HKSAR v. CHAU WAI MAN

HCMA 662/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 662 OF 2008

(ON APPEAL FROM FLCC 1351/2008)

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J U D G M E N T

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1.  The Appellant was convicted after trial before Magistrate W. Lam of one charge of Assault Occasioning Actual Bodily Harm.  He was fined $8000 and ordered to pay $2000 compensation to the victim.  The Appellant had been charged originally with one count of Wounding, contrary to s.19 of the Offences Against the Person Ordinance, Cap 212, but the Magistrate was not satisfied that the evidence established that offence and convicted the Appellant of Assault Occasioning Actual Bodily Harm.  The Appellant appealed against conviction only.

2.  The basic facts of the prosecution case were not disputed.  The Appellant was formerly one of the superiors of PW1 in a real estate company in which all the participants in this incident worked.  Neither the Appellant, nor the witnesses, owned, or had shares in, the business.

3.  On the date of the incident PW1 and two colleagues began drinking in the EU Bar sometime between 5pm and 6pm.  PW1 had had a substantial amount to drink there – the three men consumed a minimum of a dozen bottles of beer up to about 6.45pm.  The trio then moved to the After Five Bar to join the Appellant and other colleagues, a group of about 6 in total.  The drinking continued, there was discussion of work-related matters and finger-guessing games were played, which resulted in the losers having to consume their drinks at speed.  Wine was available as well as beer.

4.  The evidence of DW1 and DW2 – colleagues of both PW1 and the Appellant – was that PW1 was affected badly by the length of time he had been drinking; the quantity he had consumed and his mixing of beer and wine.  PW1’s own evidence confirmed his insobriety.

5.  At around 10.35pm, allegedly consequent on what he referred to in his evidence as (unspecified) “rumours spread by bad people”, PW1 began swearing at and abusing the Appellant for real, or imagined, grievances relating to his work.  He then stood up and pushed the table over, so that glasses and bottles fell to the floor and those around it were splashed with drinks.

6.  The evidence of DW1 and DW2 was that PW1 fell to the floor amidst the broken glass, which could have caused injuries to his hands, or caused lacerations on his eyelid.  PW1 denied he had fallen, although his evidence was that he had little, or no memory of events.

7.  DW1 pulled PW1 outside the bar to prevent further trouble, but the Appellant followed and, allegedly, punched PW1 in the area of his right eye, causing bruising and, possibly, the 2 short lacerations on his right eyelid which later required 4 stitches.  DW1 said that he and PW1 had already reached the other side of the road by the time Appellant and DW2 emerged from the bar and that the Appellant had never punched PW1.

8.  DW2’s evidence was that when both PW1 and DW1 were outside, near the door of the bar, not far from him and the Appellant, PW1 had tried to rush towards the Appellant and he, DW2, had blocked him from doing so.  He told the Appellant to “just leave it” and walked with him to the car park.  He noticed that PW1 and DW1 were still near the door of the bar at that time.  PW1 left in a taxi to which he was shepherded by DW1.  He went to the hospital where lacerations on his right eyelid were sutured.  The Medical Report did not refer to any other injuries, although photographs taken at the hospital show the ring and little fingers of his right hand apparently bandaged.  PW1 could not explain why his fingers were bandaged.

9.  A report was made to the police by PW1 the next day.  The Appellant was arrested a week later but said nothing under caution.

Evaluation of Evidence by Magistrate

10.  The Magistrate found that the Appellant had a motive to be angry with PW1 – he had been sworn at and abused by PW1, despite assistance that the Appellant had given PW1 in the course of his work in the past – assistance that PW1 acknowledged in giving evidence.  However, he could see no motive for PW1 to frame the Appellant.

“I cannot see any possibility that PW1 could be framing the Defendant up regarding this incident.”[AB11/12 – para 5 (3)]

11.  He found that PW1 had been drunk, but not so drunk that he was unconscious, or did not know what he was doing.  PW1 insisted he had not fallen to the floor in the bar; nor had he banged his eye on any furniture or other hard object.  The Magistrate accepted that evidence, but did not explain why, given PW1’s poor recall of events, he could be so sure that PW1 knew what he was doing, or that he had not fallen onto the glass.

12.  The Magistrate considered the possibility that the Appellant had acted in self-defence, but as the Appellant said that he had never used force on PW1, he had not examined that aspect any further.

13.  Overall the Magistrate found that PW1 was frank, honest and reliable and considered that he gave his evidence in a straightforward manner without exaggeration [AB10 – para 4].

