HKSAR v. RAHMAN MD. RAIHAN

HCMA 207/2020

[2021] HKCFI 2655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 207 OF 2020

(ON APPEAL FROM KTCC 2117 OF 2019)

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REASONS FOR JUDGMENT

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1.  The Appellant was convicted after trial on two charges, the 1^st charge of criminal intimidation, contrary to section 24(a)(i)  of the Crimes Ordinance, Cap 200 and the 2^nd charge of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap 212.

2.  At the hearing of the appeal, I dismissed his appeal against conviction and herebelow are my reasons. 

3.  The Appellant was the ex-husband of Naz, the victim in the 2^nd charge, and they had two children together.     

4.  The offences took place outside the house which belonged to Naz and she lived there with the children.  Her partner, Bradshaw, who was the victim in the 1^st charge. 

5.  It was obvious from what transpired that there were ill feeling between the parties and on this occasion the matter arose because the Appellant wanted to take his young son away.  Subsequently there was a struggle between the Appellant and Bradshaw over a mobile telephone belonging to the Appellant.

6.  The Appellant ran into the kitchen of the house and yelled that he would kill Bradshaw, and Bradshaw saw the Appellant leaving the kitchen with something in his hand. Naz testified that the Appellant had grabbed a pair of scissors from the kitchen.

7.  The Appellant tried charging at Bradshaw, Naz stopped him and told Bradshaw to leave.  It was during that occasion when Naz grabbed hold of the scissors that she was injured.  Bradshaw reported the matter to the police.    

8.  The Appellant did not give evidence nor called any witnesses at the trial.  The defence produced Exhibit D1 which showed that the Appellant had suffered an injury to his right hand, basically an abrasion wound on the finger of his right hand, and left hand palm abrasion which he was treated for and discharged. 

9.  At the end of the trial, the Appellant questioned the inconsistencies in the evidence between the prosecution witnesses.  The learned Magistrate analysed the evidence in very great details and he noted that the Appellant had never, prior to this incident, behaved in any threatening way towards Bradshaw.  Therefore, he emphasised that he had to consider the reliability and credibility of both Naz and Bradshaw on the issues in the present case because of the possible grudges between the parties.    

10.  After a full analysis of the inconsistencies pointed out by the defence, the learned Magistrate came to the conclusion that though some inconsistencies existed, they did not affect the credibility and reliability of the evidence of the witnesses.  Also, the learned Magistrate found that after an initial struggle between the Appellant and Bradshaw, the Appellant had gone into the kitchen to get the pair of scissors after threatening that he would kill Bradshaw, and he did chase after Bradshaw but was stopped by Naz.  And the learned Magistrate concluded that in the circumstances of the case, the threat was not merely an empty threat.  And Naz suffered her injury when she grabbed hold of the pair of scissors when she was trying to disarm the Appellant.

11.  The learned Magistrate convicted the Appellant on the 1^st charge of criminal intimidation of Bradshaw and also by applying the doctrine of transferred malice, convicted the Appellant of assault occasioning actual bodily harm.

12.  On appeal, the Appellant again raised the fact that the learned Magistrate was wrong in minimizing the inconsistencies in the evidence between Naz and Bradshaw.  The irresistible inference drew was not the only irresistible inference, and that the learned Magistrate did not apply properly the issue of the doctrine of transferred malice.

13.  Mr Hunter submitted that when the Appellant was uttering the threat to Bradshaw, he was moving away.  The reason he was moving away was that he was going to the kitchen to get the scissors.  So I do not think that is a meritorious point. 

14.  As for his criticism of the learned Magistrate’s drawing of an irresistible inference from the evidence, I cannot see that the inferences drawn were from “spurious reasoning with no evidential basis.”

15.  Finally, Mr Hunter argued that as far as the assault case was concerned, that there was no intention to commit an assault and that it was only because Naz put herself in the way by grabbing the scissors that she was injured, and that the doctrine of transferred malice did not apply.

16.  I again do not agree with Mr Hunter as this is a classic case with the doctrine of transferred malice should be applied. In that the Appellant had made his intention clear by saying that he was going to kill Bradshaw, he went into kitchen, obtained the knife and came out to chase Bradshaw.  It was in those circumstances that Naz had grabbed the Appellant’s scissors and got herself injured.  So I again see no merit in this argument.

17.  I have considered the Statement of Findings of the learned Magistrate and I do not see the learned Magistrate had made any error either in law or evidence, and therefore there is no reason to interfere with the conviction. 

18.  So the appeal was dismissed.