HKSAR v. BRAIN, ALFRED HALL

HCMA 118/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 118 OF 2016

(ON APPEAL FROM ESCC 3289/2015)

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J U D G M E N T

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1.  The appellant was convicted after trial of Common Assault by Mr Chu Chung‑keung. He now appeals against his conviction.

Prosecution case

2.  Prosecution’s case was that the appellant had deliberately used force with his wrist to hit a mug of hot milk tea which tea then splashed on the complainant at the time when the appellant was being served with his breakfast.  The defence was that the tea had dropped on the floor by accident.

3.  The complainant in the case was called as PW1, he is the Assistant Officer I of the Correctional Services Department (“CSD”).  On the day of the accident, he was with his senior, Mr Kwong, and a prisoner, Mr Tang, delivering breakfast to a prisoner in cell 3 of section 2 ie the appellant.  At the material time, the appellant put his mug on the hatch inside the gate and after the mug was filled with hot milk tea, PW1 placed it on the hatch, the appellant, according to PW1, then pushed that cup of hot tea towards PW1, PW1 stepped back but the tea still splashed on the chest area of his body.  PW1 said he felt pain and went to the Stanley prison hospital for treatment.  PW1 maintained in his evidence that it was not an accident and that the appellant had pushed the mug towards him deliberately. Under cross‑examination, PW1 could not identify any stains from the photographs admitted in the trial nor any red mark seen on his chest.  PW1 replied that the photos of his chest were only taken at 3:00 pm that afternoon and by that time, the redness was gone.

4.  PW1 also explained that in his statement to the police, he had described the appellant section as “pushing, hitting with wrist and slapping the mug”. PW1 said that at the time of giving the statement, he had demonstrated and the descriptive words were that of the police officers.

5.  Dr Wong Chi‑ho was called as PW2, he examined PW1 at 8:27 am and found a red mark 7 cm by 10 cm on the chest area of PW1.

6.  PW3, Mr Tang, an inmate of Stanley Prison at the time of the accident and who was assisting PW1 to deliver breakfast, said he saw PW1 pour tea into the mug and the mug was suddenly thrown out from the hatch of the cell and that PW1 was wet all over in his chest area.

7.  Mr Kwong, PW4, Supervisor of PW1, said he saw PW1 put a cup of tea on the ledge of the hatch and he saw the appellant swoop his right hand and that cup of tea was thrown out and the tea splashed over the chest area of PW1.  At the time of the trial, PW4 was no longer working in Stanley Prison as he had been transferred to the Complaint Investigation Unit of the CSD.

8.  Finally, DPC 9093 was called as PW6, he said he had gone to Stanley Prison on 6 August 2014 and had interviewed and taken some photos from PW1.  He confirmed that he had seen tea stains on the uniform shirt of PW1.  He said photos were taken to show the tea stains and subsequently the case was transferred to the District Crime Squad and he did not follow up the matter further.

Case of the defence

9.  As can be seen from the Statement of Findings, the appellant on several occasions though asserting that he would give evidence had given several different reasons for not being able to relate his case.  On the first occasion, he claimed that he had a headache so was unfit to give evidence.  Then on the following day, he claimed that he was mistreated in prison and was not fit to give evidence and the court in the afternoon was told by the defence that the appellant’s mind was not settled and could not give evidence that afternoon.  Then on the following day (the third day), the defence claimed that the appellant was not given breakfast and requested the court to direct that he be given breakfast and lunch to be brought from outside and the appellant would then give evidence in the afternoon.  The court rejected the application of the defence to be provided with commercially bought meals and the appellant then elected to give evidence shortly before lunch and he asserted that violence had been practised upon him again and again and therefore he was not able to speak correctly of the matter and the court adjourned his evidence to the afternoon.  It seemed from the Statement of Findings that the appellant, in the afternoon, asserted that he was not in a position to tell the court about the case as he had been ill‑treated continuously.  The learned magistrate very properly reminded himself that it was the appellant’s right to elect to give evidence or not, and that he would not draw any adverse inference from the appellant’s conduct.

Magistrate’s findings

10.  The learned magistrate, having assessed and analysed the evidence of the prosecution witnesses, accepted that they were truthful and honest witnesses and said that he did not find that the CCTV photographs assisted him for or against the case for the prosecution or the defence, they were neutral evidence.  He also noted that the stains on the uniform would fade with time and the absence of such stains do not exclude the veracity of the evidence of the prosecution witnesses.

