HKSAR v. TSUI WING CHUEN

HCMA 126/2022

[2022] HKCFI 2062

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 126 OF 2022

(ON APPEAL FROM WKCC 4105/2021)

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J U D G M E N T

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Appeal against conviction

1.  The appellant was convicted after trial of one count of Wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212 and sentenced to 12 months’ imprisonment. He appeals against conviction only.

The prosecution’s case

2.  The prosecution called one witness. It was agreed that PW1 met the appellant at 11pm on 8 July 2020 on the street level of a housing estate on Lantau Island. PW1 has owed the appellant a debt of $14,000 since 2018. It was the prosecution’s case that in that same afternoon, PW1’s wife told him that the appellant had come to their home and asked for repayment of the loan. He then called the appellant and a meeting was arranged for later that night.

3.  PW1 said he arrived and saw 4 unknown men and the appellant. The appellant hit his head with a long wooden rod. He tried to block the blows with his arms. Only the appellant assaulted him. They all left and PW1 was sent to hospital by ambulance.

4.  When the police tried to locate the appellant using a telephone number provided by PW1, the Summary of Facts say that they found the appellant was also in the same hospital seeking medical treatment for injuries all over his body. According to the Summary of Facts, the appellant was located there and arrested for wounding. Under caution his first response was that PW1 owed him money but hit him, so he fought back.

5.  PW1 gave evidence that the appellant was behind him when he arrived at the meeting place; as soon as he turned round the appellant hit him over the head 2 to 3 times with a wooden rod. He lifted his arm to fend off the blows. He felt dizzy and he and the appellant rolled onto the ground. He said none of the other 4 men did anything except shout for them to stop fighting or hitting.

6.  PW1 had a laceration over the top of his head which required 3 stitches. He had abrasions on his left forearm and right elbow. He said that he was x-rayed in Princess Margaret hospital where he was sent after North Lantau hospital and he had a fractured forearm. The fractured forearm was not mentioned in his medical report produced during the trial. The photographs admitted into evidence captured the location of the offence, the wooden rod, the injuries of PW1 as well as the appellant.

The appellant’s case

7.  The appellant did not give evidence during the trial. In the Appeal hearing he expressed surprise as to why he was not called upon to give evidence. He did not understand the reason if it was explained to him. He had wanted to tell his side of the story.

8.  It was put to PW1 during cross examination that he attacked the appellant first with the rod and that there was a fight between both men. Both men were injured during the fight as evidenced by medical reports and both men’s reports were produced.

9.  From the transcript, there was a submission of no case to answer and it is not in dispute that PW1 lied and agreed he lied in the witness box when he denied in cross examination that he had abused dangerous drugs in the last 10 years. It appears that he denied he had any conviction relating to dangerous drugs in the past 10 years when in fact he had been convicted of drug-related offences in the District Court in 2019.

10.  There was also a discrepancy where PW1 told the police in his witness statement that he owed the appellant $14,000 but in the witness box he said he owed him $7000. He explained that the appellant agreed to waive interest of $7000 if PW1 repaid the original debt of $7000.

Grounds of Appeal

11.  The appellant was unrepresented in his appeal and the only ground put forward was that his conviction was unsafe and unsatisfactory. During the appeal hearing he put forward the ground that PW1 was dishonest and lying.

12.  He suggested that insufficient weight was given to his numerous injuries all over his body which he says came from the fight between himself and PW1. He said that PW1 hit him first but that he was able to subsequently get the rod and hit him back. He reiterated that his injuries had to have come from PW1 hitting him and that they showed he was acting in self defence. There was no other explanation for his injuries.

13.  He also submitted that it was highly unfair that PW1 owed him money yet attacked him. The appellant during the hearing did agree that as set out in the Summary of Facts, he did go to the home of PW1 that day to follow up on repayment of his debt. He had months earlier seen PW1 who told him that he had received the $10,000 government handout in 2020 and could repay half his debt to the appellant, that is $7000. It was the appellant who agreed to initially accept half of the total debt owed as it was better than nothing.

14.  He submitted that later that day after he had gone to PW1’s home, he received a call from an angry PW1 swearing and shouting at him for going to his home and talking to his wife. It was PW1 who arranged to meet him that night downstairs for a chat. When he arrived 2 people rushed over at him including PW1. PW1 had a rod and hit him whilst swearing at him. He said he was hit a few times before he was able to grab the rod and hit back in self defence. He said both fought each other and it was unfair that only he was charged.

