HCMA595/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 595 OF 2010

(ON APPEAL FROM STCC 7219 OF 2009)

--------------------------

BETWEEN

--------------------------

------------------------

J U D G M E N T

------------------------

1.  The appellant was convicted after trial of one count of “assault occasioning actual bodily harm”[1]. He was put on probation for 24 months. He appealed against the conviction.

2.  The appellant and PW2 had a relationship which had ended sometime before this incident.  On 4/12/2009, at about 815 a.m., the appellant approached PW2 at the ground floor of her quarters to deliver breakfast.  At that time, PW2 was on board PW1’s car.  PW1 was a colleague of PW2.  PW1 was there to escort PW2 to work as the latter was scared of the conduct of the appellant.  PW1 stopped the appellant from approaching PW2.  He also summoned the University security.  The appellant tried to leave by the university shuttle bus.  There was a scuffle between them on the shuttle bus.  After they alighted the shuttle bus, PW1 took some photos of the appellant.  The latter gripped PW1’s neck and pushed him away.  The security guards were there and separated the two men.  PW1 had mild abrasion at the front part of his neck. 

3.  The appellant explained that he was just bringing breakfast to PW2 but was stopped by PW1.  He tried to leave by the shuttle bus but PW1 blocked him.  PW1 was holding a camera very close to him.  He just pushed PW1 away acting in self defence. 

4.  The magistrate found that PW1 and PW2 were reliable.  Their evidence was also consistent with that of the shuttle bus driver (“DW2”).  She also found that the injuries of PW1 were consistent with his evidence.  The magistrate rejected the appellant’s claim of self defence.  She found that the appellant’s explanation was inconsistent with the evidence of DW2 and the injuries on PW1.  She rejected the appellant’s defence and convicted him as charged. 

Paragraph 2 of the perfected grounds of appeal

5.  The appellant first argued that there was inconsistency between the evidence of DW2 and PW1.  The magistrate wrongly accepted PW1’s evidence. 

6.  It is necessary first to look at the evidence of DW2 before the alleged assault.  In gist, DW2 saw the appellant approached PW2 and tried to hand over breakfast.  PW2, who was on board PW1’s car, ignored him.  PW1 alighted from his car and approached the appellant.  PW1 put his hand on the appellant’s shoulder.  Both of them walked aside and chatted for about two minutes.  The appellant went up the shuttle bus.  PW1 followed and told DW2 not to start the shuttle bus and call the security.  The appellant tried to leave but was stopped by PW1.  They scuffled near the doorway of the shuttle bus.  PW1 tried to hold the appellant’s arms.  The appellant tried to push PW1 away.  After a European gentleman interfered, both of them alighted the shuttle bus.  They were separated from each other.  DW2 drove the shuttle bus away.[2]

7.  The appellant told the court that when PW1 indicated that PW2 did not want the breakfast, he tried to leave.  PW1 held his arms from behind, he tried to break free but unsuccessful.  At one stage, he loosened from PW1 and approached the shuttle bus.  PW1 kept chasing from behind and gripped his arm.  There was a scuffle at the staircase of the shuttle bus.  Later, he managed to board the shuttle bus.  PW1 asked DW2 to drive the shuttle bus to the security office.  After some struggle, he left the shuttle bus but PW1 pursued and held his forearm.  He flung loose PW1’s grip and the security arrived.  They were then separated.[3]

8.  According to the appellant, PW1 was trying to grip his arms several times while he tried to leave.  DW2 saw nothing of this sort.  DW2 only saw the two men talking for a while before the appellant boarded the shuttle bus.  This aspect was important as the appellant was trying to say that PW1 resorted to violence first.  PW1 held his arms and stopped him from leaving from the beginning of the incident.  The magistrate found that the appellant’s account differed sharply from DW2 in this aspect.  I agree with her observation. 

