HKSAR v. CHEUNG TING SHAN

HCMA690/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.690 OF 2001

(ON APPEAL FROM ESCC 5116 OF 2000)

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J U D G M E N T

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1. The appellant was originally charged with three offences, namely indecent assault, common assault and assault occasioning actual bodily harm. The appellant pleaded not guilty to the charges and was, after the trial, convicted of one charge only i.e. the last charge of assault occasioning actual bodily harm. The appellant now sought to appeal against the conviction. The trial was originally conducted in Chinese. As the appeal involved legal issues, both counsel wished to prepare the written submissions in English. Parties agreed also that this court's judgment can be given in English.

2. The prosecution had called a total of seven witnesses at the trial. The appellant himself chose to remain silent but he called a doctor to give expert evidence. The main witness regarding the indecent assault charge was PW3. She testified that on 23 November 2000, she was on board of a bus and the appellant had indecently assaulted her by touching her buttock. On that occasion, she only scolded the appellant, as she was in a hurry to return to work. Then on 7 December 2000, PW3 again met the appellant on the bus. She said that the appellant came over to sit next to her so she went to sit elsewhere. She said she later saw the appellant having kicked a woman. That woman was a female passenger who had witnessed the earlier incident of the indecent assault. She was PW2. She also gave evidence and her account seemed to support PW3's testimony.

3. PW4 was Mr Ho. He was a passenger on the bus on 7 December 2000. He heard the appellant having an argument with PW2 and then PW3 joined in and accused him that he had indecently assaulted her a few days ago. Someone then made a report to the police, and the driver stopped the bus by the roadside to wait for the police. The appellant tried to pull open the bus door. The driver requested him not to leave the bus but still, the appellant managed to open the emergency door and got out of the bus. PW4 then chased after the appellant. Then two more passengers joined the chase and together they managed to get hold of the appellant. But the appellant struggled violently. He madly waved his hands and scratched with his fingers. In the struggle, the appellant had injured PW4 in his face and neck area. Finally, they pressed the appellant down on the ground to wait for the arrival of the police.

4. PW5 was another passenger on board who claimed to have seen the appellant having kicked PW2. He also joined in the pursuit of the appellant. During the chase, he had cried out "catch the sex maniac". While struggling with the appellant, he saw PW4 being injured. PW6 was the officer who had first attended the scene. PW7 was the female officer who had taken a witness statement from PW2. Apart from the witnesses, the prosecution also produced the record of interview made by the appellant. The defence did not challenge its admissibility. In the interview, the appellant said, inter alia, that he did not know why the prosecution witnesses were chasing after him.

5. As to the psychiatrist called by the defence, she testified that the appellant was, at the material time, suffering from schizophrenia, paranoia and persecutory illusions.

6. Having considered the evidence, the learned magistrate concluded that he had reservations about the testimonies of PW2 and PW3. But he was impressed by the testimony of PW4. As to PW5, the magistrate found him to be honest but noted that he did not actually see the appellant kicking PW2. Therefore, the magistrate found that he could not rely on PW5's evidence to support the common assault charge. In the end, he dismissed the two charges of indecent assault and common assault. Regarding the psychiatrist called by the defence, the magistrate said he would give full weight to her evidence. He accepted that the appellant was actually suffering from mental illness at the material time as described by the doctor.

7. The magistrate pointed out in his Statement of Findings that he had taken into consideration the following factors in deciding on the 3rd charge of assault occasioning bodily harm :

「22. 雖然被告人保持緘默，但當本席考慮時，本席有考慮到所有証供，包括下列事情：

1. 他給警方之錄影會面警戒口供。

2. 他在現場被拘捕時，所作之回應(即在証物P1之補錄口供)。

3. 本席亦有考慮到醫生之証供；雖然醫生在事後才診斷他，但根據醫生之專業意見，故本席考慮時，本席會以在事發時，被告人已患有那些精神上之問題，作為考慮之基礎。

4. 醫生之專業意見。

5. 本席亦有考慮到，被告人並無案底，一個無案底之人，相對下是少些機會犯案及多些機會會將實情向警方指出。

6. 在追捕期間，第五証人的確有呼叫『捉色魔』，而在風化案中，被捕者往往被途人毆打是時有發生的。

7. 第四証人形容被告人當被截獲時，是『發晒矛』，而警員描述被告人當時是十分激動，本席以最有利被告人之角度來作出衡量。

8. 被告人受到襲擊，作出自衛反擊，以求脫身之可能性。

9. 被告人誤會受到襲擊，所以作出自衛之可能性。」

8. Hence the main issue was one of mens rea, which was whether the appellant, at the material time, thought that he was under attack and merely tried to act in self-defence. The magistrate said he would reject the appellant's claim that he did not know why the men were chasing after him. He found that it was inconceivable that the appellant could have failed to realise that. He considered that what the appellant had stated in the interview with the police deserved little weight as it had never been tested under cross-examination. In the end, the learned magistrate made, inter alia, the following finding of facts :

「8. 被告人在反抗期間，的確有弄傷第四証人，而傷勢正如醫生報告及相片所顯示一樣。

9. 被告人向警方作出之解釋，他不知道為何被人追捕及發生何事，他被對方纏著，他只是推開對方及被對方毆打等，並非真言。

10. 被告人心知肚明追捕者之目的，就是要將他拘捕，交給警方處理。」

The magistrate found that the only purpose of the appellant's conduct at the time was to use violence against the pursurers, with the intent to escape from the scene. Hence he concluded that the 3rd charge proved beyond a reasonable doubt.

