HKSAR v. FOK YAU WA, PATRICK

[ENGLISH TRANSLATION – 英譯本]
HCMA 308/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 308 OF 2011

(ON APPEAL FROM TMCC NO. 678 OF 2011)

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REASONS FOR JUDGMENT

1.  The Appellant pleaded not guilty to one charge of “Common Assault”, contrary to Common Law and Section 40 of the Offences against the Person Ordinance Cap. 212, Laws of Hong Kong. He was convicted after trial and fined $1,000. He appealed against the conviction.

2.  After hearing I allowed the appeal, quashed the conviction and sentence, with costs here and below to the Appellant in a sum agreed between the parties totalling $30,500.  I now give my reasons for allowing the appeal.

Prosecution Case

3.  It was the prosecution case that the Appellant assaulted male Lee Kam Shing on the material day. 

4.  Lee Kam Shing’s evidence was that he was the chairman of the Incorporated Owners of a building.  At the material time, a male and a female (i.e. Chan Hong Wing, Patrick and Cheung Wai Hing, Fanny) stopped him on the street in an attempt to give him a piece of paper in A4 size.  He ignored them and yet they stood in his way.  He then turned around, intending to leave.  At that juncture the Appellant tried to seize him in an embrace.  He protected himself with his arms but was bumped to the ground with his left arm bent back by the Appellant.  The Appellant also sat on him till the arrival of the police at the scene.

5.  A uniformed police officer testified that when he arrived at the scene, he saw that there were 20 to 30 bystanders and that the Appellant was sitting on Lee Kam Shing as he was bending Lee’s left arm back.  The officer asked what happened.  The Appellant said that Lee Kam Shing had committed an offence that warranted his arrest. The officer told the Appellant to let go and get up, but the Appellant continued to grab hold of Lee Kam Shing, repeatedly saying, “He has committed an offence.  I have to arrest him.”  The Appellant was rather agitated. The officer demanded the Appellant to get up immediately in a tough tone.  The Appellant ignored him.  At last, the officer intended to hold the Appellant’s armpit in order to lift him up.  The Appellant told the officer not to touch him and said that he would get up himself, which he did subsequently.  The officer said that the time lapse between his arrival at the scene and the Appellant finally getting on his feet was approximately three minutes. 

Defence Case

6.  It was the defence case that on the material day, the Appellant had arranged to meet Chan Hong Wing, Patrick and Cheung Wai Hing, Fanny with a view to handing a letter requesting to call for a General Meeting of Owners to Lee Kam Shing as numerous avenues attempted previously had been unsuccessful.  Chan Hong Wing, Patrick tried to hand the letter to Lee Kam Shing, who said that he would not take it and pushed it away.  He also pushed Chan Hong Wing, Patrick on the chest and shoulders with both his hands twice, causing Chan Hong Wing, Patrick to back off a few steps.  As the Appellant saw it, he shouted out to at Lee Kam Shing to stop him from hitting him.

7.  Lee Kam Shing dashed towards the Appellant, raised his arm and waved it in front of the Appellant.  In self-defence, the Appellant stopped Lee Kam Shing by encircling Lee Kam Shing with his arms.  Lee Kam Shing fell to the ground.  The Appellant pointed at Lee Kam Shing saying, “You hit people. Don’t go.”  As Lee Kam Shing got up on all fours facing Chan Hong Wing, Patrick, the Appellant anticipated that Lee Kam Shing was trying either to run away or to attack Chan Hong Wing, Patrick again, he therefore took the opportunity to mount on Lee Kam Shing in order to stop him.  The Appellant grabbed Lee Kam Shing’s left arm, but he did not bend it back.  The Appellant made a report to the police.  The Appellant then heard voices coming from behind without knowing that it was the police.  When he came to aware of their identity as police officers, he said, “Ah Sir, this man has committed an offence.”

8.  The Appellant agreed that a police officer had held his armpit and that he had said “This man has committed an offence.” twice or thrice.   The Appellant said that he mounted on Lee Kam Shing and placed Lee’s left arm at his back for the purpose of arresting him.  The Appellant did so as Lee Kam Shing had hit people and if he did not put Lee Kam Shing under control at that time, Lee Kam Shing might hurt Chan Hong Wing, Patrick and the consequences were unthinkable.       