9.  The appellant pointed out that PW1 did not mention putting his hand on the appellant’s shoulder while DW2 saw this.  This inconsistency showed that both PW1 and DW2 might not give a full account of what had happened.  In my view, this inconsistency is minor.  DW2’s evidence actually supported PW1 that there was very little physical contact before the two men boarded the shuttle bus.  It was when the appellant tried to leave the shuttle bus that the scuffle escalated.  

10.  DW2 was an independent witness.  He did not know either PW1 or the appellant.  He had no interest to serve in the incident. There was nothing which indicated that he left out some details, deliberately or otherwise.  The magistrate was right to scrutinize the evidence of PW1 and the appellant against that of DW2. 

Paragraph 3 of the perfected grounds of appeal

11.  The appellant pointed out that since PW2 was looking down most of the time, she could not possibly see the assault.  The magistrate was wrong to rely on her evidence.  

12.  In her examination-in-chief, PW2 admitted looking down when PW1 got off the car to prevent the appellant from contacting her.  She was quite frightened and could not hear anything.  She tried to call the University security.  She saw PW1 and the appellant got on the shuttle bus. She looked down and tried to call the University security again.  She then saw PW1 and the appellant came off from the shuttle bus.  She then saw the appellant’s hand going up to PW1’s neck.  She was not sure if the security guards had arrived.  During cross-examination, she reiterated that she saw clearly that the appellant pushed PW1’s neck once.[4]  She even demonstrated, at the request of the magistrate, that the appellant was pushing with his thumb spread from the fingers and at the base of neck at the front.[5] 

13.  Obviously, PW2 was very frightened during the incident. However, she was adamant that she saw the assault and even demonstrated the act to the court.  I am sure the magistrate was aware of the mental state of PW2.  The magistrate had observed PW2’s demeanour while she was giving evidence.  The magistrate was competent to make the assessment on credibility.  I see no reason to doubt her findings. 

14.  The appellant alleged that the magistrate had taken over the role of the prosecution during the examination in chief of PW2.  I have carefully read through the relevant part of the transcript.  The magistrate did ask questions but they were no more than natural prompts for PW2 to continue.  There was nothing unfair in the circumstances. 

Paragraph 4 of the perfected grounds of appeal

15.  PW1 confirmed with PW2 that the appellant was the person stalking her before PW1 took action to stop the appellant.[6]  It is in this context that led to the scuffle and alleged assault.  In fact, the appellant admitted that he received a letter[7] from the solicitor of PW2 telling him to stop stalking her.  The magistrate must be fully aware of this background.  It was unjustified for the appellant to argue that he did nothing threatening.[8]  

Paragraphs 5 and 6 of the perfected grounds of appeal

16.  As to the self defence argument, the appellant pointed out that the magistrate failed to consider how PW1’s conduct on the shuttle bus would affect the appellant.  The appellant alleged that he was still in fear.  PW1 might attack him after the security guards arrived.  The magistrate held that from the beginning, and throughout, Chu (PW1) had made it clear that he was asking and trying to get the Appellant to go to the security office, or trying to delay him until the security officers had arrived.  By the time of the grab, the security van with the security officers had arrived and the security guard was next to the appellant.  Under those circumstances, the appellant could not possibly believe that Chu would hit or try to hit the appellant then. 

17.  Whether it was an honest belief must be assessed according to the circumstances.  In fact, DW2 confirmed that all along, PW1 only drag and grab the appellant, there was no actual hitting on the shuttle bus.[9]  When DW2 drove off, the two men had separated.  He saw the security van arriving.  There was no dispute that the security guards were there.  There was not the slightest indication that PW1 tried to approach the appellant again.  In my view, there was no imminent danger of attack for the appellant to defend.  I agree with the conclusion of the magistrate.  The appellant could not honestly believe he was in self defence when he pushed PW1 by the neck.  

