HKSAR v. HUI CHI MING

CACC 132/2022, [2024] HKCA 518

On appeal from [2022] HKDC 847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 132 OF 2022

(ON APPEAL FROM DCCC NO 704 OF 2021)

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REASONS FOR JUDGMENT

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Hon M Poon JA (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant, HUI Chi-ming (who was D2 at trial) and CHAN Ming-leong (“D1”) faced a number of charges before Deputy Judge Peter Hui (“the judge”) in the District Court.  After trial, the applicant was convicted of one charge of “Common assault” (Charge 1) and one charge of “Criminal Damage” (Charge 3).  He was acquitted of Charges 4 and 6, “Assault occasioning actual bodily harm” and “Common assault” respectively. By the Form XI dated 5 September 2022, the applicant sought leave to appeal his convictions.

2.  Direction was given by the Single Judge, Macrae VP, for the leave application to be heard at the same time as the hearing of the appeal by the Court of Appeal.

3.  On the day before the hearing of the application, we were informed by a letter of the applicant seeking to be excused from attending the hearing, and confirming that Mr Alan Tang had instructions to conduct the appeal in the absence of the applicant.

4.  Under section 83U of the Criminal Procedure Ordinance, Cap 221, the right of an appellant to be present at the hearing of an application for leave to appeal and an appeal is expressed as an “entitlement” and the court can order otherwise where it considers it necessary in the interests of justice or public order or security to do so.

5.  Mr Tang informed us at the hearing that his legal team learned that the applicant would ask to be excused as early as 28 February 2024. There was absolutely no reason why we should only be informed of this matter, by letter from the applicant, the day before the hearing.  Nonetheless, after hearing submissions from both parties, we adopted a practical approach to the matter, whilst recognizing that there would be instances where there are more compelling reasons to secure an applicant’s attendance.  We acknowledged that the present case was not one of those instances and counsel had received full instructions to proceed.

6.  At the hearing of the application, we refused leave and dismissed the appeal against conviction.  These are the reasons for our decision.

Prosecution case

7.  This case arose from a neighbourhood dispute at Tai Long Wan Tsuen, Shek Pik, Lantau Island.  There had been ongoing animosity between Mr Alexander Robert Medd (“PW1”) and the applicant before the present incident happened on 29 March 2020.  PW1 testified that while he was sitting in his lawn with his son (“PW2”), the applicant, D1 and DW2 (the applicant’s former personal assistant) walked along the footpath outside and took a video of his place with their mobile telephones.  PW1 got up, walked towards them, using his mobile telephone to video-record their actions.  At that juncture, both the applicant and D1 picked up stones, and the applicant gestured as if to throw the stone in PW1’s direction.  PW1 felt apprehensive and threatened by their actions.  (Charge 1 and Charge 2 – Common assault).  The filming of the video ended abruptly as there was a scuffle and PW1’s mobile telephone dropped to the ground.  The video on PW1’s telephone was later handed to the police and produced as “Video 1” in the trial.

8.  At that point PW2 started filming the situation on his telephone^[1] (“Video 2”).  A scuffle between D1, the applicant and PW1 ensued and they all fell onto the lawn, breaking one of the fences.  PW1 sustained multiple injuries (Charge 4 – AOABH).  D1 assaulted PW1’s head with a stone several times and PW1 sustained multiple injuries (Charge 5 – Wounding with intent).  After the applicant got back on his feet he stepped back onto the footpath, held up PW1’s mobile telephone and smashed it down onto the ground, causing it to hit the concrete footpath and bounce onto PW1’s lawn (Charge 3 – Criminal damage).

9.  PW2 intervened and picked up PW1’s damaged mobile telephone from the ground.  The applicant approached PW2 in a threatening manner, and knocked the telephone from PW2’s left hand (Charge 6 – Common assault). Videos 1 and 2 partially captured the events of Charges 1, 2, 3 and 5.  Charges 4 and 6 were not captured on any video.

10.  When the police arrived, PW1 was bleeding on his head and the applicant also complained of pain on his shoulder.  They were both sent to North Lantau Hospital for treatment.  The applicant was arrested there by PC19581 (“PW4”) for the offence of “Criminal damage”, to which he responded: “He took photos/videos of me without my consent so I pushed aside his phone.”  PW4 made a post-record of the applicant’s reply under caution in his police notebook (Exhibit P11)^[2]. 

11.  PW1 sustained multiple injuries to his head, upper back and right leg, and the wounds to his head were sutured. ^[3]

Defence case

12.  D1 elected not to testify but called two witnesses (Mr Philip Wong, from an engineering consultancy company, as DW1; and Mr Wong To, the applicant’s former personal assistant, as DW2).  They were called as common defence witnesses for D1 and the applicant.  The applicant himself testified and called one character witness (Dr Tsoi Wing Sin, as DW3).