9. The appellant had raised the following grounds in the appeal :

"1. The learned failed and/or adequately to consider the following :

(a) PW2 had pushed the Appellant when he caught up with the appellant;

(b) That the other 2 persuiters; 1 grapped the Appellant's waist from behind and another grapped one of the Appellant hand;

(c) None of the persuiters had said anything to declase arrest or telling the appellant not to move and wait for the police;

(d) When being persuited the Appellant might have the fear of being attack;

(e) The Appellant's actions were only waiving his arms;

(f) The evidence of PW6 that the Appellant was very 'emotional' when he arrived; and

(g) PW4 evidence was that the Appellant was unable to control himself.

2. The learned Magistrate failed to consider (a) to (d) above in the light that the Defendant was suffering from paranoid schizophrenia."

10. Counsel for the appellant had referred me to an English case which, the face of it, was very similar to the present circumstances. That is R v. Self [1992] 3 All ER 476. In that case, a customer in a shop had walked away with a bar of chocolate without paying. The shop assistant followed him and tried to arrest him. A member of the public helped by exercising a citizen's arrest. The appellant resisted and assaulted both the shop assistant and the member of the public before he was eventually apprehended. He was charged with theft and two counts of assault with intent to resist or prevent his lawful apprehension contrary to section 38(a) of the offence against the Person Act 1861. After the trial the appellant was acquitted of the theft charge, but was convicted of the assault charges. On appeal, Garland J held that:

" However, in the judgment of this court, the words of s24 do not admit of argument. Subsection (5) makes it abundantly clear that the powers of arrest without a warrant where an arrestable offence has been committed require as a condition precedent an offence committed. If subsequently there is an acquittal of the alleged offence no offence has been committed. The power to arrest is confined to the person guilty of the offence or anyone who the person making the arrest has reasonable grounds for suspecting to be guilty of it. But of course if he is not guilty there can be no valid suspicion, as was pointed out in the passage in Hale to which reference has been made."

11. Mr Tse, Counsel for the appellant, argued that the same logic should apply to the present case. The prosecution submitted otherwise. The simple point taken by the prosecution was that the applicable statutory provisions in England and Hong Kong were rather different. Mr Cheng, for the prosecution, referred me to section 24(5) of the Police and Criminal Evidence Act 1984, the wording of which was as follows :

"(5) Where an arrestable offence has been committed, any person may arrest without a warrant -

(a) anyone who is guilty of the offence;

(b) anyone whom he has reasonable grounds for suspecting to be guilty of it."

However, in Hong Kong, section 101(2) of Cap.221 stated that :

"Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence."

12. Mr Cheng had very helpfully traced the background of the legislative change regarding this section. It appeared that the Hong Kong Legislature had decided in 1967 not to follow the exact wording of the English Act. In any event, Garland J held that the power of arrest would depend on, in hindsight, whether an arrestable offence had been committed. So, if the defendant was found not guilty of the main offence by the court, then, the citizen would have no power to make the arrest in the first place. I had raised a number of issues with Mr Tse concerning the consequences of this approach, and the difficulties faced by any citizen who had to decide whether to help by making an arrest. Mr Tse argued that the citizen who made a wrongful arrest should be made responsible in a civil suit by the arrested person. He submitted that there was nothing wrong about that as the law should protect a person from wrongful arrests.

13. The decision of Self is of course persuasive authority in this court, although I found I could not entirely agree with its reasoning. Since, however, the wording of the provision being considered in Self is different from the present section, I need not comment further as I agree with the respondent that it is distinguishable and the principle stated in could not assist the appellant.

14. The trial magistrate had obviously made a careful anaylysis of the evidence before reaching his decision. As a matter of common sense, I would agree that a person in the circumstances could not have failed to appreciate why he was being chased. But what about the appellant's mental condition? He was not just anyone being chased. He was a mental patient suffering from persecutory illusions. Did it affect his understanding and did he appreciate the right and wrong of his action? In reaching the conclusion that the appellant must have known why he was being chased, the learned magistrate seemed to have left out the consideration of his mental illness. Mr Cheng argued that obviously the magistrate did not consider the appellant's mental illness to be serious enough to have any particular effect on his understanding at the time. If such is the case, it must be stated clearly as it is a material finding.

15. On hearing an appeal, I am not in a position to decide on the factual issues. That should be a matter for the trial magistrate. However, I could not say that, on the evidence, the only conclusion that could be reached must be that despite his mental illness, the appellant must have known why he was being chased, and that his struggle was nothing else but an assault on PW4. It was particularly so when the magistrate found that witnesses pertaining to the indecent assault and the common assault charges were actually not reliable witnesses. Based on this finding, and assuming that the appellant had never done any of the acts of the assault on the bus, the situation was that he was being accused by the alleged victims, the bus had stopped, door closed and the driver not allowing him to leave. How did the appellant with his mental problem perceive all these in his mind? I am not in a position to say. But the learned magistrate should have dealt with these matters and made known his finding.

16. In the circumstances, I have to accept that there is some merit in the appellant's submission, particularly on appeal ground number two. I shall allow this appeal, quash the conviction and set aside the sentence.