HKSAR v. BRAIN, ALFRED HALL

HCMA 729/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 729 OF 2009

(ON APPEAL FROM ESCC 2175 OF 2007)

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J U D G M E N T

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Background

1.  The appellant was charged with one charge of Common Assault, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212, and one charge of Criminal Damage, contrary to section 60(1) of the Crimes Ordinance, Cap 200.

2.  The particulars of the offences were that on 2 February 2007, inside Room GF3, Stanley Correctional Institution, 99 Tung Tau Wan Road, Stanley, in Hong Kong, the appellant: (1) assaulted male Lam Wai Man, Chief Officer of Correctional Services Department (CSD); and (2) without lawful excuse, damaged a portable bar code reader, valued at HK$3,400 belonging to CSD, intending to damage such property or being reckless as to whether such property would be damaged.  

3.  The appellant pleaded not guilty and was convicted after trial.  He was sentenced to 2 months’ imprisonment for common assault and 14 days’ imprisonment for criminal damage.  

4.  After various adjournments eventually the appeal proper was heard on 2 March 2017.

5.  Mr William Siu, Senior Public Prosecutor, has very helpfully summarised the prosecution and the defence case in his written submission and I will adopt the same here:  

“The prosecution case

6.  The Appellant was (and still is) an inmate of Stanley Prison. On 2-2-2007, upon the request of the Appellant, Chief Officer LAM Wai-man (PW1) met with the Appellant in PW1’s office to discuss about the arrangement of giving medicine to him. During the discussion the Appellant became agitated and made a lot of noise. PW1 asked him to calm down but in vain. When PW1 was walking towards the Appellant to try to pacify the Appellant, the Appellant suddenly dashed forward and pushed PW1 forcefully with both hands. As a result, PW1 fel[l] backward and hit the sink and cabinet behind him. The Appellant kept yelling and then swept all the items on PW1’s desk to the floor, one of which was a bar code reader. At the same time, CSD officer LEUNG Tai-wai (PW4), who was present in PW1’s office, rushed forward and pulled the Appellant away from PW1. Eventually, the Appellant was subdued by PW4 and other CSD officers who came to assist.

7.  The bar code reader (worth $3,400) was later found to be damaged as a result of the Appellant’s action.

The defence case

8.  The Appellant elected not to testify at trial and refused to make any final submission. His cross-examination revealed that the defence case was that PW1 and his subordinates had framed him up, and conspired with the doctors in prison to fabricate evidence against him.”

Grounds of appeal

6.  The appellant raised a number of grounds and I have grouped them as follows:

(1)  Ground 1:  the main witness made a materially different account of the alleged assault;

(2)  Ground 2:  the magistrate misjudged the “Important Notice”;

(3)  Ground 3:  the prosecution suppressed certain documents;

(4)  Ground 4:  the prosecution suppressed evidence of pornography;

(5)  Ground 5:  there was no expert evidence in relation to the damage done to the computer barcode reader;

(6)  Ground 6:  the magistrate wrongly accepted expert evidence from some doctors who were not qualified to give such expert evidence;

(7)  Ground 7:  it was inherently improbable for a vase which stood on the cabinet to remain standing after PW1 had fallen against the cabinet.

7.  I will deal with the grounds 4, 5, 6 and 7 first.

8.  Whether pornography was found on the computer of any CSD officer has absolutely no bearing on this case.  There is no need for any expert evidence in relation to the damage done to the barcode reader.  The medical officers were clearly qualified to give evidence on medical matters in this case.  There is nothing inherently improbable for a vase to be still standing after PW1 fell against the cabinet.  None of these grounds has merit.

9.  Grounds 1, 2 and 3 can be dealt with together.

10.  During the trial, the appellant claimed that there was a concerted effort by CSD officers to victimize him systematically.  He referred to a document named “Important Notice” (Exhibit D2) in support.  The appellant also said he was wrongly framed up and the officers involved gave a materially different version in court when compared with their out-of-court earlier assertions.  Copies of 2 staff statements (Exhibit D3 and D6) were tendered by the appellant during the hearing.  The appellant also referred to a medical report prepared by Dr Cheng on PW1 (Exhibit D9) to say that the description of the assault given by PW1 to Dr Cheng was materially different.

11.  It should be noted that as a result of the appellant tendering the 2 copies of staff statements (D3 and D6) and the “Important Notice” (D2), he was charged with and convicted of perverting the course of public justice and using copies of false instruments in the District Court by Judge Yip (in DCCC 1431/2009).

