RAYMOND CHEN v. HKSAR

FACC No. 1 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2010 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 606 OF 2009)

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Mr Justice Bokhary PJ and Mr Justice Chan PJ:

1.  We agree with Mr Justice Litton NPJ that this appeal must be allowed.  The passages in his judgment which detail the conduct of the proceedings in the courts below amply justify the conclusion which he reaches.  Leave to appeal was granted on two points of law.  Both are made out.  First, the magistrate’s inquiry into whether the accused had given the police an account consistent with his testimony ran counter to the right to silence and the burden of proof.  As Mr Justice Mortimer NPJ (speaking for the Court) said in Lee Fuk Hing v. HKSAR (2004) 7 HKCFAR 600 at p.622D-E :

“There is a right to silence. And in consequence of this right, suspected persons in Hong Kong should be – and routinely are – given a caution informing them in unqualified terms that they need not speak. In the whole of these circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.”

Secondly, the way in which the High Court judge dealt with credibility on the transcript went beyond what is permissible in an appeal by way of rehearing on the papers.  That left the error at trial uncorrected on intermediate appeal, thus necessitating a final appeal.  Where the facts are concerned in an appeal by way of rehearing on the papers, it is to be remembered that, as Mr Justice Bokhary PJ (with whom the other members of the Court agreed) said in Chou Shih Bin v. HKSAR (2005) 8 HKCFAR 70 at p.78E-F, “the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first‑hand”.

2.  One more thing should be said.  Naturally the magistrate was anxious to avoid any wasting of time.  Unfortunately the interventions from the bench at trial were neither apt to clarify matters nor to move the case along.  But let there be no misunderstanding on the matter.  It is not only within the power of trial courts but is their duty to take firm steps, including sometimes the setting of time-limits, to put a stop to time‑wasting whether by persons representing themselves, by solicitors or by counsel.  Of course trial courts would not set time-limits until after tolerating some irrelevance, long‑windedness, repetition, circumlocution and the like.  But there comes a time when such things – which are after all no part of what fair trials require – must be stopped.  What is involved is not the judges or magistrates’ own time.  It is the time of courts of justice serving the public.  Time-wasting at a criminal trial is particularly to be deprecated.  It delays the day in court of other defendants, who are presumed innocent, waiting for their cases to come on for trial.  Some of them will be in custody and will eventually be acquitted.  So such time-wasting strikes a heavy blow at liberty.

3.  Trial courts will sometimes have to be firm.  An appellate court should and will give a trial court due credit for having the “feel” of the case and accord due respect to its exercise of discretion in such matters.  It may be that trial courts will occasionally get these things wholly wrong and have to be corrected.  So be it.  On the whole, the delivery of justice will be better by far in a resolute anti‑time‑wasting judicial culture.

Mr Justice Ribeiro PJ :

4.  I agree with the judgments of Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Litton NPJ.

Mr Justice Litton NPJ :

Introduction

5.  This is a case where two men had a brief encounter at a gymnasium in Wanchai, resulting in one of them being charged and convicted by a magistrate of common assault and fined $1,000.  The only witness called by the prosecution was the other person.

6.  An appeal to this Court in such circumstances is unusual.  Normally any irregularity or injustice at trial is dealt with by the High Court exercising its appellate function under s.113 of the Magistrates Ordinance, Cap. 227. 

7.  The matter comes to this Court by leave, the Appeal Committee having certified two questions which raise points of great and general importance, namely:

(1)  Is it appropriate for a trial court to launch an inquiry into whether or not an accused person had made an out-of-court statement helpful to him?

(2)  Whether the appeal judge was right in his view that there exists what he called “modern jurisprudence” pursuant to which credibility can be dealt with on the transcript in the way he did?