18.  Given the above, the discussion on the overpowering physique of PW1 or the necessity to use the camera as a weapon was superfluous.  The circumstances indicated no immediate danger of violence from PW1.  Not to mention that PW1’s camera was nothing larger than a cigarette box.[10]  

Paragraph 7 of the perfected grounds of appeal

19.  The appellant argued that the magistrate erred in admitting the letter from the solicitor of PW2 (“the letter”) as evidence which was hearsay in nature.  The appellant was not able to discuss with defence counsel about it.  

20.  It is important first to ascertain the purpose of “the letter” as an exhibit.  In “the letter”, the appellant was told not to stalk PW2 including sending gifts and flowers.  This first came up during the cross-examination of the appellant.  He was asked whether he received “the letter” which he confirmed.[11]  He was then questioned why he continued to deliver breakfast despite “the letter”.  The appellant explained that in the past, when he quarreled with PW2, it would be patched up after he delivered breakfast to her.  The prosecution asked no questions about the content of “the letter”. 

21.  In “the letter”, there was a recital of some events leading up to the incident on 4/12/2009, the prosecution did not rely on the truth of the content to prove their case.  In fact, those events mentioned in “the letter” were irrelevant to the charge.  That was exactly the objection raised by the defence counsel during the trial.[12]  

22.  The only relevance arising from “the letter” was whether the appellant knew that PW2 did not want him to contact her in whatever way.  The appellant must be aware of it given that he had received “the letter”.  Nothing was asked about those past events.  The magistrate had not relied on any of those events in her statement of findings.  In my view, “the letter” was not used to prove the truth of those events, its admission as evidence would not infringe the hearsay rule. 

23.  The appellant further argued that the magistrate erred in refusing to consider two applications for review by the appellant’s letter dated 18/5/2010 and that of his solicitor dated 25/5/2010.  The magistrate refused the latter application on 31/5/2010 and the appellant filed his notice of appeal against conviction on 3/6/2010.  By that time, a review was impossible given that an appeal was underway[13].

24.  In passing, I note that the magistrate refused the application for a review by the appellant’s solicitor.  The refusal was by a letter dated 31/5/2010.[14]  This is procedurally incorrect given s. 104(4).  That subsection requires a magistrate to hold a hearing in open court before rejecting a review.  

25.  Whether the magistrate was right or wrong is no longer important.  Given this appeal, it is open to the appellant to argue that the content of the SMS messages renders the conviction unsafe. 

26.  The content of the SMS messages was never formally produced as additional evidence in this appeal.  It was only vaguely mentioned in the letter by the appellant dated 18/5/2010.  Those SMS messages were from 19/5/2009 to 6/8/2009.  Taking them to the highest, they showed some kind of relationship between the appellant and PW2 around that time.  They could not vitiate the fact that the relationship had come to an end and the demand in “the letter”.  I do not see any relevance of these SMS messages in relation to the present charge. 

Paragraph 8 of the perfected grounds of appeal

27.  Lastly, the appellant alleged that the magistrate was biased in the following aspects :

(a) The magistrate was biased in further questioning the appellant on the basis of “the letter”.  According to the transcript, the prosecution asked the appellant whether he had received a letter from the solicitor of PW2 telling him not to contact her.  The appellant confirmed.  The prosecution then indicated that they only had a copy of “the letter”.  The magistrate then pointed out that the original could be produced later.  Then the last question about this letter was why did the appellant deliver breakfast on 4/12/2010 despite the demand made in “the letter”.  Having considered this sequence of events, I detect no bias as alleged by the appellant against the magistrate. 

(b) As to the allegation of disruption by the magistrate, I have read through the relevant parts of the transcript.  In each of the parts of alleged disruption, the appellant was given sufficient latitude to develop his defence or answer questions.  There was no substance in these allegations. 

28.  Having considered the above, I reject all the grounds of appeal by the appellant.  The conviction is neither unsafe nor unsatisfactory.  I dismiss the appeal accordingly.