HKSAR Respondent and CHAN HUNG YIP ALAN(陳鴻業) Appellant

HCMA971/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 971 OF 2007

(ON APPEAL FROM ESCC 3129 OF 2007)

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

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

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

J U D G M E N T

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

1. The appellant was charged with :

(1)     Inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212 (“the Ordinance”).

The particulars alleged that :

“CHAN Hung-yip, Alan, you are charged that on the 19^th day of May, 2007 outside VIP room of ‘Volar Bar’, basement, 38–41 D’aguilar Street, Central, in Hong Kong, you did unlawfully and maliciously inflict grievous bodily harm upon SUZUKI Takuya.”

(2)Assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Ordinance.

The particulars alleged that :

“CHAN Hung-yip, Alan, you are charged that on the 19^th day of May, 2007 outside VIP room of ‘Volar Bar’, basement, 38–41 D’aguilar Street, Central, in Hong Kong, you did assault OSUMI Akifumi, thereby occasioning actual bodily harm to the said OSUMI Akifumi.”

2. The appellant pleaded not guilty to the offences and was convicted after trial.  The magistrate imposed a term of 6 months for the two offences.  

3. The appellant now sought to appeal against both the convictions and sentences.

4. The incident had taken place inside Volar Bar in Lan Kwai Fong.  It was alleged that the appellant had attacked the 1^st victim with a wine glass and he had also assaulted the 2^nd victim.  

5. At the trial, the prosecution had called a total of seven witnesses to testify.  PW1 and PW5 were the two victims respectively referred to in the two charges, namely, Mr Suzuki and Mr Akifumi.  They had given detailed evidence-in-chief and the defence had cross-examined them repeatedly and at length.  PW2, PW3 and PW4 were medical practitioners who had examined PW1 at different stages.  PW6 and PW7 were the staff of the bar, the former being the security guard.

6. The appellant elected to give evidence and the defence also called a witness, i.e. Ms Tsang.  She was the appellant’s girl friend and was present at the scene when the incident occurred.

7. The learned magistrate had, in the Statement of Findings, succinctly summarised the evidence of all the witnesses and I see no reason to repeat the details.  Briefly, what they said were as follows :

(a)(i)     PW1 stated that he had gone with his friends to the Volar Bar in the early morning of 19 May 2007, after having a few glasses of wine in a different bar.  They were refused entry to the VIP room.  When he was leaving, he bumped against the appellant.  There might be some pushing and verbal exchange between them.  Suddenly, the appellant raised a champagne glass to strike at him.  He raised his hands to block the blow and closed his eyes, but the glass might have struck his temple area.  He felt a shower of glass fragments.  When he opened his eyes, he saw the appellant in front of him.  While he was restrained by PW6 from behind, he saw the appellant still trying to attack him with the stalk of the broken glass.  His friend, PW5, came over and used his body to block the blow. 

    (ii)    He was dragged by PW6 out of the bar.  Outside the bar, his friend helped to clean his face.  He noticed he had two wounds on his face.  At some stage, he also felt pain in his left eye.  Then he went to the hospital.  He said he received injuries to his left eye, the right and left arm. 

(b)(i)    PW5 said that when they were refused entry to the VIP room, he turned to leave and PW1 was behind him.  He heard the sound of breaking class.  He turned around and saw PW1 being attacked.  PW1 was bleeding profusely in the head.  He saw the security guard going forward to stop the attacker who was still trying to move forward.  Then he intervened to protect PW1 and he himself was attacked by the appellant who was holding the stem of the broken glass.  Subsequently he and PW1 were escorted out of the bar. 

    (ii)    He said he was stabbed in the back of his right hand.  When the bleeding subsided, he re-entered the bar and confronted the appellant.  The appellant said : “He was drunk.”  Later he went to the hospital to meet PW1.

    (iii)   He said the glass was either a champagne glass or a glass for red wine.

(c)(i)    PW2 was the first doctor to have examined PW1.  He recalled that PW1 alleged that he was hit by a drinking glass.  PW2 did not observe any bleeding or wounds on PW1 except that he was injured in the left arm. 

    (ii)    PW3 had examined PW1’s eye and discovered the glass fragments.  He noted there were a few superficial abrasion on the cornea. 

    (iii)   PW4 said that PW1’s principal complaint was the eye injuries and he made no complaint about injuries on the face.

(d)       PW6 said that when PW1 was leaving the VIP area, he noticed that something was happening between PW1 and a Chinese male.  He forced PW1 out of the bar by pulling him from behind.  He said he did not see any act of violence committed by the Chinese male, nor did he observe any injures suffered by PW1.

(e)        PW7 was the manager of the Bar.  He simply said that nothing untoward had happened in the bar at the time, if he was made aware of a crime having been committed on the premises, he would be duty bound to make a report to the police.

(f)(i)     The appellant’s evidence was that he did see that PW1 was not allowed to enter the VIP room.  PW1 became agitated.  PW1 had bumped against him and brushed him aside.  The appellant told him not to push and thereafter PW1 wanted to rush towards him.  The security guard blocked PW1 and escorted him out of the bar.  PW1 acted emotionally in the process, kicking and waving his fists.  When he noticed PW1 being refused entry, he was holding his girl friend’s left hand.  

    (ii)    The appellant also testified that he had a clear record and was educated in Canada.  He now worked as the general manager of a textile company.

(g)        The defence witness, Ms Tsang, stated that it was PW1 who had acted in a violent manner and when the security guard intervened, PW5 likewise became violent.  She said the appellant did not assault PW1 and PW5, and no one was injured at the time.  She added that the appellant was not a violent person. 

8. After analysing the evidence, the magistrate rejected the testimonies of the appellant and the defence witness, and he found that all the prosecution witnesses were honest and reliable.

9. Regarding the prosecution case, the magistrate recognized that there were inconsistencies.  He had paid particular attention to the issues of : (i) whether the two victims had stayed outside the bar for 20 odd minutes after the incident, and (ii) the different accounts as to the extent of the injuries PW1 had suffered upon being attacked.  However, the magistrate found that these inconsistencies could be explained in the circumstances, and would not affect the credibility of the victims.

10. The magistrate found that it was “entirely possible” that PW6 had missed the earlier part of the incident when the appellant had attacked PW1 with the wine glass; and it was also “entirely possible” that PW6, being preoccupied with the eviction of PW1, that he failed to notice whether the appellant was behaving in an aggressive manner and whether he might have been holding something in his hand.

11. Regarding the evidence of the defence witness Ms Tsang, the magistrate highlighted the point that that she had volunteered the information that the appellant was holding her hand.  The magistrate considered that in the context of this case, that would be an important factor as it indicated that “she had the issue at the forefront of her mind when she came to the court to give evidence”.  The magistrate further commented that such evidence had failed to stand up to scrutiny in cross-examination because what she said about she being on the appellant’s left-hand side was contrary to the appellant’s evidence.  The magistrate noted that the prosecution had alleged that the appellant was holding a glass in his right hand with which he had attacked PW1.

12. As to how the magistrate evaluated the credibility of the appellant, it may be useful to refer to the relevant paragraphs in full.  The magistrate pointed out in the Statement of Findings that :

“57.        I do not consider the appellant an honest and reliable witness, despite his clear record and his good personal background.  What troubles the court, in particular, is his utterance under cross-examination, ‘How do I know?’  The cross-examination was brief and the question that was asked of the appellant reasonable.  The utterance at the end of that particular answer might have escaped the interpreter, but its significance did not escape Mr Cheng, who appears for the appellant, who quickly jumped to his feet in the best tradition of the profession to defend his client by submitting that it was but a rhetorical question.

58.          The court’s consideration is as follows.  The court would normally ignore personal style of expression.  Rhetorical utterances fall into this kind of expression in a normal case.  However, the offences the appellant faces in this case are offences of violence.  In the particular context of the prosecution’s allegations against the appellant, whether the witness — be it the prosecution’s witness or the defence witness involved in alleged act of violence — may be an impatient person is a matter that the court should take into consideration.