8.  To put these two questions into context, a review of the trial process is necessary.

The Prosecution Case

9.  The trial took place before Deputy Magistrate Mr Winston Leung in June 2009.  The prosecution called only one witness, a Mr Tang Chun-him, aged 32, whose evidence-in-chief was to this effect: He was at the California Fitness Club in Wanchai on 9 March 2009, at about 6.15pm, when he saw a friend, a Mr Ma, on the exercise floor, and so walked towards him.  The room was crowded with exercise equipment, leaving a free passageway of about 3 to 3½ feet wide.  He then saw the defendant coming towards him carrying a “sixty pound barbell”.  He “turned to the side” to let him pass.  The defendant suddenly “attacked” him with the barbell by thrusting the front end of the barbell at him, making impact on his inner right forearm.  This gave a jolt and “kind of hurt” to his shoulder.  He asked the defendant why he had hit him; the defendant made no reply but adopted an “aggressive stance”, holding the barbell as if he wanted to “attack again”. His friend Mr Ma intervened; the defendant scolded Mr Ma, saying it was none of his business and then tried to attack Mr Ma “[with] the same motion – thrusting forward.”  An angry altercation ensued.  The management was alerted.  The police arrived.  The parties went to Wanchai Police Station and were then taken to hospital where they were soon discharged.

10.  That, in essence, was the totality of the prosecution case.  No medical evidence was adduced.  Mr Ma was not called as a witness.

The Inherent Probabilities

11.  The so-called “sixty pound barbell” was a long heavy and awkward piece of equipment.  It was about 40” (about 3½ feet) long[1] consisting of an iron bar with 60 lb weights at each end[2].  The total weight was therefore well over 120 lbs.  Plainly, the only way such a piece of equipment could be brought from one end of the exercise room to the other end, along the passageway bound on both sides by equipment, was to carry it sideways: That is to say, not across the body.  The free passageway was only about 3 to 3½ feet wide.  (Neither the prosecutor nor the magistrate appear to have appreciated the fact that the barbell the defendant was carrying was not comparable to a stick or a ruler, as the narrative below will show).

12.  Anyone who regularly used the gymnasium, such as Mr Tang[3], would as a matter of common courtesy, have stepped aside, away from the passageway, when he saw another member coming down, carrying a heavy barbell[4].

13.  Presumably, the barbell would have to be carried with both hands.

14.  To have intentionally pushed it at someone standing on the side of the passageway, so as to make impact on the forearm, would have required the 40-inch long barbell to be manoeuvred partially sideways, risking impact against the equipment on the other side.[5]

15.  Assuming an intention to hurt, to have chosen to use such a piece of equipment for that purpose is very odd: It left the assailant totally vulnerable to retaliation, with both hands holding that heavy and awkward piece of equipment.

The Defence Case at Trial

16.  The defendant was acting in person at the trial.  The transcript shows that the magistrate intervened repeatedly in the course of the defendant’s cross-examination of the witness Mr Tang.  Counsel for the respondent, at the hearing before us, submitted that those interventions were aimed at eliciting the defendant’s case. The transcript on the contrary shows that his attempts to develop his case by questioning the witness were baulked by those interventions, as will be demonstrated later.  In essence his case was this:

(1)  At 6.15pm that evening he was anxious to complete his exercise routine and get to his yoga class at 6.45pm.[6]

(2)  He was carrying the barbell, intending to go to the other end of the room to exercise.[7]

(3)  Someone walked past him and then the rear end of the barbell “got stuck”[8]; looking back he saw Mr Tang in a “Bruce Lee” stance, kicking towards him and yelling why he, the defendant, had hit him with the barbell.  Mr Tang demanded an apology which he gave, but Mr Tang’s friend Mr Ma then intervened swearing at him.  Mr Ma became very aggressive and swung a kick at him, which hit his knee, causing a searing pain.  Temper rose all round.  The manager came to the scene.  He, the defendant, insisted on the police being called.[9]

(4)  Later on, at Wanchai Police Station, the police tried to have the matter settled by mediation, but he refused.  He also insisted on laying charges against Mr Ma.[10]

(5)  Common courtesy among Club members required someone, seeing a member coming down the passageway with a heavy barbell, to step aside.  There was plenty of room for Mr Tang to do that.[11] He did not do so because he had recognized the defendant and was there to pick a fight.[12]

(6)  Mr Tang was picking a fight with the defendant because of the animosity generated by an incident at the Club back in August 2004.  The defendant had accused Mr Tang and his clique of fellow body-builders (including Mr Ma) of using steroids.[13]

