HKSAR v. WONG CHUN HIN

[English Translation – 英譯本]

HCMA 291/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 291 OF 2016

(ON APPEAL FROM TWCC 3386 OF 2015)

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REASONS FOR JUDGMENT

1.  The appellant was charged with one count of wounding, contrary to Section 19 of the Offences against the Person Ordinance, Cap 212, Laws of Hong Kong.  The appellant pleaded not guilty and was convicted after trial by Mr. Jacky Jim, a deputy magistrate sitting in the Tsuen Wan Magistracy.  He was sentenced to 160 hours of community service, fined $5,000 and ordered to pay compensation of $3,000.  The appellant appealed against conviction.

2.  Having heard the case, I allowed the appeal and set aside the conviction, the fine and the compensation order.  Here are my reasons.

Facts of the case

3.  The prosecution case and the defence case are stated in the magistrate’s Statement of Findings as follows: 

“Prosecution case

5.  To put the matter in simple terms, the prosecution case is that the defendant and PW1 did not know each other before the incident.  The defendant resided at Lai Shek House, Shek Yam Estate, Kwai Chung, New Territories, which is adjacent to the material location, that is, the vicinity of the car park.  Around 12:30 a.m. on 19^th June 2015, the defendant, after drinking at Cocoduck, a pub in Tsuen Wan, took a taxi home, which was driven by PW1.  On arrival at the material location, the defendant found that he had lost his wallet and could not pay the taxi fare of HK$34.8.  He requested PW1 to let him go home and get the money first, which was however refused by PW1.  In return, he suggested the defendant call his home and ask someone to bring money down.  The defendant refused.  PW1 thus called the police.  This is the background information that both parties agree.

6.  Before the police arrived at the scene, the defendant suddenly said something intimidating to PW1 in the taxi, indicating that he would do something to PW1.  PW1 therefore alighted from the taxi and waited for the police.  However, he observed that the defendant suddenly got out of the taxi and he believed the defendant was trying to flee the scene.  He thus went forward to chase the defendant.  He also took out his mobile phone to take photos of the defendant.  However, the defendant approached him and slapped his phone out of his hand, causing it to drop to the ground.

7.  After that, the defendant punched PW1 on the left side of his chest with his right hand.  When the defendant gave PW1 the second punch with his right hand, PW1 warded it off with his right hand, resulting in an angular deformation of his right thumb. The defendant also firmly grabbed PW1’s wrist and bit his ring finger, causing PW1 to suffer those injuries as stated in the medical report (P1).  Because of pain, PW1 pushed the defendant away with his left hand.  Later, the police arrived.  PW2 and PW3 were the police officers who first attended the scene to make enquiries of the defendant and PW1 respectively.  PW4 was the investigating officer who took over the case.

Defence case

8.  In fact, to put it simply, the major difference between the prosecution case and the defence case is: PW1 suddenly took out his mobile phone to make a video of the defendant, threatening that he would upload to the internet the video clip that showed the defendant had failed to pay the taxi fare after the journey.  The defendant went forward to stop PW1 from recording, and suddenly he was attacked by PW1. It was only when PW1 hit the defendant with his fist that the defendant tried to grab his fist, but he only grabbed his thumb.  After that, since the defendant was unable to exert force because they were far apart from each other, he went along with the movements and pulled PW1’s hand to somewhere near his mouth.  The defendant testified that as PW1’s finger(s) touched the area near his mouth, he instinctively bit his finger, that is, his ring finger, causing injury to PW1.  Afterwards, PW1 even hit him in the head.  Finally, the two of them separated. 

9.  What the defendant said in detail is: -

a. When PW1 drove him to the material location, that is, the building where he resided, he found that his wallet was gone.  At that time, his mobile phone was out of battery and he forgot the phone numbers of those at home and of his family members.  He therefore offered his glasses, which were worth about $2,000, and his tie clip, which was also worth about $2,000, as security in exchange for PW1’s consent to let him go home and get the money to pay the taxi fare.

b. PW1 did not accept it and instead suggested that the defendant offer his phone as security, which the defendant did not agree to either.  The defendant, when giving evidence, for the first time revealed that the taxi fare he actually owed was not about $35 as PW1 stated, and that it was just about $6 since he had $28 in coins on his person.

c. After discussion, both of them agreed to call the police.  While waiting for the police, the defendant and PW1 had a dispute and they swore at each other.  The defendant once alighted from the taxi, trying to stay away from PW1.  Yet this made PW1 think that he was trying to flee.  That’s why PW1 called the police the second time.

d. Upon explanation by the defendant, both of them calmed down at one stage.  They were by the taxi and smoked on the same side of it while waiting for the police.  However, since the defendant again said something to insult PW1 whom he knew he could not reason with, he attempted to stay far away from PW1 by walking to the opposite side. The defendant said in his evidence that he was not fleeing the scene, and perhaps PW1 had misunderstood his actions.

e. PW1 suddenly took out his phone and threatened to record and upload to the internet how the defendant had failed to pay the fare after the taxi journey.  The defendant thus raised his hand, walked near PW1 and tried to stop him from further recording. Initially, they were more than a taxi’s width apart.

