HKSAR v. ALBERT SHUM

HCMA385/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 385 OF 2003

(ON APPEAL FROM KCCC 15800 OF 2002)

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J U D G M E N T

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1. On 26 February 2003 the appellant was convicted after trial in the Kowloon City Magistracy of an offence of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap.212.

2. On 12 March the appellant was fined the sum of $5,000 and ordered to pay compensation of $1,670.

3. He appeals against his conviction and in his initial written notice of appeal he said this :

"The testimony given by me during the trial had not been taken into full consideration in reaching the verdict."

4. The learned magistrate's 'Statement of Findings' extends to over six pages and I shall return to it in the light of the appellant's initial ground of appeal and the grounds of appeal perfected by Mr Grounds of counsel dated 10 May 2003 to which I shall also return.

5. At trial the prosecution's case (put shortly) was that on 3 August 2002 the 'victim' (PW1) was on his first day of duty as a security guard at the exhibition hall entrance of the New World Hotel in Tsim Sha Tsui when he heard the sound of somebody striking the hoardings (or fencing boards) constructed for the exhibition hall and he went to investigate.

6. He found the appellant there and remonstrated with him. In response the appellant pushed PW1 a number of times before punching him in the face which caused a cut just below his left eye which required subsequent stitching.

7. The appellant's case at trial (again put shortly) was that PW1 had, for no good reason, stopped him while he and his girlfriend were making their way home and that he (PW1) was the first to use force by initially pushing the appellant and then rushing towards the appellant and his girlfriend. In response or in self-defence the appellant pushed PW1 who fell to the ground.

8. The prosecution called two witnesses, PW1 and a police officer who came to the scene to investigate the disturbance and who, if I understood the position correctly, gave evidence suggesting that the appellant was in drink. The appellant gave evidence in his own defence and he called his girlfriend (DW2) as a witness.

9. The perfected grounds of appeal of which I have already made mention are as follows :

"1. The Learned Magistrate erred in law in that he wrongly directed himself that the defence case of self-defence had to be proved by the defence on a balance of probabilities.

2. The Learned Magistrate erred in law in that he wrongly failed to consider or direct himself properly as to whether or not he should give himself a 'good character' direction in respect of the Appellant.

3. Thereby and in all the circumstances of the case the conviction recorded against the Appellant is unsafe and unsatisfactory."

10. What the learned magistrate said about those matters in his Reasons for Verdict was this :

Ground 1

"I started by looking at the Defence case. This did not mean the Defence had to prove anything. However, if I accepted the Defence case or found myself unable to reject it, then the Defendant must be acquitted. I reminded myself that the burden of proof rested throughout on Prosecution. Prosecution had to prove its case beyond all reasonable doubt. Defence case, however, was to be assessed on the less demanding standard of balance of probabilities.

...

The picture painted of PW1 by the Defendant was that of an unreasonable man. PW1 was also a man prone to violence. According to the Defendant, in the inchoate stages PW1 pushed him once causing him to retreat 2 steps. The Defendant then pushed PW1 once but in self-defence. PW1 pushed the Defendant a second time. It was a heavy push resulting in the Defendant falling to the ground. The Defendant asked DW2 to call the police. DW2 was trying to do this on her mobile telephone when PW1 rushed with arms outstretched towards the Defendant and DW2. The Defendant gained the impression PW1 wanted to grab DW2's telephone. The Defendant therefore pushed PW1. According to the Defendant, this push caused PW1 to turn 180 degrees and to fall onto the ground. PW1 then got up and went inside the Hall.

The Defendant did not explain whether he pushed PW1 with 1 or 2 hands. The Defendant did not explain which part of PW1's body he pushed. Given the fact that PW1 was bent on using force and he was rushing towards the Defendant and DW2 with arms outstretched, I considered it improbable for the Defendant to have been able to push PW1 to turn 180 degrees and then to fall onto the ground. Also, if PW1 had seen so pushed, it was improbable that he would merely get up and leave the scene. Surely, given his unreasonable behaviour and tendency to violence (according to the Defence), PW1 would have retaliated.

DW2 said that after PW1 fell as a consequence of the push by the Defendant, she saw that PW1 was not bleeding from the face. PW1 went back to the Hall. PW1 later emerged and was bleeding. I already mentioned I considered it improbable that on the Defence version PW1 would merely get up and retreat. This would be all the more improbable if, as DW2 said, PW1 had not been injured in any way."

and Ground 2

"The Defendant was not a man of clear record. He was convicted of certain motoring offences in 1999. I was told by Defence Counsel and accepted that the Defendant was entitled to benefit from The Rehabilitation of Offenders Ordinance, Cap.297 ('the Ordinance'). Defence counsel said the previous convictions were spent and asked for what is now generally described as the Berrada or Vye directions i.e. the court was to consider the propensity of the Defendant committing a crime as low and his propensity to tell the truth in the witness box as high. In my view, the Defendant was not entitled to such considerations. ...

Though the D was not entitled to the directions solicited, his previous convictions did not in anyway operate to his prejudice. I also noted that he held a very senior and responsible post with a large corporation."

11. In relation to the first of those matters, Mr Grounds complains that it was quite apparent that the defence was one of (inter alia) 'self-defence' and that, as a matter of law, once that defence has been raised the burden is on the prosecution to negative it. There was no onus of proof on the appellant - he was not required to prove his innocence.