(7)  It was possible that the rear end of the barbell had hit Mr Tang as he walked past; Mr Tang, who had training in martial arts[14], became aggressive at that, but he (the defendant) had apologised; things were beginning to calm down until Mr Ma intervened.[15]

(8)  Mr Tang’s version of events was “ludicrous”[16] and “absurd”[17]; it was not possible to thrust a heavy barbell in the way Mr Tang described; a medieval long sword weighed only 6 pounds and that was not easy to handle.[18]

17.  Pausing here and viewing the two versions of event objectively, the defendant’s version was not inherently improbable.  His suspicion that Mr Tang wanted to pick a fight had some foundation in fact: The equipment lining the passageway was not so closely packed that a person, intending to yield space to another coming down the passageway, carrying a heavy barbell, could not have retreated so as to leave the way free.  At the hearing before us, counsel for the respondent very properly accepted this to be the case.

18.  Unfortunately the magistrate never approached the matter in this objective way, giving due consideration to the inherent probabilities.

The Trial: Its Beginning

19.  The trial got off to a bad start.  The defendant wanted a list of the documents in the possession of the prosecution: The magistrate thought he was being “difficult”[19].

20.  As mentioned earlier, the only witness called by the prosecution was Mr Tang.  In-chief, he was asked to demonstrate how the defendant had allegedly attacked him.  The transcript (p.7) reads:

“COURT: And then when he walked next to you, he used – you demonstrate he used the barbell to assault you.

A. Yes, to attack me.

COURT: Is it just – you used just like a stick to do this way” (emphasis added).

21.  Not even a 60-pound barbell, let alone one more than twice that weight, is sensibly to be compared with a stick.

22.  The witness was then given a ruler to demonstration how the defendant “rammed” the barbell into his right forearm.  This compounded the absurdity.

23.  The defendant began his cross-examination of the witness by adverting to the August 2004 incident.  This was soon stopped by the magistrate who said he was not investigating the 2004 incident but the March 2009 event.

The “60-pound barbell”

24.  After the defendant had, through cross-examination, established the fact that the “60-pound barbell” was in fact a piece of equipment weighing well over 120lbs[20] he tried to develop the point that it was an awkward thing to carry around in the gym: But was soon stopped by the magistrate who said:

“COURT: ….. this is not a gym exercise. We are talking about common assault” (Transcript p.18J)

After another question seeking to establish the point that a person carrying a heavy barbell was “less agile” than one not so burdened, and before any answer had been given, he was stopped again by the magistrate who asked him to state his defence.

25.  The consequence of the magistrate’s intervention was that the defendant was prevented at that point from putting forward a case based on the inherent improbability of the barbell being used as a weapon in the manner and circumstance alleged.

26.  Later in the cross-examination, the defendant attempted to return to the same point.  He tried to suggest to the witness that the barbell was in fact longer than the width of the passageway between the equipment: The story of his using the barbell to thrust deliberately at the witness was inherently untrue; the other end of the barbell would have hit the equipment on the other side.  He was stopped by the magistrate.  The relevant passage of the transcript (p.32 G-J) reads:

“Q. Around that area. [There] the pathway is almost three and four feet apart, and the length of the barbell was longer than that, and I was able to thrust like that, without hitting the …..

COURT: Yes, he said yes.  I do not believe – whether I do not believe him or not, that is the question.  He said – he’s just said so”

27.  Here, again, the magistrate gave the appearance of having in effect accepted Mr Tang’s version of events; consideration of the inherent probabilities or improbabilities of the situation was being treated as pure distraction.

Why Did Mr Tang Not Step Aside

28.  And when the defendant sought to establish that there was plenty of space between the equipment for Mr Tang to back away completely from the passageway, the magistrate again intervened and said:

COURT: I think his evidence is clear.  He gave way for you to pass.  He noticed you.  He gave way for you to pass.”

Transcript p. 22N

29.  This remark suggests again that the magistrate had already made up his mind: Mr Tang’s version of events was unimpeachable: The defendant was simply wasting the court’s time.  And when the defendant persisted with another question the magistrate again intervened:

COURT: But what did you expect him to do?  He had already said that he gave way for you to pass, but we do not know what’s happened there unless I know what is your intention. He said, “I gave way”.  Whether enough or not, we do not know, but what more do you want him to do?  He said that – well, that in his evidence.  “I gave way for you to pass.”