12.  Judge Yip has this to say:

“8.  He presented the Copies of 2 CSD staff statements and the same ‘Important Notice’ for cross-examination of PWs at his trial in ESCC 2175/2007 (which took place between 8 December 2008 and 2 April 2009) for the assault of a CSD staffer. The Copies of staff statements (of PW20 LAM Wai-man and PW22 LEUNG Tai-wai), which bore contents different from the oral evidence in court, reflected a possible case of false evidence given before the trial magistrate. The Copy of ‘Important Notice’ was the same as aforesaid relating to 2nd Charge (i.e. Doing acts tending and intended to pervert the course of public justice). He told the trial magistrate how he had accidentally discovered the originals and then formally acquired the Copies from CSD.

9.  I found it as a fact that the originals of the Copies had not been made and/or signed by the PWs.  Actually, apart from the forged signature on the Copy of ‘Important Notice’ as aforesaid, the handwriting expert had also found the signatures (of PW20 and PW22) in the Copies staff statements cut-and-pasted from copied documents of theirs previously served on D.”

13.  The Court of Appeal confirmed the convictions (CACC 18/2012).

14.  The appellant basically is making the same complaint as in the other two appeals (HCMA 1069/2009 and 555/2013).  He claimed that the documents in his possession which he has used in the various trials are not forgeries.  The CSD and prosecution suppressed some documents so that the true picture was not before the trial judge in the District Court and he was wrongly convicted.

15.  Further, in relation to this case, the appellant relied on a medical report (Exhibit D9) and complained that the officer Lam (PW1) made a material different account of the assault to the doctor.

16.  The argument put forward by the appellant was that despite the judgment of Judge Yip and despite the Court of Appeal upholding the convictions, upon discovery of further documents from CSD (pages 12 and 14 of his letter stating his grounds of appeal dated 30 October 2016), the “Important Notice” was in fact not a forgery.  That being the case, there was indeed an institutionalized victimization policy against him.

17.  Further, since he was not charged with the tendering of Exhibit D9 in the District Court trial, when one compares the contents of D9 with those in D3 and D6, one can see that D3 and D6 were in fact not forgeries.  The contents of D3 and D9 clearly show that PW1 had given a version in court which was materially different from what were contained in the two documents: for instance, in court PW1 said he was pushed on his chest by the appellant with both hands, in the documents PW1 also mentioned being punched after being pushed; in court PW1 said he fell against a sink and a cabinet, in the documents he said he hit a wall.  These discrepancies were material and rendered PW1’s evidence unreliable, the appellant submitted.

My consideration

18.  The background and the court’s findings in relation to the “Important Notice” was succinctly summarised by the Court of Appeal:

“13.  In the course of the trial and in order to exonerate himself, he produced a document entitled ‘Important Notice’ allegedly signed by two officers of the Correctional Services Department, one an assistant commissioner named Chan and the other a superintendent named Siu.  He also produced a written statement allegedly made by an officer called Tam the contents of which were, as to the facts, materially different from Tam’s oral evidence at trial.

14.  The ‘Important Notice’ is on its face an extraordinary document, the contents of which speak volumes for its non-authenticity.  It is a notice purportedly for distribution within the CSD; it is derogatory of Hall and instructs staff how Hall should, because of his troublesome disposition, be dealt with in future: the instructions include directions to use necessary and reasonable force rather than persuasion to ensure that he complies with rules, to ‘charge the subject by all means, of any actual or imagined transgression and by all means to ensure his conviction of such transgression. … .’ (Emphasis added).

15.  The prosecution case which Judge Yip found to be proved was that the ‘Important Notice’ and Tam’s inconsistent written statement were forgeries, designed to secure Hall’s acquittal upon the charge of attempted assault.  The design failed at the trial stage.

16.  This allegation constituted the background to the second charge with which we are concerned, namely, that on 26 November 2008 with intent to pervert the course of public justice, Hall gave false testimony in the magistracy proceedings as to the provenance of the copies of the ‘Important Notice’ and of the staff statement allegedly made by officer Tam, which Hall represented to the court were copies of genuine documents made by the various officers.”

19.  As Stock JA said on appeal, the said “Important Notice” was on its face extraordinary and the contents speak volumes for non-authenticity.

