HKSAR v. NWOSU, CHRISTOPER OKECHI

   HCMA103/2010

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   (Appellate Jurisdiction)

   MAGISTRACY APPEAL NO. 103 OF 2010

   (ON APPEAL FROM KCCC 2908 OF 2009)

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BETWEEN

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J U D G M E N T

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1.  On 4 January 2010 the appellant was convicted after trial of (1) doing an act tending and intended to prevent the course of of public justice and (2) assault occasioning actual bodily harm. He was sentenced to be imprisoned on the 1^st charge for 4 months and on the 2^nd charge a sentence of 2 months, consecutive to the 1^st charge, a total of 6 months.

2.  Initially he lodged notices of appeal against both conviction and sentence. He has abandoned his appeal against sentence.

3.  The appellant was one of two persons charged with the above offences. He was the 2^nd defendant in the trial. As to the 1^st charge, in summary the particulars alleged is that the appellant and his co-accused, on 23 May 2009, threatened one Eze Francis that they would kill him if he appeared at the court to give evidence at the trial of the appellant. As to the 2^nd charge a summary of the particulars alleged is that the appellant and his co-accused on the same day in Sham Shui Po assaulted the said Eze Francis thereby occasioning him actual bodily harm.

4.  The appellant and his co-accused were also charged with an offence of criminal damage. A summary of the particulars of that charge is to the effect that on the same day the appellant and his co-accused damaged intentionally a necklace and a mobile telephone belonging to the victim of the assault Eze Francis.

5.  The appellant pleaded not guilty to all charges and was represented by counsel. He was acquitted of the criminal damage charge but convicted of the other two.

6.  The prosecution case was that the victim Eze Francis was, like the appellant and his co-accused, a Nigerian male. I will refer to him as “PW1” as he was throughout the trial. PW1 came to Hong Kong in 2004. He came to know the appellant around 2007 as a consequence of the fact that the appellant was the boyfriend of a domestic helper employed by PW1. In February or March 2008 PW1 suspected that the appellant has stolen money from his premises. The prosecution case was that PW1 confronted the appellant with this allegation who then promised to pay the money back. This did not happen. In May 2009, over a year later PW1 met the appellant in the street and demanded the repayment of the money owed to him. There was no resolution of the matter and PW1 reported the theft to the police. As a consequence the appellant was arrested but released on police bail on the same day.

7.  The following day, which was 23 May, at about 3 p.m. PW1 was confronted by the appellant and his co-accused and asked why he had reported the matter to the police. PW1’s response to this was that if the appellant wished to know more about the matter he should contact the police directly. In the presence of the appellant his co-accused said to PW1 : “If you try to go to court, I will kill you.”

8.  PW1 tried to leave. The appellant held PW1 by the waist whilst his co-accused punched him on the right shoulder and the back of his head. PW1 took out his mobile telephone apparently intending to call the police. The appellant’s co-accused continued to punch PW1 as did the appellant who also kicked him in the side of his right leg. In the course of this the mobile telephone fell to the floor and was damaged. This was the substance of the 3^rd charge. PW1 managed to eventually escape and reported the matter to the police.

9.  The following day PW1 was treated at the Caritas Medical Centre. It was an admitted fact that the injuries sustained by him were sufficient to establish the elements of the offence of assault occasioning actual bodily harm.

10.  In the course of the cross-examination of PW1 it was put to him that he, having suspected that the appellant had taken money from him, decided to frame him up for the offences that he was charged with. Those allegations were denied by PW1.

11.  The appellant gave evidence. He told the magistrate that he had come to Hong Kong in 2007 and he was seeking refugee status. That application was still in the course of being processed at the time of trial.

12.  It was his evidence that he had known PW1 in Nigeria since approximately 2001. It was his evidence that on 22 May, that is the day before the alleged assault, he happened to meet PW1 in the street. With no apparent reason PW1 alleged that he owed him money. The appellant’s response to this assertion was that he simply laughed at PW1. Again for no apparent reason PW1 then called the police and the appellant was arrested and taken to the Sham Shui Po Police Station where he was charged with theft. He told the magistrate that after his release on police bail he went to the office of his co-accused in Sham Shui Po at about 3 p.m. He said that whilst he was walking in the street, in the direction of his co-accused’s office, police officers came from a vehicle and arrested him. It was the essence of his evidence that the assertions made by PW1 as to events of 23 May were a total fabrication. He denied that he had assaulted PW1 at anytime nor was he a party to the threats allegedly made by his co-accused.

13.  As it is apparent from the above, that this was a case which was to be determined entirely upon the credibility of PW1. The magistrate was acutely aware of this. He said :

“I found his evidence being clear and straightforward.  He gave a detailed account of the incident.  His evidence was not shaken in the cross-examination by the defence.  The injuries he sustained and the damages to his property were consistent with the course of the event as described by him.”

A little later in his reasons for verdict he said the following :

“I could see no reason why he had to fabricate the case against both defendants.  I found his evidence was coherent and consistent.  He told the court what had happened at the material time without any exaggeration nor any reservation.  I found him an honest and credible witness.”

14.  As to the evidence of the appellant the magistrate said this :

“… according to [the appellant], while he was walking along the street, PW1 suddenly pointed him out in front of the police and he was arrested.  He had done nothing at all.”

15.  The magistrate considered and rejected the evidence of the appellant. I consider that it was entirely appropriate for him to do so in the circumstances.

16.  Having accepted the evidence of PW1 and rejected the evidence of the appellant the magistrate then went on to consider whether the elements of the offences were established. It is apparent from his reasons for verdict that he had carefully addressed these matters.

17.  As to the 1^st charge, that is the charge of perverting the course of public justice he observed with reference to the unreported decision of HKSAR v Wong Ching Ying,HCMA474/2005 :

“… threatening witness not to give evidence in court amounted to doing an act tending and intended to pervert the course of public justice.”

Having accepted the evidence of PW1 he was satisfied that all of the elements of the offence were established.  Whilst he accepted the words of uttered were those of the co-accused he also accepted and in my opinion quite rightly, that the appellant and the co-accused were part of a joint enterprise.

18.  In respect of the 2^nd charge, he was satisfied that the injuries sustained by PW1 amounted to actual bodily harm. In my opinion he was right to do so.

19.  As to the criminal damage charge he acquitted the appellant but convicted his co-accused. He did so in the case of the appellant because he was not satisfied so as to be sure that the act of the co-accused which resulted in the damage to PW1’s mobile telephone were part of their joint enterprise.

20.  I have in the course of this morning considered the matters raised by the appellant in support of his appeal. These are contained in a hand-written one-page memo supplemented by oral reference to the magistrate’s Statement of Findings.

21.  Those matters raised by the appellant give me no cause for concern as to the integrity of these convictions. The magistrate was as I have said acutely aware that the prosecution case was entirely dependent upon the credibility and reliability of the evidence of PW1. There is no basis for interfering with these convictions. The appeal is dismissed.