Transcript p.22 P-S

The “ramming” Theory

30.  But the defendant persevered with putting his case by questioning the witness.  When he tried to suggest the inherent unlikelihood of the barbell being “rammed” in Mr Tang’s direction without Mr Tang raising his arm – the impact, according to Mr Tang, was on his forearm – the magistrate again intervened:

“COURT: Oh, I see. You are saying that you rammed the barbell at him, he should have avoided that by doing – by raising his arm. So, if he sees, it’s his fault by not avoiding your action”.

Transcript p. 23 J

31.  This was an improper remark.

The fault was compounded by his then saying to the defendant:

“COURT: You may be agile. You maybe alert, but it may not happen to some other person. We are talking about your actions…..”

32.  And when the defendant said to the magistrate: “I was talking about the absurdity of his story”  the magistrate replied:

“ What absurdity was there?”

Transcript p. 23S

33.  When the defendant tried to explain that it was common courtesy in the gym for someone to yield free passage to a member hindered by a heavy barbell, the magistrate stopped him in mid-sentence:

“COURT: Now, unless we know – unless we know what you did, there is no – there would not be any absurdity. We do know what you did. He has already told me what you did, but you are putting your case to show absurdity, but we do not know what you did. Unless we know what you did, then we know the absurdity.” (Emphasis added).

Transcript p. 24 A-C

34.  Whilst the defendant was not, at all times, clear and coherent in his statements, his case was reasonably straight-forward: He was at the Club that evening finishing off his exercises in time to go to his yoga class; he wanted no confrontation with anyone; he could have accidentally hit Mr Tang with the rear disc of his barbell; given Mr Tang’s aggressive reaction (the shouting and the “Bruce Lee” kick) and the fact that Mr Tang could easily have stood well clear of the passageway, it was likely that Mr Tang was standing there deliberately to pick a fight; the history of their previous encounter made that probable; it was he (the defendant) who had refused Police mediation, hence Mr Tang was constrained to come to Court to testify and to grossly misrepresent the facts.

35.  Assuming that it was possible to “ram” the front end of the barbell against Mr Tang’s forearm in the way he described, the question must still be asked: Why would the defendant do that?  He had told the Court, unchallenged, that after the August 2004 incident he had avoided the Club for some years because he did not want to encounter Mr Tang and his clique there.  It would seem a very odd occurrence that the defendant would suddenly “ram” the barbell against a fellow club member.  This doubt did not seem to have troubled the magistrate.

Irregularity

36.  The defendant testified in his own defence.  It will be recalled that the prosecution case never relied upon any out-of-court statement made by the defendant.  Fairly late in the day, after the prosecutor had finished his cross-examination, the magistrate intervened.  He asked about the statements the defendant had made to the police and the following facts emerged:

(1)  The defendant was arrested for common assault at 7.30pm that evening (9 March 2009) and the police told him he was not obliged to say anything.  He said “I have nothing to say”.

(2)  At 10.40am on 23 March 2009 the defendant made a statement when, after caution, in answer to the question “did you hit male Tang Chun-him on the right arm intentionally with a 60-kilogramme dumbbell around 1820 hours on 9 March 2009?” he replied “I will not answer”.  But in response to the question “how did Tang Chun-him attack you?” he gave an answer along the lines of his testimony in court.  He also said that Ma Ming-tak kicked him with the side of his right foot.

(3)  At 2.15pm on 23 March 2009 he gave a statement elaborating on his allegations against Ma Ming-tak.

(4)  On 20 April 2009 he made a further statement which repeated what he had previously said.

37.  At the conclusion of the defendant’s evidence, and after he closed his case, the magistrate said he wanted “to put everything on the table” and continued:

“ Mr Chen, listen to me. That’s why I called for your defence because this is a person -- one person against the other. With two persons have a grudge with each other, so if you disclose your defence at the first opportunity, I would give you benefit of doubt, right now, that’s why I called for the document to see, but on the first opportunity you refused to say anything. That’s I have to continue to consider this case.