Magistrate’s Findings

9.  In respect of how the incident happened, the Magistrate accepted the evidence of the Appellant, Chan Hong Wing, Patrick and Cheung Wai Hing, Fanny and rejected the evidence of Lee Kam Shing.  In other words, the Magistrate did not believe that the Appellant would have hit Lee Kam Shing for no reason.  The Magistrate was satisfied that it was because Lee Kam Shing had assaulted Chan Hong Wing, Patrick that the Appellant pressed Lee Kam Shing to the ground eventually.

10.  Nevertheless, as regards the discrepancies between the evidence of the police officers and the Appellant, the Magistrate accepted the police officers’ version, that is, the Appellant bent Lee Kam Shing’s left arm back and after being warned by the police, the Appellant continued to mount on Lee Kam Shing and did not let go immediately.

11.  The Magistrate held that the Appellant’s defence of arresting Lee Kam Shing failed as Common Assault was not an “arrestable offence” and the arrest made by the Appellant was unlawful. 

12.  The Magistrate also pointed out that after the Appellant had come to know the identity of the police officers, he did not let go and still kept grabbing Lee Kam Shing’s arm and pressing on him, the force used on Lee Kam Shing was unnecessary and it was unlawful for him to do so. The Appellant was therefore found guilty as charged.

Grounds of Appeal

13.  The ground of appeal put forward by the Appellant, who was initially unrepresented, based mainly on the fact that the Magistrate was satisfied that the Appellant was still pressing on Lee Kam Shing for three minutes after the police had arrived at the scene.

14.  Subsequently the Appellant received services from a pro bono lawyer, Mr. Eric Cheung,who represented him to advance the following grounds of appeal:

(1) The Magistrate wrongly regarded the Appellant as a witness who was not completely honest and reliable.  The Magistrate wrongly accepted the police’s version and rejected that of the Appellant where discrepancies existed between the evidence of the police and the Appellant.

(2) The Magistrate did not apply the correct principles in assessing whether the Appellant had used excessive force to subdue Lee Kam Shing.

(3) The Magistrate lost sight of the fact that given the overall attitude and behaviour of Lee Kam Shing at the material time, it cannot be ruled out completely that the Appellant reasonably suspected Lee Kam Shing of having committed an arrestable offence more serious than “Common Assault”. The Magistrate therefore erred in finding that the Appellant was not entitled to exercise a citizen’s right of arrest under Section 101 of the Criminal Procedure Ordinance.

(4) There is a lurking doubt in the present case. That gives rise to concern; the conviction is unsafe or unsatisfactory.

Ground of Appeal (1)

15.  First of all, the Appellant submitted that the Magistrate did not find the Appellant to be dishonest or unreliable when he made his oral findings.  He first described the Appellant as “not completely honest and reliable” in his Statement of Findings. There were discrepancies between the evidence of the police officer and the Appellant, and the Magistrate accepted the police officer’s version.  The Appellant argued that the Statement of Findings failed to supplement the deficiencies of the oral findings, and that it did not show what considerations, except for demeanour, the Magistrate took into in analysing the discrepancies between the evidence of the Appellant and the police officer.

16.  In respect of when the Appellant said “Ah Sir, he had committed an offence.” after the police’s arrival at the scene, which showed that the Appellant was aware of the identity of the police officer, the situation was chaotic according to the evidence.  The Magistrate has wrongly taken the police officer’s subjective estimation to be an objective fact and wrongly found that the Appellant had come to know the identity of the police officers for three minutes.

Ground of Appeal (2)

17.  In respect of whether it is reasonable to use force in self-defence, the Appellant referred to R v Clegg [1995] 1 AC 482, The Queen v Man Wai Keung [1992] 1 HKCLR 89 and the English authorities cited therein, contending that the Magistrate failed to show that he had taken account of the relevant cases and legal principles in finding the Appellant to have used excessive force after the police’s arrival at the scene, and that the Magistrate failed to make a finding of facts in respect of the Appellant’s subjective perception of the circumstances at the material time. 

Ground of Appeal (3)

18.  The Appellant argued that judging from Lee Kam Shing’s acts at that time, the Magistrate should have considered whether the Appellant had reasonable suspicion that Lee Kam Shing had committed an offence more serious than Common Assault.  The evidence concerned cannot rule out that the Appellant had reasonable belief that Lee Kam Shing attempted to assault Chan Hong Wing, Patrick occasioning actual bodily harm to him, and assault occasioning actual bodily harm is an “arrestable offence”.  The Magistrate failed to take into consideration that it was because of the Appellant’s timely action that no one was subject to more serious harm.  The Appellant’s instantaneous judgment should be deemed as reasonable suspicion. 