f. When the defendant tried to stop PW1 from further recording, PW1 hit the defendant in his head with one hand while grabbing hold of him by his collar with the other hand. The defendant attempted to put up a struggle and grab PW1’s fist when PW1 was assaulting him, but he only managed to grab his right thumb.  The defendant was unable to exert force because they were far apart from each other, so he pulled PW1’s right hand towards his mouth.  As PW1’s other right fingers touched the area near his mouth, the defendant instinctively bit PW1’s ring finger.  PW1 then hit the back of the defendant’s head.  The defendant’s medical report shows that the left side of the defendant’s face was swollen and painful.  The details can be seen in Exhibit P2 and P3(3)-(4).  In the end, the two of them separated.  Later, the defendant found that his glasses, tie clip and clothing and so on were damaged during his struggle with PW1.  The details can be seen in the photos in Exhibit P3.”

Application for submitting fresh evidence

4.  On 11^th November 2016, the appellant filed a notice of motion to apply for the admission of the written statement of Police Constable (15743) who made enquiries at the scene as fresh evidence in this appeal. 

5.  This Court will deal with the application for admitting fresh evidence first.

Related legislation

6.  Under Section 83V(1) and (2) of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong:

“(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

……

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if-

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”

7.  As to the circumstances under which the Court of Appeal may admit fresh evidence, the Court of Final Appeal has set out clearly in Mohammad Mahabobur Rahman v HKSAR (2010) 13 HKCFAR 20 that the following conditions must be satisfied before receiving the evidence:

(a) the fresh evidence is likely to be credible;

(b) it would have been admissible in the courts below;

(c) it is relevant to an issue in the appeal;

(d) there is a reasonable explanation for the failure to adduce it in the courts below; and

(e) the court is satisfied that it would afford a ground of appeal.

8.  I take into account that the written statement of the said police officer could not be adduced as evidence.  That police officer gave evidence (as PW3) during the trial, and the appellant already cross-examined him through his legal representative at that time.  His written statement therefore does not satisfy the above conditions.  For the above reasons, this Court refused to admit it as fresh evidence.

Grounds of appeal

9.  The appellant, unrepresented, put forward four grounds of appeal:

(I) The deputy magistrate erred in accepting PW1’s statement;

(II) The deputy magistrate erred in not taking into consideration or full consideration the appellant’s defence of “reasonable self-defence”;

(III) The reasons given by the deputy magistrate for refusing to accept the appellant’s evidence were biased and arbitrary; and

(IV) The appellant was not given a fair trial.

Relevant matters

10.  I would talk about some relevant matters before dealing with the grounds of appeal.

11.  According to the evidence given by the police officers who attended the scene, they arrived at the scene after PW1 had called the police.  PW1 neither told the police officer(s) that he had been intimidated by the appellant, nor did he mention he had been punched on the left side of his chest by the appellant.  Police officers made enquiries of PW1 and the appellant, and both of them were arrested respectively.  The offence for which the police officer arrested the appellant was criminal damage, and not the offence of wounding, fighting or assault.  After they were arrested, the police once considered offering them binding-over orders, but eventually the Department of Justice did not agree.

12.  Before the Department of Justice made the above decision, PW1 and the appellant had discussed compensation.  On 17^th December 2015, the prosecution formally laid a charge against the appellant.  On 6^th July 2015, PW1 sent a medical certificate and a follow-up consultation slip via WhatsApp to the appellant.  PW1 stated, “The surgical operation fee alone might amount to tens of thousands”.  He told the appellant, “If you don’t make a decision tonight, what can only happen is getting mutually doomed.”

Ground of appeal (I): The deputy magistrate erred in accepting PW1’s statement

13.  By reference to the transcript, the appellant submitted that there were contradictions and discrepancies between the evidence given by PW1 and his written statement.  PW1 gave different versions about the actual number of times he called the police.  More importantly, even though PW1 heard the appellant saying something intimidating and was worried about his personal safety, he did not tell the police officer(s) who attended the scene that the appellant had intimidated him.  The magistrate accepted PW1’s explanation (that it was chaotic then).  This is not a reasonable finding.  As PW1 was also an arrested person who was under the same pressure of being charged, he would not easily forget what happened in the incident.

The discussion and findings of the magistrate about PW1

14.  The magistrate stated in his Statement of Findings the discussion and findings about PW1:

“14. In the examination-in-chief, PW1 was able to give a clear account of the incident. He said he remembered for things that he remembered and frankly admitted he was not sure for things that he was not sure about. Under cross-examination, he also frankly admitted that what was stated as the situation of the first time he called the police according to the literal reading of his witness statement, MFI1, should be the situation of the second time he called the police and also that at the scene, he did not tell the police officers who attended the scene, such as PW2 or PW3, that he had been hit in the chest or the defendant had said something intimidating to him etc.

15. I have considered his evidence and explanation as well as what happened at the material time.  The situation was chaotic then.  An ambulance officer was bandaging PW1’s wound and PW1 was to go to hospital hurriedly by ambulance for treatment of his finger’s wound.  Having carefully considered PW1’s explanation, I find there is nothing strange about his failure to tell the relevant police officer(s) about those matters and the inaccuracies in his statement as pointed out by the defence in its submission.

