HKSAR v. CHEN, RAYMOND

HCMA606/2009

IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

   MAGISTRACY APPEAL NO.606 OF 2009

   (ON APPEAL FROM ESCC2181/2009)

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BETWEEN

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J U D G M E N T

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1.  This is an appeal against a conviction of common assault. The trial took place before Deputy Magistrate Winston Leung, sitting in retirement having spent well over 20 years on the Bench in Hong Kong.

2.  The incident that he was trying occurred in a gym. The appellant and PW1 were walking in opposite directions at a corridor there. The corridor was a narrow one. The appellant was carrying a 60-pound barbell in his hands. Apparently they both turned sideways to allow each other to pass. As they passed each other the barbell that the appellant was carrying came into contact with PW1’s right forearm. The prosecution’s case, through the mouth of PW1, was that it was deliberately done by the appellant.

3.  The appellant’s defence, when he was asked for it - it appears at page 90 of the appeal bundle - said: “Well, my defence is either Mr Tang was there to pick a fight with me or the bumping was completely unintentional and accidental.”

4.  The appellant was convicted and fined a $1,000.

5.  At the conclusion of the evidence - and the appellant gave evidence - the Magistrate sought to find out whether or not the appellant had disclosed a defence of accident to the police or anyone else at an early stage. Accordingly, the material was called for and examined. That was a course, the appellant was happy to go along with. There was no dispute about what he had said to the police either in a notebook entry or in a witness statements. Indeed, after he had left the witness-box and had gone back to the dock he was reminding the Magistrate that there were statements made in that regard. He clearly wanted those statements to be in evidence because his assertion at the end of his evidence was that he had, in fact, disclosed his defence in that material. There was a notebook entry made on the day in question, which was 9 March of 2009, and there were subsequent witness statements made after that on 23 March.

6.  The enquiry made by the Magistrate arose from what was going through his mind, and what was in his mind then is set out in the statement of findings. This appears at page 15 of the bundle where the Magistrate said this:

“Given the whole circumstances as I set out earlier, I find accident a powerful and credible defence.  At trial the defendant never says it was an accident.  He does not even admit there was a bump of his barbell against Mr Tang expressly.  I offered the defendant an option that if he could show me he had given his defence of accident at his first opportunity I am prepared to give him a generous benefit of the doubt forthwith.  In the end the defendant agrees that he could not.  In this context I should point out that the defendant has a right to silence and would not be penalised for exercising this right.  This special benefit of doubt is now not given to him simply because the basis for it does not exist.”

7.  In the notebook entry which had been made on the day of the incident after caution the appellant had said that he had nothing to say. That paragraph that I have read out has formed really the basis for the appeal presented by Mr Robert Tang today.

8.  The first consideration agreed to arise is: should the Magistrate, first of all, have raised the enquiry? Mr Pang takes the bull by the horns and submits robustly that the Magistrate should not have made it. I disagree with him. What the Magistrate was clearly doing - and I can see this from what was said at the time on the transcript - was that he was looking for a piece of evidence that could have potentially helped the appellant. The appellant was unrepresented, and it was the duty of the Magistrate to help him present his defence.

9.  I asked Mr Pang in the course of argument that if he had grounds to believe that there was something in the point would he not, if he had been there, have asked the policeman if it was the case that the appellant had said it was an accident, as soon as he was challenged about the matter or as soon as he had an opportunity to speak. The answer to that was, of course: “Yes.” That has got nothing to do with infringing a man’s right to silence. That has everything to do with seeking to find out a piece of evidence that could help him in his defence.

10.  So the first point that is made as to whether or not the Magistrate should have launched the enquiry is one I resolve against the submission made by Mr Pang. In my judgment the Magistrate was right to have done so, and factually that could not be more apparent from the transcript that I have. It is quite clear from that that there is no suggestion here of him seeking to make a point against the defendant in this regard and dressing it up as a bogus attempt to help him. This was a genuine request for information that could have led to the Magistrate acquitting the man without hearing any further submissions.

11.  The second point made by Mr Pang, relying on the paragraph that I have quoted, is that the sentence, the first sentence which read, “Given the whole of the circumstances, as I set out earlier, I find accident a powerful and credible defence,” amounted to a finding of fact that the event had, in fact, been accidental, or may have been accidental. So one has got to look at what was said there and look at what was said at the time on the transcript, and work out what the Magistrate was saying. In my judgment, he was not there making a finding that there had been an accident. What he was saying was that the circumstances were amenable for the making of such a finding because accident in the circumstances would have been something that was easy to believe. The sentence, in my view, says no more than that. So when it comes to whether or not there was a finding that there had been an accident, I am against the submission made by the appellant.