59.          The appellant was in a court of law.  Minutes into his cross-examination, he became impatient, when in my judgment neither the manner of the cross-examination nor the question asked of him could have justified his becoming impatient.  That utterance also shows, in my judgment, the appellant’s attitude was one of arrogance shown in the face of the court of law.

60.          This is a significant finding in the particular circumstances of this case.  I do not accept that when he was accidentally bumped against, brushed aside, being talked to in a language he did not understand, and when it must have been clear to him that PW1 was not going to apologise, ‘Don’t push!’ could have been all he said, and saying ‘Don’t push!’ could have been all he did.”

That was all the magistrate had said in the assessment of the appellant’s evidence and also why he found the appellant not honest and reliable, despite his clear record and good personal background.

13. The magistrate had also dealt with the four specific issues raised by the defence, namely the possibility of a frame up, or an accident, and why the appellant remained in the bar if he was the assailant, and why PW1 and PW5 were escorted out of the bar rather than the assailant if indeed he was the appellant.  The magistrate rejected all these submissions.

14. In conclusion, the magistrate considered that the prosecution had proved the elements of each offence successfully.  He specifically found that :

“(i)      the appellant had struck PW1 with a glass, which shattered on impact (it matters not whether the glass came into contact with PW1’s left hand alone, or his temple area alone, or both), and glass fragments had entered PW1’s left eye resulting in abrasions to the cornea, which in my judgment constituted grievous body harm to PW1;

(ii)       the appellant had stabbed PW5 in the back of his right hand (it matters not that the intended target of the attack might have been PW1 instead), resulting in the injuries shown on the photographs tendered to court.”

15. The appellant had put forward the following grounds in support of the appeal :

(i)      in finding all the prosecution’s witnesses to be honest and reliable, the magistrate failed to properly resolve the fundamental inconsistency between the evidence of PW6 on one hand and PW1 and PW5 on the other hand;

(ii)      in assessing the appellant’s evidence, the magistrate had relied solely on the demeanour of the appellant in answering one question in cross-examination to reject his entire account;

(iii)     based on his way of answering one question, the magistrate was not entitled to find that the appellant was impatient and arrogant, and to further infer that the appellant would retaliate with violence if “accidentally bumped against, brushed aside, being talked to in a language he did not understand.”  Furthermore, the magistrate had failed to assess the inherent probability of the defence case;

(iv)     the magistrate also erred in having failed to consider that :

—  PW1’s injuries actually supported the possibility of an accidental bumping resulting in the breaking of the glass and causing the injuries in his hand;

—  the evidence and the injuries do not support the finding that “the stabbing was more than once or the stabbing motion was a continuous one”;

(v)     the magistrate failed to consider the possibility of a frame up by PW1 and PW5 after having suffered accidental injuries from actions not attributable to the appellant; and

(vi)     the magistrate erred in finding that the presence of glass fragments in the left eye of PW1 constituted a grievous bodily harm. 

16. A magistrate’s assessment of a defendant’s testimony is, no doubt, an important aspect in his determination of the facts of the case.  What the trial magistrate had done here was to focus on part of an answer given by the appellant in answering a question by defence counsel.  Regarding this matter, the transcript revealed the following exchange between PW1 and defence counsel (see page 286 of appeal bundle) :

“Q.  Which part of your body was being bumped into by him?

A.    My shoulder was bumped.

Q.   Which side of your ...

A.    Left.

Q.   Now, you said that he was upset, right?

A.    Yes, rather emotional.

Q.   What do you mean by ‘rather emotional’?

A.    Emotional, being quite wild.  Wild and high.

COURT:  The witness did say ‘How do I know?’, “點知”.

MR CHENG:  He was asking a rhetorical question, I think.

COURT:  Yes.

MR CHENG:  In which he ...

COURT:  Is that right, interpreter?

INTERPRETER:  I thought it was a rhetorical question, ...

COURT:  All right.

INTERPRETER:  ... just to repeat the question.

COURT:  All right.  Yes, I get your point, Mr Cheng.

