself or others from attack or the threat of imminent attack, or to defend his property.  If that is the situation, the use of force is not unlawful.  It is for the prosecution to prove beyond a reasonable doubt that the defendant was not acting in lawful self-defence.

32.  The learned Magistrate reminded herself, too, of the test that the force has to be reasonable in the circumstances as she honestly believed was necessary to defend herself or her property. 

33.  The learned Magistrate referred to the relevant cases. In applying the legal principles to this case, the learned Magistrate said that on the facts that she found it was clear that the appellant knew what was going on at the time because she had contacted the police, and she had telephoned Ferrier Hodgson. She said she knew her rights.  The learned Magistrate at the end of the day said she did not consider the appellant had an honest belief that her hard disk would be copied without her consent.  Her aim was to get back the computer, at that particular points of time, at all costs. (see para 63 of the learned Magistrate’s Statement of Findings) 

34.  As for the test of reasonableness, the learned Magistrate said that the appellant is an experienced lawyer, she knew her rights over her own property.  On her way to Hong Kong Club Building, she had telephoned the police; she had in mind complaining to the Law Society, and she said she trusted Mr Tudorovic, the director of Ferrier Hodgson,  would not do anything which was against her interests or rights.  The learned Magistrate said the appellant said her aim was to get back her computer and so she bit PW1.  She did not care about the consequence at all.

35.  The learned Magistrate said that at the end of the day, the appellant knowing that police was on their way, and at that time she had already warned Ferrier Hodgson.  She found that the force ultimately applied by the appellant was not reasonable.

36.  The learned Magistrate also considered Senior Counsel’s submissions that at that time the appellant believed that she had exhausted all other ways and the situation was very imminent; the biting was her last resort, the learned Magistrate did not accept that.  At the end of the day, she found that the prosecution has proved the case beyond a reasonable doubt, and convicted the appellant.

37.  On appeal, the appellant had submitted the following written Grounds of Appeal as:

(i)  The learned Magistrate has failed to resolve the material inconsistencies between the evidence of PW1 and PW2.

(ii)  The learned Magistrate has erred in finding that the appellant had used excessive force in defending her property.

(iii)  The appellant submitted that the conviction was unsafe and unsatisfactory.

38.  In the recent submissions provided to the Court by the appellant, the appellant laid out in support of Ground 1: The material inconsistencies between the evidence of PW1 and PW2.  The main contention was really as to what was decided on 10 March.  The appellant submitted that PW1 should not be believed at all because he had been proved to have been unreliable in his evidence in relation to what was agreed.  When PW1 was, for example, shown the note written by PW2, he claimed that it was not written by him and the implication being that therefore it was of no moment to his evidence.

39.  It is clear that the learned Magistrate did have the material inconsistencies in mind because it is material as to what was agreed between the parties to explain the agitation of the appellant and the reasonableness of her reaction.  It is clear that the learned Magistrate found that what was agreed was that the matter of the computer would be discussed on 11 March in the offices of Laracy Gall.  It was clear that PW1 had to taken it upon himself to go directly to the offices of Ferrier Hodgson with the appellant computer without any further discussion on 11 March, and this can explain the agitation the feeling of inadequacy of the appellant and the fear that her hard disk would be copied at Ferrier Hodgson’s office without her being present and without her consent.

40.  This is also reflected in the appellant’s behaviour in that she very properly knowing her rights immediately, telephoned the police to protect her property, and also telephoned Ferrier Hodgson’s director, Mr Tudorovic, informing him that the police had been called and also that Ferrier Hodgson may be sued if they copied her hard disk without her consent.

41.  There was no question that the appellant knew her rights and knew how to protect her rights involving her computer.  It is without a doubt the fact that when the appellant arrived at the Hong Kong Club Building, she was very agitated.  However, she knew the police was on the way.  The only issue left for the learned Magistrate to consider was the location at where the biting took place.  It is really not important because whether it took place inside the lift, outside the lift, in the lift lobby or whether there were one bite, two bites or three bites.  The main thing is that the appellant did agree that she did bite PW1, but the issue in the case is whether her biting of the hand of PW1 was a reasonable force and therefore necessary in the protection of her property.  The learned Magistrate had listened to the evidence and she made her findings on the facts. 

42.  The appellant understandingly may be emotional about the event that took place, in fact about the high handed manner in which PW1 acted.  However, we have to look at the facts in the case and the circumstances surrounding it in finding whether the learned Magistrate had as the appellant maintained ignored material inconsistencies.  As I have said the main argument is that there were other minor inconsistencies which the appellant had pointed out in her written submissions.  I do not need to refer to them as I have said they were minor inconsistencies.  The main inconsistency was actually what was agreed on 10 March. 

43.  The learned Magistrate found that she accepted the evidence of PW2 which was in line with what the appellant herself had remembered.

44.  I do not find the learned Magistrate had failed to resolve material inconsistencies.  Therefore, I do not find that Ground 1 is a successful ground.  In relation to the second ground that the learned Magistrate was wrong in finding that the appellant has used excessive force in defending her property.  As I have earlier said the learned Magistrate had correctly identified the principles in this case that the prosecution had to prove that the appellant has used excessive force in defending her property.  

45.  There is no doubt as I have said the appellant was in some way justified in being agitated about the manner in which PW1 had acted in bringing her computer without her consent to the offices of Ferrier Hodgson.  The actions of the appellant indicated that she did properly know what was going on, she did everything she could to protect her property by referring the matter to the police, and also informing Ferrier Hodgson against doing anything with her computer to no less a person than a director of Ferrier Hodgson. 

46.  The question is whether at the time when the appellant bit the hand of PW1 did actually believe that was the only way in order to protect her property.  She knew the police was coming, she knew that Ferrier Hodgson had been warned not to act in relation to her laptop computer.  Did she believe that that was reasonable force to protect her property?  The learned Magistrate did not think so. 

47.  Having read learned Magistrate’s reasoning, I did not find that she had acted wrongly, so I do not consider that this ground of appeal is successful.  (I note here, that at this stage, the appellant left the court, I will not have her brought back to consider if she acted in contempt of court because she is very agitated and I can understand her emotional state at this time of the proceedings.)  I do not find that this ground of appeal is persuasive either.  At the end of the day I do not find that the conviction was unsafe and unsatisfactory. There is no reason to interfere with the learned Magistrate’s finding.  The appeal is dismissed.