Ground of Appeal (4)

19.  The Appellant appreciates that the appellate court is to exercise great care if it is to find a conviction unsafe and unsatisfactory based on “lurking doubt”.   It was argued by the Appellant that the circumstances of the present case were special.  The Magistrate did not find Lee Kam Shing to be an honest witness and found that it was him who attacked first.  The Appellant subdued Lee Kam Shing with force only out of righteousness and for the sake of crime prevention.  However not only did the prosecution spare Lee Kam Shing from prosecution, they even laid a charge against the Appellant.  Evidence showed that the situation was chaotic and the Appellant emotionally unstable at the material time.  Nevertheless, there was no evidence to show that the Appellant sat on Lee Kam Shing for revenge.  The Appellant repeatedly said to the police that Lee Kam Shing “had committed an offence”.  There is a lurking doubt in the present case.

Respondent’s Reply

20.  Ms. Mok Wan Yin, Winnie, Public Prosecutor for the Respondent, argued that as the Magistrate was a fact-finder who enjoyed the advantage of having seen and heard the witnesses, there was nothing wrong with the Magistrate’s finding that between the arrival of the police at the scene and the time the Appellant got up, there was a lapse of approximately three minutes.  The Respondent also pointed out that regardless of whether the lapse of time was as long as three minutes, the police officer’s evidence was that the Appellant ignored the police’s repeated warnings and continued pressing on Lee Kam Shing.  The Appellant’s act was beyond reasonable force.

Ground of Appeal (2)

21.  The Respondent also cited cases in support of the argument that in considering whether the Appellant had used reasonable force at the material time, the Magistrate also had to take into account all the circumstances at the material time.  The Respondent argued that the Magistrate had already elaborated his reasons for finding the Appellant to have used excessive force, and that no evidence in the present case showed that the Appellant had any “genuine misunderstanding” about the police officers’ identity or the circumstances at the material time.  The Magistrate made the correct finding and did not err in it.      

Ground of Appeal (2)

22.  Having analyzed the evidence, the Respondent submitted that there was no evidence to show that Lee Kam Shing had done any acts more serious than common assault to Chan Hong Wing, Patrick, nor was there evidence to show that more intensified action was expected of Lee Kam Shing.   It was further submitted that a more reasonable inference to be drawn was that he was going to get up and flee.  Hence, there was no evidence to show that the Appellant had “reasonable suspicion” that Lee Kam Shing attempted to assault Chan Hong Wing, Patrick, occasioning to him actual bodily harm.     

Ground of Appeal (4)

23.  The Respondent contended that there was nothing wrong with the Magistrate’s finding, nor was there a lurking doubt in the present case.  

Discussion

Ground of Appeal (1)

24.  The Magistrate indicated in his oral findings (Page 44 line P to Q) that he found the police officers, Chan Hong Wing, Patrick and Cheung Wai Hing, Fanny to be honest and reliable witnesses, but did not consider Lee Kam Shing an honest and reliable witness, and as a matter of fact, the Magistrate did not mention that the Appellant was “not completely honest and reliable”.  Regarding how the incident happened, the Magistrate accepted the evidence of the Appellant, Chan Hong Wing, Patrick and Cheung Wai Hing, Fanny (Page 45 line D to F).  In respect of what happened after the arrival of the police at the scene, the Magistrate only remarked that he accepted the police officers’ evidence (Page 46 line J).

25.  At Para. 19 of the Statement of Findings, the Magistrate said:

“19. Having carefully observed the witnesses and their demeanour during their testimonies and considered their evidence, I find the [police officers], [Chan Hong Wing, Patrick] and [Cheung Wai Hing, Fanny] to be honest and reliable witnesses. [Lee Kam Shing] is not an honest and reliable witness, while the Appellant is not completely honest and reliable. There are discrepancies between the evidence of the [police officer] and the Appellant. But I accept the [police officer’s] version and reject that of the Appellant.”

26.  In his oral findings, the Magistrate stated that he accepted the Appellant’s evidence only in respect of how the incident happened, while he accepted the police officer’s evidence in respect of what happened after the arrival of the police at the scene.  As the police officer’s evidence was not entirely different from that of the Appellant, when the Magistrate said that he accepted the police officer’s evidence, what he meant was that he would accept the police officer’s version where there were discrepancies between the evidence of the police officers and that of the Appellant.  The Magistrate did not give the reasons as to why he accepted the police officer’s evidence or why he rejected the Appellant’s evidence.