14.  However, the Magistrate was not satisfied that DW1 and DW2 had told him the whole truth and commented that they had had ample opportunity to discuss the case before trial.  He noted that unlike PW1, both were still in the same employment as the Appellant and, further, that DW1 was a co-equal of the Appellant in the office hierarchy.  It was not put to DW1 or DW2 that they had concocted their account of events to frame PW1.

Evidence of DW1

15.  DW1 gave evidence that when PW1 arrived at the After Five Bar he was drunk, crying and began swearing at the Appellant over work-related grievances.  When PW1 pushed the table over he fell to the floor probably coming into contact with glass fragments.  When PW1 stood up, DW1 noticed he was bleeding from ‘his head and his hands’.  DW1 dragged PW1 out of the bar, across the road to a ‘7-11’ store and stayed with him until he was taken by taxi to the hospital.

16.  DW1 said he was familiar from previous occasions with PW1’s drinking behaviour – when he was drunk his face went red and he began crying.  On that night his speech was slurred also.

17.  DW1 confirmed that the real estate office had changed its system of employment, so that all employees became self-employed.  The employees, with the exception of PW1, had not complained about the change.  The staff had signed forms consenting to the change of status on 27 April 2008, the day before the incident.  PW1 did not sign – he resigned on 29 April 2008.  It was not disputed that PW1 had attempted to withdraw his resignation almost immediately.  He was not permitted to do so.  This change of system was the basis for PW1’s abusing the Appellant.

Evidence of DW2

18.  The evidence of DW2 was in similar vein to that of DW1.  He considered from past experience that PW1 could not hold his liquor, although he enjoyed drinking.  He estimated that a minimum of 12 bottles of beer had been consumed by three of them at the EU Bar; that at the second bar red and white wine, as well as beer, was available; that PW1 had abused the Appellant vehemently, had overturned the table and had fallen on the debris.

19.  DW2 and the Appellant helped to right the table and went outside the bar where they saw PW1 and DW1 about 4-5 feet away.  At that point PW1 rushed towards the Appellant – DW2 stepped in to block him and he pulled the Appellant away, telling him to ignore PW1.  Both DW1 and DW2 denied seeing the Appellant punch PW1.

Grounds of Appeal

20.  The Appellant was represented by Mr C. Grounds who filed detailed Amended Perfected Grounds of Appeal.  In effect there was only one ground of appeal expressed in a variety of ways, that the Magistrate had failed to evaluate the evidence in a safe, proper or satisfactory manner.  The particulars are summarised below.

21.  The Magistrate:

(1)   erred in finding PW1 a reliable witness, when PW1, on his own evidence, was so affected by alcohol he had no clear memory of events;

(2)   failed to reconcile material discrepancies between PW1’s evidence and that of DW1 and DW2, as to the alleged fall by PW1 inside the bar and what occurred later outside the bar;

(3)   had not considered the ramifications of PW1’s admitted lie to the police about the quantity of alcohol he drank;

(4)   found PW1 to be unaffected by his change of employment status, when the evidence showed that he was angry and resentful as a result;

(5)   wrongly stopped defence counsel from making submissions on the connection between PW1’s injured fingers and his alleged fall inside the bar;

(6)   failed to recognise that PW1’s resentment about his change of employment status could have provided a motive for his framing the Appellant;

(7)   failed to deal fully with the issue of self-defence which had arisen from the evidence and misdirected himself on that matter.

22.  Counsel for the Appellant submitted that the Magistrate failed to evaluate properly, the evidence of PW1 the only prosecution eyewitness.  The Magistrate accepted PW1 as an accurate, honest and reliable witness who had no axe to grind, when, according to the defence evidence, PW1 was a crying drunk who had engaged in seriously loutish and violent behaviour; who on his own admission had lied to the police about his consumption of alcohol; who had a possible motive to frame the Appellant and whose answers to questions in court showed that he had no reliable memory of what he had done, or what had happened to him, because of his condition.

23.  On his own evidence PW1 had been drinking for about 5-6 hours before the alleged incident.  Although he admitted having ‘a slight verbal argument’ with the Appellant claiming he did not recall the reason for it, he had, unprovoked, begun a much more serious incident using foul language and scolding the Appellant.  PW1 agreed he pushed the table over, causing drinks to spill and smashing glasses and bottles, but claimed he had little or no memory of what happened.  He denied nonetheless that he had fallen over, or that the apparent injury to his fingers occurred as a result of the fall.  He admitted being ‘quite’ drunk and thus unable to tell whether the punch he claimed he received from the Appellant was light or forceful.  He could not remember what happened after the punch.

