HKSAR v. BRAIN, ALFRED HALL, aka BRIAN ALFRED HALL, aka ASANTE JOHN OS

HCMA 555/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 555 OF 2013

(ON APPEAL FROM ESCC 2710 OF 2012)

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J U D G M E N T

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Background

1.  The appellant was charged with the following offences: Charges 1, 7 & 10 – Obstructing a public officer; Charge 5 – Criminal damage; and Charges 2, 3, 4, 6, 8 & 9 – Common assault.  He was convicted after a trial which lasted many days and he was sentenced to 26 months’ imprisonment.

2.  The appellant appealed against all convictions.

3.  After various adjournments eventually the appeal proper was heard on 5 January 2017 and 2 March 2017.

The prosecution and defence case

4.  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

5.  The Appellant was (and still is) an inmate of Stanley Prison. The 10 charges arose from 4 incidents on 3 separate dates: 16-8-2009, 18-2-2012 (on which date two of the incidents occurred) and 22-2-2012.

Charge 1 – Obstructing a public officer

Charge 2 – Common assault

6.  On 16-8-2009, when the Appellant was waiting to meet with a prison visitor, a Ms Alendar, he was asked to submit to a body search, preparatory to receiving that visitor. Instead of so submitting, the Appellant rushed through the open door of his holding cell and punched one of the nearby CSD officers (PW2) in the abdomen. It took several other CSD officers (PW1 to 5) to stop his actions and restrain him.

Charge 3 – Common assault

Charge 4 – Common assault

7.  On 18-2-2012, when the Appellant was being escorted to the shower room from his cell on the same floor, the Appellant spat on the face and head of two of the escorting CSD officers (PW6 & PW7) from behind and through the shower room grille.

Charge 5 – Criminal Damage

Charge 6 – Common assault

Charge 7 – Obstructing a public officer

8.  About two hours later on 18-2-2012, as part of an operation being undertaken to search several cells on that floor, CSD officers told the Appellant his cell was to be searched. The Appellant refused to submit to the cell search, threw items about his cell, breaking a leg from a table as he did so, and punched an officer (PW9) in the chest. It took several officers (PW9 to 12, PW25) to restrain and control him.

Charge 8 – Common assault

Charge 9 – Common assault

Charge 10 – Obstructing a public officer

9.  On 22-2-2012, the Appellant spat through the bars/grille of his cell onto a passing patrolling CSD officer (PW15). Another officer (PW14) who came to assist the first officer was also spat upon. As with each other incident, it took several officers to restrain and control the violently resisting Appellant.

The defence case

10.  The Appellant elected to testify at trial.  In gist, he claimed that he was the ‘victim’ in each incident, he had behaved blamelessly throughout, he was assaulted and otherwise acted against by the PWs and other CSD officers, in furtherance of a years-long conspiracy against him.  Each charge was the subject of false evidence from the PWs involved.”

Grounds of appeal

5.  The appellant raised a number of grounds of appeal.  I have grouped them as follows:

(1)  Ground 1: the magistrate wrongly accepted the appellant’s previous convictions as evidence;

(2)  Ground 2: the appellant was deprived a fair trial due to the lack of legal representation;

(3)  Ground 3: evidence of PW14 supported the appellant’s case that he had not committed the offences in relation to Charges 5, 6 & 7;

(4)  Ground 4: insufficiency of evidence re Charges 1 & 2, and Charges 8 to 10;

(5)  Ground 5: the magistrate misdirected himself as to the effect of the “Important Notice” and the prosecution against the appellant was “predicated upon falsification, fabrication and forgery”;

(6)  Ground 6: request for disclosure of pornography allegedly found in the computer of a CSD officer.

6.  I will deal with Ground 6 first as it can be disposed of shortly.

Ground 6:   request for disclosure of pornography allegedly found in the computer of a CSD officer

7.  The appellant claimed that pornographic material was found in the computer of a CSD officer when the defence sought disclosure for his trial before the District Court.

8.  I do not see any pornography, if exist at all, has any bearing on the charge of common assault faced by the appellant.

9.  I refuse this request and this ground fails.

Ground 5:   the magistrate misdirected himself as to the effect of the “Important Notice” and the prosecution against the appellant was “predicated upon falsification, fabrication and forgery”

10.  I will next deal with Ground 5 since the appellant advanced the same ground for his appeal against convictions in two other cases (HCMA 1069/2008 and HCMA 729/2009).

