HKSAR v. BRAIN, ALFRED HALL

HCMA 1069/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 1069 OF 2008

(ON APPEAL FROM ESCC 5737 OF 2007)

_____________________

_____________________

____________________

J U D G M E N T

____________________

Background

1.  The appellant faced one charge of Common Assault, contrary to Common Law and punishable under section 40 of the Offences Against the Person Ordinance, Cap 212.  The particulars of the offence were that “BRAIN ALFRED HALL, you are charged that on the 25th day of September, 2007 in Hall F, Stanley Correctional Institution, No. 99, Tung Tau Wan Road, Stanley, in Hong Kong, you assaulted KONG Siu-ming.” He pleaded not guilty and was convicted after trial.  He was fined $1,500 (and in default to 7 days’ imprisonment).  The appellant appealed against his conviction and sentence on 2 December 2008.  Upon his filing a Notice of Abandonment of Appeal against sentence, his appeal against sentence was dismissed.

2.  After various adjournments eventually the appeal proper was heard on 5 January 2017 and 2 March 2017.

The prosecution case

3.  The prosecution case was straightforward.  The appellant was an inmate at Stanley Prison.  On 25 September 2007, Dr Kong Siu-ming (Dr Kong) examined the appellant inside the prison.  As Dr Kong could not find any injury on the appellant, he informed the appellant and went on to write his medical report.  The appellant was unhappy with the negative finding and became agitated and emotional.  He tried to hit Dr Kong’s left hand with his right hand (Dr Kong wrote with his left hand).  Dr Kong was alarmed and backed away.  As a result, the appellant did not come into contact with Dr Kong but hit the table instead.  TAM Kin-man (TAM), an officer of the Correctional Services Department (CSD) was present and witnessed what had happened.  The appellant was then taken away by another CSD officer.

The defence case

4.  The appellant gave evidence and denied the charge.  His case was that Dr Kong and TAM fabricated the incident as part of an ongoing “institutionalized victimization policy” against him by the CSD.  He adduced a document entitled “Important Notice” (Exhibit P3) purportedly issued by the CSD to support his claim.

Grounds of appeal

Ground 1: the magistrate misdirected himself as to the effect of the “Important Notice”

5.  At the time of the trial, the “Important Notice” was an exhibit (P3).  The magistrate said in his findings: “As to Exhibit P3, this was indeed a ‘policy’ aimed at how to handle the [appellant], but there is nothing to suggest that the policy had been drummed up for no reason, or that it was because the CSD had wanted to victimise him.”

6.  If the “Important Notice” was a genuine document issued by the CSD in relation to their treatment or handling of the appellant, then I would have agreed with the appellant’s contention that the magistrate had misdirected himself as to its effect.

7.  To understand this, the contents of the said Notice needs to be spelled out:

“There is no doubt that the subject have adopted an anti-authoritative and antagonistic behaviour towards staff members and have the disposition to being so, disobeying and challenging every rules and staff order. In order to maintain good order and discipline, and to prevent him from exercising adverse influence to other inmates, the following administrative and disciplinary measures are recommended for the onward management of the subject.

----- Use of necessary and reasonable force to comply him with the rules and orders, should be of the priority over persuasion.

----- Concerted effort of all staff members are required to report and charge the subject by all means, of any actual or imagined transgression and by all means, to ensure his conviction of such transgression.

----- Firm and decisive enforcement on him Of all rules and any order is a must.

----- Isolation of him from other inmates is necessary in order to detect the cause of his adverse behaviours and if caused by psychiatric or psychological problem, to be treated accordingly.

----- Every request by him must be brought to all the attention of H.O.I. and will only be entertained subject to approval of the ranks of C.O. and above.

----- The foregoing measures applies to any institution as the subject may be transferred from time to time.

Commissioner’s Decision: Approved.” 

8.  It is one thing to warn officers about the attitude of the appellant and how to deal with his transgressions, it is quite another to tell CSD officers to use “… [c]oncerted effort … to report and charge the [appellant] by all means, of any actual or imagined transgression and by all means, to ensure his conviction of such transgression.” [My emphasis]

9.  If this document is genuine, it could have been used to support the appellant’s allegation of an “institutionalized victimization policy” against him by the CSD, and that he was wrongly framed up for this offence.