24.  When shown photos of himself taken after the incident, PW1 was unable to say why his fingers appeared to have been bandaged.  In cross-examination he had to agree that he was ‘very’ drunk and confirmed that he had lied to the police by saying he had had only half a glass of wine and was quite clear-headed.  He tried to explain the lie by saying that he didn’t think he was drunk – it was only the next day that he had recalled that ‘it should be the case that I was drunk’.  However, he made no effort to amend his statement, despite next morning having telephoned apologies for his drunken behaviour to all those present.

25.  Mr Tam, SSP, who appeared for the Respondent, submitted that as PW1 had admitted the lie, there was no discrepancy between what he said to the police and what he said in court.  However the lie was relevant in the context of his initial complaint, the police investigation of the incident and the subsequent charging of the Appellant; it had to be considered also in relation to the Magistrate’s acceptance of PW1 as a wholly credible witness.

26.  PW1 could not remember the quantity of alcohol consumed at the EU Bar, but did not dispute the 12 bottle minimum.  Nor could he recall if he had been drinking wine at the second bar.  When it was suggested he was lying sprawled with his head on the table at one point, he agreed with defence counsel that he was “just taking a rest” between drinks.

27.  Initially PW1 said he did not fall inside the bar, but then agreed with defence counsel that he thought that his colleagues had noticed bleeding from his fingers after the fall – almost immediately thereafter he denied having fallen, or that the floor was slippery from the spilled drinks.

28.  PW1 claimed he was on good terms with the Appellant who had given him a job and helped him in his work.  He said he had not resented his change of employment status.  He agreed that he had resigned from the firm and almost immediately had asked to be reinstated, but had not been.  His cryptic explanation for the incident was, “I think, it was because some very bad people were doing a lot of bullshit and complicating the matter”.  He did not elucidate further.

29.  I accept that the Magistrate had the advantage that this court did not, of having seen and heard the witnesses.  Nevertheless his assessment of PW1 as ‘frank, honest and reliable’ is very surprising given the content of his evidence and the manner in which he gave it.  Plainly PW1 did not, as the Magistrate stated, “testify in a straightforward manner without exaggeration”.  His memory of events was sketchy, changeable and inconsistent.  Nor, as the Magistrate found, did he remain firm on the point that he had not fallen, or that the Appellant attacked him with his right fist.  He remembered very little of events inside or outside the bar.  If he had been punched as he claimed, it is inherently improbable that he would be unable to comment on the degree of force used.

30.  The evidence did not bear out the accuracy of the Magistrate’s finding that DW1 lacked a possible motive to frame the Appellant.  The Magistrate treated PW1’s recognition of the Appellant’s help at work and his telephoned apologies next day as showing his honesty.  He did not consider the possibility that PW1’s uncorrected lie about his alcohol consumption, could have had a bearing on whether police preferred a charge against the Appellant, or that it reflected poorly on PW1’s credibility.  Nor did the Magistrate acknowledge that PW1’s grievance about his change of employment status, which was the apparent basis for his aggressive, abusive behaviour, could have provided a possible motive for his framing the Appellant.

31.  The Magistrate drew the inference that the Appellant was furious because of PW1’s behaviour and that was why he punched him [AB para 6].  In doing so he would have been relying, in part at least, on the evidence of the defence witnesses, because there was no such evidence from PW1.  He did not accept that DW1 and DW2 had told him the whole truth about the incident [AB para 3].  His reason for not believing them was that they and the Appellant still worked together and, because DW1 was of equal rank with the Appellant.  The Magistrate considered that they had had a lengthy time in which to coordinate their evidence.  It was implicit in his finding that DW1 and DW2 had colluded to give false evidence.

32.  The Magistrate did not go further to examine why, given the time and the opportunity they had had to synchronise their evidence, there were inconsistencies and differences in the accounts of DW1 and DW2 about what had happened inside and outside the bar.  If the Magistrate’s suspicions about collusion were correct, one might have expected a better-tailored account to have been presented in court.  As it was, the evidence of DW1 and DW2 contained the type of discrepancies one would expect from honest witnesses to confused, fast-paced events.

33.  In considering the causation of PW1’s injuries the Magistrate, despite his saying otherwise, relied in part on the evidence of DW1 and DW2 about PW1 after he pushed the table over.  He accepted that glass fragments could have caused some of the blood on PW1 “although even DW2 did not see any injury on PW1 after his fall” [AB11 para 8].  This suggested that there was no evidence about PW1’s possible injuries inside the bar.

