HKSAR v. BORCHERT HOLGER TORSTEN

HCMA 318/2021

[2022] HKCFI 231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 318 OF 2021

(ON APPEAL FROM ESCC 294 OF 2021)

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J U D G M E N T

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Introduction

1.  The appellant was convicted of one charge of Assault Occasioning Actual Bodily Harm, contrary to common law and punishable under s39 of the Offences against the Person Ordinance, Cap 212 on 20 May 2021, before Mr Gary Chu, Deputy Magistrate.  On 3 June 2021, he was sentenced to perform 80 hours of community service.  By his Notice of Appeal dated 17 June 2021, he now seeks to appeal that conviction.

Prosecution Case

2.  At the material time, PW1, Carrey Siu-fong, Grace, was the managing director of a company called Tamarisk Concepts Limited (“Tamarisk”), which had been in operation since December 2018.  Tamarisk is in the business of managing boats, which includes services such as ferrying boat owners to and fro to the pier as well as providing boat maintenance services to owners who moor their boats at the typhoon shelter in Kwun Tong.  Tamarisk owned a boat called the ‘Sea Change’ for ferrying purposes.  PW1 used an office on her own boat ‘Thyme and Plaice’, to manage the company.  The appellant was a client of Tamarisk.  He owned a boat named ‘Atia’.  He engaged the services of PW1’s company at a monthly fee of $17,000.  This agreement only included the provision of power and water as well as the ferrying services.  Additionally, PW1 and the appellant entered into an oral agreement for maintenance services in October 2019, which included refurbishing and painting the ‘Atia’.  The final bill for this service came to $133,440. This included materials, labour and a 20% management fee.  A dispute arose during which the appellant initially paid Tamarisk $60,000.  He required remedial works to be carried out before payment of the outstanding sum.  On the morning of 3 March 2020, PW1 sent an email message to the appellant about their ongoing dispute.  Tamarisk demanded payment of the outstanding sum and refused to provide any extra-contractual services to the appellant such as the provision of petrol for his small boat and drinking water, unless he settled the outstanding bill.

3.  At 4.45pm on 3 March 2020, the appellant went to speak with PW1 on Thyme and Plaice, to challenge the withdrawal of these services.  An argument took place at that time but the defendant left soon afterwards without resolving the dispute.  PW1 then went to Sea Change and gave instructions to her employee to stop providing services to ‘Atia’ at the end of the month.  This would have included all services not just the extra-contractual ones.  At this stage, the appellant was also present on Sea Change and demanded that he be ferried to the pier in order to obtain for himself the petrol that Tamarisk now refused to provide directly.  He was told by PW1 to hail a Sampan.

4.  PW1 then entered the living area of the ‘Sea Change’.  The appellant appeared and looked as if he was filming what was taking place.  He maintained that he had paid for services that Tamarisk refused to provide.  His phone, on which he was filming the scene, was about 10 feet away from PW1.  They recommenced their argument.  PW1 accepted that she was shouting very loudly at him and that they were both very angry.  They had moved closer to each other as the argument progressed and became more heated. PW1 said that she then tried to swipe the telephone away from her face.  It fell to the floor.  In response, PW1 alleged that the appellant punched her in the face causing her nose to bleed and injury to the right side of her nose.  The appellant had punched PW1 so forcefully that the blow caused her to step back and thereafter he pushed her with both of his hands so hard that she lost her balance and fell back onto the sofa behind her.  PW1 gave evidence that the blood from her nose was dripping onto her clothes and onto the floor.  According to PW1, the appellant then picked up his phone and continued to record the incident.  When PW1 accused him of punching her he responded “I didn’t mean that I am sorry”.  He continued to discuss the contract whilst PW1 said she was bleeding onto the floor and curled up in a ball on the sofa.  The appellant then said that they needed to talk and he continued to record the incident.  When PW1 refused, he said “Okay, I tried” and left.  PW1 called the police.  By this stage one of her employees was present. PW1 went to Pamela Youde Nethersole Eastern Hospital A&E and was referred to the ENT outpatient department the next day.  Medical reports[1] indicated swelling over the nasal bridge and a deviated septum.  PW1 admitted in chief, that she had fractured her nose during the previous November 2019.

Defence Case

5.  The appellant was represented at trial by Victor Ho of Counsel.  He did not give evidence.  P1, the Admitted Facts, included his admissions upon arrest and caution under which he stated that he had used his right hand to defend (against)  PW1 after she had swept his mobile phone out of his hand in a violent and uncivilized manner and he had therefore inadvertently hit her on the nose.

6.  The defence case can also be ascertained from a perusal of Exh D3, which is an email sent by the defendant to PW1, on the day of the dispute but at 16:40 hours, which was just before the incident in question.  It was clearly in response to the earlier email from PW1 which was referred to in examination in chief, but which has not been adduced.  In it, the appellant outlines his grievances once more and attaches his payment for outstanding works not including the 20% management fee, which he continued to dispute.  

7.  Under cross-examination, PW1 accepted that she had been arrested on 3 March 2020, for criminal damage in respect of the damage to the appellant’s phone.  It was part of the defence case that the witness statement made by PW1 was made under an immunity as a result of the pending criminal damage prosecution and that she had an interest in the outcome of the proceedings against the appellant over and above being the victim of an assault.

8.  Mr Ho put the defence case in respect of the ongoing dispute before he produced the email at Exh D3.  PW1 initially disagreed that the appellant was unhappy with the paintwork.  In fact, she stated he had been very happy with it.  In answer to defence allegations, PW1 suggested the dispute arose simply because he did not want to pay the bill and was making excuses.  She did however agree that Tamarisk had done additional remedial work at the request of the appellant after finding their work unsatisfactory.  She also agreed there was a dispute over the additional 20% charge for management fees billed on top of the maintenance charges in Exh D2.  On that issue, PW1 accepted there had been no quote for the maintenance works nor any mention of management fees.  This had been an oral agreement only.   PW1 also accepted there were difficulties with the power supply to Atia but that the problem was the appellant’s and not Tamarisk’s.

9.  The defence then produced Exh D3, an email written to PW1 before the incident on 3 March at 4.40pm in which the appellant details his complaints.  At this point, PW1 changed her evidence and agreed the substance of the complaints she had earlier denied. PW1 was also cross-examined as to the detail of the conversation which took place on 3 March, after the alleged assault, with regard to negotiating a settlement between them but she could not recall specifics.  She denied shutting off the power to Atia in front of the defendant during the argument on Sea Change but nevertheless later agreed he had demanded the power be put back on and that he be provided with petrol.  She also accepted that when the police arrived she had said that she had been punched twice and also that there was a witness to the incident.  Under cross-examination she explained that she had thought at the time she had been punched twice but later believed he had punched her once and pushed her once.

10.  As for her injuries, PW1 accepted the previous injury to her nose occurred on 8 December 2019 not November 2019, as she had suggested but she denied the injury was serious despite requiring surgery.  It was put to her that she had not told the police of that injury nor did she provide the associated medical report for the injury when she made her original witness statement in August 2020.  For some reason, the learned Deputy Magistrate did not allow the defence to put that report before her.  Given that it was a report about her own condition and she had knowledge of it, I do not understand why it could not be placed before her in cross-examination for the purposes of asking her to adopt the contents, which would have indicated that she had previously fractured her nose and that by comparison that injury was greater or more serious than the one at hand.  The photos adduced by the prosecution, P4, were taken the same day and it was advanced that they do not show any blood on her clothes nor blood on the floor.

The Perfected Grounds of Appeal

11.  In his home made Perfected Grounds of Appeal, the appellant details similar grounds to those outlined within the defence submissions which are rehearsed below.  The thrust of the appellant’s complaint was:

i)  The Court ignored what the appellant had said at the scene, at the police station and in his defence statement, which were consistent with one another and which stated that he had not been close to PW1 when seeking to make a recording of her and that she had attacked the appellant without warning when she hit the phone out of his hand.

ii)  PW1 had been arrested and prosecuted for offences which should have been taken into account as undermining her credibility.

iii)  The prosecution failed to produce an independent eye witness when PW1 suggested there was one.

iv)  The inconsistencies in the statements of PW1 and her oral evidence raise a further doubt as to her credibility.

v)  The Court placed no reliance on the fact that PW1 had previously been injured in the nose and had not disclosed that to the police.

vi)  The Court should have taken into consideration that the ensuing negotiation over the debt was an attempt to force the appellant into payment in lieu of her proceeding with her claim.