13.  The defence of D1 and the applicant was that they only reacted in the way they did because PW1, who had all along been unhappy about the applicant’s construction project in the neighbourhood, acted aggressively towards them.  The applicant claimed that he was acting in self-defence.

14.  The applicant testified that he was inspecting his metal gate and drainage when PW1 approached them at quick pace and gestured for them to leave in an unfriendly manner.  He said that PW1 was recording a video with one hand and waving a garden pitchfork at them with the other in a threatening manner.  He and D1 picked up the rocks for self-protection.  The applicant denied lunging at PW1 or snatching PW1’s telephone; he only fended it off when it got too close to his head.  He said that PW1 grabbed hold of him, spun him round, pulled him across the fence and damaged it.  D1 hit PW1 with a stone in order to protect him.  The applicant denied smashing the mobile telephone of PW1.

15.  The applicant explained that the reason he made no mention of the garden pitchfork to the police was because he was advised by his lawyer not to say anything until his legal team arrived.  He made the reply under caution not being aware that he had already been arrested for criminal damage^[4].

16.  DW1, the director of an engineering consultancy company, had represented the applicant to liaise with the villagers including PW1 in respect of the construction project before this incident.  He testified of a meeting with PW1 about 5 days after this incident.  He claimed to have been shown a longer version of a video taken by PW2 which depicted the earlier occasion of PW1 walking towards D1 and the applicant aggressively but these were not depicted in Video 2.  It was alleged that Video 2 was an edited, incomplete version of the incident.

17.  DW2, the former personal assistant to the applicant who had since been dismissed, was also at the scene when the incident occurred.  He testified that PW1 was the “initial aggressor”, who scolded them loudly in English, and held his mobile telephone in one hand and a “fork-like object” in the other.  He was looking away during the physical altercation between PW1 and the applicant.  When he turned around, the applicant was already pinned onto the ground by PW1.  He said that he did not see the applicant grab PW1’s mobile telephone or throw it on the ground^[5].  He noticed PW2 come over and video-record.  The applicant handed PW1’s mobile telephone to PW2 but PW2 refused to take it.

Grounds of appeal and submission

18.  Although a total of six grounds were advanced, they can be broadly summarized, as Mr Tang did when advancing his oral submissions, as follows:

(1)  In respect of Charge 1, it was complained that the judge failed to take sufficient account of all the evidence in favour of the applicant which included his positive good character, and erred in finding that PW1 never used a pitchfork against the applicant.  The judge should have accepted the applicant’s claim that PW1 was the initial aggressor and the applicant was acting in self-defence;

(2)  In respect of Charge 3, the judge erred in not alerting the defence to the fact that he would rely on P8(12)-(14) and Video 2 in finding against the applicant, thus depriving him of an opportunity to make submissions on that matter.

Respondent’s reply

19.  The respondent, represented by Mr Raymond Cheng and Mr Lucas Lai, opposed the applicant’s leave application.  It was submitted that the defence contention that PW1 was the initial aggressor was not supported by the contents of the video footage. The judge’s reasons for rejecting the defence contention of PW1 waving a pitchfork at them and that he was acting in self-defence were cogently set out in detail in §92 of the “Reasons for Verdict”.  The judge had taken sufficient account of the positive good character of the applicant.

20.  There was ample evidence to support Charge 3. Apart from the objective evidence in Video 2, the judge relied on the screen captures, the damage to PW1’s telephone and the applicant’s own admission.  The complaint that the judge failed to analyze the credibility of PW1 and PW2 simply could not stand.

Discussion

21.  In respect of Charge 1, Mr Tang’s contention was based primarily on the applicant’s claim that PW1 waved a pitchfork, a dangerous weapon, at them.  Mr Tang argued that in finding against that claim, the judge had not sufficiently considered the following factors:

(1)  the prior construction dispute between PW1 and the applicant;

(2)  the panting sound of PW1 as evidenced in Video 1 showing that he was agitated;

(3)  the booming voice of PW1 taunting the applicant and the language barrier between them;

(4)  how PW1 was acting throughout the incident;

(5)  PW1’s body build, which indicated that he outweighed the applicant and was stronger.

22.  Further, it was submitted that “the spiteful and vindictive attitude” of PW1 against the applicant as evidenced by his exchanges with the Department of Justice pressing for the case to be tried in the District Court instead of the Magistrates’ Court^[6] lent support to the applicant’s contention that PW1 was the initial aggressor.

23.  Mr Tang referred us to the photographs, which depicted a pitchfork leaning against a broken fence[7].  At the hearing, we posed the question to Mr Tang whether the applicant’s claim of self- defence would fall away completely if the judge was correct in his findings that at no time did PW1 wave a pitchfork at the applicant. Mr Tang conceded the point but stressed that the judge’s findings erred in two aspects: (1) that insufficient weight was placed on the applicant’s impeccable and positive good character; and (2) one of the judge’s reasons for rejecting the applicant’s claim of self-defence was erroneously based on the failure of the applicant to mention to the police that PW1 waved the pitchfork at him, which infringed his right of silence.