12.  Suppose I was wrong in the judgments I have made so far, what would the result be? The result would be - so Mr Pang argues - that the assessment of credibility that led to the verdict of guilty should not be trusted: firstly, because there had been the inconsistent finding of fact; and secondly, because the Magistrate would have looked at the issue of credibility, so it is said, in contravention of the burden of proof. The argument is mounted that the intervention of the Magistrate supports the conclusion that he had reversed the burden of proof and that therefore his assessment of the credibility was looked at through that distorted lens. I have already made my finding that there was no inconsistent finding of fact, and that disposes of whether that ground on the issue of whether or not I should trust the Magistrate when it comes to his assessment on credibility.

13.  As regards the alleged reversal of the burden of proof, I find that there was no reversal on what the Magistrate said. He was placing no burden upon the appellant in these circumstances. The actual facts of the case demonstrate he was looking to find out a point that could help the appellant, and doing nothing more than that. So in the premises of the appellant’s argument in this regard I find against him. There was no inconsistent finding of fact. There was no looking at this from the wrong angle.

14.  But again supposing I am wrong in that judgment I have made, let me look at the case and disregard the findings on credibility that the Magistrate made. This is a rehearing. The modern jurisprudence now has become established that this court looks at the material that the ordinance directs should be before it and makes such order as is just. Obviously one can take into account the statement of findings in usual cases. But for the purposes of this exercise on credibility, I will ignore it.

15.  Can I make my mind up on the issue by reading the transcript? Mr Pang says that that is a dangerous course and one which I should avoid. In fact, I do not find it is either a difficult or a dangerous course in this case. The transcript is not very long. It was basically one man’s word against another. Both gave evidence about it. Both were cross-examined about it. It is not a difficult or a long read, and it is a read that does reveal colour and feel. The points that impressed the Magistrate and appear in his statement of findings impressed me without having to go through the statement of findings, because I can see what he found on the transcript. Let me just mention a number of matters that I find there.

16.  Firstly, that there was a tension between the two barrels of the defence or the two avenues of defence that the appellant was putting forward, namely the complainant, PW1, seeking to pick a fight, or the bumping being unintentional and accidental. Of course those two things are not mutually exclusive. They could coexist at the same time. But the appellant was always at odds in his evidence at dealing with both of them at the same time. It was an uncomfortable tension that one can find in his evidence that, frankly, undermined the part of the defence that wanted to run plain and simple accident.

17.  Secondly, there was this, that the case of the appellant was that after the incident he was apologetic and conciliatory. That evidence was undermined by an independent witness, a Mr Poon the club manager, who said that both men were aggressive after the incident when he was called to the scene shortly after its occurrence.

18.  The third point is this - and it is one of those hallmarks one sees in the evidence of the guilty - is that consistently throughout the transcript the appellant would not touch on the incident. He wanted to talk about everything else in the way he cross-examined and in the way he gave his evidence. There was a history of dislike and aggression between the two men involved in this, and it was that history that was gone over and became very much the centre of the appellant’s attention. His reluctance to deal with - if it was right - a simple little accident was telling.

19.  Fourthly, one can see from the transcript that the evidence the appellant gave was disjointed, it was out of context, and it was evasive on issues, especially about exactly what happened with the barbell. Fifthly, all of this was in very considerable contrast to what one can make of the evidence of PW1, because his evidence was straightforward, easy to follow, dealt with the issues, and had an air of credibility about it, that was impressive.

20.  One did not need to be there in the court to appreciate those five matters, which were a powerful indication on the issue of credibility. It comes to this, therefore, that if I decide this case just on the paper, then I am sure the prosecution discharged the burden on them of proving guilt beyond a reasonable doubt. But I am not forced to do that because I am not going to abandon the help that an experienced magistrate gave me in his statement of findings. That material reinforces, if necessary, what exists on the papers.

21.  Finally I say this, that although the Magistrate spoke his mind in a way that invited some controversy, what he revealed of his mental process was not a mental process that infringed the appellant’s right to silence. I leave the case by saying there is a difference between a magistrate trying to find out positive evidence that could help an appellant and a Bench using silence against a man. This was the former. It was not the latter.

22.  Accordingly, the appeal against the conviction is dismissed.

Representations: