HKSAR v. YEUNG HOI SHAN

HCMA 202/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 202 OF 2016

(ON APPEAL FROM ESCC 2894 OF 2015)

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J U D G M E N T

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Introduction

1.  The appellant was convicted after trial before Abu B bin Wahab at the Eastern Magistrates’ Courts on 21 March 2016 of one charge of common assault contrary to section 40 of the Offences Against the Person Ordinance, Cap 212 and four charges of assaulting a police officer contrary to section 63 of the Police Force Ordinance, Cap 232.  All of the evidence before the court was adduced under section 65B of the Criminal Procedure Ordinance, Cap 221 (“the CPO”).  Neither the victim nor the appellant gave evidence.  The only issue was that of involuntary intoxication.  The appellant was found guilty and fined $2,000 on each charge.  By his Notice of Appeal, dated 31 March 2016, the appellant appeals against conviction.

GROUNDS OF APPEAL

2.  By his perfected Grounds of Appeal dated 2 June 2016, the appellant submits as follows:

Ground 1    The learned magistrate erred in fact and law in finding that the issue of involuntary intoxication was not raised on the evidence produced before him.

Ground 2    The learned magistrate erred in fact and law in his finding that the evidence on the issue of involuntary intoxication in the first and second medical reports produced by the defence, with the consent of the prosecution, were inadmissible hearsay.

Ground 3    If the learned magistrate had not erred in fact and in law as stated in Ground 2 above, he should have considered the weight to be given to the expert evidence of Dr Wong and Dr Hung.  Therefore, he erred in fact and in law in not assessing what weight he should give to the first and second medical reports.

THE UNDISPUTED FACTS

3.  The victim under Charge 1, Yeung Sin‑yee, was a 21‑year‑old law student enjoying a night out at the Ore‑no Kappou restaurant in California Tower, 32 D’Aguilar Street, Central on 5 June 2015.  She was attending a friend’s birthday party and the whole restaurant had been booked out.  The appellant, a 54‑year‑old male, had also been invited.  At about 9.10pm, the appellant, who was described as drunk and aggressive, approached Miss Yeung and stroked her bare back two to three times.  Miss Yeung became upset and started to cry, at which point the appellant grabbed her wrist and said “Drink with me!”.  She asked him to let go and told the appellant that she did not drink.  In response, the appellant said, “I am not the one who tells you to drink but my friends do”.  The appellant was still holding the victim’s wrist at this time and she was crying.  She told the appellant to let go and not to touch her again.  The appellant eventually let Miss Yeung go and said “Fuck you!  Who do you think you are?  Don’t drink with me!”  Then the appellant threw a glass of wine over Miss Yeung’s head.

4.  The incident was reported by Miss Yeung to the police and they arrived a short time later at which stage the appellant was described as smelling of alcohol, being incoherent and staggering.  He was arrested by PC 16734 at about 10.05pm and became emotional.  He was escorted from the restaurant by three police officers.  A friend was also present to assist because of his emotional state.  By the time the group reached the roadside, the appellant was yelling and staggering.  He shouted to the police officers, “I am your boss.  I am the chairman.  You do not need to come to work tomorrow.”  He was also heard to say “What is your number?  I beat the fuck out of you.  (I will) fire you tomorrow.”  He then tried to break free and kicked out at PC 16197.  He also hit the right side of the crotch of PC 16734 and kicked the other escorting officer PC 6994.  In order to subdue the appellant, PC 16734 tried to handcuff him and was hit in the lips and abdomen for his trouble.  He was eventually handcuffed but only after he was pressed down onto the pavement. As a result of his behaviour towards the police he was arrested for assault police, at which point he became emotional and struggled with the guarding officer.

5.  His abusive and aggressive behaviour continued when he was later placed in an interview room at which time he was described as using foul language and being incoherent.  He also tried to escape from that room and in doing so slapped PC 14214 on his forearm and pushed him in the chest.  Yet again he had to be restrained and handcuffed.  He was injured in that scuffle and was taken to Queen Mary Hospital.

THE LAW

The Procedure on Appeal

6.  An appeal under section 113 of the Magistrates Ordinance, Cap 227, is by way of rehearing of the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power so to do (section 118(1)(b)): Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70.  It allows the judge on appeal to make whatever order the judge thinks just (section 119(1)(d)).