24.  The judge’s analysis was as follows[8]:

“(1) The pitchfork is a garden tool. It being left in the garden is nothing odd.

(2) DW1’s evidence contradicts the defence case for he did not see PW1 holding a fork at any time on the video.

(3) If PW1 was holding such a deadly weapon, waving it up and down and sideways intended to threaten the three men, I would have thought in normal course of event PW1’s movement would not be slight, his body would move along with the momentum. However I do not see any matching vibration of the camera on the video.

(4) Simply looking at the three photos (A) to (D) of P8A, apart from D2’s reaction in photo A, both D1 and DW2 seem undisturbed and not a bit worried. Their calmness in my view do not fit into the situation of having someone threatening them with a deadly weapon like a madman.

(5) Neither D1 nor D2 nor DW2 complained or even mentioned to the police about being threatened by PW1.^[9]”

25.  We agreed with the above analysis.  Having watched the videos, we found that the calmness of the applicant’s reaction shown at the time when PW1 was alleged to have waved a pitchfork at them was wholly inconsistent with someone who was threatened with a potentially deadly weapon.  Furthermore, we noted that DW2’s evidence was that he looked away during the physical altercation. In our view, this was simply inconsistent with someone whose boss or associates were being threatened with a dangerous weapon such as a pitchfork.

26.  In his reasons for verdict, the judge referred extensively to the applicant’s background, that he was a 58-year-old businessman with a clear record, who had received doctorate degrees in Mainland China and Russia; and that he was a director of many companies, some of which were listed companies.  He was awarded a Gold Bauhinia Star and appointed a Justice of Peace.  His achievements were set out in two letters submitted by Dr Tsoi Wing Sin (DW3) and Dr Tai Tak Fung^[10]. DW3 was called as his character witnesses.  The judge gave himself a Berrada direction[11]. It could not be said that he had taken insufficient account of the applicant’s good character.

27.  Mr Tang relied on the case of HKSAR v Kotecha, Krishna Rajesh [12], to advance his argument that where “a defendant has adduced abundant evidence to prove his unblemished or exemplary character and the propensity of his committing the offence is put before the court as a central issue”, a court should give more consideration to the issue.  However, that case concerned an allegation of indecent assault in an aircraft full of passengers and crew, and the character evidence adduced covered not only the general and professional conduct of the appellant, but also his attitude and behaviour towards young women as observed by people around him in the past.  Mr Tang submitted that the applicant was well-mannered and pointed out that the character witnesses described of the applicant as being “cultivated, polite and caring”[13].  We watched Video 2 and listened in particular to what the applicant said just before he lifted his hand to throw PW1’s mobile telephone onto the ground.  We agree with the judge that he used the most vulgar swearwords.  This was a case that the totality of the evidence outweighed the applicant’s previous good character.

28.  The applicant waived his right of silence after he was cautioned for the offence of criminal damage despite his alleged advice by his lawyer.  As a matter of common sense, had a dangerous weapon been used by PW1 in the way the applicant described, the question arises as to why none of the applicant’s team made any mention of that fact to the police at the scene, or made an independent complaint to the police.  The failure to mention it went to the applicant’s credibility and was a fact that the judge was entitled to take into account in considering whether that allegation had any substance. As stated in Lee Fuk Hing v HKSAR [14]:

“57. …if an accused person makes a statement to the police (under caution or otherwise) which is inconsistent with his defence which can be fairly criticized on other grounds it is open to the prosecution to cross examine and comment upon that statement and its relevance to the defence. The judge may also invite the jury to draw relevant and fair inferences even if they are adverse to the accused.”

29.  In the present case, the applicant was asked during examination-in-chief why he did not mention the pitchfork being waved by PW1 to the police that afternoon.  It was suggested during cross-examination that the reason none of the applicant’s team mentioned about the pitchfork was “because it took no part in the events”[15], with which the applicant disagreed and went on to explain that he was in pain and keen to go to the hospital[16]. At no time did the judge use the failure to mention the garden pitchfork to infer guilt.