Well, don’t argue with me, but I tell -- because of the special situation of this case, if you disclose your defence at the first opportunity, I will -- I would dismiss the charge against you right now, but I didn’t see any. So, I have to continue to -- I have to continue to consider about the prosecution case.

DEFENDANT: But, your Honour, May I make a submission?

COURT: Let’s check the documents [meaning the police statements].

DEFENDANT: But, I submit that I did -- all my statements were made on 23 March. That I confirm, but the only thing is, I seem to remember I made three statements.

COURT: But 23 March is too late.

DEFENDANT:   The police asked me because at the time -- take a look at the timing of the medical report because before we can do -- say anything, we were taken to a hospital, and the police they -- themselves, they told me…

COURT: No, this is only just an additional benefit I want to given you, but you  -- if this situation does not assist, I still have to consider the prosecution case, because that -- it is their duty to prove beyond reasonable doubt.  But if you can -- if I can find some benefit on your behalf, then I will give that benefit to you, but I couldn’t find at this stage.  Just to check your -- check the documents.

DEFENDANT: I remember clearly, I did not make any statements on 9 March.”  Transcript p.50-51

38.  What the magistrate said, in effect, was this: To have maintained his right of silence on 9 March was a point against him; disclosing his case to the police on 23 March was “too late”; if this was not enough to have him convicted, it was at least enough to stop the court dismissing the prosecution case there and then.

39.  In his reasons for verdict the magistrate said this:

“….. I offer the defendant an option that if he could show me he had given his defence of accident at his first opportunity, I am prepared to give him a ‘generous’ benefit of the doubt forthwith. In the end, the defendant agrees that he could not. In this context, I should point out that the defendant has a right to silence and would not be penalised for exercising this right. This special benefit of doubt is now not given to him simply because the basis for it does not exist.”

40.  It is not clear what the magistrate meant by “a special benefit of the doubt”.  Plainly, the defendant’s failure to disclose his case “at the first opportunity” was taken by the magistrate as evidence against him: Despite the express terms of the caution that he was not obliged to say anything.

41.  This was a material irregularity which does not appear to have troubled the Judge, Line J, in entertaining the defendant’s appeal.

42.  There never was any suggestion at the trial that the defendant had made a “mixed” statement: That is to say, a statement containing admissions against interest and exculpatory assertions.  The law is clear.  A wholly exculpatory statement is not evidence of any fact asserted: Reg v. Aziz [1996] 1 AC 41 at 51G.

43.  It was therefore wholly inappropriate for the magistrate to launch an inquiry into whether the defendant had made an out-of-court statement helpful to him.  But here the situation was worse than that.  Having ascertained that the defendant did make a wholly exculpatory statement on 23 March 2009 the magistrate held that that was “too late”; the “special benefit of the doubt” was no longer available; in effect his tardiness weighed in the scales against him.  The answer to the first question in §7 above must necessarily be No.

Verdict and Sentence

44.  In considering his verdict the magistrate did not consider the inherent probabilities.  He simply matched Mr Tang as a witness against the defendant.  Full stop.  He said that the defendant, in his cross-examination and in testifying, “rarely touched on the incident for which he was charged”.[21]   This was not so: As far as the cross-examination is concerned, the defendant’s attempts to develop his case were frequently baulked by the magistrate’s own interventions, as the paragraphs above (§24-33) demonstrate.

45.  The magistrate, at p. 59 J-K of the transcript said:

“I find accident a powerful and credible defence. At trial, the defendant never says it was an accident. He does not even admit there was a bump of his barbell against Mr Tang, expressly.”

It is difficult to understand what he meant.  Unfortunately, the magistrate never properly applied his mind to the defence, which was simply this: Given the narrowness of the passageway and the nature of the object he was carrying he might have accidentally bumped the rear disc of the barbell against Mr Tang.  Full stop.  If this was reasonably possible that was the end of the prosecution case.  There was never any suggestion that there were two bumps.

46.  In his concluding remarks (p.61-B transcript) the magistrate said:

“I found Mr Tang an honest and truthful witness, unlike the defendant. He has not got any vindictiveness in him”.