7.  On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standard: HKSAR v Ip Chin Kei & Others [2012] 4 HKLRD 383.  It follows, that the appellate court is also required to ensure that all proper safeguards were put in place as to the admissibility of such evidence as was relied upon by the court below.

8.  This court is entitled and indeed bound to come to its own conclusion about the evidence on contested issues of fact and law.  Per James J in Histollo Pty Ltd v Director-General National Parks & Wildlife (1998) 45 NSWLR 661: “It is not incumbent upon the appellant to show that such conclusion (whether at half time or on verdict[1])was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come.  It is merely necessary to persuade this court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor.  If, as at trial, on the rehearing there is a reasonable doubt of guilt, the appeal must be upheld.”

9.  As this is a rehearing, it is for the appellant to persuade the court that the issue of involuntary intoxication had been raised on the evidence; that the prosecution failed to rebut that issue beyond reasonable doubt and therefore the prosecution should not have succeeded in the court below as there is a reasonable doubt as to his guilt.  It is for the prosecution to persuade the court that this is not the case.  Following Lam Kau v R [1962] HKLR 234:

“It is as much for the Crown to sustain as for the appellant to seek to disturb the conviction”.

That does not mean that all of the evidence before the magistrate is repeated once more in this court.  Only that evidence which the parties determine is necessary to satisfy the burden placed upon them is required to be revisited.  

10.  The evidence in this case in the court below rested upon one set of Admitted Facts and a number of statements adduced under section 65B including those of Miss Yeung and the police officers.

Admitted Facts

11.  The Admitted Facts ran to 20 paragraphs.  Quite what they sought to establish is unclear save for paragraphs 1 and 2 in respect of the clear record of the appellant and the admission into evidence of photographs taken of the appellant shortly after the incident whilst at the hospital.

12.  Paragraphs 3 to 6 read as follows:

“3. The medical report of the Defendant prepared by Dr Wong Yee Him John dated 26 January 2016 (as stated in para. 5 below) was given to the Prosecution on 26 January 2016.

4. Dr Wong has given evidence in the Magistrates’ Court, District Court, Family Court and the High Court for about 20 times and his expertise has always been accepted by the Courts.

5. The medical report of the Defendant prepared by Dr Hung Bin Kei Gabriel dated 11 February 2016 (as stated in para. 6 below) was given to the Prosecution on 11 February 2016.

6. Dr Hung has given evidence in the Magistrates’ Court, District Court and the High Court between 15 to 20 times and his expertise has always been accepted by the Courts.”

13.  Expert evidence in criminal proceedings is adduced under section 65DA of the CPO.  The reports of Dr Wong and Dr Hung were provided to the prosecution under section 65DA(1)(a) some 5 months before the trial of this matter.  There was no requirement for paragraphs 3 and 5 and they served no purpose.  The expertise of a witness is a matter entirely for the court. It was for the magistrate to satisfy himself that he accepted the medical reports to be admissible as opinion evidence on the basis of the expertise of Dr Wong and Dr Hung and not for the parties to seek to subvert that discretion.  Even so, the prosecution should never have agreed paragraphs 4 and 6.  They had no independent evidence of the facts stated therein and were in no position to agree it.  Even if the facts stated therein were true, it is still open to the magistrate to come to his own determination upon whether he accepts the expertise of the witness or not.  The number of times a witness has given evidence and the number of times that evidence was accepted by the court are only two of a basket of matters which a court may take into account when assessing whether to allow a witness to give opinion evidence and thereafter what weight to give to that evidence.  It was not, as suggested by the appellant in his Amended Submissions at p 6, evidence of expertise per se.  It was merely evidence of how many times the expert had been to court to give evidence and how many times that evidence was accepted.  The fact that the prosecution agreed this and did not seek to contest it, does not raise the medical reports to section 65C status.  They are open for the magistrate to accept or reject, as indeed he did.

14.  Paragraphs 7 and 8 of the Admitted Facts read as follows:

“The following medical reports are admitted pursuant to Section 65B of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong:-

7. The medical report of the Defendant prepared by Dr Wong Yee Him John dated 26 January 2016 which include a medical report of the Defendant prepared by Dr Cheung Wai Yee dated 10 August 2015 at Annex 1 and a letter written by Dr Lau Sing Yan Joyce dated 6 June 2015 at Annex 2.

