HKSAR v. PANG SHEUNG HO

CACC 293/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 293 OF 2008

(ON APPEAL FROM DCCC NO. 1221 of 2007)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background and facts

1.  On 1 August 2008, the applicant was convicted after trial before Deputy District Judge Glass on a charge of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212. 

2.  The applicant now seeks leave to appeal against conviction.

3.  The facts appeared to disclose a robbery which was initially the sole charge preferred by the prosecution.  The judge, however, was not satisfied that an intention permanently to deprive had been made out and the charge sheet was amended during the trial to include the charge of wounding.  This allegation was based on more or less the same evidence as the robbery but had previously been treated as part and parcel of the robbery.

4.  The facts can be taken quite briefly.  A French girl (PW1), aged 21, was a visitor to Hong Kong.  She went to the Temple of Ten Thousand Buddhas in Shatin on 25 June 2007 as a tourist where, as it so happened, the applicant was also present showing two people from Singapore around.  The judge, in a convenient synopsis given at the time of sentencing of what he had found proved against the applicant, stated:

“… I cannot … ignore the fact, Defendant, that you followed PW1, who was a young girl aged around 21, onto a train and you had then later, after you had both got off the train, managed to persuade her to let you accompany her to Bride’s Pool which she was visiting for the first time as a foreigner visiting Hong Kong. You had then, when you were deep into the forested area alone with her, momentarily quarrelled about the camera as you wanted to use it, and then without any warning, suddenly and violently began attacking her by punching her head with your fists, causing her serious bleeding and scalp laceration which later required suturing, and also left periorbital bruising. The photographs of PW1 show a very nasty black eye with the eye partially closed.

28. In the struggle that ensued, you had forcibly taken her digital camera from her by breaking the strap that held it to her arm, and when she was able to get free of you, she had had to run shoeless down a slope to hide from you. When she later emerged from her hiding place, she came across you again and once again she had to run and hide. In the incident, she had dropped her handbag and lost her watch and bracelet, but I accept that you did not take these.

29. PW1 described your behaviour during the trial as if you had nearly killed her, and I believe that it must have been a very traumatic and terrifying experience for her, exacerbated by the fact that whilst hiding, it also became quite dark and she was left alone in that forested area, knowing that you were around and that you might attack her again if you were able. It was only at 7.45 pm that evening that the police were able to eventually find PW1. You were also later found at about 8.33 pm on a hillside by the police, not too far away.” [Emphasis added]

5.  On arrest for robbery at 8.35 pm, the applicant stated, in an answer which was accepted as having been given voluntarily: “Ah Sir, how is the girl now?”  However, it was disputed by the applicant that he had gone on to say, as reported by the police: “Sorry, I was just greedy at the moment.”

6.  PW1 remained in hospital for three days before she discharged herself.  She was found to have sustained left periorbital bruising and a laceration over the left side of the forehead which was sutured.  There were several other areas of injury to PW1’s body which are clearly shown in the photographs.

7.  On 4 July 2007, PW1 identified the applicant at a formal identification parade.  Identification was not an issue at trial and, following the parade, the applicant stated that they had taken photographs of each other on PW1’s camera.  He went on to say:

“At that time, I never thought of taking her camera.  It was when we walked to the scene of crime, I snatched her camera only because I lost my reason at the moment.  For the whole incident, I did not premeditate.”

Defence case

8.  The applicant testified in his defence.  He described how he had first noticed PW1 speaking in French on her telephone while showing his friends around at the temple.  Eventually, he parted company from his friends and went to Shatin Railway Station where he again noticed PW1.  He spoke to her for a moment and noticed that she was unsure about which train to take.  When he saw her get into a train, he decided to follow her instead of going home.  When PW1 got off the train at Tai Po Market Station, the applicant again followed.  He said that as he knew she was a French-speaker, he wanted to talk to her so that he could practise his French.  They spoke again at the station wall-map.  When he asked PW1 where she was going, she said in English “to Bride’s Pool” and she indicated she was looking for the 275 bus terminal.  The applicant asked if she would agree to him going with her and she did so.

