HKSAR v. GUERRERO, ADRIEN FRANCISCO

HCMA 187/2024

[2025] HKCFI 6102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 187 OF 2024

(ON APPEAL FROM ESCC 1426 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 by the Magistrate with one count of “assault occasioning actual bodily harm” (“AOABH”), contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap. 212.

2.  The Appellant was sentenced to 12 months’ probation order. The Appellant now appeals against conviction and sentence.

Prosecution case

3.  The offence occurred at a platform of a residential estate, Pavilia Hill, in Tin Hau. Pavilia Hill is consisted of five towers with common platform connecting the towers. The victim, PW1, a foreign domestic helper, and the Appellant, were residents.

4.  On 19 February 2023, PW1 accompanied the child of her employer on the said platform and the child was riding a scooter. At around 7 pm, the Appellant was walking with his dog. He saw the child and PW1. The Appellant was dissatisfied with the child riding a bike on the platform as it was forbidden and might be dangerous to other residents. The Appellant questioned PW1 as to why the child was allowed to play there. The Appellant wished to take a photo of the child and PW1. PW1 tried to prevent the Appellant by standing in front of the Appellant. PW1 also used her phone to film the Appellant.

5.  PW2, the security guard, came by. PW2 told the Appellant that his English was not good and escorted the Appellant to leave the scene. PW1 then turned around and shouted something to the Appellant. The Appellant returned to PW1 and came out close to her. When they were close to each other, PW1 used her phone to film the Appellant. The Appellant then grabbed the phone, threw it away, and pushed PW1 onto the ground. PW1 then grabbed the Appellant’s dog, but quickly released his dog. The Appellant then used PW1’s plastic bag to hit at PW1. PW2 subsequently arrived to restrain the Appellant from further attacking PW1. The Appellant later also threw away the plastic bag.

Defence case

6.  The Appellant testified in court, two defence witnesses who were mainly good character witnesses. The Appellant did not dispute that he was involved in the incident and the CCTV footages, P1, had captured the incident. The Appellant did not dispute that he had a dispute with PW1 because the child was riding the bike on the platform, however he did not intentionally attack PW1. He only “brushed” away PW1’s phone when PW1 got the phone too close to him.

7.  After finding her phone was gone, PW1 pushed and punched the Appellant’s chest. PW1 then rushed to hold and strangle the Appellant’s dog, she caused herself to fall when doing so. To save his dog from PW1’s hostage, the Appellant struck the leash, but not PW1, and ceased to hit anything after PW1 released the leash. He did not attack PW1 at all material times.

8.  The Appellant’s counsel challenged the credibility of PW1, mainly on the grounds that:

(1)  PW1 deliberately concealed her wrongdoings from her employees by taking videos of the Appellant without capturing her replies;

(2)  PW1 omitted to disclose the fact that she had grabbed the Appellant’s dog;

(3)  the presence of other witnesses;

(4)  PW1 was confused about the bag used by the Appellant to assault her; and

(5)  whether there were verbal abuses from the Appellant.

Magistrate’s rulings

9.  After analysing PW1’s evidence and comparing her evidence with the CCTV, the Magistrate accepted PW1 to be a credible, reliable witness and gave full weight to her evidence. The Magistrate also resolved the alleged inconsistencies between PW1 and PW2’s evidence with the aid of the CCTV. However, the Magistrate found the Appellant to be evasive, inconsistent and unreasonable. The Magistrate has compared the Appellant’s gestures, shown in CCTV, and rejected his evidence.

10.  The Magistrate found that the Appellant grabbed PW1’s phone when she was trying to film the Appellant, and he pushed PW1 to the ground. PW1 then grabbed the Appellant’s dog to distract the Appellant but then released it worrying that it might bite. The Appellant further struck PW1 with his bag when he knew PW1 was no longer holding his dog. The Magistrate held that the Appellant caused PW1’s actual bodily harm by assaulting her in the way described as above.

11.  The Magistrate also found the Appellant had no genuine and honest belief of self-defence and did exercise unlawful violence against the Appellant. Therefore, the Magistrate convicted the Appellant accordingly and sentenced him to 12 months’ probation order.

Grounds of Appeal

12.  Mr Khattak put forward the following grounds of appeal.

(1)  Ground 1, on errors made in evaluating prosecution’s case.

(2)  Ground 2, on errors made in rejecting the Appellant’s evidence and evaluating the defence case.

(3)  Ground 3, on errors made in consideration of whether all elements of the crime have been proved; and

(4)  Ground 4, on unsafe inferences being drawn that are contradicted by CCTV evidence, or insufficient evidence.

13.  On ground 1, particularly saying that the Magistrate had mistakenly accepting PW1’s evidence and wrongfully evaluating his evidence, failed to analyse significant discrepancy, not limited to the following matters:

i.  which item had been used for the alleged assault;

ii.  omission in PW1’s evidence indicating a defence case that was true, or could be true, regarding PW1’s wrongdoing against the Appellant and his dog;

iii.  omitted to consider, analyse the evidence on the investigation officers concerning PW2’s evidence about his interactions and conversations with PW1;

iv.  failed to properly evaluate PW1’s mishandling of her own video evidence;

v.  wrongfully ruled that her evidence was credible; and

vi.  misinterpreted the material parts of the security guard, PW2’s evidence.

