HKSAR v. CHRISTIAN ANTHONY BULLEN

HCMA556/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 556 OF 2008

(ON APPEAL FROM KCCC 3750 OF 2007)

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J U D G M E N T

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1. This is an appeal by the appellant against the refusal by the learned magistrate to award him the costs of his defence following his acquittal on two charges of common assault on 27 May 2008.

2. The appellant was charged with first assaulting Mr Wong Man (“PW1”) outside a flat on 9^th floor of Bamboo Mansions (Charge 1) and then assaulting Madam Hui Hung Hung (“PW2”) inside the same flat (Charge 2).

3. The incident which gave rise to the charges occurred on 30 May 2007 following a breakdown in the relationship between PW2 and her female Indonesian helper, Pujiati (“D2”).

4. On that day, the appellant accompanied D2 back to PW2’s flat in order that she could retrieve her personal belongings.  D2 told the appellant to wait downstairs while she entered the flat to pack up her belongings.  He did so.  The learned magistrate said that there was no dispute that when D2 was inside the flat the appellant received SMS messages from D2 crying out for help.  The appellant had then immediately made a call to the Hunghom Police Station telling them that D2 was being imprisoned by her previous employer.

5. According to the appellant, he then went up to the 9^th floor found the wooden door and the iron grille to the flat shut and heard D2 screaming and yelling.  The recording made by D2, which the learned magistrate heard, provides confirmation of cries from D2.

6. The appellant then started to kick and bang on the iron grille demanding PW2 to open it.  The wooden door was then opened but not the iron grille.  In the meantime, PW1 and another security guard at the block came to the 9^th floor and saw the appellant kicking and banging on PW2’s iron-gate.

7. It was the evidence of the appellant that when the wooden door was opened he saw that PW2 was putting her arm around D2’s neck inside the flat and that D2 was struggling.  The medical report on D2 from Queen Elizabeth Hospital showed that she had abrasion over the left neck, left hand and redness on her left upper limb. 

8. PW1 confirmed that he saw D2 trying to get out of PW2’s flat but that PW2 was trying to stop her doing so.

9. The iron-gate was then opened.  There was no dispute that Mr Wong tried to prevent the appellant entering the flat but that the appellant had forcefully pushed him aside in order to do so.  PW1 himself conceded that the appellant had simply acted because he wanted to get D2 out of the flat.  

10. The appellant entered the flat and had used what the magistrate accepted had not been shown to be excessive force in order to free D2 from PW2 and pull her out of the flat.

11. The learned magistrate in acquitting the appellant said this :

“      I found that the appellant was probably acting in a mistaken belief that D2 was being falsely imprisoned.  I considered that he was in fact most unjustified and impulsive in jumping to the conclusion that D2 was being falsely imprisoned, yet I had to say the evidence could not conclusively persuade me that the Appellant could not possibly be acting under such a mistaken belief.  The situation was very chaotic.  While the Appellant no doubt had used force against PW1 and PW2, the evidence (in particular the medical reports) had not demonstrated that such force had been excessively used.  Therefore, I found there was a reasonable doubt in this case and I acquitted the Appellant of Charge 1 and Charge 2 accordingly.”

12. I have some difficulty in understanding the magistrate’s comments that the appellant was “most unjustified and impulsive in jumping to the conclusion that D2 was being falsely imprisoned” in the light of the SMS messages the appellant had received from her which resulted in him making a report to the police station that she was being detained and what he saw when the wooden door was opened. 

13. The learned magistrate had herself said that it was apparent that D2 wanted to leave the flat but that she was prevented from doing so by PW2 who conceded that she had refused to let D2 leave.

14. In refusing the application for costs the magistrate said that she found that the appellant’s banging and kicking on the iron-gate was unreasonable.  The appellant had already called the police and he could have talked to PW2 and the security guard peacefully.  She found that there was no immediate risk of injury to D2.  She said this :

“I was sure that the Appellant’s unreasonableness had plainly contributed to all the confrontation and violence, which PW2 quite justifiably feared and decided to keep D2 inside.  Therefore, I was sure that the Appellant’s own conduct plainly had brought suspicion on himself at the material times, leaving the victims to suspect that he would behave violently to others.  Therefore, the Appellant’s application for costs was refused.”

15. Even accepting the magistrate’s conclusion that PW2 decided to keep D2 inside the flat because of the appellant’s behaviour, which is somewhat charitable in view of the evidence of PW1 and PW2 herself that it was apparent that D2 wanted to leave the flat, PW2’s evidence that even after the iron-gate was opened she still restrained D2 from leaving and that it would probably have been obvious that what the appellant was seeking was the release of D2, it seems to me that when the question of costs was considered, the matter should have been looked at from the perspective of the appellant.  He had received the SMS messages from D2.  He had heard the cries of D2 and seen her forcibly being restrained from leaving the flat. 

16. The medical evidence of injury to D2 tends to show that there might have been an immediate risk of injury to her.  The appellant had no means of knowing how long it would take for the police to arrive.  The magistrate found that the appellant probably had a genuine albeit mistaken believe that D2 was being falsely detained.  I do not find that his actions in such circumstances could be said to have “brought suspicion” on himself in any meaningful sense, even if as the magistrate found the appellant’s actions prompted PW2 not to allow D2 to open the gate.  

17. Ms Chan for the respondent in this appeal conceded that the appellant had done nothing after the arrival of the police to bring suspicion on himself.  

18. I am satisfied that the normal principle that an acquitted defendant should be compensated for the costs of defending the charge should apply in this case.  I therefore allow the appeal and I order that the appellant be entitled to his costs here and below to be taxed if not agreed.