16. A subsequent witness statement was taken only some months later.  In the interim, as stated by PW4, both parties discussed whether the case could be disposed of by way of a binding-over at one stage.  So the existence of inaccurate expressions in his witness statement is understandable, and PW1’s explanation is also reasonable.

17. His explanation that “mutually doomed” in the message (D2) meant it would waste everybody’s time if they had to attend court was also reasonable.  I find that PW1’s evidence remained unshaken under cross-examination.

18. According to what PW1 said, he only grabbed the defendant’s collar and pushed him away.  He agreed that he was unable to exert force when the defendant was biting his hand. However, when he was struggling to free himself, he did have contact with the left side of the defendant’s face, which caused slight injury to the defendant.  There is nothing unreasonable about it.  The situation was chaotic at the material time, and it is reasonable that damage was caused to the defendant’s clothing such as D1 during the struggle.

19. I have carefully considered all the [sub]missions and the evidence on the whole.  There are no discrepancies on material matters.  I find that he is an honest and reliable witness.”

My consideration

15.  A magistracy appeal is a “rehearing” on the evidence before the trial magistrate (supplemented by such further evidence as the appellate court may admit): see Chou Shih Bin v HKSAR[1].  In my view, regarding the facts of the case, it must be acknowledged that a magistrate has the advantage of hearing and observing witnesses giving evidence in court, and the appellate court cannot determine the credibility and reliability of witnesses by relying on the written transcripts: see Raymond Chen v HKSAR[2]. The credibility and reliability of any particular witness is solely within the assessment of the magistrate.  But where the findings of facts by the magistrate are unreasonable or illogical, or inherently improbable; or the magistrate has misquoted, or omitted, or failed to consider and analyse any significant aspect of the evidence, the conviction would be unsafe and unsatisfactory.

16.  I am of the view that the magistrate had not thoroughly considered the evidence given by PW1 before he was satisfied what PW1 said was true.  I understand that PW1 might not be able to clearly remember how many times in total he had actually called the police, but according to the evidence given by the police officer(s), PW1 was indeed arrested together with the appellant.  What is more worth noting is that the offence for which the appellant was arrested was criminal damage, which was by no means an offence related to assaulting or wounding PW1.  Obviously, at the scene, PW1 did not complain to the police officer(s) about being assaulted by the appellant.  In addition, PW1 was also a person arrested by the police.  As he complained to the police officer about what the appellant had said or done to him (otherwise the police officer would not have arrested the appellant for criminal damage), I really do not see any reason why he would not make such a complaint to the police officer if he had been intimidated and attacked by the appellant.  I particularly stress that it has nothing to do with PW1’s right to remain silent.  Instead it appeared unreasonable for PW1 to complain only about the property being damaged, and make no mention at all about being intimidated and attacked.  I find the analysis of the magistrate in paragraphs 15 and 16 of his Statement of Findings to be unreasonable.

17.  Leaving aside the true meaning of “getting mutually doomed” for the moment, regardless of whether it means “it would waste everybody’s time if they had to attend court” as suggested by PW1 or “it would destroy everything and both sides would suffer” as the appellant understood, the fact was that PW1 did say so to the appellant.  In considering whether PW1 had exaggerated the incident and whether he had tried to diminish his responsibility, one should take into account the following aspects: Why was the evidence given by him in court different from his written submission (sic)? Why did he complain to the police officer at the scene about the property being damaged but not his being intimidated or attacked?  Besides, he did demand compensation from the appellant but that was unsuccessful.

18.  Apart from the grounds put forward by the appellant, I also notice that the magistrate, in considering whether PW1’s evidence was credible and reliable, failed to take into consideration the fact that the appellant’s glasses and tie clip were damaged as shown in the photos taken by the police.  According to PW1’s description, he was punched and then bitten by the appellant.  He just remained passive and could only push away the appellant with his left hand.  If that was the case, why were the appellant’s glasses and even his tie clip damaged?  Did PW1 play down his role?  Was his evidence really credible and reliable?

19.  I find Ground of Appeal (I) substantiated.

20.  As to the remaining three grounds of appeal, the appellant pointed out at some length that it was improper for the magistrate not to accept his evidence and that he was not given a fair trial.  In my view, it is not necessary to further consider and analyse other grounds here in detail.  As the magistrate stated in paragraph 34 of his Statement of Findings,

“34. Of course, the fact that I do not accept the defendant’s evidence does not mean that the defendant is guilty of the offence he is charged. I still have to see whether the evidence adduced by the prosecution can prove beyond all reasonable doubt, which is a high standard, that the defendant committed the offence in this case. The defendant does not have to prove anything.”

21.  I have found that the magistrate’s approach in dealing with PW1’s evidence was improper as stated above.  For this reason, the prosecution had failed to prove beyond all reasonable doubt that the appellant had committed the offence.

22.  For the above reasons, I allow the appellant’s appeal against conviction.  Since the appellant has already completed the community service under the Community Service Order, I order that the conviction, the fine and the compensation order be quashed. 

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