HKSAR v. LUI KIN HONG

HCMA 21/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 21 OF 2014

(ON APPEAL FROM ESCC 2898/2013)

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REASONS FOR JUDGMENT

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1. The appellant was convicted after trial of one charge of assault occasioning actual bodily harm, contrary to section 39 Offences Against the Person Ordinance, Cap 212 and sentenced to 21 days’ imprisonment. His appeal against conviction was allowed with sentence set aside. These are the reasons.

The prosecution’s case

2. The Prosecution called 2 witnesses. PW1 was a part‑time mini‑bus driver at the material time.  There was a collision between his mini‑bus and the private car driven by the appellant.  PW1 claimed that he was scolded by the appellant and when he said he would call the police, the appellant used his right fist to hit him on the face causing him to fall to the ground.  He made a report to the police.  PW2 was the police officer who arrived at the scene.  He said that the appellant denied hitting PW1.

The defence case

3. The appellant gave evidence and called his son and daughter as defence witnesses.  He said after the collision, he got out of the car and PW1 swore at him, pushed him at his shoulders causing him to almost lose his balance.  He said he used both hands to ward off PW1 but somehow PW1 fell onto the ground.  He denied ever hitting PW1, and any touch on PW1’s face would be accidental and in self‑defence.  DW1, his son, testified that he saw the appellant used his right hand to ward off PW1 and the outside of the appellant’s palm landed on PW1’s face.  PW1 fell backwards onto the ground and landed on his side with his arm stretched out.  DW2, the appellant’s daughter testified that she saw the whole of the appellant’s right hand in contact with PW1’s face, then PW1 fell backwards onto the ground and landed on his buttocks.

Grounds of appeal

4. Two main grounds were advanced by counsel for the appellant:

(1) the magistrate erred in accepting the evidence of PW1 and rejecting the evidence of the Defence; and

(2) the magistrate erred in placing the burden on the Defence to establish self‑defence.

Respondent’s reply

5. Counsel for the respondent submitted that according to the Defence case, the only “force” used by the appellant in the incident was to “ward off” PW1, he denied ever fisted PW1 as PW1 alleged, and so there was simply insufficient evidence to raise the issue of “self‑defence” to a force that he did not use.

6. Counsel also submitted that the issue of whether the left or right fist was used by the appellant between the testimony of PW1 and PW2 was resolved by the magistrate that PW2 could well be an honest but mistaken in respect of what he could recollect from the enquiries he made of PW1.

7. It was further submitted that the injuries sustained by PW1 were not inconsistent with PW1’s allegation of how the incident happened.  No issue was taken of the “freshness” of the injuries.  On the other hand, they were inconsistent with the appellant’s evidence of warding off PW1 by his both hands.

8. Counsel for the respondent submitted that the grounds of appeal were without merit and the appeal against conviction should be dismissed.

My judgment

9. I shall first deal with the issue of self‑defence.  Counsel for the appellant submitted that the magistrate had adopted a wrong approach as to the issue of self‑defence, as seen in the Statement of Findings, where she said:

“15. The appellant denied ever hitting PW1. He stated that even if he had touched PW1’s face it was accidental and in self‑defence.

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32. . . . However for reasons already given, I did not accept his evidence and the evidence of his children.  I there found that the appellant did not successfully raise the issue of self‑defence.”

10. The law relating to self‑defence is clear.  Before the issue can be left to the jury, there must be some evidence, whether from the Prosecution or Defence, when if accepted, could raise a prima facie case of self‑defence.  A proper foundation for such a defence must have been laid.  Once such evidence exists, it is for the prosecution to negative it.  The court would consider whether the Prosecution has proved beyond a reasonable doubt that the defendant has not acted in self‑defence.

11. With respect, the submission in this aspect by Counsel for the appellant is misconceived.  What the magistrate meant was that having rejected the Defence evidence, and found that it was an intentional unprovoked attack by the defendant, the issue of self‑defence does not arise.  The magistrate did not wrongly place the burden of proving self‑defence on the appellant.