30.  As to Charge 3, the main complaint was that the judge erred in his “private construction” of parts of Video 2 and the still photographs without alerting counsel, thus depriving them a chance of making any submissions on that issue.  The judge made the following findings:

“107. Video 2 was taken by PW2. It depicts PW1 and D2 grappling on the ground. DW2 was inside the fence, looked as if he was pulling PW1’s arm and D1 was standing in front of PW1 attacking PW1. PW1 got back on his feet and started grappling with D1 and so D2 was able to get back on his feet on the concrete path. PW2’s camera was fixed on PW1 and D1 but then at 00:04 I can see on the video D2 looking at the red-colour mobile phone bouncing onto the lawn. The red-colour mobile phone belonged to PW1. I tried hard to look from the video in order to find out how the phone came to be bouncing onto the lawn but unable to. However, I found the answer from P8(14). This is a photo shot that came from Video 2. It depicts D2 was holding a red-colour object in his right hand up in the air above his head as if he was throwing it onto the concrete surface. P8 photograph 12 depicts the red object landing on the lawn and photograph 13 depicts the red rectangular object landed on the lawn. The video footage at 00:05 depicts very clearly the red rectangular object was an iPhone, that is Exhibit P2. P2 belonged to PW1, the subject matter of charge 3.

108. I examined P2 and found one of the four corners of the glass cover at the back was badly damaged. I would add that I can see from the video footage between 00:04 to 00:05 and as well as the abovementioned photographs at the material time, D2 was on his own, there was no one near him. DW2 was some distance away to D2 at that time and he was in the course of crossing from inside the fence to the concrete path. Also I heard D2 swearing in Chinese “Fuck your mother or something stinky cunt” after he got back on his feet before throwing PW1’s mobile phone onto the concrete surface. That is one of the most vulgar, foul language commonly used in Hong Kong. For D2 to utter this kind of foul language, it reflects he was furious, irritated and in great anger at that time. Furthermore, it is an admitted fact that after D2 was arrested and cautioned, he said “He took photos or video of me without my consent so I pushed aside his phone”. By this admission, it is very clear for me that D2 was indeed so annoyed with PW1 filming him.”

31.  The submission that the judge ought to have placed the parties on notice before he could use the still photographs in conjunction with Video 2 to make his findings was misconceived.  These were all admitted into evidence by way of admitted facts and were played in open court. The judge was free to use the contents as he saw appropriate: HKSAR v Lee Yuen Fook [17].  It could not be said that the defence was not alerted as to the use of the still photographs.  PW1 was referred to all the still photographs during evidence-in-chief, although he conceded that he did not witness how his mobile telephone ended up broken on his lawn.  PW2 testified how he saw the applicant pick up PW1’s mobile telephone, raise it up with his hand and deliberately smash it down onto the concrete footpath[18].  The fact that the applicant swore just before he lifted up PW1’s mobile telephone showed how angry he was and the degree of his irritation was commensurate with the force that was used to smash it onto the concrete pavement causing it to bounce onto the lawn.  The judge found the evidence of PW1 to be supported by that of PW2 as well as by Video 2.  He took account of the physical exhibit: PW1’s broken, red-colour mobile telephone^[19] and came to the findings he did.

32.  There was also a faint complaint that the judge failed to explain sufficiently why the evidence of PW1 was accepted for the purpose of Charge 1, but not for Charges 4 and 6.  The short answer is that the judge had clearly demonstrated in his Reasons for Verdict that he found the evidence of PW1 and PW2 in relation to Charge 4 and Charge 6 was not supported by Videos 1 and 2[20].  This demonstrates how the judge had separately and independently assessed the evidence against the applicant in relation to the different charges and he was entitled to accept part of a witness’ evidence whilst rejecting other parts.

33.  In our judgment, all of the grounds failed. We refused to grant leave and for the above reasons dismissed his appeal against conviction.

[1] Appeal Bundle (“AB”), p.32, “Reasons for Verdict” at §19 

[2] AB, pp.11-12, “Admitted Facts”, §7 [Note the wordings of the translated version obtained on appeal is slightly different, although the meaning is the same: AB 421(e) – (g) (“He took a photo of me without my consent, so I swiped his phone aside.”)]

[3] AB, p.10 and p.26, “Admitted Facts”, §1; “Reasons for Verdict” at §10 

[4]AB, pp.49-50, “Reasons for Verdict” at §66  

[5]AB, p.44, “Reasons for Verdict” at §50(4) 

[6] Exhibit D2-13

[7] AB, p.547 and p.548

[8] AB, pp.61-62, “Reasons for Verdict” at §92

[9] AB, p.208M–O

[10] Exhibits D2-16 and D2-17; AB, p.46, “Reasons for Verdict” at §54. 

[11] AB, p.52, paragraph 74

[12] HCMA 502/2016, unreported, 17 February 2017, §24. 

[13] AB, p.455

[14] (2004) 7 HKCFA 600 at 622, paragraph 57

[15] AB, p.365H-I

[16] AB, p.366G-H

[17] CACC 69/2018, unreported, at §57.  

[18] AB, p.214S-p.215C

[19] AB, pp.66-67, “Reasons for Verdict” at §106

[20] AB, p.68-p.69, “Reasons for Verdict” at §§110-112