8. The medical report of the Defendant prepared by Dr Hung Bing Kei Gabriel dated 11 February 2016.”

15.  The inclusion of a section 65B statement as facts to be agreed under section 65C is an incorrect practice.  Section 65B stands alone in that it allows evidence to be tendered before the court without the need to call the maker of the statement but subject to that evidence being undermined in the usual way, whereas facts admitted under section 65C are deemed to be conclusively proved.  The inclusion of section 65B evidence within the Admitted Facts does not elevate its status.

16.  It was a misunderstanding as to the status of the section 65B evidence by prosecution and defence counsel which became apparent in the hearing on 7 October 2016 as can be seen from the Amended Appellant’s Submissions against conviction dated 26 September 2016 in which Mr Cheng Huan SC submitted at p 2:

“3. At trial, the Prosecution case rested essentially/exclusively on the uncontested witness statements of the PWs admitted under section 65B of the Criminal Procedure Ordinance, Cap 221 (‘CPO’).

4. The Defence case rested essentially/exclusively on the uncontested expert medical reports and character references of the Appellant which were also admitted under section 65B of the CPO.”  [Emphasis added]

And later at p 19 para 57:

“57. It is perhaps apposite to mention that, in the present case all the expert reports were admitted into evidence, by consent, under section 65B of the CPO. It is trite law that once admitted the value of the hearsay evidence will be a matter of weight in all the circumstances”

17.  That is clearly not the position in law.  Section 65B(1) states:

“(1) In any criminal proceedings, other than committal proceedings, a written statement by any person shall, subject to the conditions contained in subsection (2), be admissible as evidence to the like extent as oral evidence to the like effect by that person.”

The issue of the relevance and admissibility of that evidence is still a live one for the court to decide as is the question of what weight is to be attached to it once that evidence is accepted as relevant and admissible.  It would appear that the inclusion of the reports within the Admitted Facts was an attempt to ensure they were unquestionably before the court.  That may have been the intended effect but it certainly did not get past the learned magistrate.

HEARSAY EVIDENCE

18.  At p 15 of the Amended Appellant’s Submissions Against Conviction, the appellant submits:

“(b) Both the 1^st Medical Report and the 2^nd Medical Report are expert evidence and should be considered as an exception to the hearsay rule.

(c) The opinions of Dr Wong and Dr Hung as stated in the 1^st Medical Report and the 2^nd Medical Report respectively were based not only on the Appellant’s own account of events but also on, inter alia, contemporaneous medical records of the Appellant, statements of the prosecution’s witnesses, video footages and photographs of the Appellant and published works of other experts.”

19.  In certain circumstances expert evidence may be admitted as an exception to the hearsay rule in so far as the opinion expressed and relied upon by a party may have been derived from hearsay evidence.  It is not a free ticket to admit all evidence relied upon regardless of its relevance and admissibility.  In this case, both counsel appear to have overlooked the obvious issue as to whether the court accepted the evidence as “Expert” evidence and if so whether the court was prepared to accept it in hearsay form in the sense that neither Dr Wong nor Dr Hung attended court but also because both reports relied upon hearsay to form the basis of their opinion.  This point was not lost upon the learned magistrate who mentioned the difficulty which was staring both parties in the face.

FRESH EVIDENCE

20.  Exceptionally, and with the agreement of the prosecution, the court allowed the appellant to adduce his original evidence in admissible form.  That is, I allowed the appellant to call Dr Chan, who was the appellant’s original attending physician, and to give evidence himself if he wished to do so as to the issue of involuntary intoxication.  As a consequence, the hearing was adjourned until 18 November 2016.  On 7 October 2016, the prosecution did not object to this course of action.  At the hearing on 18 November, Ms Lai, on behalf of the prosecution leading Ms Ho who had appeared alone on 7 October without the benefit of leading counsel, sought to argue that the fresh evidence should not be allowed.  Ms Lai submitted that my decision to allow the appellant to adduce fresh evidence was misconceived.  Ms Lai submitted that the issues which I should have taken into consideration were three fold:

(i) Does the court have power to re‑open the case and permit the appellant to adduce fresh evidence?

(ii) If the court does have such power, is this a suitable case for the court to exercise such power?

(iii) Is there any basis for concluding that the learned magistrate was wrong and in what way should this appeal now be determined?