Impliedly this was a finding of “vindictiveness” against the defendant.  Where the magistrate discovered the evidence to support this finding is impossible to say: Unless it is in the August 2004 incident: There, the defendant had said that he had accused Mr Tang and his clique of using steroids, which was the cause of the grudge against him.  If this constituted reliable evidence, it showed Mr Tang’s “vindictiveness” towards him, not the other way round.

47.  In sentencing the defendant the magistrate said (p.61 O-R transcript):

“COURT: All right, now on your -- on these words you are sorry for everything. I will let you off by way of a fine. I hope you just control -- have a better control of yourself. I’m not sure whether – who is using the steroid, but you have decided – I am not an expert – but you have to decide of using the steroid, not Mr Tang, but I may be wrong, but don’t argue with me. But you seem -- you have to control your emotion. I will let you off this time by way of a fine. But for a violence offence, this is a very rare sentence.

48.  The reference to steroids was wholly unjustified.   But it is symptomatic of the tone of the whole trial.

The Appeal

49.  Line J disposed of the defendant’s appeal summarily.  His judgment dealt with only two points raised by the defendant’s counsel: (1) whether there was an irregularity when the magistrate himself “raised the enquiry” concerning the statements made by the defendant to the police, and (2) whether the magistrate in saying “I find accident a powerful and credible defence” had concluded in reality that the “bump” was an accident, or might have been an accident: And in convicting the defendant he had, in effect, reversed the burden of proof.

50.  The Judge rejected both points.

51.  Curiously, at§12 of his judgment Line J went on to say:

“Suppose I was wrong in the judgments I have made so far, what would the result be?”

The answer surely is: The appeal must be allowed; the conviction quashed.

The appellant’s main complaint, as identified by the Judge, was that the magistrate had, in effect, reversed the burden of proof: Or, in the graphic words of the Judge, looked at the case through “distorted lens”.  This would have been a material irregularity if established.  So, if the Judge were “wrong” in rejecting the submission, then that ground of appeal succeeded.  Full stop.

The Second Question of Law

52.  But the Judge took a most unusual course.  He said (§14):

“This is a rehearing. The modern jurisprudence now has become established that this court looks at the material that the ordinance directs should be before it and makes such order as is just….”

53.  The Judge then, as it were, shed his appellate gown, took on a fact finding role, looked at all the evidence as appeared in the transcript and in effect re-convicted the defendant: solely on the basis of the transcript.  This is simply impermissible. 

54.  And, perhaps worse still, he committed some of the mistakes made by the magistrate himself. At the forefront was this.  He said (§16) there was “tension” between the “two barrels” of the defence case namely that Mr Tang was “seeking to pick a fight” and “the bumping being unintentional and accidental”.  He, like the magistrate, failed to see that all that the defendant was saying (or trying to say) was this: “Look.  Mr Tang saw me coming, carrying that heavy barbell.  He could easily have got out of my way.  I might have bumped him with the rear disc of the barbell.  His violent reaction to that accidental bump, and the fact that he did not get out of the way, suggest he was picking a fight”.

Assuming that the defendant was wrong in his perception; that Mr Tang was not picking a fight: Then he was wrong.  That in no way destroyed his defence.  If, possibly, that one bump was accidental, he was entitled to be acquitted.

Conclusion

55.  An appeal against conviction under s. 113 of the Magistrates Ordinance Cap. 227 gives a judge entertaining the appeal considerable latitude to correct injustice: That is to say, injustice to the defendant.  Section 118(1)(b) gives scope for additional evidence to be received by the judge: Needless to say, in support of the appellant’s case.

56.  What “modern jurisprudence” justified the extraordinary course taken by Line J on this appeal is difficult to imagine.

57.  The answer to the second question posed in §7 above is No.

58.  At the hearing on 22 November 2010 the Court allowed the appeal and quashed the conviction. These constitute the reasons for that order.  The sentence must be discharged. The fine, if paid, must be repaid.

59.  The defendant was in person at trial and on legal aid here and in the High Court.  There will therefore be no order as the costs.

Sir Anthony Mason NPJ :

60.  I agree with the joint judgment of Mr Justice Bokhary PJ and Mr Justice Chan PJ.

Mr Justice Bokhary PJ :

61.  The Court unanimously allows the appeal, quashes the conviction, sets aside the fine, orders its repayment if it has already been paid and makes no order as to costs.