14.  On ground 2, wrongfully rejecting the Appellant’s evidence that the Magistrate had reversed the burden of proof, erred in handling the standard of proof to reject the Appellant’s case, disbelieving that his case that he was assaulted by PW1, failed to consider the CCTV footages showing adverse inference against the Appellant, omitted to consider evidence favourable to the defence, overall failing to properly consider the defence case, in breach of the Browne v Dunn principle, misapplied Jim Fai directions, and also miscomprehended the evidence of DW2 and DW3.

15.  Ground 3, on the error of finding that PW1’s injuries were caused by the Appellant.

16.  Ground 4, on drawing unsafe speculative inferences against the Appellant in all circumstances.

17.  Mr Khattak, in his very lengthy and detailed submissions, submitting the following. On ground 1, saying that PW1’s evidence was clearly evasive and inconsistent, particularly that she had mentioned that she was struck by the Appellant twice on the head and once on the shoulder, but CCTV only showing that the Appellant had waved his own bag twice.

18.  And also, PW1 had admitted during cross-examination that she was not sure whether she had grabbed the leash of the dog for one time or any time. She was not sure whether the dog had given out any scream. Seeing the CCTV, she admitted in trying to reach for the dog, and the dog did not bite and bark. She did not pay attention to her feet movement getting close to the Appellant, and she did not pay attention to why the Appellant was stepping backward a few times. And also, she said the child was afraid of the dog after the incidents.

19.  First of all, concerning the attack of the Appellant’s dog, PW1 exaggerated the matter by saying that the child had become afraid of the dog after the incident, which is inherently improbable. PW1 also denied there was a scream of the dog at one time, but later on she did say she did not know whether there was any noise from the dog. It is submitted that she would have continued with her grabbing, and the fact that she was grabbing the dog all of a sudden because she realised the dog was a weakness of the Appellant.

20.  While being cross-examined about whether PW1 grabbed the leash of the dog, the witness said she could not remember, but when confronted with the CCTV with the time displayed from 19:05:08, showing that her with the leash in the hand, the witness denied she has forcefully pulled the leash.

21.  PW1’s evidence had also given two contradictory versions regarding her attack of the Appellant’s dog, by catching the dog by the neck, strangulating the dog, and throwing it to the ground. At first she said she and her Korean employer decided to say nothing about the dog because it would take a long time. But later on, she said she did mention the dog to the

police inspector. This is an act of dishonest concealment of her serious wrongdoing, as submitted by the Appellant. But the Magistrate erred in saying that PW1 simply did not wilfully conceal it.

22.  Concerning the injuries of her knees and hips, from the CCTV footages between 19:05:07 and 19:05:08, it will be clearly seen that her knees were on the ground.

23.  The Magistrate also wrongfully ruled that the dog never screamed during the incident, even though that there was CCTV evidence showing a lady who jumped up from her chair when the dog was being grabbed and thrown. So the Appellant’s case was that it was likely that the lady had jumped up because she could have heard the dog scream.

24.  But the Magistrate simply trying to justify that PW1 had to grab the dog to protect herself to divert the Appellant’s attention. It is submitted that the other side of the coin is much clearer, PW1 knew the dog was the Appellant’s weakness and that was why she grabbed and threw the dog away.

25.  Further on misinterpreting the evidence of PW2, the security guard, PW1 said the security guard had to restrain the Appellant while he was attacking PW1, but it is submitted that this is entirely untrue, with reference to the witness statement of PW2 and with reference to the CCTV footages.

26.  On PW1’s phone, she denied that her phone was quite close to the face of the Appellant. That would be contrary to the CCTV footages. Also, it is submitted that from the CCTV it could not be seen that there was such an act of grabbing the phone, so PW1 was simply lying or exaggerating on this part of evidence. She also said the Appellant was holding her phone, referring to the timeline 19:05:03 to 19:05:05, which was contrary to the CCTV footages. It is submitted that the mobile phone was never in the hands of the Appellant. As shown on the CCTV footages, it was simply the Appellant brushing away her phone because it was an immediate instinct of the Appellant and the phone was so close to the Appellant, to his face.

27.  Concerning the bag, PW1 also failed to identify what she was alleging attacking her with. She denied the bag was waved and hit upon a part of the leash. The Magistrate wrongfully reasoned that it was understandable for her to misidentify how she was attacked, but it is submitted that PW1 was absolutely clear and sure that the Appellant had grabbed her bag, which contained the eggs, to hit her with.

28.  PW1 also mentioned there were other witnesses, but that could not be seen from CCTV. It is submitted that this is another example PW1 exaggerated her evidence, but that was not been dealt with in the statement of findings. In this circumstances, it is important to say that PW1 could not even identify by which item the Appellant allegedly cause her harm.

29.  On binding-over, it had been put to PW1 that she readily accepted the O.N.E bind-over for the Appellant, but to which PW1 in court clearly and strongly denied. But from the investigation report, she did agree to the bind-over of the Appellant. So it was simply a contradictory version as PW1 said in court.

