HKSAR v. PATRICK DANIEL MORAIS AND ANOTHER

HCMA 915/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 915 OF 2003

(ON APPEAL FROM KCCC 3105/2003)

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J U D G M E N T

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1. This is an appeal against conviction. The 1st Appellant was convicted after trial of one charge of theft and one charge of assault with intent to prevent lawful apprehension. The 2nd Appellant was convicted after trial of 2 charges of common assault. The two Defendants are father (D2) and son (D1).

Prosecution Case

2. On the day of the offence, security staff of HMV record store in Tsimshatsui spotted D1 on the 1/F behaving in a suspicious manner, so they put him under surveillance. The CCTV tape showed D1 taking a pair of headphones from the rack and walked around the store with the headphones in his hand. Seconds later, the headphones had disappeared from his hand and he walked up to the CD rack and started choosing CDs. Subsequently, the tape showed the Defendant arriving at the G/F and walking straight to the exit and left the store. He was then chased after by the security staff and then brought back to the store and to the security office.

3. A second CCTV tape was produced which showed what happened inside the security office. As the learned Magistrate pointed out, in the security office, it can be seen from the tape that D1 tried to offer some explanation in English, but was ignored. During that time, he had received several incoming calls on his mobile telephone and had made some outgoing calls. Shortly after that, his family members (that is D2, his wife and daughter arrived).

4. According to the learned Magistrate's observation, D2 tried to persuade the staff to let his son go but that was in vain. At that stage, D2 asked the staff why no report was made to the police and the staff then telephoned the police. At that stage, D1 took out a bank note from his wallet and offered it to the staff.

5. At page 20 of the Statement of Findings given (viii) to (xii) inclusive, the learned Magistrate then proceeded to refer to what was said at that time between the staff, D1 and D2. The tape also showed the scuffling between the staff and D1 and D2. I note here that although the tapes were produced, particularly the second tape and the sound recording was available for all to hear, no transcript nor certified translation was provided to the learned Magistrate, who was hearing the trial in English and counsel defending both Defendants was also a westerner.

6. None of the parties were informed by the learned Magistrate that he would be relying or taking into account what was said on the tape or that both parties should agree a transcript of the conversation.

7. Apart from the tape, the prosecution also called the three security staff and the arresting police officer.

Defence Case

8. D1 gave evidence that due to an operation when he was younger, he was still on medication, he said that on the day in question, he was to meet his family at 8 p.m. for dinner, since he was early, he decided to go to HMV to browse. He first went to the 2/F and brought two DVDs and then he went to the 1/F and he found the headphones, so he picked up and was intending to pay for it later, he was still looking around and he believed that he had placed the headphones in his bag so that he could have a free hand when he was selecting the CDs. At that time, he had the earphones to his Walkman on and he was listening to music. On his way down to the G/F, his mobile phone rang or rather was activated in his pocket, so he went outside to answer the phone. And at that stage, he had forgotten that he had the headphones in his bag. Within seconds, when he was outside the shop, he was grabbed by security staff and brought to the security office. Whilst there he had incoming and outgoing calls and finally his family arrived. D1 then gave an account of what happened after his father arrived.

9. D2 also elected to give evidence and he said that on the night in question, the family had arranged to pick the D1 up at HMV at around 8 p.m. He had telephoned his son at 7:45 p.m. and he then subsequently came to know that his son was at the security office of HMV. He proceeded to HMV and the staff was rude to him and he lost his temper when he saw his son being assaulted.

Magistrate's finding

10. The learned Magistrate accepted the testimony of PW1 and PW3 as being honest and truthful witnesses and that their evidence were supported by the tape, he also found that PW2 was an honest witness, however, he only accepted the parts which were supported by the tape and, finally, he accepted PW4 as an honest and truthful witness.

11. The learned Magistrate, however, found D1's evidence was "unreasonable and unbelievable and also contradicted by the tapes on material points." It was of course not improper for the learned Magistrate to view the tape and rely on what he could see from the tape to assist him in coming to a decision in this case. If the trial was conducted in Chinese, then there would also be no problem for the learned Magistrate to rely on what was said in the tape in Chinese.

12. The problem in this case arose because the learned Magistrate had relied on what was said on the tape by the security guards in Chinese and such portions had not been transcribed nor certified into English nor had the parties agreed that that was a proper transcription and translation of what was said on the tape.

13. It would appear that the learned Magistrate took it upon himself to transcribe certain portions of the tape and took it upon himself to make the necessary translations into English. I agree with the Appellant's counsel that this was a material irregularity.

14. The learned Magistrate had taken into account what was said on the tape before he dealt with the 1st Appellant's evidence and disbelieved him. Unfortunately, it can never be known how far what was said on the tape had affected the learned Magistrate's decision in disbelieving the 1st Appellant.

15. In relation to Charge 3 it was the contention of the defence that the HMV's staff had unduly delayed making a report to the police and, as has been pointed out by the counsel for the Appellant, the learned Magistrate had erroneously concluded that the police were called prior to the physical altercation whereas the truth was that the police were only called after the physical altercation. (See transcript p. 190 E-G, p. 227 T and p. 240 H-I). So when the learned Magistrate concluded that the 1st Appellant was trying to run away from legal custody (See paragraph 31 of the Statement of Findings). He had failed to consider the above points and also he had not properly considered whether the 1st Appellant was in fact in "legal" custody.

16. It appears to me from a reading of that paragraph that once the learned Magistrate concluded that he disbelieved the 1st Appellant, he, without considering any other matters, was satisfied that the 1st Appellant was hostile and had the intention to attack the staff and did so. The learned Magistrate based his conclusion that the 1st Appellant was trying to escape from legal custody on the basis of the tape.

17. As for the 2nd Appellant, the learned Magistrate had said:

"Judging from the tape, D2's assertion that the attack was simply to save his son was untrue".

18. The learned Magistrate then found the 2nd Appellant not guilty of assault with intent to prevent lawful apprehension but convicted him of common assault.

19. I am perplexed by the Magistrate's Findings because he was satisfied "that it was not self-defence or self-release from wrongful detention as such and it was a deliberate attack on PW2 and PW3".

20. The learned Magistrate then went on to find that the 2nd Appellant was guilty of common assault. To prove common assault, the necessary hostile intent must be present and that hostile intent must be calculated to cause apprehension in the mind of the victim. This was never satisfactorily dealt with by the learned Magistrate.

21. In the event, I am left with a lurking doubt, so the convictions are unsafe and unsatisfactory. So the appeal against convictions by both Appellants are allowed and the convictions are quashed.