21.  Ms Lai submitted that the conditions under section 83V(2) of the CPO are not satisfied.  Section 83V states as follows:

“(1) For the purpose 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 thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(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.

22.  Ms Lai accepted that this court has the power to re‑open a case and admit fresh evidence but argued that this was not a suitable case for the court to do so as the magistrate had been entirely correct in his findings.  The gravamen of Ms Lai’s complaint is really as to section 83V(2)(b) above, in that Mr Cheng Huan SC also appeared below for the appellant. As a senior counsel, he can have no complaint before this court she submits, if he has taken a view in the court below which did not succeed.  The appellant must bear this error of judgment on the part of his legal advisers.  There is some merit to that argument.  Certainly Mr Cheng’s submissions did not find favour with the learned magistrate who quite correctly pointed out that he had no admissible evidence of involuntary intoxication given that the expert reports of Dr Wong and Dr Hung were in themselves based upon medical records compiled by other practitioners and relied upon unsubstantiated evidence from the appellant and other officers in the form of section 65B statements which were open to the court to accept or reject.  These were, as the learned magistrate correctly pointed out, matters of both first and second hand hearsay.

23.  The issue was not that the appellant was clearly drunk and behaving appallingly but that he was not responsible for that behaviour because of his previous ingestion of prescription drugs.  Those drugs were not prescribed by either Dr Wong or Dr Hung but by Dr Chan whose evidence was not submitted to the court in any form other than by reference to him made within the expert reports.  As the appellant chose not to give evidence, the court had no admissible evidence before it upon which it could find that the defence had satisfied its burden of proof in this regard.

24.  Nevertheless, given the positive good character of the appellant and the fact that both parties appeared to be in error/some confusion before the court below, I took the view, in my discretion, that the fairer way forward was to give the appellant the opportunity to place before this court admissible evidence as to his ingestion of prescription medicine that evening.  He did so. In the form of Dr Chan and by giving evidence himself.  In the end this did not avail him.  Dr Chan gave evidence as to why and what had been prescribed to the appellant and that he had explained the effects of alcohol combined with these prescription drugs.  He explained that he had been concerned about the increasing level of the appellant’s intake of alcohol over the period he had treated him and that he had advised him frequently of the combined effects of alcohol and drugs and that this could lead to a loss of inhibition.  His evidence was that the real risk of intoxication, if there was any in the circumstances of this case, came from the 1.5 mg of Bromazepam rather than the other two drugs which had been prescribed and the effect of the Bromazepam after 20 hours would depend upon a number of circumstances but would be at the lower end.  In his opinion, the combined effect of Bromazepam with alcohol would depend upon the time between the consumption of the two, the speed of consumption of alcohol, the amount of alcohol, the amount the patient had eaten and his general health.  Whilst Dr Chan explained the drugs prescribed and their potential effect upon the appellant, it became clear that their effect would have been towards the lower end at the time this offending took place in the evening of 5 June 2015, some 20 hours after last taking the medicine.  It was also clear that the appellant had voluntarily and knowingly drank an excessive amount of sake (ten glasses) in a relatively short space of time and was aware of his inebriation after visiting the fourth of ten tables, yet he did not stop drinking.  That inebriation brought out the worst in him.  He behaved in a disgraceful way towards Miss Yeung and the police officers.  He showed some remorse before this court about his behaviour towards the police officers but absolutely no remorse at all in respect of his behaviour towards the young lady whom he assaulted that evening.  His attitude in court suggested that his behaviour that night had nothing to do with prescription medicine or alcohol but more to do with his attitude to young women generally even when sober.

CONCLUSION

25.  Having given the appellant the benefit of the doubt and allowed him to adduce admissible evidence of involuntary intoxication before this court, I am satisfied beyond reasonable doubt that the appellant knew the dangers of consuming alcohol whilst on prescription drugs and that the appellant nevertheless went on to do so.  He did so on 5 June 2015, some 20 hours after last taking his medicine, when the risk of the combined effect of alcohol and drugs was near its lowest end and was far less likely to have any significant effect.  He voluntarily and knowingly drank an excessive amount of sake and continued to do so even after he knew he had become inebriated.  He went on to assault Miss Yeung and the police officers who were brought in to prevent further mishap and he is fully responsible for that behaviour.  Accordingly I dismiss this appeal.

26.  Costs of the appeal be to the respondent to be taxed if not agreed.