HKSAR v. RAZGALLAH, LUCAS KARIM

HCMA 86/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 86 OF 2015

(ON APPEAL FROM ESCC 2831 OF 2014)

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J U D G M E N T

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1. This is an appeal against conviction. The appellant was convicted by a magistrate[1] after trial of two counts of common assault, contrary to Common Law and section 40 of the Offences Against the Person Ordinance, Cap 212. He was sentenced to a fine of HK$6,000 on the first charge and 6 weeks’ imprisonment suspended for 18 months on the second charge.

The prosecution case

2. The appellant had parked his motorcycle on the pavement at the entrance of the Horizon Plaza car park in Aberdeen.  This was a violation of the rules of the car park.  The manager of the car park invited the appellant to remove his motorcycle from that area then started to take photographs of the appellant and his motorcycle.  Soon after the taking of the photographs the appellant suddenly ran up to the manager.  He was hostile to the manager.  Shortly thereafter the appellant head-butted the manager.  The manager then told the appellant he was reporting the appellant to the police. The appellant ignored the manager and got on his motorcycle to leave.  The manager and his colleagues tried to stop the appellant from leaving the car park by standing behind the motorcycle, however despite blocking the appellant’s way, the appellant ignored them and reversed his motorcycle with his feet.  In so doing the motorcycle collided with the manager causing him to fall.  The tyre of the motorcycle then rolled over the manager’s foot.  The appellant then rode away from the car park.

3. There was a CCTV recording of the event and actions that took place between the manager and the appellant. 

The defence case

4. There was no dispute of the recording captured by the CCTV.  The appellant’s case at trial was that he was annoyed that the manager was photographing him and felt personally violated.  He was upset and argued with the manager.  Although he did the action of a head-butt towards the manager, his head never physically came into contact with the manager’s head.  This head-butting action was part of his French culture particularly when he was a bit worked up.  He was determined to leave the scene as he felt he had done nothing wrong.  As he was about to leave and while pushing his motorcycle backwards with his feet the manager came and stood behind his motorcycle blocking his way.  He carefully continued to reverse his motorcycle however whilst doing so the manager pretended that the motorcycle hit him and fell to the ground.  He also falsely claimed that the tyre rolled over his foot. 

The magistrate’s findings

5. The magistrate correctly identified that the main issue at trial was the credibility of the manager.  Was there any physical contact between the appellant and the manager during the head-butt and whether the manager was faking his fall or was untruthful about the motorcycle rolling over his foot.

6. The magistrate found the manager to be a credible, truthful and reliable witness.  He found the manager’s evidence to correspond with the recording of the CCTV.  He found the appellant was not a truthful witness that at the time of the incident the appellant was hostile to and vented his anger at the manager. 

7. In respect of the first charge of common assault, the magistrate found the appellant had intentionally head-butted the manager and there was contact with the manager’s head.  On the second charge, the magistrate found the appellant had deliberately reversed his motorcycle to leave knowing the manager was standing behind him and blocking his way.  In doing so the appellant intended to collide with the manager, when the manager was on the ground he then intentionally rolled over the manager’s foot.

Grounds of appeal

8. The grounds of appeal were essentially the same as those relied on at the appellant’s trial when he was legally represented by counsel. 

9. At the hearing of the appeal, the appellant who acted in person relied on the following grounds of appeal.  As to the first charge, the ground was although he did do an action of a head-butt, there was no contact with the manager’s head.  He had no intention of assaulting the manager.  He was upset at the manager photographing him and just argued with the manager. 

10. When the appellant was pushing his motorcycle backwards to leave the car park the manager intentionally stood in his way when he wanted to leave.  He took great care to manoeuvre the motorcycle to avoid the manager.  He did not come into contact with the manager.  The manager faked the fall and the fact that the motorcycle rolled over his foot.