27.  In his Statement of Findings, the Magistrate stated that having considered the evidence and observed the witnesses’ demeanour during their testimonies, he found the Appellant to be not completely honest and reliable. 

28.  As the Magistrate had already stated in his oral findings that he did not find Lee Kam Shing to be an honest and reliable witness when he rejected his evidence, it was obvious that he regarded the Appellant’s evidence in respect of how the incident happened to be credible and reliable.  The Magistrate only stated that he accepted the police officer’s evidence, but the discrepancies between the evidence of the police officers and that of the Appellant are not to be equated with the Appellant being dishonest.  The facts of the present case are special.  Lee Kam Shing was the one who hit out first by pushing and hitting Chan Hong Wing, Patrick, and when the Appellant obstructed him, he even gestured as if he was going to hit the Appellant.  For the sake of self-defence and stopping Lee Kam Shing from assaulting Chan Hong Wing Patrick, the Appellant pressed on Lee Kam Shing after Lee Kam Shing had fallen to the ground, not allowing him to get up.  At the same time, the Appellant made a report to the police.  When the police arrived at the scene, the Appellant repeatedly said that Lee Kam Shing “had committed an offence” and that he had to “arrest him”. 

29.  It was the police officer’s evidence that there was a crowd of 20 to 30 people when he arrived at the scene.  He saw the Appellant sitting on top of Lee Kam Shing.  With 20 to 30 people gathering on the street, the circumstances should be quite chaotic, and the police should dispose of the matter as soon as possible in order to disperse the crowd.   However the police officer said that there was a lapse of three minutes from the time he arrived at the scene to the time the Appellant got up.  Bear in mind that three minutes is not a short period of time (especially when there were many people gathering on the street).  There was no information to show on what basis the police officer estimated the time to be approximately three minutes.   Besides, the allegation the Appellant faced at the Magistrates’ Court was not that he used excessive force on Lee Kam Shing, instead the prosecution alleged that the Appellant assaulted Lee Kam Shing and continued to do so even after the police had arrived at the scene.  Therefore, it is not difficult to see why the prosecution did not clarify in the examination-in-chief or cross-examination as to on what basis the police officer estimated the time to be three minutes.  It seems that the Magistrate has placed too much emphasis on the lapse of “approximately three minutes”. 

30.  It was the Appellant who made a report to the police, he pressed Lee Kam Shing down for the purpose of preventing him from further assaulting Chan Hong Wing, Patrick and arresting Lee Kam Shing.  He repeatedly said that he had to arrest Lee Kam Shing.  The Magistrate seemed to have failed to consider whether the Appellant’s response at that time was due to his rather agitated state of mind (the police officer also said that the Appellant was rather agitated at that time), because of which he might have failed to notice the police officer’s request immediately. 

31.  I note that the Magistrate adjourned the case for a week for oral findings.  It was not that the Magistrate gave his brief reasons shortly after the conclusion of evidence.  The Magistrate did not say in his oral findings that the Appellant was dishonest.  It was in his Statement of Findings that he said for the first time that the Appellant was not completely honest and that caused my concern indeed. 

Ground of Appeal (2)

32.  Section 101A of the Criminal Procedure Ordinance (Cap 221) stipulates that:

(1) A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

(2) Subsection (1) shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

33.  The above provision is the same as Section 3 of the British Criminal Law Act 1967. The relevant cases in Britain are applicable to Hong Kong.

34.  In R v Williams (Gladstone) [1987] 3 All ER 411, Lord Lane CJsaid at415f：

“In the case of self-defence, where self-defence or the prevention of crime is concerned, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case. If however, the defendant’s alleged belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.

            Even if the jury come to the conclusion the mistake was an unreasonable one, if the defendant may genuinely have been labouring under it, he is entitled to rely upon it.” [My emphasis]

35.  Putting it simply, where a case involves self-defence orthe prevention of crime, if the jury came to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution have not proved their case.  If however, the defendant’s belief was mistaken and if the mistake was an unreasonable one, that may be a powerful reason for coming to the conclusion that the belief was not honestly held and should be rejected.  Even if the jury come to the conclusion the belief was an unreasonable one, if the defendant genuinely held such belief and has been under the influence of such unreasonable belief, he is already entitled to rely upon it.  

