HKSAR v. MABIALA, DONDIA KARL

HCMA 406/2023

[2024] HKCFI 2698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 406 OF 2023

(ON APPEAL FROM WKCC 2310 OF 2023)

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J U D G M E N T

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1.  The Appellant was convicted after trial of one count of “common assault”, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance, Cap 212. The particulars of the offence was that the Appellant had assaulted Mr Lee (PW1) on the 1^st day of April 2023, near the Nurse Station of the Accident and Emergency Department of North Lantau Hospital in Tung Chung. The Appellant now appeals against conviction.

Admitted Facts

2.  It was admitted by the Appellant that both witnesses, PW1 and PW2 were on night shift, both working at the Nurse Station until 0700 hours on 1 April 2023. At small hours, on that day, the Appellant entered the hospital and indicated that he sustained a tongue injury in English.

3.  The medical report indicated that PW1’s right forearm were erythematous with mild swelling and tenderness.

Prosecution Case

4.  As briefly summarised by the Magistrate, PW1 and PW2 were nurses on duty at the A&E Department of North Lantau Hospital. On 1 April 2023, at around 4 am, the Appellant approached the nursing station and indicated that his tongue was injured. He asked to see a doctor and was told by PW1 and PW2 to register first at the registration counter.

5.  After the Appellant completed registration, he waited at the lobby for a while before PW1 conducted preliminary assessment on him. After the assessment, the Appellant went to the nursing station to question about being an emergency case why he was not yet given any medical treatment. PW1 then told him to wait at the lobby and that the doctor would see him later.

6.  But the Appellant began to shout and forced into the nursing station. In an attempt to fend off the Appellant, PW1 raised his arm in front of his chest, but the Appellant continued to force his way in against PW1, causing PW1 to back off a few steps and resulted in his back bumping against the computer desk behind him. The Appellant continued to force his way in, during which he also grabbed and twisted PW1’s right forearm for around a minute.

7.  Meanwhile, colleague of PW1 called for security and reported to the police. When the security guards arrived, they restricted the Appellant onto a bed.

Defence Case

8.  The Appellant did not give evidence. It is his right, and no adverse inference would be drawn against him.

Magistrate’s Findings

9.  On assessment of witnesses, as to PW1, the Appellant criticised PW1 for being inconsistent. First, he testified about being grabbed by the Appellant in his left arm, while PW2 said that it was PW1’s right arm.

10.  The Magistrate considered that it happened in a split of a second. The situation must be chaotic. It was usual for witnesses to have such degree of discrepancies in the observation under such situation. Magistrate do not find such discrepancy to be material at all.

11.  Second, PW1 said the Appellant charging into the nursing station, while in his written statement, he described it as “approaching”. However, Magistrate accepted both choices of words consistently reflect the situation described by him.

12.  For PW2, she was also criticised that she had asked her colleague to take the Appellant to the registration counter. While PW3 (the police officer who arrived at the scene subsequently) said PW2 had said that she herself took the Appellant to the registration counter. Likewise, Magistrate was of the view that who took the Appellant to the registration counter was immaterial.

13.  All in all, the Magistrate found that both witnesses were consistent in the evidence, that the Appellant was unwilling to wait and forced into the nursing station against PW1, causing PW1 to back off and hit the computer desk, and he also grabbed and twisted PW1’s forearm. The Magistrate found both witnesses honest and reliable, and accepted their evidence.

14.  For PW3, the police officer who arrived at the scene, the evidence was unchallenged.

15.  As to PW4, he was the officer who took the written statements from both witnesses. The Appellant criticised him for copying PW2’s statement into PW1’s statement in order to enhance the consistencies. The Magistrate considered that while the chronology of event described in these statements were similar, the wordings were different, which was a clear indication that there was no copy and paste.

16.  So the Magistrate was certain that at the material time, the Appellant charged against PW1 and grabbed and twisted his forearm. It was clearly unlawful and without his consent. And the Appellant must have known that PW1 would not consent to such force, therefore the Appellant was convicted as charged.

Appeal Grounds

17.  Mr Morley had the following grounds of appeal:

18.  Ground 1, discrepancies in the evidence. The learned magistrate did not resolve, or failed to resolve satisfactorily the following discrepancies in the Prosecution’s evidence.

(a)  PW1 said the Appellant grabbed his right arm but PW2 said the Appellant grabbed his left arm. But the Magistrate simply resolved it and said that “the assault occurred in a split of a second”. However, the evidence of PW1 was that his arm was twisted for “around like one minute or maybe like one minute-plus”.