30.  Concerning how many videos were taken by PW1, in the statement of findings, PW1 was certain and sure that she took only one short video and one picture of the Appellant, but this was clearly wrong as submitted by the Appellant, said PW1 had, in fact, taken three videos and had filmed a 23-second video showing the Appellant complaining to the management about her lack of caretaking of her employer’s child. But the Magistrate simply made a finding that her memories could simply be mixed up, and failed to consider that whether in the first place the witness deliberately concealed some of the videos she filmed or she took from her employer.

31.  So overall, on PW1’s credibility, that happened different possibilities and inconclusive answers given by PW1. The Magistrate failed to resolve it and consider that that would be inherent probabilities of prosecution case. According to the Court of Final Appeal case HKSAR v Kevin Egan [2010] 13 HKCFAR 314 and HKSAR v Lo Siu Kong and another [2012] 1 HKLRD 574, the Court of Final Appeal had already affirmed that evidential inherent possibilities are to be borne in mind in assessing every case, and the starting point is to consider the circumstances at the material time and ask what the inherent possibilities were. So Lo Siu Kong case, followed by saying that the magistrate is under a duty to consider all these inherent probabilities and improbabilities of both the prosecution and defence case. It is submitted that the Magistrate had failed to consider that.

32.  The Appellant also refers to the case of Court of Appeal HKSAR v Yeung Chun Hin [2023] 5 HKLRD 386, saying that even if a witness’s previous statement is not evidence and is only hearsay, it is also relevant to the witness’s credibility and reliability.

33.  On ground 2, the Magistrate had wrongfully rejected the Appellant’s evidence. The evidence was simply that the Appellant was on his way to Tower 3, but returned to PW1 when he heard her shouting to him with unpleasant words. PW1 tried to film Appellant with her phone, very close to his face, so the Appellant simply brushed away the phone. But PW1 then started pushing and hitting Appellant on his chest. PW1 then attacked the dog. The Appellant had to use his tote bag to cause PW1 to release her grip on the leash of the dog and to stop the scream while the Appellant waved his bag to hit on the leash. Again, PW1 at one time lying on the ground with her right hand while she was still pulling the leash with her left hand. PW2 was right beside the Appellant once he started to wave the bag.

34.  The Magistrate did not address and give sufficient weight regarding his evidence, and comparing that to the evidence as depicted in the CCTV. The Appellant submits that it can be shown that PW1 was the attacker first, and any subsequent contact between the Appellant and PW1 could only be an act of self-defence.

35.  So from the CCTV, Mr Khattak has listed out the important CCTV timestamps. For example:

(1)  19:04:15, the Appellant explained to PW2 that the children should not be left unsupervised.

(2)  19:04:43, the Appellant was on his way to home and said he heard something like, “Oh, your dog is scare?”, “You and your dog should be expelled from this building.”

(3)  19:04:57 to 19:04:58, PW1 took out her phone.

(4)  19:05:00, the Appellant pointed out the phone on the CCTV, explaining that it was only one or a-half centimetres away from his face.

(5)  19:05:01 to 19:05:02, showed that the phone was so close to the Appellant that he had to brush it away as an instinct.

36.  The Court is also invited to consider that there had been steps move back and away from PW1, at that circumstance, indicating the Appellant was being pushed by PW1 at that time. It is inherently probable for an attacker to take three or four steps backward. So this is a material issue that has not been solved by the Magistrate.

37.  Further on from the CCTV footage, 19:05:09, the Appellant tried to grab the leash of his dog himself while PW1 were pulling the leash of the dog. 19:05:10, PW1 was still on the ground holding on to the leash. 19:05:12, the Appellant waved his bag for the first time and told PW1 to release the leash. 19:05:13, the waving of the bag worked effectively. The dog finally could move away.

38.  The Appellant also trying to capture the CCTV footages by showing 24 screenshots, showing the defence case, exhibit D10(1-24), particularly:

-  screenshot 3, indicating the Appellant’s brushing away the phone without grabbing the phone;

-  screenshots 6 to 8, showing the Appellant stepping back and PW1 raising her right arm to hit the Appellant;

-  screenshots 12 to 14, showing PW1 let go of her own plastic bag while still holding onto the leash; PW1 using her right arm to support herself on the ground to pull the leash with some strength, with her left hand; and then on the ground holding on to the leash and PW2 then came forward towards her; and

-  screenshots 20 to 22, showing the Appellant’s leaning to grab PW1’s plastic bag; the Appellant throwing the plastic bag away; and PW1 raising her fist against the Appellant.

39.  But in the Appellant’s cross-examination, the prosecutor did not refer nor play the CCTV bit by bit to prove her case, simply making allegation without evidence supported, and put case to the Appellant in that circumstances.

40.  Further, there will be some timestamps of importance concerning 19:05:02 to 19:04:04. The Appellant further explained that he did not take the phone and did not throw the phone. And in answering in court, the Appellant simply saying that, “You are speculating because you do not have the video. I was present, I was on the site and I’m telling you that I haven’t push her”. It was the evidence of the Appellant in court.

41.  So the Appellant is simply saying and submitting that whether or not that PW1 had put her hand on any part of the leash at the material time is clearly a material issue, because if this happened, it would simply explain why the act of bag waving of the Appellant in order to make PW1 let go of the leash she was pulling on.

42.  The Appellant also explained that he had to use his bag because it has prolonged his reach for the leash, and it really worked in the circumstances. But the Magistrate seemed to have reversed the burden of proof, convicting the Appellant on the basis of his evidence because his evidence did not preclude the possibilities of him not committing the assault. The Magistrate clearly drew adverse inference against the Appellant in the material issue and disbelieved there was a need for him to self-defence in the circumstances.

43.  Further, the Magistrate was in breach of the Browne v Dunn principle in reaching his verdict. In his statement of findings, the Magistrate saying that,

“… the CCTV footage at 19:05:12 showed that he leaned forward and downward towards PW1’s direction when he struck. If he was simply aiming at the leash, he did not have to make such body movement at all. It is clear to me that he was striking at PW1.”

But the Appellant submits that that was not challenged in the trial hearing, in the light manner as stated above by the Magistrate.

44.  Secondly, the Magistrate failed to consider the witness statement of PW2. In his statement saying that,

“I saw the man returning to the outside of the gym, and was waving a white bag held in his raised right hand, and at that time ahead of that foreign man was that Filipino domestic helper sitting on the ground. … I did not see the two had physically assaulted each other.”

45.  Thirdly, the Magistrate referred to 19:05:12 of the CCTV to rule that the Appellant’s body movement indicated that he was striking at PW1, but that would be against the CCTV footages, particularly the screenshots of photos D10(15-16).

46.  Fourthly, D10(15) showing the PW1 holding the leash on the floor, and D10(16) showing the second movement of the Appellant waving with his bag.

47.  Now, concerning the Appellant’s case, the Magistrate simply saying that,

“… as the defendant threw her phone away, they were extremely close to each other. I do not find it unreasonable when the defendant took a step back before giving the push and it was not contradictory against PW1’s evidence.”

But the Appellant would be saying that that findings were clearly against the evidence of the Appellant, with reference to CCTV. At 19:05:03 to 19:05:05, the phone flew away from PW1’s hand. PW1 leaned forward and pushed the Appellant.

48.  Concerning the need for self-defence, it would be quite clear in that circumstances and heat of the moment that while PW1 holding her phone unnecessarily too close to the Appellant’s face, the Appellant simply brushed away the phone. That would be clearly a rightful lawful act being done of self-defence.

49.  However, the Magistrate made two findings. First, it was the Appellant struck PW1 over her head and shoulder, but that cannot be seen from the CCTV, nor were there any medical injuries reported for the head and shoulder. Second, the Magistrate found that at all time when the Appellant struck, PW1 was not holding the dog or the leash, but that would be again contradictory to the CCTV footage.

50.  The Appellant could well be justified to use his tote bag to strike at the dog leash to encourage PW1 to release the leash. Such force, according to the Appellant, was simply for saving the dog and himself and for apprehension without causing injury to the witness or any real apprehension of fear, it is a lawful action in that circumstances.

51.  The Appellant also submits that the Court of Appeal also warned against the dangers of mistakenly taking a purely objective approach to the reasonableness limb of the test of self-defence. In HKSAR v Shum Man Fai [2021] 1 HKLRD 1194, this includes a consideration of whether the appellant may honestly and instinctively had thought in the heat of the moment was necessary for him to do so when faced with assault initiated by the other party. The Appellant submitted that it was exactly the case proper for the Appellant to do so in the circumstances as an act of self-defence.

52.  And also, the Appellant raised that the failure to direct as per the Jim Fai case, saying that if it is to be believed of the defendant’s version, or if it may be true, that the prosecution failed to discharge its onus of proof because now the PW1’s injuries could simply have been caused by her knees on the ground and there were insufficient primary facts to allow for drawing inference against the Appellant in the circumstances.

53.  And ground 3, concerning PW1’s injuries, that would be without sufficient evidence and the Magistrate erred in ruling that the injuries were caused by the Appellant, when there was contradictory evidence showing that PW1 could simply have inflicted injuries on herself.

54.  And lastly, on ground 4, drawing of unsafe speculative inference against the Appellant which would be contradictory to the CCTV footage. As submitted by the Appellant, the CCTV footages simply supporting the Appellant’s case. The Magistrate did not deal sufficiently with whether the Appellant was justified in any of his movement arising from his dog being grabbed by PW1, to grab an animal by its neck when animal belonged to the Appellant, justified his actions and highlighted emotions, and subsequent swinging of his own tote bag to request PW1 to release the dog’s leash from her grasp.

55.  And the Magistrate wrongfully rejected the Appellant's evidence. It would be speculative for the Magistrate to consider that the bruises could simply have been caused by PW1 leaning and losing her balance when she tried to strike the Appellant.

56.  Now, on appeal against sentence, there have been quite some case authorities submitted by the Appellant, and also saying that the Magistrate failed to consider that the Appellant would have to face disciplinary hearings from the Securities and Futures Commission (“SFC”) to consider whether he would still fit and proper to hold a Type 1 licence. Failing to consider that the Appellant was punished enough for losing his job and having to face the SFC disciplinary board.

57.  There have been quite some cases submitted by the Appellant:

(1)  HKSAR v Tong Chi Keung, HCMA 322/2008, the appellant was sentenced to 3 months’ imprisonment for AOABH. On appeal, the sentence was lowered to a fine of HK$6,000.

(2)  In HKSAR v Tung Tsun-ho, DCCC 334/2010, a case concerning common assault. Passengers broke off a taxi driver’s antenna, leaving him with tenderness on the neck, upper chest and head. He was only sentenced to a fine of HK$2,000.

(3)  HKSAR v Cheung Kwok Ting, HCMA 546/2003, a 71-year-old appellant striking a blow to the forehead of a female victim. He was only fined HK$2,000.

(4)  The Queen v Leung Tek Lei, CACC 533/1995, a police officer charged for handling stolen property. On appeal he was given a suspended sentence for a period of 2 years.

(5)  HKSAR v Lee Yau Tak, CACC 427/1998, a police sergeant was sentenced to imprisonment. On appeal, the sentence was set aside because there would be a total loss of his retirement benefit and losing his job.

(6)  HKSAR v Yuen Ka Kui, Chris [2013] 5 HKC 64, that the court considered the possible loss of job and benefits may amount to a mitigating factor sufficient for a reduction in sentence.

(7)  Concerning Fit and Proper Guidelines of the Securities and Futures Commission’s Type 1 licence holders, the Magistrate failed to consider that it was possible that SFC may not renew the Appellant’s status as a Type 1 licence holder.

(8)  In HKSAR v Yeung Yuen Yee, HCMA 910/1998, the appellant was given a suspended sentence for misleading the ICAC on appeal. That lowered to a fine of HK$1,000.

The Appellant saying that the Magistrate had not given due consideration to the mitigating factors presented in this case. So all in all, the sentence for probation order of 12 months was manifestly excessive and should be overturned.

Respondent’s reply

58.  Firstly, the Respondent relied on the R v Kwong Wing On and another HCMA 574/1996, the court saying:

“that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police. … In the real world, and even with truthful witnesses, these discrepancies, improbabilities and omissions will occur. … A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

59.  The Respondent emphasised that the Magistrate had watched the CCTV to reach his conclusions. The Appellant does not have a better understanding or insight into the CCTV footages. It was simply a short and quick assault. It is almost always the case that the victim is criticised for not being able to repeat and describe the assault, like a movie played in slow motion.

60.  On ground 1, about the witness failed to mention certain matters to the police, for example attacking the Appellant’s dog, which bag was used to attack her, the number of times that she had been attacked, and the presence of other witnesses. These had all been properly dealt with by the Magistrate, including that from the CCTV footages, at 19:05:02 PW1’s phone was taken away from her; at 19:05:05 PW1 was on the ground; at 19:05:07 PW1 grabbed the Appellant’s dog but let it go immediately; 19:05:08 the Appellant was hitting PW1; at 19:05:12 the Appellant used the bag to strike on PW1, and at 19:05:16 the Appellant kicked away PW1’s plastic bag. The above encounter only last for 28 seconds only.

61.  It is true that PW1 was mistaken as to whether she was assaulted by the Appellant’s bag or with her plastic bag, as to the number of times she was hit. But in such a short 28-second episode, the Respondent will say that, how can a normal ordinary person remember in minute details as to every and each action that occurred quickly in that short moment. But the CCTV footages clearly showed that PW1 was assaulted by the Appellant.

62.  About the dog, that concerned the Appellant criticised PW1 as dishonest regarding the child’s further encounters with the Appellant’s dog after the incident, as the Magistrate rightly pointed out it did not appear to be a material issue. On concerning whether the lady jumped, is clearly not a material issue, and the lady could have jumped for many reasons.

63.  And for PW1, who fail to mention to the police that she had grabbed the dog and saying that other witnesses were present, the Respondent submits that her grabbing of the dog was a matter of one to two seconds only, as an attempt to protect herself. Afterwards she released it immediately. And in cross-examination, the witness already explained that she did not disclose all the matters in her witness statement because she believed that the police would obtain the CCTV and all full details could be revealed. And the Magistrate also rightly found that PW1 mentioned those matters when giving evidence in court, and did not give a one-side answers only.

64.  Now on misinterpreting the evidence of the security guard, the Appellant finds issue with the description that PW2 had to restrain the Appellant while he was attacking her, and that PW2 had to pull the Appellant back when he was swinging the bag. But on viewing the CCTV footages again, it can be seen that PW2 held his arm around the Appellant and steering him away from PW1 when the Appellant was swinging his bag.

65.  On PW1’s phone, the Magistrate ruled that “one could observe that at 19:05:02, there was a flash (which was clearly PW1’s phone) remained in the hand of the defendant for a short moment. This showed that the defendant not just brushed [the phone] as he alleged, but in fact held the phone for a short moment before throwing it to the ground.”

66.  And concerning the bag, the Magistrate also correctly found that it is understandable that PW1 may have confused the bag used because it all happened quickly.

67.  Concerning other witnesses, the fact they were not captured by CCTV and were not located as witnesses, does not mean that PW1 was dishonest. PW1 did not say they had witnessed the assault but had comforted her after the assault only.

68.  On the binding over, the Magistrate also held that PW1 might have misunderstood the meaning of binding over because PW3, the investigation officer, explained the meaning of binding over to PW1 in a phone call without an interpreter.

69.  Concerning how many videos were taken by PW1, the Magistrate also properly dealt with this issue and held that it was reasonable for PW1 to confuse the number of videos taken because it all happened in a sudden.

70.  On overall that PW1’s credibility, the Appellant alleged that PW1 caused herself to fall when she was reaching for the dog. The witness would explain what happened during the camera jump of the CCTV. She was pushed by the Appellant onto the ground. PW1’s explanation is supported by CCTV footages of what actually happened before and after the gap. At 19:05:05, it can be seen that the Appellant’s arms were moving, then PW1 became off balance. Then after the gap, at 19:05:06, PW1 was on the ground.

71.  In alleging PW1 launched a serious attack on the Appellant’s dog, the Appellant exaggerated PW1’s act. As shown by the CCTV, PW1 only grabbed the Appellant's dog for a very short moment and then set it free. So the Magistrate had also considered whether PW1 had exaggerated the matters, but finding that her evidence was not one-sided. The CCTV also showed that the Appellant continued to assault PW1, notwithstanding that PW1 had already let go of the dog.

72.  On ground 2 of the defence case, the Respondent would say that the Magistrate was entitled to compare the CCTV with PW1’s and the Appellant’s evidence and was free to accept and/or reject the evidence of witnesses, including the Appellant. The Magistrate was entitled to reject the Appellant’s evidence and rely on what he himself saw from the CCTV and PW1’s evidence to convict the Appellant. The Magistrate had taken a holistic view and analysed the Appellant’s evidence and found his evidence evasive, inconsistent and unreasonable.

73.  The Magistrate had looked at the CCTV and found the distance between the Appellant and PW1 to be extremely close to each other, certainly a distance which they could continue to communicate, and the step forward taken by the Appellant was clear of the intent of initiating physical confrontation.

74.  While accepting PW1’s evidence, the Magistrate particularly found that PW1 shouted something to the Appellant; the Appellant then returned and pulled PW1; PW1 then used her phone to take photos of the Appellant; the Appellant then grabbed PW1’s phone and threw it away; and PW1 then grabbed the Appellant’s dog to distract the Appellant but released it after fearing that it might bite her. After she released the dog, the Appellant struck PW1 a few times with his bag. All these above matters corroborates with CCTV footages.

75.  The Magistrate had found the Appellant’s approach and assault to PW1 first. In accepting PW1’s evidence, the Magistrate also found that the Appellant had pushed PW1 on the ground and therefore causing PW1's injuries.

76.  Now concerning the 24 screenshots, CCTV was its real evidence. The Magistrate could watch himself and make factual findings instead of referring to the screenshots, as are submitted by the Appellant.

77.  Concerning the Magistrate breaching Browne v Dunn principle, the Magistrate did not convict the Appellant simply because his evidence was rejected, but simply finding sufficient evidence from the prosecution's case to convict the Appellant. The rule of Browne v Dunn focused on the right to a fair trial and gave the defendant an opportunity to respond to all the challenge to his evidence. The Appellant knew what the prosecution’s case was and how his evidence was challenged, namely, he was the attacker against PW1 and assaulted her by using a bag. So the matters did not involve a breach of the principle.

78.  The Appellant explained his act with reference to CCTV that he only targeted the leash but not PW1, and he only waved his bag for the first time and told PW1 to release the leash. The Respondent saying that the CCTV footages clearly showing otherwise.

79.  On the Appellant’s case, the Respondent would be saying that the Magistrate had already adopted the correct test when considering self-defence. The Appellant, being the aggressor, would not have honestly believed that there was a need to defend himself by approaching PW1 simply because she said something rude to the Appellant. The Appellant also sought to rely on PW1’s grabbing of his dog to make out a claim of self-defence. However, at 19:05:13 of the CCTV footages, it can be seen that the dog was free to walk behind and away from the Appellant.

80.  When rejecting the claim of self-defence, the Magistrate correctly held that “he has no genuine subjective belief that there was a need of self-defence”.

81.  On failing to direct, as per Jim Fai, there is no requirement that the Magistrate must have stated every and all direction he has applied in his mind. The Magistrate had always had in mind the burden of proof lies always on the prosecution. The Magistrate had analysed the evidence of PW1 and the Appellant with reference to CCTV and considered whether the prosecution had proven the case beyond all reasonable doubt.

82.  On ground 3, after analysing the evidence of PW1 and the Appellant, the Magistrate stated that the offence elements of AOABH and went further to explain and why, relying on PW1’s evidence, particularly having accepted PW1’s evidence that the Appellant grabbed and threw away PW1’s phone, pushed her to the ground. The Magistrate found that the Appellant has no genuine subjective believe and there was no need of self-defence. The only irresistible inference was that he intended to exercise personal violence against PW1, and such force was clearly unlawful.

83.  The Magistrate also found that according to PW1’s evidence, due to the assault, she sustained scratches in the legs, and she felt pain in the hips the following day. The Magistrate accepted that these were injuries caused by the Appellant’s assault. There is nothing wrong in his finding.