20.  The “undisclosed” documents relied on by the appellant was, first, a statement from the appellant to the CSD dated 18 November 2008, on which was hand-written the following:

“To COPA, Attn SP-Hospital (poh) & welfare officer

Request that my ‘Medical Report/Advice x 5’ and ‘Important Notice’ (2 copies each) in the [a ref no] Board of Review File ‘in the hospital’ be photocopied to me.

[cost deduct from my property]. Hall”

21.  The second document was entitled “APPLICATIONS/INTERVIEW/INFORMATION”, the relevant entry relied by the appellant reads:

“18.11.2008, Subject prisoner approached Officer RU2 soliciting approval for making photocopy of his medical report and Important Notice. It was recommended. The cost of photocopy would be deducted from his property.”

22.  The appellant’s contention was that the statement and the above paragraph indicated that the “Important Notice” was in existence and given to him by the CSD, so they were not a forgery.

23.  The appellant also claimed that these two documents were “suppressed” by the prosecution and was not disclosed to Judge Yip during the trial.

24.  I understand from the respondent that the CSD and the prosecution had never seen the first document (the handwritten statement dated 18 November 2008) before.  The second statement was inspected by the appellant in December 2010 (well before the trial before Judge Yip).

25.  Although the appellant claimed that he had given a statement dated 18 November 2008 to the CSD and the copy he showed me was only disclosed to him late, given the history of this appellant of producing documents purportedly from CSD officers either during a trial or on appeal before, I am not prepared to take his words on face value that this is a genuine document retrieved from the CSD.

26.  Further, since it was purportedly a statement by the appellant, he would have remembered there was such a document when he was facing his trial for forgery in the District Court and could have asked for its production by the CSD.  I do not see any possibility of the CSD or the prosecution suppressing such a document, if the appellant had indeed submitted it.

27.  As to the second document, what was relied on by the appellant amounts to no more than that he had approached the CSD “soliciting approval for making photocopy of his medical report and Important Notice”.  There was no question that the appellant did have photocopies of documents which included the “Important Notice”, which were found to be forgeries.  This document does not support his claim that the “Important Notice” originated from the CSD.

28.  The last document relied on by the appellant was entitled “MEDICAL REPORT/ADVICE”.

29.  The paragraph relied on by the appellant reads as follows:

“(a) medical/physical condition

For your advice and assistance in your investigative duties on the subject, please be advise[d] that according to the Psychiatrist diagnosis and advice of Dissocial Personality Disorder on the subject on 4.11.99, the prisoner have the disposition to being easily irritable and aggressive, to be violating Laws, the Prison rules and regulations, being self-centred, deceitful, untruthful, impulsive, irresponsible, manipulative, calculated, remorseless, and prone to hold an antagonistic front to authourity (sic) figures.”

30.  Particular emphasis was placed by the appellant on the word “untruthful”.

31.  I do not find the comments are in any way indicative of prison officers colluding to frame the appellant up regarding the offence he was charged with and was finally found guilty of.

32.  As for the medical report “D9”, it is unclear whether Dr Cheng (who was PW2 during the trial) has formally adopted the report as being his as he was only able to say one of the signatures thereon was his.  In any event, there is no indication that PW1 was ever questioned during cross-examination whether he had given a materially different version to Dr Cheng (though he was cross-examined on a witness statement in his name which he testified was not his, and upon which the appellant was found guilty of forgery in the District Court later.)

33.  In any event, whether PW1 was punched as well as being pushed, whether he hit a wall or a sink and cabinet, none of them amounts to significant or material discrepancies to render his testimony unreliable.

34.  There are no merits on these grounds.

Other matters

35.  I should add that this appeal was heard together with two other appeals (HCMA 1069/2008 and HCMA 555/2013).  The appellant, in his extremely lengthy submissions given to this Court on many occasions, provided this court with materials concerning his original trial for trafficking in a dangerous drug (HCCC 22/1998) and other matters and court proceedings concerning him.  It would appear that the appellant is making use of his appeals before this Court as an avenue to air his grievances and hoping to reverse any decisions or judgments adverse to him.  Those matters are clearly not relevant to this appeal and I will say no more about them.

Conclusion

36.  The case against the appellant was straight-forward.  The magistrate was entitled to accept the evidence of the prosecution witnesses as to the assault and the damage to the barcode reader.  There is no merit in the appellant’s appeal and his appeal against both convictions are dismissed.