(b)  Concerning the wordings used by PW1 “charging” and “approaching”, Mr Morley submitted that both words are not consistent and have different meanings both in Cantonese and English.

(c)-(d)  And also on who took the Appellant to the registration counter, the magistrate did not resolve it.

(e)  And the learned Magistrate also did not resolve why both witnesses mentioned the triage procedures but they had not stated in their respective witness statements.

(f)  PW1 denied telling the Appellant to wait but PW2 confirmed it.

(g)  PW1 denied the Appellant had said that he could sue for medical negligence, but PW2 confirmed it.

(h)  PW1 denied saying to the Appellant, “I don’t care you can do whatever you want”, but PW2 also confirmed it.

(i)  PW1 denied informing the Appellant he would decide if it was an emergency or not, but PW2 confirmed that PW1 did say this.

(j)  PW1 said he was charged, his back hit the computer and then the Appellant used both hands to twist his right forearm. But PW2 said PW1’s left arm was twisted first and then was “at the end pushed to the computer”. The Magistrate did not resolve it.

(k)  And PW1 also described raising his right arm to his chest to shield himself while PW2 described PW1 spreading his arms to defend.

19.  On ground 2, there were erroneous findings not based on the evidence that the Magistrate erred in stating that PW1 was “grabbed by the Appellant in his left arm, while PW2 said that it was PW1’s right arm being grabbed”. The Magistrate also erred in stating that PW3 was a woman.

20.  On ground 3, as to the similarity in the statement of both witnesses. The learned Magistrate erred in finding that there was nothing unusual in there being similarities to the content, order, and/or written statements of both witnesses, excluding the possibility that the statement had been created with collusion, thus affecting the credibility of both witnesses.

21.  And ground 4, under above all the circumstances the conviction is unsafe and unsatisfactory.

Respondent’s Reply

22.  Respondent is saying that the Prosecution’s case mainly rest upon both witnesses and both witnesses have already given a consistent and clear account of what the Appellant had done and how PW1 was assaulted at the material time. The Respondent said the Magistrate was entitled to accept the evidence of witnesses and convict the Appellant.

Right Arm or Left Arm

23.  According to the witnesses, the Appellant kept yelling and saying a lot of things, then he charged in the nursing station where he was not supposed to be in, in a very fast manner. He kept charging in, causing witness to be pushed to a computer. The Appellant further grabbed and twisted the arm of PW1. Eventually security guards had to be called. The incident happened within a few minutes. The circumstances were no doubt chaotic. So the Magistrate was entitled to hold that the situation was chaotic and the assault occurred in a split of a second.

24.  And PW1 had all along maintained his version that his right arm was being twisted. It was also consistent with the medical findings which was submitted by the Admitted Facts.

“Charging” or “Approaching”

25.  Both choices of words are consistently described by PW1. Respondent says “approach” described the direction of the Appellant’s movement. The word “charging” used by both witnesses gave details on the degree of force and speed of such movement. There was no inconsistency between the two words.

26.  As PW1 had explained, he did not use the word “charge” because the Appellant was charging in just like a matter of a few seconds and he did not think there was any critical difference between “approach” and “charge”.

27.  On other discrepancies, saying that the Magistrate has failed to resolve a number of inconsistencies, the Respondent also quoted the case of Zhuo Cui Hao v Ting Fung Yee [1999] 3 HKC 634 where the Court of Appeal says:

“Generally speaking, a professional judge is under a duty to analyse in his judgment the material points in the evidence of the case and give reasons as to why he has reached a particular conclusion or decision. This is the only way to make people understand why their evidence is not accepted by the court and why they lose in a case.”

28.  However, the appeal grounds said by the Appellant concerning the inconsistencies in respect of what had happened before the Appellant charged into the nursing station and the details of the conversation between the witness and the Appellant during the triage procedures. According to the evidence, nothing violent had happened during that stage.

29.  So it is respectfully submitted that the details of the conversation, and whether other colleague had taken the Appellant to the registration counter are immaterial to the issue of the case.

30.  And concerning why both witnesses had not mentioned the triage procedure in the witness statement, PW1 explained that nothing happened during that procedure. PW2 explained that she was not asked about the course of events from the registration up to the assault happened. So both witnesses had already given a reasonable explanation. Given that nothing material had happened during that stage, they failed to mention such procedure in the witness statements would not cast doubt on their credibility and reliability.

31.  Further, both witnesses confirmed that PW1 did inform the Appellant that his condition was not an emergency case. The evidence is consistent.