Magistrate’s Statement of Findings

12.  There were only two prosecution witnesses i.e. PW1, Ms Grace Carrey and PW2, the arresting officer.  The defendant did not give evidence.  The Magistrate noted that it was his right not to give evidence and that it could not be construed as evidence of his guilt.  He also took into consideration the fact that the defendant was a man of good character.

13.  The Admitted Facts [P1], included admissions as to time date and place and as to what the appellant had said upon arrest and caution. The latter is to prove crucial to the consideration of this appeal.

14.  The Magistrate noted that the written closing submissions from the defence sought to undermine the credibility of PW1 on the basis she was evasive, dishonest and had a propensity to exaggerate.  Those submissions can be broken down into the following:

i)  As PW1 had damaged the appellant’s mobile phone when she swept it out of the appellant’s hand and was therefore arrested for criminal damage, PW1 had a vested interest in the outcome of the trial against the appellant.

ii)  She had a motive to fabricate the case against the appellant because of the outstanding sums due for services rendered.

iii)  PW1 did not seek medical attention immediately but instead continued to negotiate with the appellant in respect of his outstanding debt.

iv)  PW1 contradicted her written statement in her evidence in trial and relied upon evidence not previously disclosed in that written statement.

v)  PW1 had suggested there was a sailor present at the material time who should have given evidence.

vi)  PW1 was operating an illegal business and was illegally employed and must therefore be a dishonest witness.

15.  The Magistrate dealt with each of those arguments and provided his reasoning.  In particular, at paragraph 22, he said:[2]

“After careful consideration of PW1’s evidence, her answers under cross examination and her demeanour, I am sure she was telling the truth. I am sure she was not framing the defendant despite the contractual disputes between her and the D. I do not find any material discrepancies in her evidence that are so serious which leads me to doubt the veracity or probity of her evidence. She was asked to recall occurrences that took place in March 2020, which was over a year ago and was asked in minute detail. Her mistakes, if any, were minor, omissions understandable and I did not find her evasive.”

Analysis

16.  The thrust of the defence case as to credibility led the Magistrate to be deflected from the real issue before him which was a case of AOABH.  This is understandable.  PW1 was the only witness as to the assault.  Her evidence was crucial in order to establish beyond reasonable doubt that she had been assaulted by the appellant and that physical harm had resulted, which the appellant either intended or was reckless as to causing.  However, by focusing upon her credibility alone, the Court lost sight of the offence.  There was no analysis of the offence of AOABH. No identification of the actus reus or the mens rea.  No confirmation of what was in issue and what was not, other than the issue of credibility.

17.  The issue of accident was a live one.  The appellant had raised it on arrest and caution and his answers had been admitted before the Court under s65C of the Criminal Procedure Ordinance, Cap 221.  The possibility of accident was never mentioned other than at the very end of his Statement of Findings when the Court said “The punch was not an inadvertent act nor was it an act of self-defence...” without more.  Self-defence had never been raised.

18.  The fact that PW1 suffered some harm was not in dispute. The examination and cross-examination of the degree of injury she suffered and as to her disclosure of her previous injury, was directed solely to the issue of her credibility not to the issue of harm.  What was to be determined by the Court was intent.  Mens rea in the circumstances of this case would have to be inferred.  This was not acknowledged by the Magistrate.  At paragraph 10, he stated “The sole issue in this case is the credibility of the witnesses, in particular PW1”.  He misdirected himself in this regard.  It was neither the sole issue nor the primary issue.  This misdirection resulted in there being no analysis of the elements of the offence of AOABH.  Instead, the Magistrate concentrated upon the credibility of PW1 alone.