12. Mr Grounds went on to suggest that the learned magistrate (as can be seen from those passages from his Reasons for Verdict which are set out in paragraph 10 above) appeared to have imposed a burden of proof upon the appellant applying a standard of the balance of probabilities which appearance is reinforced in those passages by his frequent references to what he (the magistrate) said were improbabilities.

13. In relation to the second matter - that of the 'good character' direction - Mr Grounds, in effect, complains that the magistrate's statement that he did not view the appellant's previous convictions as in any way operating to his prejudice was simply insufficient. That what was required - given the nature of those convictions - was a direction concerning both credibility and propensity.

14. In response to those submissions, on behalf of the respondent, Ms Chan says, inter alia, this :

Ground 1

" The central issue of the case was credibility. The learned magistrate had made abundantly clear, as a start, the defence did not have to prove anything. He was aware that the burden was all along on the prosecution to prove the charge and that the standard was beyond all reasonable doubt.

The sentence 'Defence case, however, was to be assessed on the less demanding standard of balance of probabilities.' is purely an unnecessary remark with no bearing at all. The learned magistrate did not apply such standard in assessing the credibility of the Appellant and the DW2. ... He found the versions given by the Appellant and DW2 improbable : highly unlikely, which means that the defence could hardly raise a doubt."

and Ground 2

" Generally, whether an accused is treated as being of good character depends on whether he has a clear record. An accused is generally treated as being of good character if he has no previous conviction. But that is not invariably the case. On the other hand, an accused is generally treated as not being of good character if he has previous conviction. But that too is not invariably the case. It depends on the nature of the previous conviction and the charge the accused faces. The judge/magistrate has a wide discretion to determine whether an accused is of good character. [HKSAR v TANG Siu-man [1998] 1 HKLRD 350, R v Aziz [1996] 1 AC 41, R v Timson & Hales [1993] Crim L R 58,]

The prosecution case, here, was that the Appellant acted under the influence of alcohol, and ultimately wounded PW1, whilst the defence case was that PW1 acted unreasonably and aggressively to bar the Appellant's way home. As such, it is submitted that the Appellant's previous conviction of drink driving could not be regarded as insignificant in relation to the charge on which he was tried before the learned magistrate.

It is submitted that the learned magistrate could not be criticized for not giving the propensity and credibility direction to the Appellant. He was entitled to exercise such a discretion in this way if he considered it an insult to common sense to give such a direction. At the same time the learned magistrate had properly pointed out that the Appellant's previous conviction did not in anyway operate to his prejudice."

Conclusion

15. Given Mr Grounds' arguments concerning the burden and standard of proof when considered together with what the magistrate in fact said in his Reasons, I am in no doubt that the magistrate fell into error and that this appeal must succeed upon that ground. My view about that is reinforced by the fact that when he concluded that he accepted the evidence of PW1, the learned magistrate said that he did so despite the fact that there were some eight matters arising from that evidence that might be weighed against it or which, at least, called for explanation. In that context it is of assistance to be reminded of a passage in the judgment of McMullin J (as he then was) in the case of Chan Wing-yuen v. The Queen [1977] HKLR 191 which reads as follows :

" ... Although an appellate court must be slow to find the possibility of error in the application of a fundamental principle, this particular principle suffers from the difficulty that in applying it where the issue is purely or principally one of credibility of witnesses the most experienced magistrate or judge may sometimes be insensibly drawn through the necessary task of evaluating the quality of the testimony of each witness (which inevitably involves some degree of comparison between them), to a balancing of two stories. There may then be some danger of a failure to keep in mind that the prosecution case must stand upon its own feet and is not to be accepted merely because the other is rejected."

16. Certainly I reject the submission of Ms Chan that the magistrate's reference to the assessment of the defence case applying the standard of balance of probabilities was 'purely an unnecessary remark with no bearing at all', or (putting it another way) as being no more than a 'throw away line'.

17. As to the second ground of appeal, it is not strictly necessary for me to deal with it but I will do and I will do so shortly. There is nothing in it for the reasons advanced by Ms Chan. Whilst the previous conviction plainly did operate to the appellant's prejudice to the extent that it precluded the magistrate from giving himself a 'good character' direction, I accept that what the magistrate plainly meant was that the fact of the conviction was not used by him to support or to strengthen the prosecution's case. In the light of my decision based upon the first ground of appeal nothing turns on this but I am somewhat concerned as to how the magistrate in this case came to know of the appellant's previous conviction in the first place. Evidence of it was apparently not led by the defence. I have not seen a full transcript of the proceedings so there can be no certainty about this but it seems that, from the recollection of those involved at the trial, what may have happened is that at the close of the defence case the magistrate inadvertently raised the question of the appellant's character lest defence counsel had overlooked it and that is how the conviction came to be revealed.

18. As I say, in the event, nothing turns upon it but if that is how the conviction came to light I would have been troubled by the penultimate paragraph of the magistrate's Reasons where he says about the appellant that :

"It was simply that alcohol weakened or removed his inhibitions and unleashed his darker side."

19. In the result, this appeal is allowed; the conviction is quashed and the fine and compensation order are set aside.