32.  On other grounds of discrepancies between both witnesses as to whether the Appellant had twisted the forearm before or after PW1 was pushed to the computer. The Magistrate had said that both witnesses were consistent in their own evidence and with each other. Their version of events were consistent.

33.  Appellant was unwilling to wait for treatment and forced into the nursing station, causing PW1 to back off, and hit the computer desk, and the Appellant also grabbed and twisted his forearm. Whether his arm was twisted before or after he hit the computer could not be material to the issue of the case, that is, whether the Appellant had assaulted PW1.

34.  Respondent also submitted that both witnesses’ evidence were consistent in that PW1 had used his right arm to shield himself from the Appellant. The choice of words “raise his arm” or “spread his arm” made no material differences. So ground 1 is not meritorious.

35.  Ground 2, the Appellant complained that the Magistrate had erred in stating that PW1 was “grabbed by the defendant on the left arm” while PW2 said that it was PW1’s right arm being grabbed. The Appellant also submitted the Magistrate had erred in stating that PW3 was a woman in the statement of findings.

36.  First, the Respondent says the Appellant had made no complaint that the Magistrate might have misunderstood the evidence of PW3. So the mistake of the Magistrate in referring PW3 as a woman would not cast doubt on his finding.

37.  And the Magistrate also did not overlook the discrepancies between both witnesses to which arm of PW1 was twisted. The Magistrate had already analysed the case and his finding could not be wrong on this basis and he was entitled to find both witnesses were consistent in their version, that the Appellant had charged against PW1, grabbed him and twisted his forearm. The mistake in “left” or “right” could not render the conviction unsafe.

38.  On ground 3, the Magistrate was entitled to hold that while the chronology of event describing the same one were similar, there was no copy and paste in the witness statements. So all in all, the Respondent says that the evidence against the Appellant is overwhelming and clear, the conviction was neither unsafe nor unsatisfactory.

Consideration

39.  In the recent Court of Final Appeal case HKSAR v Hui Lai Ki [2024] HKCFA 7, in that case it was stated that the Magistracy Appeal is conducted by way of rehearing on the evidence before the trial court. The judge must be satisfied that the Appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict.

40.  The Court also recognised that the appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Yet, despite those limitations it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

41.  On ground 1, about the discrepancies of prosecution witnesses’ evidence, left arm or right arm; approaching or charging; who told the Appellant to go to the registration counter and what was exactly said to the Appellant. On all these matters, I also had the opportunity to go through the transcript, no doubt, the Appellant’s act was sudden and the situation was chaotic as described. However, both witnesses’ version were clearly saying that the Appellant was not willing to wait, and he then yelled and forced into the working area of the nursing station, whereas PW1 fended off the Appellant, was then pushed to the computer and around the same time, Appellant also twisted the arm of PW1.

42.  Mr Morley emphasised the discrepancies between prosecution witnesses as to which arm or ways or also the speed of going near to the nursing station. However, when considering the core circumstances of the events as stated above, prosecution witnesses’ evidence, as found by the Magistrate was largely consistent and supporting each other. Therefore whether right arm or left arm, charging or approaching, was really neither here nor there and did not cast doubt to the central facts of what had actually happened on that day.

43.  The facts of the case, as stated above, were quite straightforward. The Appellant’s act was intentional, by using unlawful force against PW1 and causing him injury, as supported by the medical finding, where PW1’s right forearm suffered from mild swelling and tenderness. And in fact, as in the case of R v Kwong Wing On and Another, HCMA 574/1996, Stock J (as he then was) observed that, under the microscopic dissection of a transcript, the discrepancy of evidence was bound to appear. The Magistrate is not expected to deal expressly with every point possibly made and a realistic attitude must be encouraged to see if central facts were shaken or not. Therefore, ground 1 failed.

44.  As to ground 2, still on which arm was twisted and the gender of police was misstated. Again, as stated above, the Magistrate, having the advantage of receiving witness evidence first-hand, did go through and evaluate the evidence and do entitle to make his findings as stated.

45.  Further, as what the Respondent said, the evidence of police were not challenged at all. Whether the gender was misstated do not affect the outcome of the case. So this ground also failed.

46.  As to the third ground about the similarity of witnesses’ statement, likewise the Magistrate had dealt with that and stated that while chronology of events were similar, the wordings were different and there was no copy and paste. Therefore, this ground also failed.

47.  So by way of rehearing, considering all the evidence before me, the Magistrate’s findings was sound and was well supported by evidence. I am also satisfied the Appellant’s guilt had been proven beyond reasonable doubt.

48.  Therefore, the appeal is dismissed accordingly.