10.  However, subsequent events showed that the said “Important Notice” was a forgery.  In the District Court (DCCC 1431/2009), Judge Yip found that the appellant had knowingly uttered forged documents (which included the “Important Notice” and other documents purportedly came from CSD officers), and the Court of Appeal upheld the conviction (CACC 18/2012 & CAAR 1/2012).

11.  The argument put forward by the appellant was that despite the judgment of Judge Yip and despite the Court of Appeal upholding the conviction, upon discovery of further documents from CSD, the “Important Notice” was in fact not a forgery.  That being the case, there was indeed an institutionalized victimization policy against him.  He did not commit any assault offence at all and should be cleared of the conviction of this offence.

12.  The background and the court’s findings in relation to the “Important Notice” was succinctly summarised by the Court of Appeal:

“13.  In the course of the trial and in order to exonerate himself, he produced a document entitled ‘Important Notice’ allegedly signed by two officers of the Correctional Services Department, one an assistant commissioner named Chan and the other a superintendent named Siu.  He also produced a written statement allegedly made by an officer called Tam the contents of which were, as to the facts, materially different from Tam’s oral evidence at trial.

14.  The ‘Important Notice’ is on its face an extraordinary document, the contents of which speak volumes for its non-authenticity.  It is a notice purportedly for distribution within the CSD; it is derogatory of Hall and instructs staff how Hall should, because of his troublesome disposition, be dealt with in future: the instructions include directions to use necessary and reasonable force rather than persuasion to ensure that he complies with rules, to ‘charge the subject by all means, of any actual or imagined transgression and by all means to ensure his conviction of such transgression. … . ’ (Emphasis added).

15.  The prosecution case which Judge Yip found to be proved was that the ‘Important Notice’ and Tam’s inconsistent written statement were forgeries, designed to secure Hall’s acquittal upon the charge of attempted assault.  The design failed at the trial stage.

16.  This allegation constituted the background to the second charge with which we are concerned, namely, that on 26 November 2008 with intent to pervert the course of public justice, Hall gave false testimony in the magistracy proceedings as to the provenance of the copies of the ‘Important Notice’ and of the staff statement allegedly made by officer Tam, which Hall represented to the court were copies of genuine documents made by the various officers.”

13.  As Stock JA said on appeal, the said “Important Notice” was on its face extraordinary and the contents speak volumes for non-authenticity.

14.  The “undisclosed” documents relied on by the appellant was, first, a statement from the appellant to the CSD dated 18 November 2008, on which was hand-written the following:

“To COPA, Attn SP-Hospital (poh) & welfare officer

Request that my ‘Medical Report/Advice x 5’ and ‘Important Notice’ (2 copies each) in the [a ref no] Board of Review File ‘in the hospital’ be photocopied to me.

[cost deduct from my property]. Hall”

15.  The second document was entitled “APPLICATIONS/INTERVIEW/INFORMATION”, the relevant entry relied by the appellant reads:

“18.11.2008, Subject prisoner approached Officer RU2 soliciting approval of making photocopy of his medical report and Important Notice. It was recommended. The cost of photocopy would be deducted from his property.”

16.  The appellant’s contention was that the statement and the above paragraph indicated that the “Important Notice” was in existence and given to him by the CSD, so they were not forged documents.

17.  The appellant also claimed that these two documents were “suppressed” by the prosecution and was not disclosed to Judge Yip during the trial.

18.  I understand from the respondent that the CSD and the prosecution had never seen the first document (the handwritten statement dated 18 November 2008) before.  The second statement was inspected by the appellant in December 2010 (well before the trial before Judge Yip).

19.  Although the appellant claimed that he had given a statement dated 18 November 2008 to the CSD and the copy he showed me was only disclosed to him late, given the history of this appellant of producing documents purportedly from CSD officers either during a trial or on appeal before, I am not prepared to take his words on face value that this is a genuine document retrieved from the CSD.

20.  Further, since it was purportedly a statement by the appellant, he would have remembered there was such a document when he was facing his trial for forgery in the District Court and could have asked for its production by the CSD.  I do not see any possibility of the CSD or the prosecution suppressing such a document, if the appellant had indeed submitted it.