The respondent’s reply

15.  Counsel for the respondent submitted that despite inconsistencies in PW1’s evidence, the learning magistrate considered the issue of credibility and found the prosecution had proved the charge beyond reasonable doubt. The Magistrate took into account the inconsistencies in his evidence and nevertheless concluded that the prosecution had discharged its burden and standard of proof.

16.  Those discrepancies included his lie under oath when cross examined about recent drug-related convictions. They included his evidence that his left arm was fractured when it is not mentioned in the medical report produced. The amount owed differed in PW1’s account to the police in his witness statement from his evidence in the witness box. Moreover, the magistrate considered his evidence that after he was hit on the head by the appellant, they both rolled onto the ground even though he could not describe how or why it happened. His lack of explanation was accepted and the truth of that evidence deemed possible.

17.  Counsel for the respondent does highlight that there is no evidence apart from PW1’s evidence that he and the appellant rolled on the ground. Counsel highlights the magistrate’s finding in her Statement of Findings that she found it is possible that PW1 grabbed the appellant when he fell which she then went on to surmise meant it was possible that his injuries were sustained when the appellant rolled or fell to the ground.

18.  Counsel also referred to the magistrates mention of the appellant’s medical report where she pointed out that according to that report he sought treatment at 2:45am, almost 3 hours after the event happened. The magistrate does not specify why she pointed out the gap in time as perceived but counsel for the respondent says that any injury on the appellant’s body could have been sustained in that time. It would appear that the same assumption or speculation was considered by the magistrate. However, Exhibit P3 the appellant’s medical report says he was examined at 2:45am by a doctor. There is no reference as to what time he arrived and sought treatment.

19.  Counsel for the respondent submits that there are no grounds of appeal with any merit and that the appeal against conviction should be dismissed.

Discussion

20.  I have considered the Statement of Finding and the appeal bundle. PW1 was the only witness and his credibility was a live and crucial issue. The magistrate was well aware of this when she said the only evidence against the appellant came from PW1, a man with an appalling criminal record who blatantly lied in the witness box. She said she would exercise extra care in assessing his evidence without explaining further.

21.  The magistrate said the discrepancy as to how much money he owed PW1 was not material. She did not indicate how she dealt with his blatant lie in the witness box. She clearly felt it necessary to address how the appellant could have sustained injuries because she questioned PW1 on how they could have fallen to the ground together if the appellant was the aggressor with a weapon. He could not explain it so the magistrate said it was possible that he grabbed the appellant when he fell to explain why they rolled on the ground. This is speculation without evidence.

22.  Whilst I did not have the benefit of hearing and seeing the witness as the magistrate did, with respect, the magistrate did not address or explained away discrepancies that affected the credibility of the only witness, especially when there was a medical report which raised self defence.

23.  I shall deal with the issue of self defence. The appellant submits that he was acting in self defence. The magistrate considered the appellants medical report setting out his injuries and then speculated about how he possibly sustained those injuries.

24.  The appellants medical report was an exhibit; his injuries were not in dispute. Self defence was raised and the law relating to self defence is clear. There was evidence of self defence and it is therefore the prosecution’s duty to negative it. The prosecution has to prove beyond a reasonable doubt that the appellant did not act in self defence.

25.  The magistrate found that PW1’s evidence was credible and went on to reject the suggestion of self defence. However, in order to explain the appellant’s injuries, she speculated and inferred without any basis that he either sustained them when he fell to the ground or that they were sustained between the offence and arriving at the hospital. Even in that speculation she mistakenly took into account that he only sought treatment 3 hours after the event at 2:45am when the medical report indicates that he was seen by a doctor at 2:45am.

26.  It is not for the magistrate to speculate or consider possibilities or resolve the issue when self defence is raised. It is for the prosecution to prove beyond reasonable doubt that he was not acting in self defence.

27.  In my view, the medical report means that the appellant’s case was not inherently improbable. The appellant could well have been acting in self defence. He had multiple abrasions over not just the left side of his body but his chest, abdomen and head. There is nothing in the magistrate’s findings to indicate she considered the issue of self defence or the prosecution’s burden or the law relating to self defence.

28.  Therefore, the conviction is unsafe and unsatisfactory and I allow this appeal. I set aside the sentence.