HKSAR v. CHEUNG YUK KIN, JOSEPH

HCMA 1141/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. hcma 1141 OF 2004

(ON APPEAL FROM ESCC 2818/2004)

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J U D G M E N T

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1.  This is an appeal by the Appellant, Joseph Cheung Yuk-kin against his conviction on 29 October 2004 for Wounding contrary to section 19 of the Offences Against the Person Ordinance by Miss Julia Livesey at Eastern Magistrates’ Court, for which she sentenced him to a term of 6 months’ imprisonment.  He has served that sentence and this appeal therefore only relates to his conviction.

2.  The case is an unusual one because it is alleged that the assault and the resulting wounds inflicted on the complainant Mr Yip Ko-yuen, who is a voluntary worker with the SPCA, were largely committed by the Appellant’s dog which the Appellant had allegedly directed to attack the complainant on two separate occasions in the course of the single incident which constitute the circumstances giving rise to the charge.  As a result of the attack by the Appellant’s dog, the complainant was bitten on the scrotum, which must have been very painful, his right thigh, left arm and right hand.

3.  Given the nature of the alleged attack and the use of the dog, it is necessary briefly to set out the apparent relationship between the Appellant and his dog.  The evidence largely comes from a Miss Lo Shuk-kei (PW2).  This all happened in the vicinity of Union Park Tower in Electric Road, North Point at about 1:15 am.  Miss Lo told the learned Magistrate that it had been her habit to feed stray cats in the vicinity of her home in that area but that she had become concerned about a man [it was not disputed that this was the Appellant] who would bring his dog to the area in order to chase away stray cats.  She accepted that the dog merely chased the cats but did not otherwise harm them.  She told the Magistrate that what she saw was the Appellant point in the direction of the cats whereupon the dog would rush over and disperse them.  Having seen this she told the complainant, Mr Yip (PW1) who she knew to be a voluntary worker at the SPCA.  On 19 May 2004, the day of the alleged assault, she called the complainant down so that he might deal with the Appellant’s activities.  The complainant went downstairs to where the Appellant was with his dog and he called Miss Lo so that she might identify the Appellant, which she did and she then returned to her home in order to let in some members of her family.  At that stage she saw nothing untoward pass between the two men.

4.  The complainant’s evidence was that having been called down by Miss Lo, he went downstairs to Jupiter Street where he saw the Appellant make gestures to his dog with the result of the dog started to bark angrily and pounce at a motorcycle upon which was perched a small and very frightened cat.  The complainant described a gesture with the Appellant’s right hand together with a hissing noise which resulted in this aggression by the dog towards the cat as if it wanted to bite the small animal.

5.  Mr Yip, then approached the Appellant and asked him what he was up to and on hearing this the Appellant hurriedly left together with his dog which was neither on a leash nor muzzled.  Mr Yip telephoned the police on his mobile telephone whilst trying to keep up with the Appellant who had hailed a taxi with a view to departing.  Mr Yip stopped the Appellant leaving and told him to remain until the police arrived.  The Appellant then tried to board a second taxi but was again prevented from leaving by Mr Yip.  Having been prevented from de-camping with his dog, the Appellant, according to Mr Yip’s evidence, returned to the pavement and started to threaten him.

6.  Mr Yip then told the Magistrate that the Appellant grabbed him by his shirt close to his left shoulder and used a dog leash which he had with him to hit him on the head and back.  At this initial stage, Mr Yip said that the dog was only barking but then the Appellant made a hissing sound and a signal with his hand whereupon the dog bit into Mr Yip’s genital region and that whilst this was going on the Appellant continued to hit Mr Yip with the leash.  This joint attack by man and dog lasted for a short while until the Appellant called the dog off and tried to board another taxi in order to get away.  Mr Yip then stopped the Appellant from doing so, he by now having tried to board a further two taxis.  At this point the Appellant, according to Mr Yip, then ordered his dog to bite him again which it did on this occasion on the inner side of his right thigh whilst the Appellant also joined in by assaulting Mr Yip.  In order to ward off this attack, Mr Yip says that he started waving some keys that he had with him and that he was able to take the dog leash off the Appellant who then went into a nearby 7-11 shop and took two bottles from the fridge to threaten Mr Yip, who was then using a newspaper rack to protect himself until the arrival of the police.

7.  There was further evidence from Miss Lo (PW2) who had returned to the ground floor, having let her family into her flat, to see both men fighting.  She says that she saw the Appellant holding the dog leash and Mr Yip a bunch of keys.  She had stood between the two men and was punched on the head by the Appellant in the course of the fracas which caused her to become dizzy.  She then walked away and observed the fighting from a distance in the course of which she saw the dog pounce twice towards Mr Yip but was unable to see where the dog had connected with.