12. I shall now consider whether the magistrate was correct in finding that the issue of self‑defence did not arise.  Obviously, if after full examination and analysis of all the evidence, the findings were that the whole incident happened in the way that PW1 alleged, that it was an unprovoked attack by fist of the appellant, then of course there would not be any issue of self‑defence.  On the other hand, if what the Defence said about the incident was or may be true, and that he honestly believed it was necessary for him to defend himself by warding off PW1 which accidentally caused PW1 to fall and sustain the injuries, and he had only used reasonable force in the circumstances, there would be an issue of self‑defence and accident.

13. In considering this I must first examine the manner that the magistrate dealt with the Prosecution and Defence evidence.  The present case is the classic case of one person’s words against another.  A magistrate, in assessing the evidence of the witnesses, whether it be witnesses for the Prosecution or Defence, should give them the same equal, fair and objective treatment.

14. In the present case, there are discrepancies amongst the evidence of the Prosecution witnesses, as there are amongst the Defence.

15. It was the evidence of PW1 that the appellant hit him once with his right fist causing him to fall onto the ground.  PW2, however, made a record that during the enquiries he made with PW1 at the scene PW1 told him that the appellant used his left hand to hit PW1. The magistrate found that this was not a material discrepancy:

“. . . I noted this was not put to PW1 in cross‑examination. Moreover I noted that those were enquiries made after PW2 arrived at the scene. What PW2 alleged he heard was never confirmed by PW1 as to whether it was an accurate recollection or not. . . . ”

16. She found that the evidence of PW1 was not inherently improbable or unreasonable.

17. On the other hand, she found that these were material inconsistencies in the Defence evidence:

“i. The appellant claimed that he fended PW1 off with 2 hands. However his son claimed that the appellant only used his right hand with the left arm almost straight at his side.

ii. The son claims the side of the father’s right hand, outside of the palm, hit PW1’s face. However the daughter says that the appellant’s whole right palm landed on PW1’s face.

iii. The appellant claims that after he fended PW1 somehow tripped and fell onto the ground. The appellant did not see how PW1 fell onto the ground. However PW1 immediately got up and said he would call the police. The son claims that after PW1 fell onto the ground, PW1 landed on his side. Whilst lying on the ground, PW1 told the appellant he would call the police and did in fact make a call to the police. He remained on the ground for around 10 seconds. The daughter claims PW1 fell backwards on the ground and landed on his buttocks. He stayed on the ground for about 1 ‑ 2 seconds before he got up. After he got up, he told the appellant he would call the police and made the call while standing up.

iv. The appellant claimed that after the incident, his children tried to separate the appellant from PW1 and tried to restrain the appellant to stay where he was.  However the son said the matter just suddenly stopped and he did not physically separate the parties.  The daughter confirmed that there was no more confrontation after PW1 got up and claimed to call the police.”

18. Whilst I do not have the benefit of hearing and seeing the witnesses as the magistrate did, with respect, I do not think that the magistrate was giving the Prosecution and Defence witnesses the same equal, fair and objective treatment.  The inconsistencies in the Prosecution evidence were explained away lightly, with more leeway and justification than that of the Defence evidence, when the discrepancies in the Defence evidence could well be attributed to the attentiveness and different positioning of the Defence witnesses.

19. I am also concerned about the inherent improbability point.  What PW1 tried to portray was an unprovoked attack by the appellant as soon as he was about to call the police.  However, he was sure that there was only one single blow to his face.  On the other hand, according to his medical report (P1), there was a record of “he was being hit over forehead and nose by fist”.  Of course what he told the doctor how he sustained the injuries were not admissible on the basis that it was previous consistent statement, but the inconsistencies should be noted.  Whilst counsel for the respondent submitted that there could be a single punch over the forehead and nose at the same time, given the fact that there was inconsistency between PW1 and PW2’s evidence as to whether it was the left or right hand punch by the appellant, PW1’s evidence should be approached with caution.

20. In my view, the medical report renders the Defence case not inherently improbable whilst the Prosecution case not beyond a reasonable doubt.  The appellant could well have been acting in self‑defence to ward off the pushing by PW1 and accidentally causing him to fall.  The broken incisors was clearly caused when he fell onto the ground and not by any punch because common sense tells one that a punch causing such would normally have also cause a chipped upper lip which was absent in the present case.

21. The conviction is thus unsafe and unsatisfactory.  I allow this appeal and set aside the sentence.

22. Costs of the appeal be to the appellant, to be taxed if not agreed.