11.  He also accepted the evidence of the doctor who had examined PW1 after the incident and found red marks on his chest.  The learned magistrate found that prosecution has proved its case against the appellant.

Appeal

12.  Mr Raffell acting on behalf of the appellant submitted the following grounds of appeal:

(1)   that the conviction was against the weight of the evidence and was unsafe and unsatisfactory;

(2)   that this court should reconsider all the evidence and treat the appeal as a rehearing as per Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70;

(3)   that this court should consider the testimony and witness statements of the prosecution witnesses, PW1 to PW4 and compare that the testimony with the objective evidence of the photographs, exhibit D1, and the CCTV recording which do not support the prosecution case.

(4)   that the court should consider that the photographs of the area outside the appellant’s cell indicated that the tea had fallen to the left of the cell door and therefore would indicate that the cup had fallen accidentally out of the appellant’s hand as he held it out of the door of the cell to receive the mug from PW1; and

(5)   that in light of the evidence, the court cannot exclude the possibility that the mug of tea had been accidentally dropped.

13.  Mr Raffell submitted that there was a reasonable doubt in the evidence because there was no sign of stain on the shirt, exhibit P2.  This incident occurred in August 2014 and the trial took place in January 2016.  Mr Raffell argued that the absence of stains on the uniform (exhibit P2) of PW1 together with the absence of any visible stains on the uniform of PW1 as can be seen in the CCTV photographs together with the absence of any visible marks on PW1 in exhibit D1(a) would tend to cast doubt on the evidence of the prosecution witnesses.  Furthermore, Mr Raffell argued that the presence of the tea on the floor just outside the cell door and not right under the hatch would support the possibility that the tea was dropped accidentally by the appellant, therefore Mr Raffell concluded that the court cannot be satisfied beyond a reasonable doubt that the appellant had intentionally pushed or hit the mug towards PW1 as alleged.

14.  Mr Siu on behalf of the respondent submitted inter alia that the most convincing evidence came from the doctor, PW2, who examined PW1 shortly after the incident.  PW2’s unchallenged evidence was that he found redness on the chest of PW1, consistent with PW1’s evidence.

15.  Mr Siu also submitted that the stains may not by now be visible on the shirt (P2) which PW1 was wearing because whether there be stain would depend on the strength of the tea and the colour of the uniform.  The CCTV tape that was produced of the scene in the corridor, showed PW1 leaving the area and closing the gate at about 07:39 hours.  He submitted that whether one could view any stain on the shirt depended very much on the quality of the CCTV camera lightly and the film footage.

16.  I myself have viewed the footage in court and at the time when PW1 was closing the gate, a shadow on the left front of his shirt may have been stains or it may not have been.  So I agree with the learned magistrate that the CCTV footage is neutral evidence at best, for the milk stains on the floor it neither supports the defence or the prosecution because the stains could have been as a result of the tea mug hitting on PW1 and then fell on the floor or it could have been the result of an accidental dropping of the tea mug by the appellant as he stretched his hand out to receive the mug.

17.  I wish to note here that according to all the prosecution witnesses, the mug was placed on the ledge in the hatch and none of the witnesses said that the appellant had reached out his hand through the hatch to take the mug.  There is no evidence before the learned magistrate that the appellant had reached out his hand through the hatch to take the mug.

18.  I wish also to note that PW2, the doctor, (see p 173 of the Appeal Bundle) was asked to look at the photograph, exhibit D1(a), and the doctor said that it was possible the redness could have disappeared by the time the photograph was taken.

19.  Another complaint by Mr Raffell was that the police took four months before they first interviewed the appellant, understandably the delay was perhaps due to the fact that the appellant was an inmate and appointment had to be made and arrangement done in order for the police to interview the appellant, I do not see anything wrong with that.

20.  At the end of the day having read through the evidence of the various witnesses and observed the photographs and CCTV images, I am satisfied that the learned magistrate had sufficient reasons to convict the appellant on the facts.  I do not see any mistake in fact or in law that would render the conviction unsafe and unsatisfactory and in the circumstances I would dismiss the appeal.