84.  Lastly, on ground 4, of unsafe inference, the Respondent would say the Magistrate did not, as the Appellant alleged, make speculative findings. The Magistrate referred to the CCTV and also the evidence of PW1 as to base his findings, there was sufficient evidence to draw the only irresistible inference.

85.  So all the grounds of appeal should fail. The conviction shall stand and appeal against conviction shall be dismissed.

86.  Concerning the appeal against sentence, the Respondent saying that the Magistrate had already discussed and considered Tong Chi Keung, Tung Tsun-ho and Cheung Kwok Ting, as stated above, and also explained why those cases were not applicable to the Appellant. And also remained another 4 cases, Leung Tek Lei, Lee Yau Tak, Yuen Ka Kui and Yeung Yuen Yee, these were the consequence of the conviction, remaining all these 4 cases held that the consequence of the conviction to defendant would also affecting the sentence. The Magistrate had properly considered the circumstances and saying that it would be beneficial to the Appellant to improve his temperament control. Probation order is clearly only on the low side of the possible range of sentence.

87.  The Respondent referring to the香港特別行政區　訴　魏志榮　HCMA 400/2016, saying that there was no sentencing tariff for AOABH and the sentence was all fact-sensitive. In that case, the victim was a waiter of a bar, asking the defendant and his friends to leave when the bar closed. The defendant suddenly dashed to the victim and pushed him onto the ground and punched the victim’s face with his fist. The defendant was convicted and sentenced to 2 weeks’ imprisonment after trial.

88.  Concerning the present case, the Respondent submits that the decision to sentence the Appellant to 12 months’ probation order was not manifestly excessive or wrong in principle. So the sentence, the appeal against sentence shall also be dismissed.

Appellant’s reply

89.  The Appellant also made a further reply to the Respondent’s response. Concerning the Appellant’s further reply, Mr Khattak emphasised the deliberate concealment of the attack on the dog by PW1 and saying that this is very material issue, and PW1 also trying to bolster her evidence by telling the police there were two other witnesses, but that could not be revealed in the CCTV footages.

90.  And concerning the Respondent saying that the episode only last for 28 seconds only, but the Appellant submits that this is not a simple case which the witness failed to remember details in an incident which happened within a short time, but the Magistrate failed to evaluate and resolve, for example, whether the dog had never barked does not mean the dog could never scream, PW1 grabbed the dog but failed to mention in her witness statement, and the attack took place before the Appellant waived his dog subsequently and there was evidence from the Appellant that the dog was like the Appellant’s baby.

91.  And also concerning the child and further encounter with the dog is also a material issue, but PW1 was exaggerating the evidence of the child’s fear in dog after the incident, which is clearly not the case. The Magistrate also did not say which part of the evidence of PW2 that he had relied on. On the contrary, the Appellant saying that the child later on appeared to be friendly to the dog even after the incident.

92.  On whether the lady had jumped from her seat, the timing and the direction where looking to the incident would clearly showing that it is likely that the dog has barked in the circumstances.

93.  Concerning the misinterpreting the evidence of the security guard, the Appellant emphasises that the PW2 said that he did not see the two had physically assaulted each other.

94.  For PW1’s phone, the Magistrate’s finding on the flash, that had never been put to the Appellant.

95.  On the bag, this is a complete disregard of the clear evidence of PW1 who told the court she was sure that the Appellant had grabbed the plastic bag away from her arm in order to hit her with her own bag.

96.  And concerning other witnesses, PW1 also gave clear evidence and gave the impression that she had been surrounded and approached by people who tried to comfort her after she was assaulted by the Appellant.

97.  On the binding over matters, according to the evidence of the police, “the victim understood that the defendant may be handled by way of binding over and she does not object”, as shown in the investigation report. While in court she denied these matters. So the Appellant will still emphasise the binding over issue is also a material matter to be considered concerning PW1’s credibility and reliability, that also happened to how many videos that the witness had been taken.

98.  Overall on PW1’s credibility, the Respondent simply downplayed the attack on the dog, and saying that PW1 only grabbed the Appellant’s dog for a moment and set it free, but the question is not how long but how forceful, how violent and how cruel that the attack was.

99.  Lastly, replies on the ground of appeal against sentence, the Appellant has an excellent CV and a very positive conduct and behaviour, having good relationships with colleagues, and volunteering in some charitable work. The Appellant had been in good faith when he raised the complaint on that particular day towards the witness and also to PW2. And the fact that he had been dismissed from his high-paid job in the financial institution is already a hard lesson to be learned by the Appellant. So in all the circumstances, a more lenient sentence could be imposed, for example fine or discharge order, are submitted by the Appellant.

Consideration

100.  In the Court of Final Appeal Case HKSAR v Hui Lai Ki [2024] HKCFA 7, it was held 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.

101.  The Court recognised that an appellate court conducting a rehearing would be subject to a 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 issue of fact or law.