11.  The appellant tried to make reference to a document termed “Important Notice” during his trial before the Magistrate in order to claim that there was a concerted effort by CSD staff to victimise him and he was innocent of the alleged transgressions.

12.  During the trial before the magistrate, the appellant had already been convicted by Judge Yip in the District Court (DCCC 1431/2009) that he had knowingly uttered forged documents (which included the “Important Notice” and other documents purportedly came from CSD officers).

13.  The “Important Notice” was not an exhibit in this case.  The trial magistrate had noted (at page 239-240 of the Appeal Bundle) that having been given time to “reflect upon the advisability of formally producing or making further use of [the Important Notice], the [appellant] elected not to” do so.  The appellant claimed before me that he did not adduce the “Important Notice” as evidence in this case not just because he had considered the advisability, but also because the magistrate refused to allow him to call various witnesses: a CSD officer who was the signatory to the “Important Notice”; another CSD officer who had approved his application to have documents held by CSD photocopied to him; and various welfare officers.

14.  During the trial before the magistrate, the appellant repeatedly applied for an adjournment pending the outcome of his appeal.  The magistrate refused his applications.  The judgment of the Court of Appeal (CACC 18/2012 & CAAR 1/2012), upholding the convictions, in fact came out while the trial was still going on.

15.  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.”

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

17.  The argument put forward by the appellant before me was that despite the judgment of Judge Yip and despite the Court of Appeal upholding the convictions, upon discovery of further documents from CSD, the “Important Notice” was in fact not a forgery.  That being the case, there was indeed an institutionalized victimization policy against him.  He did not commit any assault offence at all and should be cleared of the convictions of these offences.

18.  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”

19.  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 of making photocopy of his medical report and Important Notice. It was recommended. The cost of photocopy would be deducted from his property.”

20.  The appellant’s contention was that the statement dated 18 November 2008 and the above paragraph indicated that the “Important Notice” was in existence and given to him by the CSD, so not a forgery.

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

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

23.  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.

24.  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.

25.  Had the appellant requested to call those various witnesses to prove that the “Important Notice” was not a forgery (as he has claimed before me), the magistrate would have been correct in refusing to allow him to do so as the magistracy court would not have been a proper venue to re-open this issue.

26.  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 is 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.

27.  Ground 5 fails.

Ground 1:   the magistrate wrongly accepted the appellant’s previous convictions as evidence

28.  There is no merit on this ground whatsoever.  During the trial, not only did the appellant denied having committed any of the 10 offences, he claimed they were malicious actions taken by CSD officers, supported by CSD management, in the course of a years-old conspiracy to strike against him and generally to ensure he served his sentences in the harshest and most uncomfortable circumstances that could be imposed upon him by the corrupt practices of the CSD (see para 36 of the Statement of Findings).  The appellant firmly and clearly put such a case to each of the CSD officer he cross-examined.

29.  The appellant had personally asked questions of the witnesses for the prosecution, the nature or the conduct of the defence is such as to involve imputations on the character of the witnesses for the prosecution, that being the case, proof that the appellant had been convicted of other offences is admissible evidence (see section 54(1)(f) of the Criminal Procedure Ordinance, Cap 221).

Ground 2:   the appellant was deprived a fair trial due to the lack of legal representation

30.  There is again no merit on this ground.

31.  The appellant was originally represented by the Duty Lawyer Scheme (DLS).  DLS withdrew from representing the appellant (apparently due to appellant’s insistence to run the defence in a manner which the DLS lawyer could not agree).  The appellant applied for an adjournment which was refused.  However, the trial did not proceed until 4 months later.  The appellant failed to secure legal representation even after 4 months.  The appellant was able to put forward his defence without the assistance of any lawyer.  He has not been deprived a fair trial.

Ground 3:   evidence of PW14 supported the appellant’s case that he had not committed the offences in relation to Charges 5,6 and 7

32.  With reference to the transcript of PW14, the main thrust of the appellant’s submission was that PW14’s evidence did not support those given by other officers: there was no mention of PW25 telling the appellant about a search, or that the appellant had shouted “no search of my cell”; there was no mention of witnessing any breaking of the table’s leg, or punching PW9’s chest.