21.  As to the second document, what was relied on by the appellant amounts to no more than that he had approached the CSD “soliciting approval for making photocopy of his medical report and Important Notice”.  There is no question that the appellant did have photocopies of documents which included the “Important Notice”, which were found to be forgeries.  This document does not support the appellant’s contention that the “Important Notice” originated from CSD.

22.  The last document relied on by the appellant was entitled “MEDICAL REPORT/ADVICE”.

23.  The paragraph relied on by the appellant reads as follows:

“(a)  medical/physical condition

For your advice and assistance in your investigative duties on the subject, please be advises that according to the Psychiatrist diagnosis and advise of Dissocial Personality Disorder on the subject on 4.11.99, the prisoner have the disposition to being easily irritable and aggressive, to be violating Laws, the Prison rules and regulations, being self-centred, deceitful, untruthful, impulsive, irresponsible, manipulative, calculated, remorseless, and prone to hold an antagonistic front to authourity (sic) figures.”

24.  Particular emphasis was placed by the appellant on the word “untruthful”.

25.  I do not find the comments are in any way indicative of prison officers colluding to frame the appellant up regarding the offence he was charged with and was finally found guilty of.

26.  In any event, as found by the magistrate, even if the appellant’s allegation of a “victimisation policy” against him by the CSD holds any substance, Dr Kong was not a CSD officer, but was a doctor deployed by the Department of Health to Stanley Prison at the time.

27.  This ground fails.

Ground 2:  material contradiction in Dr Kong’s oral testimony in court and his witness statement, rendering his evidence unreliable

28.  For this ground, the appellant relied on his own medical report written by Dr Kong.  At the time of the trial, he had in his possession the entry by Dr Kong (at 11:35 am on 25 September).  He made submission to the magistrate with reference to that part of the entry.  However, it was only during the District Court case that he came across an earlier entry (11:30 am on the same day).  Dr Kong made entries of finding no external head injuries, that the appellant suffered from cough and so on before making a new entry at 11:35 about the assault by the appellant.  It was the appellant’s submission that these entries show that Dr Kong did not make a contemporaneous or simultaneous record so Dr Kong’s evidence about the assault was unreliable.

29.  The appellant did not cross-examine Dr Kong on the entry at 11:35 during the time and tried to have it admitted as evidence at the end of the defence case.  The magistrate was correct in refusing to admit it.

30.  In any event, the magistrate did read the entry at 11:35 and came to the view that there were no material discrepancies.  Having read the entry at 11:35 I also agree that there were no material discrepancies.

31.  Even though the appellant claimed that he did not have the earlier entry (at 11:30 am) during the trial, after looking at the various entries, I do not find any material discrepancies in the report when compared with Dr Kong’s evidence.  Dr Kong’s evidence was that he had started to write down his diagnosis when he was attacked.  Clearly he could not write about the attack at the same time when he was being attacked.

32.  There is no merit on this ground and this ground fails.

Ground 3:A request for disclosure of pornography allegedly found in the computer of a CSD officer

33.  The appellant claimed that pornograpic material was found in the computer of a CSD officer when the defence sought disclosure for his trial before the District Court.

34.  I do not see any pornography, if exist at all, has any bearing on the charge of common assault faced by the appellant.

35.  This ground fails.

Ground 4: Dr Kong could not tell whether he would be hit if he had not dodged in time

36.  The point appears to be when Dr Kong could not tell whether he would be hit had he not dodged in time, there was a doubt as to the reliability of his evidence and there was no assault in this case.

37.  In the context of this case, on the evidence accepted by the magistrate, the appellant intentionally caused Dr Kong to apprehend immediate and personal violence, which amounts to an assault in law. The fact that Dr Kong was unable to say whether he would have been hit had he not dodged in time is immaterial.

38.  This ground fails.

Other matters

39.  I should add that this appeal was heard together with two other appeals (HCMA 555/2013 and HCMA 729/2009).  The appellant, in his extremely lengthy submissions given to this Court on many occasions, made references to his original trial for trafficking in a dangerous drug (HCCC 22/1998) and other matters and court proceedings concerning him.  It would appear that the appellant is trying to use his appeals as a venue to air his grievances and hoping to reverse all the judgments and decisions adverse to him.  Those matters are not relevant to this appeal and I will say no more about them. 

Conclusion

40.  I find no merits in any of the grounds advanced by the appellant and his appeal against conviction is dismissed.