19.  As for Exh D3, the Magistrate disregarded it on the basis that the appellant had not given evidence as to its veracity; had not provided the circumstances in which he wrote the email and the contents had not been tested under cross-examination.  I beg to differ.  The document was put to PW1.  She accepted she had received it and read it, albeit after the events.  She also accepted that its contents were correct and reflected the substance of their dispute.  It was properly before the Court.  There was no basis for its rejection.  There was no requirement for the appellant to adduce it himself or to speak to its veracity, if PW1 had adopted it.

20.  This error was unfortunately compounded at paragraph 18 of the Statement of Findings, in which the Magistrate went on to say “The same goes for the statement given by D under caution, it was a mixed statement I should say and I would not put any weight on it as it was not given under oath and has not been tested in cross examination.”  The answers given by the appellant immediately upon being taxed with the allegations of assault go just as much to his state of mind as to that of any victim.  They were admitted under s65C.  They went directly to intent, which was an essential issue before the Court and raised the possibility of accident. At the very least, that should have been recognised, even if the Magistrate, for good reason, went on to attach little weight.  He did not do so.  He does not explain why he attached no weight at all.  He provided no explanation for this reasoning given that it was raised evidentially as another reasonable inference which could be drawn from the facts on the issue of mens rea and given that it was not inherently improbable if the Court took into consideration the increasingly heated situation, which PW1 accepted had occurred. 

Magistracy Appeals

21.  The test to determine whether an error by a magistrate, or an error sufficient to constitute a material irregularity, is such that the appeal should be allowed and the conviction quashed is whether it is just to order the appeal be allowed and the conviction quashed[3].  The Magistrate was distracted by the defence case and unfortunately fell into error when he placed all of his consideration upon the single issue of the credibility of PW1 and not upon the necessary ingredients of AOABH.  If he had done so, he may have come to the same conclusion as to guilt but, as he did not do so, this Court feels the better approach is that enunciated in HKSAR v Ip Chin Kei,which stated that even if the appeal court were to find no error on the part of the Magistrate nor find that any ground of appeal had succeeded, the Court must nevertheless go on to perform its statutory function of conducting a rehearing on the papers.  This means that the appeal court will examine the evidence which was before the Magistrate, the depositions and the Magistrate’s statement of findings of fact and come to its own conclusions as to the guilt of the appellant.

22.  Assault occasioning actual bodily harm requires a)  an assault and b)  bodily harm caused by the assault.  An assault is an act by which a person intentionally or recklessly causes another person to apprehend immediate unlawful personal violence.  Actual bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim.  The appellant accepts he made contact with the face of PW1, he accepts that there was some blood from her nose.  What he does not accept is the extent of the injury but prima facie there was a connection between his hand and her face which resulted in, at least, a nose bleed.

23.  There was therefore evidence before the Court of the actus reus of an assault occasioning actual bodily harm.  The true issue was whether the appellant intended or was reckless as to that harm, which he accepts that he caused.  The defendant raised his defence of accident under s65C.  It was a live issue.  The Court was required to draw an inference as to his mens rea from the proven facts.  At this stage that might have included the evidence of PW1, but even if the Magistrate could draw an irresistible inference from the proven facts, he nevertheless had to ask himself if that was the only reasonable inference which could be drawn.  Another inference had been raised and needed to be answered.  He could not ignore it.  It was not entirely fanciful when all of the evidence was considered.  Much of the dispute between PW1 and the appellant was accepted by PW1 in the end.  He had a reasonable argument as to the bill submitted to him and had paid all but the management fee prior to this assault.  His submission that this was an accident when set against the background of several separate pieces of questionable evidence from PW1, including the exaggerated harm at the scene, the negotiations immediately after the alleged assault, the looming prosecution for criminal damage, and the less than full and frank disclosure of the previous injury, do raise a reasonable doubt. 

Conclusion

24.  This appeal against conviction is allowed.  The conviction is quashed and sentence set aside.

25.  The appellant represented himself in this application.  There will be no order as to costs.