MR CHENG:  Yes.

COURT:  Please carry on.”  [Emphasis added]

17. Based on this single utterance, which was understood to be a rhetorical question, the magistrate had later made a series of findings.  He stated that because this was a case involving violence, impatience was a matter that the court could take into consideration.  He took that the appellant’s utterance showed not only that he was impatient, but also that he was arrogant.  Then the magistrate went on to conclude that the appellant could not have just reacted by saying “Don’t push”.  The implication was clearly that the appellant must have used violence against PW1 and/or PW5 as alleged.

18. The magistrate had not gone into the contents of the appellant’s evidence and analysed the areas in which he found illogical or improbable or unacceptable in light of the available evidence.  Of course, the magistrate is entitled to observe a witness’s demeanour, including the way he answered questions, and bases on that to form an opinion regarding his or her credibility, but that should not be the only factor to consider.  As Litton JA (as he then was) stated in the case of The Queen v. Ng Wing Ming (1995) 1 HKCLR, which has been cited on numerous occasions, that :

“Demeanour is a notoriously uncertain guide to the truth for obvious reasons.  A witness comes into court as a total stranger to the judge who can hardly be expected to read from his or her facial expressions or ‘body language’ indications as to truthfulness or otherwise.  The inherent probabilities in most cases would be the first point of reference for the trial judge in seeking to ascertain the truth.  Demeanour could only be a point of last resort.”

19. Even if the magistrate was entitled to find that the appellant was impatient and perhaps even arrogant, but could it be taken further and led to the conclusion that he was the kind of person who would use violence against PW1 and PW5 as they alleged?  The magistrate was obviously very attentive and observant in following the evidence, but I found his reasoning in rejecting the appellant’s evidence unsatisfactory.

20. The magistrate appeared to have adopted the same approach to the testimony of the defence witness.  His primary focus was that she had volunteered the information that the appellant was holding her hand.  The magistrate considered that it was an important feature as it showed that she had that issue at the forefront of her mind when she came to give evidence.  But having something at the forefront of someone’s mind did not necessary mean it was untrue, it could be true.  Of course, the magistrate was right in pointing out that what she said about which hand was being held was inconsistent with what the appellant had said.  The magistrate was entitled to reject her evidence based on the inconsistency, but then I failed to see the relevance of the issue of the “forefront of the mind”.

21. In paragraph 58 of the Statement of Findings, the magistrate did say that in the particular context of the prosecution’s allegations against the appellant, whether the witness—be it the prosecution’s witness or the defence witness involved in alleged act of violence—… an impatient person is a matter that the court should take into consideration.  In this regard, it is to be noted that PW1 himself had made similar responses that could be taken to indicate impatience and volunteering information, but there were no mentioning or assessment of those responses by the magistrate.

22. Leaving aside of the evidence of the appellant and the defence witness, one could not fail to see problems inherent in the prosecution case.  Looking at the evidence generally, there emerged a situation where the evidence of PW1 and PW5 being contradicted by PW6, who was directly involved at the material time; the alleged facial injuries of PW1 were not supported by the medical evidence; and there were also inconsistencies between the two main witnesses, specially on the nature and extent of the injuries on PW1. 

23. In my view, there was sufficient evidence that a wine glass had been broken in the close vicinity of PW1, but PW1 himself seemed to be rather uncertain whether he was hit on the head or his hand.  Perhaps the more crucial question was really whether it was hit on PW1’s person or elsewhere.  If the glass was not hit on the person of PW1 and yet the fragments showered on him, thereby causing injuries, that would constitute a different scenario for the court to consider.

24. In any event, just on the narrow and unsatisfactory basis of the assessment of the defence evidence , I would have to allow the appeal as the convictions would be unsafe and unsatisfactory.

25. However, if the appellant did deliberately hit PW1 with a wine glass which shattered on impact and the glass fragments had entered PW1’s eye resulting in abrasions to his cornea, I would agree with the magistrate that it would constitute grievous bodily harm.

26. In the premises, I would allow the appeal, quash the convictions and set aside the sentences.