36.  The court has decided in Clegg that there should not be any distinction between using force in self-defence and using force on preventing crime, and that the same test of reasonable force should apply in both cases. 

37.  In Man Wai Keung, the Court of Appeal in Hong Kong referred to a number of English authorities in respect of the test of the reasonableness of the force used.

38.  Palmer v R [1971] AC 814 was one of the authorities cited, in which Lord Morris, at p. 831, remarked that when a person is attacked so that self-defence is necessary, that person cannot weigh to a nicety as to whether defensive action is necessary.  If a jury thought that in an unexpected moment a person under attack had only acted out of an instinct and he honestly believed the act as necessary, that would be potent evidence that the force used was reasonable.  The defence of self-defence will only fail if the prosecution show beyond reasonable doubt that the person attacked was not acting in self-defence.             

39.  In the light of the above authority, the subjective belief held by the Appellant at the time he used force was material.  The Magistrate was satisfied that the force used by the Appellant on Lee Kam Shing was reasonably necessary for crime prevention.  The Magistrate failed to consider whether the Appellant’s subjective belief changed after the arrival of the police at the scene, that is, whether the purpose of crime prevention at the outset changed to assaulting Lee Kam Shing with intent after the arrival of the police at the scene.       

40.  Furthermore, it seemed that the situation at that time was chaotic and the Appellant was rather agitated, but the Magistrate did not mention the state of emotion of the Appellant in either his oral findings or Statement of Findings.  I am therefore concerned about whether the Magistrate had taken into account that the Appellant honestly believed that it was necessary for him to continue to stop Lee Kam Shing from getting up after the arrival of the police at the scene and before he told the police what was going on.

41.  It seems to me that the Magistrate had taken into consideration the fact that the Appellant “could by no means give meticulous thought” to Lee Kam Shing’s acts before the police had arrived at the scene (para. 25 on p. 19).  However in considering the circumstances after the arrival of the police, the Magistrate failed to take account of the fact that given the Appellant’s rather agitated state of emotions at that time, would that render him unable to give meticulous thought to the necessity of continuing to press on Lee Kam Shing, thereby causing him to believe honestly but mistakenly that it was necessary for him to do so?   

Ground of Appeal (3)

42.  Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence under Section 101(2) of the Criminal Procedure Ordinance. 

43.  "Arrestable offence" means an offence for which the sentence is fixed by law or for which a person may under or by virtue of any law be sentenced to imprisonment for a term exceeding 12 months, and an attempt to commit any such offence (Section 3 of the “Interpretation and General Clauses Ordinance”, Cap 1, Laws of Hong Kong).

44.  The Appellant’s evidence is that he arrested Lee Kam Shing because Lee Kam Shing had committed an offence and attacked Chan Hong Wing, Patrick.  Assault can be classified as common assault, assault occasioning actual bodily harm or even wounding.  An ordinary citizen may not be able to distinguish which kind of assault amounts to an arrestable offence.  But after taking all the circumstances into consideration, i.e., Lee Kam Shing was not armed, the “pushing and hitting” he had done to Chan Hong Wing was common assault; when he threw his fist at the Appellant, that was also, at the highest, common assault, I do not see any evidence in support of the Appellant’s reasonable suspicion that Lee Kam Shing had committed an offence more serious than common assault. 

Ground of Appeal (4)

45.  As submitted by the Appellant, the appellate court does not have the advantage of seeing and hearing the witnesses and it should be particularly careful in granting an appeal based on “lurking doubt”.  The appellate court does not have the advantage of hearing and seeing the witnesses giving evidence.  Having considered the facts concerned, in particular the fact that the Appellant did not have any previous criminal record, I find him to be merely acting out of righteousness when he saw Lee Kam Shing’s act of assault and it was only for the purpose of stopping Lee Kam Shing from continuing to assault Chan Hong Wing, Patrick that the Appellant used force on Lee Kam Shing.  However, the police wrongly believed that it was Lee Kam Shing who was the person under attack at all times and prosecuted the Appellant instead.   

46.  Having considered the Appellant’s behaviour and all the circumstance at that time, I do find that there is a “lurking doubt” in the present case and consider the conviction of the Appellant unfair.

47.  For the reasons set out above, although I do not accept Ground of Appeal (3), I allow the appeal and quash the conviction and fine.  

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.