9.  They then travelled on the 275 bus for a time until the applicant realized it was the wrong bus.  PW1 confirmed that this was so with the driver.  They got off and travelled the rest of the way by taxi.  They then talked as they walked to Bride’s Pool and photographs were being taken including those taken by the applicant of PW1 and there were photographs of them both which were taken by one of them holding the camera out in front of them.  At one point they rested and then, when they continued, they reached the place where the alleged offence took place.  In the judge’s summary, the applicant’s version was as follows:

“… At this time, the defendant said he was following PW1 and they were silent and they arrived at the place of the incident. He said there was no argument between himself and PW1 before they got to this spot.

116.   The defendant said he could not recall what had happened at this stage, but said he did have a struggle with PW1 which was something like the pushing of each other and he remembered he had once pushed PW1 back. He said in this respect that when he called the police, he had recalled that they had both fallen down something like a slope. He did not know where the struggle took place. He also could not recall how he had fallen down the slope and he could not recall if he had fallen together with PW1 or whilst he was alone.

117.   The defendant also said that PW1 had referred to being hit on the head and side of the skull, but he could not recall that happening. He also said in this respect that as he was a good sportsman and as he had learnt martial arts before, he knew how to make a person unconscious and he therefore believed he would not have used his fists to strike PW1’s head in the manner she said. He also believed that if he had punched her as many times as she said, he would with his strength have rendered her unconscious.

118.   The defendant also said that he had a memory of picking up a camera and a water bottle from the ground, but he did not care about the condition of the camera when he did so. He could not remember where he had picked the camera and bottle up even though he knew they were picked up from the ground. He also did not recall if the bottle had any water in it.

……

121.   The defendant also said that after the pushing and picking-up of the camera and bottle, he was not sure what he had done as he did not have a continuous memory. The next thing he recalled was that he was climbing up a mountain and holding onto a large rock to stabilise himself. It was at this stage that he realised he had PW1’s camera in his hand and he remembered at that moment about the pushing that had taken place. He also said that because he was very nervous at that stage, he had made two telephone calls.

122.   The defendant confirmed also that he wore glasses which he needed for short-sightedness. He only knew later that they had found his broken glasses and he therefore presumed that he had been wearing them at the time of the incident.

123.   The defendant further said that he had telephoned his mother first and told her he had taken a camera away from someone and that he had no idea where he was and that he would probably go to prison. He did so because he recalled at that moment his having struggled with PW1, he had a feeling that he had taken the camera from her and because he felt they had both fallen down the slope together. He also felt that he would probably go to prison soon for what he had done.

124.   He recalled that his mother’s reaction to this call was that she was very worried, but he had forgotten what she said. He did, however, remember that she thought he was in Yuen Long but he did not know why. He then telephoned his girlfriend and told her almost the same, but he had told her also that he was probably somewhere around Bride’s Pool.

125.   He recalled that he had made these telephone calls whilst holding onto the rock to stabilise himself and thereafter he had released his hand and fallen down the slope for about 5 to 6 metres. He knew at that time that the slope was full of rocks and trees and he believed that that was how he had sustained his injuries. After he had fallen, the police had called him on his mobile telephone and they asked his name and his location and what had happened, and he told them that he had taken a camera away from a girl and both of them had fallen down a slope. He had also asked the police to save him because he did not know where he was. He believed at that stage that he was still able to walk.

126.   He said he did not know why he had asked the police to save him as he did not want to move from where he was. He had therefore sat on the ground and waited for the police. At the time, he felt nervous, tired and a little painful from his leg, and he did not want to stand up. He also said that thereafter there was another telephone call from his girlfriend who asked him to stay where he was. She also asked him if he wanted her to find a lawyer and he asked her to do so.”

10.  It was some considerable time later that the applicant was located.  The camera belonging to PW1 was still in his possession in a heavily damaged state.  The applicant denied making the remark about being “greedy” when he took PW1’s camera which he had been recorded as having said.  His reply, he said, was merely to enquire after the girl.  He was then taken to hospital. 

11.  The applicant accepted as true the account he had given after the identification parade about having snatched PW1’s camera because he had “lost his reason”.