8.  The Magistrate had before her agreed medical evidence.  Mr Yip had injuries to his “external genitalia, right thigh, left forearm and right hand”.  Skin abrasions were found on the right thigh, penis, and a skin laceration on the right side of his scrotum.  These injuries were compatible with him having being bitten by a dog.  [Page 19 Appeal Bundle].  The Appellant also had injuries [page 20 Appeal Bundle].  He told the doctor that he had been stabbed with a key on the left forearm.  The doctor found a half centimetre penetration wound on the left forearm as well as multiple abrasions on the neck, right arm and chest.  The wound had to be stitched.  The Magistrate found that the Appellant’s injuries had been caused by Mr Yip’s use of the key in the course of defending himself from the Appellant’s attack, more of which when I consider her findings.

9.  The Appellant gave evidence.  He described his dog as a friendly pet that was well trained and clever.  It does not bite.  He had taken the dog for a walk late at night as was his habit, he being a taxi driver who works a late shift.  He saw the dog go into a lane and on following the dog, he saw that it was barking at some cats that were sitting on the top of a wall.  He was about to order it to stop barking and follow him when Mr Yip approached, swore at him and ordered him to stand still and asked why he had released the dog into the lane to attack the cats.  He told him not to leave because he had called the police.  The Appellant said that he had asked the dog to come with him and was about to leave himself when he was grabbed by Mr Yip.  He pushed Mr Yip away and ran off.  He did not know what Mr Yip had in his hands but he felt himself being poked and his arm then started to bleed.  He heard Mr Yip accuse him of being cruel to animals and he said that Mr Yip kicked him in the rib cage.  He tried to get away by attempting to get onto a number of taxis but was prevented from doing so by Mr Yip.  That being so he returned to the pavement in order to protect himself by waving the dog leash.  He told the Magistrate that he did not know whether the dog had bitten Mr Yip.  He did not see such a thing and he had not ordered his dog to attack Mr Yip although it may have become excited and barked as the two men had become physically engaged with each other.

10.  In the course of a careful and comprehensive statement of findings, in which she set out the relevant evidence and her findings on that evidence, the learned Magistrate expressed herself satisfied so that she was sure that the correct account had been given by Mr Yip and Miss Lo and she rejected the Appellant’s version of events.

11.  The Magistrate saw and heard these witnesses and these findings were one’s that she was fully entitled to come to.  Quite apart from the question of demeanour, of which she is the sole judge, there was nothing in the inherent probabilities arising out of this set of circumstances which would indicate that she fell into any error in her assessment of the facts.  She was correct to have come to the conclusions that she did.

12.  Nevertheless, this matter is not entirely free from difficulty and one needs to consider her analysis of the situation as found by her.  The Magistrate held that instructing a dog to chase and scare stray cats constituted cruelty to an animal which would have entitled Mr Yip to require the Appellant to remain at the scene and to physically prevent him from boarding a taxi.  With respect to her that is not, in my judgment, a correct analysis of the position at law.  Cruelty to an animal is not an arrestable offence which would have given an ordinary member of the public the right to physically detain the Appellant until the arrival of the police.  The prosecution, rightly in my judgment, accept that this is so.  In such circumstances the Appellant was entitled to use reasonable force to break free from Mr Yip.  Reasonable force means reasonable in all the circumstances.

13.  In my judgment, he was not entitled to order his dog to attack Mr Yip by biting his genitals and the other parts of his body as it did.  It may be properly argued that the use of the leash may have, just about, been reasonable for the purpose of getting free – but in these circumstances that would have been the extent of permissible reasonable force.  Nevertheless, I am bound to say that the use of any force is to be carefully measured and not to be recommended given the obvious risk of causing a serious escalation of any confrontation.  Two separate attacks by the dog – which the Magistrate found – certainly went well outside what the law would have permitted a person in the Appellant’s position to do.  Faced with this, Mr Yip was fully entitled to defend himself by making use of his keys which the Magistrate quite rightly found was reasonable force in self defence by him.

14.  She expressly held in the final paragraph of her statement of findings that even if Mr Yip had no right to stop the Appellant from leaving the scene, the use of the dog to bite him was excessive force in attempting to free himself from Mr Yip’s detention until the arrival of the police.  It is on this basis only that the conviction can and is upheld.  The learned Magistrate appears to have been prepared to convict the Appellant on either basis.  If she went too far to hold that Mr Yip had been entitled to initially detain the Appellant, she was certainly correct to have convicted him on the use of excessive force.  Accordingly, this appeal must be dismissed on the basis of this latter ground.  There was ample evidence to convict the Appellant which the learned Magistrate had correctly, in my view, relied on.