33.  PW14 was called to give evidence concerning an incident on 22 February 2012 resulting in the appellant being charged with Charges 8, 9 and 10.  When the appellant specifically asked PW14 about the incident on 18 February 2012, PW14 had no clear recollection.  Although PW14, upon being pressed by the appellant, appeared to have been describing what had happened on 18 February 2012 (even though he had clearly stated he did not remember the date or his position), what PW14 had said was that he recalled having done search before (page 274 of the Appeal Bundle).  Bearing in mind the frequencies of searches and the alleged assaults or obstructions by the appellant on such occasions, it cannot be said that PW14 was indeed describing the incident on 18 February 2012 attested to by the other officers.

34.  I also noted that the magistrate had said in oral reasons for verdict that the appellant had spent considerable time on “real or perceived inconsistencies and imperfections in recall”.  The magistrate had referred to the Court of Appeal case of HKSAR v Chan Kwok Wah CACC 276/2008 and had taken a realistic approach and to treat the discrepancies with common sense.

35.  This ground fails.

Ground 4:   Insufficiency of evidence re Charges 1 & 2, and Charges 8 to 10

Charges 1 and 2

36.  The appellant claimed that the evidence of the prosecution witnesses were inherently improbable for a number of reasons, including querying why another search should take place minutes after two body searches; there was no reason for him to resist the search or to punch the officers as the documents were genuine (relying on the same points already advanced in relation to the “Important Notice” and other documents under Ground 5 here); and that it was not possible for him to pass any documents to his visitor.

37.  The appellant alleged that Dr Kong (PW22) was biased due to previous dealings between them (Dr Kong was the victim in the assault case in HCMA 1069/2008).

38.  The appellant also claimed that there was a photograph of him being completely naked and being “sado-masochistically” assaulted by the Prosecution witnesses in this incident.  This photograph was seen by his lawyers and the appellant himself in preparation for the trial in the District Court.

Charges 8-10

39.  The appellant complained that PW14’s “1^st record of police interview” was not disclosed to him.  The appellant also claimed that when he cross-examined PW14 regarding PW14’s earlier statement to the police, the magistrate also considered PW14’s evidence “a material discrepancy”.

40.  The appellant complained about the lack of photographs of the saliva, saying that it was standard procedure to do so.

41.  The appellant also complained that there was no forensic evidence in relation to the saliva on PW14 and PW15.

My consideration

Charges 1 and 2

42.  As to the submission by the appellant that the documents (including the “Important Notice”) were genuine so there was no reason for him to resist any search or to assault CSD officers, I have already dealt with the issue under Ground 5.

43.  There is no substance in the alleged inherent improbabilities alleged.  The magistrate, as a fact-finder, heard the evidence and accepted the evidence of the CSD officers concerned.

44.  There was no basis to suggest that Dr Kong was biased.  The magistrate had properly dealt with the appellant’s application to disqualify Dr Kong and had considered Dr Kong’s credibility accordingly.

45.  As to the issue of the so-called naked photograph of the appellant, first of all, when the appellant cross-examined the CSD officer, he had never suggested that he was “sado-masochistically” assaulted by the CSD officers.  His allegation was that he was stamped and kicked by the officers.  I cannot see how the appellant would or could have failed to put his case to the officers if he was indeed naked and “sado-masochistically” assaulted by the CSD – whether there was any photograph showing the same or not.  It must be borne in mind that by the time this trial was heard, the appellant had already “seen” – according to him – such a photograph.  There is no substance in this complaint at all.

Charges 8-10

46.  Having read the transcript of PW14’s evidence, I do not agree with the appellant’s submission that the magistrate also considered there was material discrepancy in PW14’s evidence.  The magistrate did no more than to tell the appellant how to use a witness’s previous statement, emphasizing that the differences need to be material.

47.  The appellant claimed that not only did he not spit at the officers, it was the other way round and he was spit upon by the officers.  His case was properly assessed by the magistrate.  The fact that there were no photograph showing the saliva on either officer, or any forensic evidence showing the saliva had come from the appellant are of no importance here.  The magistrate found as a fact, after evaluating the evidence, that the appellant did spit on both officers.

48.  This ground fails.

Other matters

49.  I should add that this appeal was heard together with two other appeals (HCMA 1069/2008 and HCMA 729/2009).  The appellant, in his extremely lengthy submissions given to this Court on many occasions, made references to 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 trying to use his appeals as a venue to air his grievances and hoping to reverse all the judgments and decisions adverse to him.  Those matters are not relevant to this appeal and I will say no more about them.

Conclusion

50.  There is absolutely no substance or merit in any of the grounds advanced by the appellant and his appeal against convictions is dismissed.