12.  In essence, the applicant, a University of Hong Kong student aged 25 at the time of sentencing, of impeccable previous good character, raised a psychiatric defence saying that he could not recall more than having had a struggle with PW1 and picking up her camera and her water bottle from the ground.  He was unable to recall hitting PW1.

13.  In support of what the applicant had said about his inability to recollect what had happened, Dr Ronald Y L Chen was called on the applicant’s behalf to testify as an expert in psychiatry.  Dr Chen found that the applicant had no known mental disorder but he expressed the opinion that the applicant had suffered from “adjustment disorder with mixed anxiety and depressed mood” brought on by stress between the months of January and June 2007.  Dr Chen said that it was possible the applicant had developed a “dissociative state” which might have caused him to become violent or resort to other odd types of behaviour.  If the applicant was in this state, Dr Chen said that the applicant would be unaware of what he was doing because he would have had no conscious intention to perform such acts.

Grounds of appeal

14.  The judge’s rejection of the applicant’s evidence about having suffered from stress and from amnesia and Dr Chen’s assessment of the applicant’s mental condition, led to the 1^st and 2^nd grounds of appeal in which the applicant complained that the judge did not deal properly with the evidence contained in the psychiatric report submitted on his behalf by Dr Chen and in two other reports obtained at the judge’s request from two visiting psychiatrists at the Siu Lam Psychiatric Centre.

15.  Firstly, in regard to the two reports from Siu Lam, these were obtained for the purposes of sentencing and were not part of the evidence at trial so that the judge obviously could not have taken these into account.  A query raised by the applicant as to whether the judge ought to have ordered the production of such reports at an earlier stage in the proceedings is not a point which assisted the applicant as we are a little surprised to find that the prosecution did not themselves seek to rebut the defence case by using the material subsequently supplied by the two visiting psychiatrists.  In any event, it is plain from their contents that neither of those reports would have assisted the applicant’s defence. 

16.  When dealing with Dr Chen’s testimony, the judge pointed out that Dr Chen had accepted the possibility that the applicant had been dishonest with him and had only pretended to forget everything in relation to the subject-matter of the charge against him.  The judge also noted that Dr Chen’s assessment was based upon two meetings with the applicant, on 20 and 23 June 2008, respectively, a year after the incident and about a week before the trial.  This is no criticism of the defence as a whole and we are sure it was not intended as such by the judge, so that while the applicant’s point in these proceedings, to the effect that it had taken a long time for his family to raise the necessary funds to obtain Dr Chen’s services, is entirely accepted, it nevertheless remains the fact that Dr Chen only came into the picture a very long time after the events in question.

17.  The judge analysed the evidence given by Dr Chen at great length.  The applicant’s main criticism of the judge’s assessment of Dr Chen’s evidence is that the judge “made up the existence of a quarrel between the applicant and PW1” as a reason or as some kind of justification for the applicant’s attack on PW1 when neither he nor PW1 had “agreed on [the] existence of [a] quarrel [over] the use of the camera”.

18.  We have had to examine closely whether the judge effectively found a motive for the undoubted attack by the applicant on PW1 by speculating as to a reason for the attack.

19.  Looking at the evidence of PW1, it is clear that she twice used the word “quarrel” when she was being cross-examined.  This occurred, as the judge explained it in his Reasons for Verdict, in these terms:

“59.   Defence counsel put to PW1 that she had spoken in her evidence of how the defendant snatched her camera about the time she was taking photographs of the waterfall. PW1, however, answered, ‘No. It was later when we were quarrelling and when he was hitting me.’ But when she was asked what they were quarrelling about, she said that she did not mean ‘a quarrel’ but meant that the defendant was hitting her. She was also asked by defence counsel whether the defendant had snatched her Guess watch and her sunglasses, and she said, ‘No, I must have lost them whilst we quarrelled as when I got down the hill, I no longer had them.’” [Emphasis added]

20.  The judge went on to explain why he did not accept PW1’s explanation in regard to her use of the word ‘quarrel’.  He said this:

“60.   I found that I did not accept PW1’s explanation for her using the word ‘quarrel’ when I took into account that she was giving evidence in her own native language with a French interpreter present. I therefore believed that there had been a quarrel which for some reason she was not explaining to the court in her evidence, and I believed that this had arisen before the attack upon her and not during the attack. I found there was no evidence of sexual approach and PW1 confirmed that the defendant had not been with her on the ground during the assault. I also found from the evidence that only the camera had been taken by [the defendant]. I therefore believed that the quarrel related to the camera that she was using to take photographs with, and I found from her evidence she had to some extent turned her back on the defendant at the waterfalls to do so.” [Emphasis added]

21.  It is apparent that the judge placed considerable reliance on there having been a ‘quarrel’ in the true sense between PW1 and the applicant as he used his theory to support his later conclusion that neither the applicant nor Dr Chen’s evidence were to be accepted.  Referring to Dr Chen as DW2, the judge said:

“196. I found that DW2 did not know there had been a dispute over the camera before the attack, but he had unknowingly used the robbery scenario and the scenario of how the defendant could have disposed of the camera, if he had stolen it, as one of his material criterion.

197.   I found that DW2 used in his assessment the fact that it was uncommon for people in such an emotional state to appropriate items belonging to another out of a greedy state as they were usually preoccupied with their own thoughts. I found that DW2 did not know that the centre of the defendant’s thoughts had been to use the camera at that time and a quarrel had begun over its use. DW2 had therefore attributed the wrong reason to why the defendant had wanted the camera at that moment. This, I found, was a material difference and I found it was not a case of the defendant being preoccupied with something else but it was a case of the defendant being preoccupied with using the camera.” [Emphasis added]

22.  This conclusion arose from what PW1 had described in evidence had been happening immediately before she was attacked.  The judge had described this as follows:

“37.   I accepted PW1’s evidence that at this time she wanted to take a photograph of the waterfalls and that the defendant had come up and stood beside her on her right while she was taking the photographs. Suddenly, she felt a blow to her head and when she recovered from the shock of the blow, she was hit again. She initially thought that some stones were hitting her due to what she had noticed of the surrounding area. Then she saw that it was the defendant punching her and he continued to do so on her face, near her eye and also on the side of her skull. She thought he hit her for a total of about 10 times in the same areas even though she had tried to move around. I found that in this time, PW1 had fallen to the ground.”

23.  Later, in his overall conclusions drawn from the evidence, the judge said:

“224.   I found from all the evidence that the only inference that I could draw from the proven facts after rejecting the defendant’s evidence and DW2’s evidence of disassociation and amnesia - and this was irresistible - was that there had been a short quarrel and it had been over the camera. I found the main proven facts that led me to draw this irresistible inference were:

(a) Only the camera had been taken in the incident whilst none of the other valuables were taken, including PW1’s telephone and money.

(b) My finding that PW1 and the defendant had been reviewing photographs on the digital camera after each photograph was taken.

(c) The defendant was a photographic champion who, I found, was good at taking photographs. I found in this respect that the defendant believed at the time that he was better at taking photographs than PW1. 

(d) PW1 had at that time immediately before the attack turned from the defendant and she had continued taking photographs of the waterfall. She, had I found, in essence turned her back on the defendant at that time.

(e) I found that there had to be a catalyst for the defendant’s reaction as PW1 and he were on good terms before the attack and they had both behaved sensibly towards each other. The defendant was also doing what he liked to do most in that he was practising his French and getting to know PW1, in whom I found he had a keen interest. I also found the discussions at the time before the attack were all positive and did not touch upon the defendant’s upcoming examination result which I found the defendant believed at the time he had a good chance of passing.

(f)  The defendant had no known mental condition at the time of the attack.

(g) PW1 did not appreciate that the short quarrel was the catalyst for the defendant’s sudden and violent reaction to her. 

(h) PW1 had made mention of a quarrel twice in her evidence.