102.  Now first, I had the opportunity to go through the CCTV footages and also the slow-motion footages, submitted by the defence, together with the screenshots capturing the footages. And I observed the followings:

Video NVR T2 - T3, 2/F
Time	Description
19:03	PW1 was with the child riding on his bike, Appellant was walking with his dog and following them.
19:04:00	Appellant approached PW1 and had conversation with PW1 and PW2, and then departed.
19:04:49	Appellant went back to PW1.
19:04:57	Appellant came very close to PW1.
19:04:58 - 19:05:02	PW1 held her phone up facing the Appellant.
19:05:03	Appellant grabbed and threw PW1’s phone away.
19:05:05	Appellant pushed PW1 to the ground.
19:05:06	PW1 grabbed the dog and released.
19:05:10 - 19:05:13	PW2 ran towards them and tried to separate the Appellant against PW1.
19:05:12	Appellant hit PW1 with the bag when PW1 was still lying on the ground.
19:05:14	Appellant hit PW1 again with the bag.
19:05:17	Appellant threw away the bag.
19:05:17 - 19:05:32	PW2 held against the Appellant from further forward movement, until Appellant walked away.

103.  Although the images of the CCTV footage is not perfect, the movement of PW1 and the Appellant could still be seen clearly.

104.  The Appellant’s version of just brushing away PW1’s phone, he was then pushed and punched by PW1, and then PW1 only caused herself to fall because of rushing to hold the Appellant’s dog, all these matters did go contrary to CCTV footages. It was just not surprising that the Appellant’s version was not accepted by the Magistrate right away.

105.  On ground 1, of evaluating PW1’s evidence, unlike the case of Kwong Wing On stated above, Mr Khattak, for the Appellant, did go through a microscopic dissection of PW1’s evidence in every possible details, but the Magistrate had already adopted a realistic approach to the alleged discrepancy.

106.  Concerning the failure of PW1’s mentioning about the grabbing of the dog, on which bag the Appellant actually used to attack her, on the presence of other witnesses, on whether the dog barked, on how many videos were taken by PW1, or whether binding over was accepted, clearly all these matters were not material to the crux of the case. What really matters was simply as captured by the CCTV, showing and including the Appellant had hit PW1 with the bag twice, the first time when PW1 was even lying on the ground, and the second time happened even with PW2 trying to hold against the Appellant from further attacking on PW1. The CCTV footages were clear on these matters.

107.  The Magistrate had the advantages of receiving witnesses’ evidence first-hand. Having fully considered and analysed PW1’s evidence in details before accepting it, I see no basis to disturb his findings. Ground 1 fails.

108.  On ground 2 concerning rejecting the Appellant’s evidence, as stated above, the central part of Appellant’s version went contrary to CCTV footages. The Magistrate also found the Appellant had pushed PW1, causing her to fall to the ground and suffer injuries, and findings were sound and consistent with the CCTV footages.

109.  For the 24 screenshots, as submitted by the Appellant, the images were still and far from clear, which could hardly be used for showing the exact moment clearly. Instead, for actual movement, the better way must be simply watching the CCTV footages directly, to see what had actually happened.

110.  On the alleged breach of the Browne v Dunn principle, it was not the case when the Appellant’s attack was not put to him. In fact, his act has been shown to him through the CCTV footages. It cannot be said there was any breach at all.

111.  As to PW2’s statement that he did not see the two had physically assaulted each other, one must note that he came to the scene at a later stage by running towards them. At one stage, he even held against the Appellant from further forward movement. PW2, when then just facing opposite to PW1's direction, it was not surprising that he did not actually see any assault. However, from the CCTV footages 19:05:12 to 19:05:14, it was clearly shown that the Appellant had used the bag to hit PW1 twice.

112.  On self-defence, from the footages, when PW1 was still lying on the ground, the Appellant used the bag to hit PW1. The assertion of self-defence was clearly out of question, nor do I see how his attack was said to be saving his dog while, by that time, the dog was already released from PW1. So ground 2 also fails.

113.  On ground 3, whether injuries of PW1 were suffered by the Appellant’s attack, by thorough analysis, PW1’s evidence was accepted by the Magistrate, and she sustained scratches and felt pain in her hips followed by the Appellant’s attack. The causation was direct and clearly enough. This ground also fails.

114.  On ground 4, on drawing unsafe or speculative inference, the Magistrate had referred to CCTV footages and also compared to PW1’s evidence to base his findings. These were not unsafe, nor speculative findings. This ground also fails.

115.  For rehearing purposes, after viewing the CCTV footages many times, and considering PW1 and the Appellant’s evidence, I also consider that the prosecution had already proven the Appellant’s guilt beyond all reasonable doubt.

116.  All appeal grounds fail. The appeal against conviction is dismissed accordingly.

117.  As to sentence, the Appellant’s assault was indeed violent, despite PW1 was already lying on the ground. The sentence of probation order can be said as too lenient after the trial. The reference to other authorities of unsimilar situation is of no use to this Court. And by reference to the case of 魏志榮as stated above, the sentence was indeed fact-sensitive.

118.  Obviously in this case, the probation order, as I said, after trial is really too lenient to the Appellant and clearly not manifestly excessive, particularly after trial of the case. So the appeal against sentence is also dismissed accordingly.

119.  For postscript, in fact, after viewing all the CCTV footages, I find the attack violent, and having taken twice, I have in mind at one stage whether the probation order should be changed to some form of imprisonment term concern the appeal on sentence. But after considering all the matters, I do not intend to reverse the finding.

120.  So the appeal against sentence is dismissed accordingly.