11. The appellant submitted that if he had intended to assault the manager with a head-butt he could have easily done so.  If his head had come into contact with the manager’s, the manager’s head would have moved backwards or the manager would have stepped backwards or would have immediately covered his head with his hand.  The appellant submitted that as none of these actions could be seen on the CCTV recording the manager was untruthful about the contact. 

12. The appellant further argued that if there was an assault as described by the manager there would have been visible injuries caused by the assault.  However the medical findings showed no visible injuries or external wound. 

Discussion

13. At the hearing of this appeal the CCTV recording was viewed and magnified.  The appellant was clearly seen to head-butt the manager though it could not be seen if there was any contact with their heads. The reversing of the motorcycle with the manager standing behind blocking the appellant’s motorcycle was also clearly visible with the manager falling down and the motorcycle passing close-by the manager.

14. This case was a one against one case with the added support from the CCTV recording.  The magistrate was fully aware of the issue of credibility. 

15. He stated clearly in his statement of findings the issues in the case. He said :-

“7. In accordance with the Closing submission of the Defence, the issues in this case were:

(1) factual dispute: whether the court should accept the evidence of the Manager (PW1) in order to find there was impact or contact between the Defendant and the Manager;

(2)   if there was impact between the Defendant and the Manager, it was only caused by the recklessness of the Defendant and the Defendant has no intention to assault the Manager.”

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11. ……the crux of this case is the credibility and reliability of the Manager’s evidence.  I have borne in mind that it is a "one-against-one" situation.  I understand that the allegations made by the Manager against the Defendant are easy to fabricate but difficult to rebut

…..

15. The real issue is that the court should decide whether to accept the Manager’s evidence on which there was physical contact between the Defendant and the Manager; alternatively, whether the Manager was pretending he was being contact with the Defendant and/or his motorcycle.”

16. The magistrate analysed the point of the lack of visible medical injury.  He was satisfied that that it was possible that no injury was visible despite the assault.  He was justified to find that the lack of any external wound or injury did not cast doubt on the manager’s evidence. 

17. As to the stillness of the manager’s body or head on impact by the appellant’s head, the magistrate observed and as can be seen in the CCTV the appellant’s head was extremely close to the manager’s at the time of the head-butt.  Given the extreme closeness of the manager’s and the appellant’s heads immediately before and at the time of the head-butt, the fact that there was no obvious movement of the head or body triggered by the impact did not denote there was no contact. 

18. Whether a witness is credible is purely within the scope of the decision of the magistrate.  The magistrate enjoyed the advantage of having received the evidence at first hand.  He carefully analysed and evaluated all the evidence.  He considered separately the evidence of the appellant and the manager.  His analysis of the evidence was logical, clear and precise.  The magistrate found that once the manager started to take the photos the appellant suddenly ran towards the manager, he stood opposite to and at a very close distance to the manager during his hostile tirade, his head was very close to the manager immediately prior to and when he head-butted the manager.  After the head-butt the appellant ignored the calls of the manager not to leave he intentionally collided with the manager then rolled over his foot. 

19. The appellant had used his head and his motorcycle to assault the manager.  The assault in this case was a battery.  In FAGAN v Metropolitan Police Commissioner [1968] 52 Cr App R 700, DC the court at page 703 described the following:-

“An assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence. Although “assault” is an independent crime and is to be treated as such, for practical purposes today “assault” is generally synonymous with the term battery and is a term used to mean the actual intended use of unlawful force to another person without his consent. On the facts of the present case the “assault” alleged involved a “battery.” Where an assault involves a battery, it matters not whether the battery is inflicted directly on the body of the offender or through the medium of some weapon or instrument controlled by the action of the offender see FAGAN v Metropolitan Police Commissioner [1968] Cr App R 700, DC at part of page 703.”

20. The magistrate was entitled to come to the conclusions that he did in his assessment of the evidence.  In light of all the evidence the conviction was proper, safe and satisfactory.  The appeal against conviction is dismissed accordingly.