(i)  I rejected the defendant’s evidence that there had been no quarrel.” [Emphasis added]

24.  The judge continued, shortly afterwards, by saying:

“227.   I found that the defendant had taken the camera from PW1 and picked it up from the ground out of anger after he had got it from PW1 simply because he wanted his way. I believed that shortly thereafter, he had put the camera in his bag. I further believed that he did not intend to permanently deprive PW1 of the camera as I found he had not tried at any time to dispose of or hide it from the police.” [Emphasis added]

25.  A little later, the judge said:

“230.   I found that PW1 only guessed that the defendant had wanted to take the camera permanently because she knew that there had been a short quarrel before the attack about the use of the camera and she found it was missing after the incident. 

231. I found that PW1 had never appreciated that the defendant would react so quickly in the way he had done so in the incident out of loss of temper and that he would take the camera in order to simply justify his want to use the camera at that time.” [Emphasis added]

26.  After this, the judge stated:

“235.   The defendant had said under caution to PW2, ‘Sorry, I was greedy at the moment’ after he had been arrested for robbery of the camera. It was clear at that time the main focus of this admission was on the camera in view of the arrest and as the defendant had the camera with him. I therefore believed that the defendant was referring to this camera when he said those words. I found however that this could be evidence of either a deliberate taking of PW1’s camera for greed, either before the attack or during the attack or even after the attack when he found it on the ground, or it could have also had a possible meaning relating to him wanting the camera at the moment of the argument to use.

236.   These words were, I found, not explained in evidence as the defendant denied that he had said them and I found therefore that the words standing alone did not explain clearly what the defendant meant. I found therefore that I could not give much weight to them.

237.   I also noted that after the identification parade, the defendant had voluntarily said in the interview:

‘At that time, I never thought of taking her camera. It was when we walked to the scene that I snatched her camera only because I lost my reason at that moment. For the whole incident, I did not premeditate.’

238.   I found that this explanation fitted in with my findings that there was a lack of intention to rob PW1 and that there had been a short quarrel over the camera wherein the defendant had lost his temper and had tried to snatch the camera because he wanted to use it. I found this also supported my finding from all the evidence that theft was not in the defendant’s mind at the time of the offence and that robbery was not the motive for the attack.” [Emphasis added]

27.  Finally, in arriving at his conclusion that the applicant had known what he was doing at the time of his attack on PW1, the judge said:

“251.   I found in conclusion from the evidence that I could accept that the defendant had been under a degree of stress before the examinations had been completed, but I found that this had been alleviated after the examinations had finished for the reasons I have given. I also found that the defendant had quarrelled with PW1 over the use of the camera and this had prompted his sudden loss of temper and reaction which was unknown in his character to both DW1 and DW2. He had in that loss of temper repeatedly struck PW1 on the head, causing the injuries in the medical report, in particular the breaking of the skin that required suturing.

252.   I found that the defendant knew when he attacked PW1 that what he was doing was malicious and unlawful and he knew and foresaw that PW1 would suffer personal injury thereby. I further found he had taken the camera out of wish to use it at the time and not intending to permanently deprive her of it.” [Emphasis added]

28.  There were many sound and sensible reasons why Dr Chen’s report might have been rejected by the judge.  It was a wholly unconvincing report which was the judge’s understandable conclusion for reasons in addition to those to which we have referred.  However, in an effort to rationalize the applicant’s attack on PW1, with whom, until the moment he attacked her, there had been no obvious animosity, it seems, with respect, that the judge drew an inference that there had been some kind of argument between them when there was no evidence of any kind to support it.  PW1’s evidence was not so much a description of a quarrel preceding the attack but a reference to the attack itself as a ‘quarrel’.

29.  This lay at the root of the case as, although it was never once referred to in the Reasons for Verdict, the applicant’s case was, in technical language, that he had acted as an automaton when he struck PW1.  However, the judge rejected the applicant’s account for a reason which it was not open to him to do as there had been no direct evidence of any argument or quarrel between PW1 and the applicant or any evidence from which an inference could properly be drawn which might well have provided a sensible and rational explanation for the applicant’s attack on PW1.

30.  This was a material irregularity at trial and for that reason we shall give leave.  Treating the hearing as the appeal, we allow the appeal and quash the applicant’s conviction.