HKSAR v. NG MAN YUEN AVERY

FAMC No. 15 of 2019

[2019] HKCFA 33

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 15 OF 2019 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 595 OF 2017)

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REASONS FOR DETERMINATION

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Mr Justice Bokhary NPJ:

1.  Mr Avery Ng was tried in the Magistrates’ Court on a charge of common assault upon Chief Inspector Lau Wing-kwan.  The Magistrate, Mr So Wai-tak, convicted Mr Ng and sentenced him to three weeks’ imprisonment.

2.  Common assault is an offence under common law. Section 40 of the Offences Against the Person Ordinance (Cap 212) makes it punishable by up to one year’s imprisonment.  Any act which intentionally or recklessly causes another to apprehend immediate and unlawful violence is an assault.  The relevant state of mind is intent or recklessness.  Any beating, touching or laying hold of a person with the relevant state of mind in a hostile manner is a battery.  The touching may of course be by an object thrown by the defendant.  Common assault may consist of assault without contact or it may include contact so as to amount to battery.  In either situation, the offence committed would be common assault.

3.  Shortly stated, the prosecution’s case was follows.  On 4 September 2016 Mr Leung Chun-ying, who was the Chief Executive at the time, was on his way to vote as at the Legislative Council election which was then being held.  As Mr Leung was about to enter a polling station, Mr Ng threw a sandwich at him.  Mr Leung ducked so that the sandwich missed him.  Walking approximately a metre behind Mr Leung was Chief Inspector Lau, who was Mr Leung’s personal security officer.  With the back of his right hand, Chief Inspector Lau warded off what turned out to be the sandwich thrown by Mr Ng at Mr Leung.  This resulted in the sandwich breaking into pieces, some of which landed on the right front part of Chief Inspector Lau’s vest.  Under the principle of transferred malice, Mr Ng’s intent to hit the person at whom he threw the sandwich, namely Mr Leung, operated as the necessary state of mind on Mr Ng’s part for the purposes of a charge of common assault upon the person whom the sandwich in fact struck, namely Chief Inspector Lau.

4.  The Magistrate received all the evidence at first-hand.  There was evidence on which he was entitled to find, as he did, those facts proved beyond reasonable doubt.  It was open to him to feel sure, as he did, that the exculpatory parts of Mr Ng’s evidence were properly to be rejected.  On his view of the facts, the Magistrate was entitled to convict Mr Ng of a common assault upon Chief Inspector Lau.  As a thrown object speeds in a person’s direction, there is a range of courses which it would be natural for him to take. One such course is to use his hand to ward off the thrown object.  The physical consequences of contact between the thrown object and that person’s hand may be far less serious than the physical consequences of contact between the thrown object and, for example, that person’s eye.  But in law contact between the thrown object and that person’s hand would suffice for the purposes of a common assault charge just as would contact between the thrown object and that person’s eye.  While contact with Chief Inspector Lau’s hand would so suffice, it is to be noted that some parts of the sandwich which broke into pieces upon contact with Chief Inspector Lau’s hand ended up landing on his torso.

5.  In the circumstances of this case, the far more obvious course would seem to have been to bring a charge of common assault by Mr Ng upon Mr Leung.  Be that as it may, it was open to the prosecution to bring a charge of common assault by Mr Ng upon Chief Inspector Lau.

6.  Mr Ng appealed to the High Court against conviction and sentence. That appeal was heard by Mr Justice Yau.  Although he did not find favour with the specific grounds of appeal against conviction argued on Mr Ng’s behalf, the Judge nevertheless quashed the conviction.  He did so on a basis which the prosecution complains against.

7.  Thus complaining, the prosecution seeks leave to appeal to the Court of Final Appeal. Such leave is sought under both limbs of section 32(2) of the Court’s statute.

8.  Under the “point of law” limb, the prosecution’s complaint is essentially that the Judge (i) quashed the conviction on grounds which had not been canvassed during the hearing of the appeal, (ii) did so without alerting the prosecution to what he had in mind, and (iii) thus left the prosecution with no opportunity to be heard on those grounds.  The point of law which the prosecution says that it wants this Court to lay down is that a conviction ought not to be quashed on grounds on which the prosecution has not had an opportunity to be heard.  While the Judge must very properly have meant to do justice to both sides, it is at least reasonably arguable that the prosecution was in effect deprived of an opportunity to be heard.

9.   But that alone would not warrant leave to appeal to this Court.  It is well-settled law that the rules of natural justice require that all the parties be given an opportunity to be heard.  That is made clear by no less than three decisions of this Court, namely Chan Tit Shau v HKSAR (2004) 7 HKCFAR 492, Chan Tak Ming v HKSAR (2010) 13 HKCFAR 745 and Hau Tung Ying v HKSAR (2011) 14 HKCFAR 453.  The point itself is uncontroversial.  It does not require a further pronouncement by this Court.

10.  That leaves the “substantial and grave injustice” limb.  Its complaint under the “point of law” limb is repeated by the prosecution in its complaint under the “substantial and grave injustice” limb.  And various other complaints are made by the prosecution under the “substantial and grave injustice” limb.  All of these other complaints are directed ultimately to appreciation of evidence and fact-finding.  It has not been suggested, nor would it be correct to suggest, that the Judge’s judgment forms a precedent as to what does or does not amount in law to a common assault.

11.  Some of the points made under the “substantial and grave injustice” limb seem to have some substance.  But that alone would not warrant leave to appeal to this Court.  As this Court said in So Yiu Fung v HKSAR (1999) 2 HKCFAR 539 at pp 541I-542A, the “substantial and grave injustice” limb “exists as a residual safeguard to cater for those rare and exceptional cases in which there is a real danger of something so seriously wrong that justice demands an enquiry by way of a final criminal appeal despite the absence of any real controversy on any point of law of great and general importance”.  In all the circumstances, we are not persuaded that justice demands an appeal to this Court in the present case.  The prosecution expressed a fear that the High Court’s judgment may form a precedent inimical to its right to be heard.  We can - and do - underline that every party including the prosecution has the right to be heard. That should remove the prosecution’s fear.

12.  For the foregoing reasons, leave to appeal was refused at the conclusion of the hearing of this application.  We thank counsel on both sides for their assistance.