34.  However, DW1 [AB46 P-Q] had stated that PW1 fell to the floor and he helped him up.  At that point he saw glass fragments on his own and on PW1’s body.  He saw that PW1 was “bleeding from his head and hands”.  He pulled him up and despite PW1’s resistance, took him out of the bar.

35.  PW1 admitted, eventually, that he had hurt his hand [AB37 M-W], but could not recall how he received the injury or why his fingers appeared to have been bandaged.  The Magistrate had advised defence counsel during his closing submission, that he was unable to link the suggested injury to the fingers to this incident, because the only injury that PW1 admitted was that to his eye.

36.  When the Magistrate set out his findings it appears he had overlooked DW1’s evidence about seeing blood on PW1’s head and hands.  Defence counsel had referred to it in his closing address, but the Magistrate neither referred to it, nor tried to reconcile the different accounts.  He merely repeated the evidence of DW2 that he hadn’t seen any injury.  He ignored, or forgot, DW1’s evidence which showed there was a real possibility that PW1 could have sustained his injuries during a fall in the bar.

Self Defence

37.  The Magistrate examined what was said to have occurred outside the bar and considered whether self defence applied:

“I have thought about the possibility of self defence, but the defendant does not rely on this doctrine because the defence case is that the defendant had never used any force on PW1.” [AB11 para 7]

38.  Leaving aside the denial by DW1 and DW2 of the alleged assault on PW1, their evidence that PW1 rushed towards the Appellant and had to be restrained, raised the possibility that any assault by the Appellant could have been a proportionate and justified response to PW1’s behaviour.  The Magistrate misdirected himself in saying he need not consider it because it had not been relied on by the defence.

39.  Having accepted that the defence witnesses’ accounts of what happened outside the bar provided at least prima facie evidence of self-defence, it was necessary for the prosecution to prove beyond reasonable doubt that the Appellant had not acted in self-defence.

40.  The Appellant did not have to wait until he was struck by PW1 before defending himself; nor did he have to retreat before any threatened attack.  His defensive response had to be proportional to the attack or the threat.  In the rather chaotic run of events described as occurring after PW1’s abusive outburst in the bar, a pre-emptive punch by the Appellant could have been a justified response given the drunken, angry and aggressive state of PW1.

41.  By excluding the plea because it had not been raised by the Appellant, the Magistrate deprived the Appellant of a possible avenue to an acquittal.

Conclusion

42.  Mr Tam SPP for the Respondent, referred to HKSAR v So Pui Wah HCMA 1106/2005, where Deputy High Court Judge Line in considering the difficulties inherent in cases where the evidence amounts to starkly conflicting accounts commented: -

“At the centre of this case, as in so many other summary trials, was an issue in very short compass, which in effect amounted to assertion and counter assertion. ... It is not possible in circumstances like that to dissect and take apart the evidence given by the defendant.  However there can have been no doubt that this Appellant left the court knowing why he had lost the case, which was because the magistrate believed PW1. …”

“The magistrate who saw and heard the witness came to the clear conclusion that he [a police officer] had not [made up his evidence], that he was telling the truth.  No sufficient material point taken before me makes me have any doubt about that finding.  Once that finding was made it meant that the evidence of the defendant had to be rejected, because the two could not live together.”

43.  There is no doubt that such cases present the judge or magistrate with difficulties when required to explain their reasons for accepting one account rather than the other.  However as the judge remarked “It is important that an Appellant leaves the court knowing why he lost the case which was because the magistrate believed PW1 …”

44.  In the instant case the Appellant is unlikely to have understood why the Magistrate accepted the evidence of PW1, given its manifest inadequacies.  It is not sufficient to state that discrepancies exist and then purport to resolve them without some indication of how or why that was done.  It is important that the outline of any such evaluation process be apparent and that it sensibly manifests itself in the eventual findings.

45.  Overall, having considered the matters raised on behalf of the Appellant I am of the view that the Magistrate did not consider adequately:-

(a) that PW1 was hardly a reliable or credible witness given his drunken state, his poor memory of events and given the lie he told the police;

(b) discrepancies in the evidence about whether PW1 fell on the floor inside the bar and if so whether his injuries could have resulted from that fall;

(c) that it was possible that PW1 had a motive to frame the Appellant;

(d) the evidence of DW1 and DW2 was not necessarily collusive;

(e) the issue of self-defence.

46.  In the light of those matters I cannot be sure that this is a safe conviction.  Accordingly I allow the appeal and quash the conviction and sentence.