HKSAR v. HASHIMI HABIB HALIM

HCMA 847/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 847 OF 2010

(ON APPEAL FROM TMCC NO. 2473 OF 2010)

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JUDGMENT

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Introduction

1. The appellant was convicted by Deputy Magistrate Chong Tin-chun at Tuen Mun Law Courts on 9 November 2010 of one offence of assault occasioning actual bodily harm, contrary to section 39 of the Offences Against The Person Ordinance, Cap 212.  On the same day he was sentenced to 5 months’ imprisonment.  On 11 November 2010 he appealed against both his conviction and his sentence, although the latter appeal has become academic as the appellant has served his sentence.

2. In his submissions before me today the appellant has indicated that he no longer wishes to pursue his appeal against sentence and abandons it.  I dismiss the appeal against sentence.  The appeal has been delayed in being heard because of applications by the appellant for adjournment for the purposes of obtaining legal representation, obtaining trial materials for the preparation of the appeal and because he was unwell.

3. On 25 May 2012 Barnes J ordered the appellant to file written grounds of appeal at least 14 days prior to the next hearing date.  The appellant has not complied with this order.  However, he has filed with the court on 12 June 2011 a lengthy document which contained his complaints in respect of the appeal against conviction.  He has also filed with the court further materials today.

The Prosecution Case

4. The prosecution case against the appellant consisted essentially of only one witness, the complainant.  Other witnesses were called but they were all police witnesses and none spoke to the circumstances underlying the offence.

5. The complainant testified that on the day of the offence, 27 July 2010, he went with two friends to the premises where the assault took place. The premises was a wooden hut in Tin Shui Wai and consisted of a number of rooms which shared a common kitchen.  The complainant previously lived in these premises and had gone back to retrieve some of his belongings which he had left there.  He also knew one of the persons still living there and the complainant and his friends were helping this friend clean up after his room had suffered some rainwater damage.

6. The appellant also lived in these premises and whilst there the complainant saw him and spoke to him.  The complainant noticed some marks on the appellant’s left arm and asked about them.  He said the appellant effectively told him to mind his own business and the complainant said that this retort brought his encounter with the appellant to an end.

7. The complainant carried on talking with his friends and they were laughing amongst themselves.  The appellant heard them and thought, wrongly, that they were laughing at him.  He confronted them and the conversation that ensued descended into verbal abuse.  The appellant then ran back into his room picked up a knife and returned and threatened the complainant.  The appellant came up to the complainant and held the knife to his neck.  This caused an abrasion to the complainant’s neck and at the same time the appellant’s finger nails scratched one of the complainant’s forearms.  One of the other persons presented then separated them and subsequently the police were called.  The complainant said that he only decided to call the police when he realized that he had injuries to his neck.

8. When the police arrived they went to the appellant’s room and retrieved a knife which was believed to be the knife used by the appellant in his assault upon the complainant.  The complainant was subsequently examined by a doctor whose report was produced in evidence.  A police photographer photographed the complainant’s injuries and these photographs were also produced as exhibits. However, these photographs were so blurred that they were of little assistance in identifying the nature or seriousness of the injuries.  All that could be ascertained from the photographs was that there were red marks on both the forearm and the front of the neck of the complainant.

9. There were, obviously, other witnesses available to the prosecution to call to corroborate the testimony of the complainant but no other witnesses were called.  The appellant gave evidence and repeated a claim that he had made in a record of interview which was produced at his request as part of the prosecution case.  In this record of interview the appellant said:

“Yes I understand, sir. But in order to save time I would just add the following few lines in a very nutshell that I just had a pushing and shouting with that guy due to his bad mouthing me and no knife was involved.”

In his evidence the appellant maintained that no knife was involved and cross-examined the complainant to this effect and in the course of so doing suggested that the story of the complainant did not make sense.

The Appeal

10. Before me today Mr Andrew Li for the prosecution has conceded that the medical report of the examining doctor should not have been produced in evidence.  The doctor was not called as a prosecution witness and the medical report was not admitted pursuant to the provision of section 65B of the Criminal Procedure Ordinance, Cap 221.  In these circumstances there was no basis for the document to be received in evidence.

11. Mr Li argues that notwithstanding that the magistrate erred on an important matter, namely the admissibility of an important part of the prosecution case, that the conviction can, nevertheless, be affirmed by me as I am conducting an appeal here in the nature of a rehearing.

12. In his case and in his closing submissions the appellant continued to attack the credibility of PW1 and this was an issue to which the magistrate was clearly alive.  There were a number of areas in PW1’s evidence which required resolution by him and this he did.  He accepted PW1 as a truthful witness and did not believe the appellant.

13. It is apparent from his Statement of Findings that he relied to some degree upon the doctor’s report and also his conclusion that the record of interview of the appellant was merely an exculpatory explanation by him.  This conclusion in respect of the record of interview is not quite accurate as the statement by the appellant can properly be regarded as a mixed statement and the magistrate should have treated it as such.

14. Here the prosecution had a number of witnesses that it could, of course, have called in support of the prosecution case and in corroboration of PW1.  It chose not to do so.  It relied instead entirely upon PW1’s evidence, a medical report which was inadmissible and a set of photographs which were so blurred as to be of no probative value.

15. In these circumstances I find some difficulty in conducting a rehearing where the evidential position is that it is one witness against the other and there are credibility concerns in relation to the evidence of the prosecution witness.  Notwithstanding that the magistrate has resolved those issues in favour of PW1, I do not feel myself that on the evidence before me it would be appropriate for me to do so.  I do not feel, in the circumstances of this particular case, that given the number of issues of PW1’s credibility that required resolution and the nature of those issues that it would be appropriate for me to embark on such a task.  I have not heard the evidence of PW1 and the issues that relate to his credibility, as I have indicated, are such that it would not be appropriate for me to resolve them merely on the basis of the transcript.

16. In those circumstances I allow the appeal against conviction, quash the conviction of the appellant and as the respondent is not seeking a retrial I make no order in that regard.