HKSAR v. HASHIMI HABIB HALIM

HCMA 286/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 286 OF 2002

(ON APPEAL FROM NKCC 6194/2001)

____________

____________

_______________

J U D G M E N T

_______________

1. This is an appeal by the Appellant against his conviction on 16 January 2002 by Mr Boey Chung at North Kowloon Magistracy of the offence of assault occasioning actual bodily harm. At the conclusion of the hearing of his appeal on 16 August 2002, I dismissed the appeal but said I would state out my reasons in writing later.

2. The Appellant, who was represented at his trial, appeared at the appeal in person. The written grounds of appeal were simply the general grounds that there was no or no sufficient evidence whereon to find the conviction.

3. At the commencement of the hearing, the Appellant stated that he would rely on the following grounds:

(1) That the conduct of the Magistrate, in particular by his interventions, prevented him having a fair trial. He alleged that the interventions by the Magistrate and the timing of adjournments were made to assist the prosecution.

(2) That there were glaring inconsistencies in the evidence upon which no tribunal could properly convict.

(3) That justice was not done by reason of the fact that the Appellant's trial commenced late in the day before a Magistrate in whose list it had not originally appeared resulting in the case having to be adjourned to another day. The Appellant alleged that this assisted the first prosecution witness by enabling him to prepare his evidence.

(4) That the Magistrate separated a sketch indicating the location of the Appellant's injuries from the medical report which was produced to the court without apparent reason.

4. The charge before the Magistrate alleged that the Appellant had on 5 October 2001, outside the office of the Principal Officer (Works) on the ground floor of Lai Chi Kok Reception Centre, assaulted Wan Chi-lung (a Correctional Service Department Officer) thereby occasioning him actual bodily harm.

5. The prosecution called two CSD Officers (PW1 and PW2), (the alleged victim and another officer who witnessed the incident). It also tendered for cross-examination 2 inmates of the Reception Centre who the CSD Officers alleged were present at the time of the incident. The Defendant, himself an inmate at the Reception Centre at the material time, elected to give evidence.

6. The prosecution case from the evidence of the two CSD Officers was that the Appellant and other inmates were about to hand in their personal clothing after making appearances in court. The Appellant was at the head of the queue but when he was just about to hand in his clothes he was unable to produce what was described as "a long ticket". This necessitated the Appellant obtaining such a ticket from another counter. He was told to go to the other counter to get a ticket. As a result the Appellant started shouting before going to collect his ticket.

7. When he returned he was still shouting and had used foul language. He then attempted to jump the queue. This had led the alleged victim, PW1, to ask the Appellant to wait his turn. This had then led the Appellant to elbow the alleged victim's chest and direct a punch at the victim which the victim warded off with his left hand. The Appellant was only forcibly restrained after a struggle. There was medical evidence of reddish marks to the alleged victim's chest and left hand.

8. This account was disputed by the Appellant. His account was essentially that but he had been assaulted by PW1. He said that he had been on the point of handing over his personal clothing in a carton box when he realized he did not have the "long ticket". PW2 had refused to issue a new ticket to him. He had then realized that he had to obtain one at another counter. When he went to obtain this ticket, he had placed the carton box containing his clothing by the wall. PW1 had asked him in abusive terms to take the box away. The Appellant had refused saying he would be back. He had then seen PW1 kicking the box scattering his clothing.

9. When he returned he gathered up his clothing and waited his turn. PW1 had however put his hand on his shoulder and "barked" at him. When he remonstrated with PW1, PW1 had kept kicking and stepping on his belongings. PW1 had then assaulted him.

10. The Appellant made lengthy submissions to the Court. Many of those submissions related to the credibility of the witnesses. An appeal however is not a rehearing of the trial. The Magistrate had the opportunity of seeing the witnesses and assessing their credibility. The question before this Court is whether there was anything improper in the Magistrate's conduct of the trial and in how he came to his findings that the Appellant had assaulted PW1 occasioning him actual bodily harm. I find there was not. The trial was conducted with evident care and propriety by the Magistrate. He was fully entitled to come to the conclusion he did on the evidence before him. He applied the correct burden and standard of proof. He correctly took into account the significance of the Appellant's clear record at the material time.

11. I have carefully considered the submissions made by the Appellant regarding interventions by the Magistrate. I find there is no substance whatsoever in the Appellant's complaints. A Magistrate is fully entitled to clarify the answers of witnesses and indeed the questions of counsel. He is also entitled to ensure that there is no needless repetition of evidence. The suggestion put forward by the Appellant that the Magistrate's interventions and the timing of the adjournments were designed to assist the prosecution is fanciful. It is significant that the Appellant was represented during the trial and his lawyer made no complaint of the matters now alleged by the Appellant. None of the limited interventions by the Magistrate went beyond what was proper in the circumstances.

12. During the course of the appeal, the Appellant referred extensively to what he alleged were discrepancies in the evidence. Almost all the matters which the Appellant alleged were discrepancies were not discrepancies at all in the sense of incompatibility between different parts of the evidence. They were simply the different perceptions of the witnesses as to what they had witnessed. Even when there are discrepancies in evidence in the course of the trial - and given the fallibility of human powers of recollection that will often be such discrepancies - a Magistrate is not obliged in his Statement of Findings to refer to all conflicts however minor. The Magistrate is concerned with the credibility of the witness as to the matters that are the subject matter of the charge. If there are discrepancies that he considers material to that matter then he should refer to those matters in his Statement of Findings. I am satisfied that that is what the Magistrate did in this case.

13. He properly considered the discrepancies between the evidence of PW1 and PW2 and that of PW3 (a prisoner who was present at the scene) as to whether PW3 was in the course of handing in his own clothing at the time the incident occurred. He concluded that the discrepancy did not cast doubt in his mind that PW1 and PW2 were anything but honest and reliable witnesses. He was entitled to take that view.

14. He properly considered the evidence of another inmate (PW4), who claimed he had not seen the assault, and rejected that evidence. He considered that the witness was, untruthfully, trying to distance himself from the incident. Again the Magistrate was entitled to reach that conclusion.

15. The Appellant suggested that there was a difference between two demonstrations given by PW1 as to how the assault occurred. The Magistrate had described for the purpose of the record on each occasion what he must have considered the significant features of what the witness was demonstrating. There is no discrepancy between those two descriptions. The Appellant's lawyer referred to an alleged discrepancy in the course of his submissions and was questioned by the Magistrate as to what the lawyer was alleging the discrepancy was. The fact that the Magistrate made no reference to the alleged discrepancy in his Statement of Findings indicates either that he did not consider there was a discrepancy or that it was immaterial.

16. I find that the Magistrate properly considered the evidence of the Appellant and rejected it. The Magistrate was satisfied beyond reasonable doubt that the Appellant had assaulted PW1 by elbowing him in the chest and punching his left hand and that PW1 had sustained actual injuries. He was entitled to reach such a conclusion.

17. In so far as the allegation regarding the listing of his case is concerned, it frequently happens that trials have to be transferred before they commence from a Magistrate who would otherwise have dealt with it but cannot, to a Magistrate who can. Unfortunately that may occur towards the end of the working day and the case may have to be adjourned before it concludes. This is a fact of life. It may be inconvenient but it cannot form the basis for a submission that the trial is somehow flawed as a result.

18. In so far as the sketch of the Appellant's injuries which was not exhibited is concerned, the Appellant is not suggesting that there was any discrepancy between the doctor's report and the sketch. The Appellant's legal representative did not request the sketch to be exhibited. There cannot be any cause or complaint. I am satisfied that there is no substance in this appeal and I dismiss it.