HKSAR v. NGAI KENG SUM LANCE

HCMA 224/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 224 OF 2016

(ON APPEAL FROM TMCC NO 3615 OF 2015)

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J U D G M E N T

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BACKGROUND

1.  The appellant Ngai Keng-sum Lance was one of the defendants in TMCC 3615/2015, he was the 4^th defendant.

2.  The appellant faced two charges, one of Affray, contrary to Common Law and punishable under section 101(1) of the Criminal Procedure Ordinance, Cap 221 (Charge 4) and one of Possession of Offensive Weapon in Public Place, contrary to section 33(1) of the Public Order Ordinance, Cap 245, Laws of Hong Kong (Charge 6).

3.  The appellant pleaded not guilty to both charges.  He was acquitted of Charge 4 but convicted of Charge 6 after trial.

4.  The appellant appealed against his conviction against Charge 6.

5.  The learned magistrate summarized the evidence in paragraphs 2 and 3 of her Statement of Findings:

“2. This case arose when 2 groups met accidentally outside an amusement games centre on 11 September, 2015 at Yuen Long at about 9 pm. Since they had grudges before, they had a dispute and the group of 6 led by PW2 Chung Wang Yuen left first to avoid further confrontation. However, when they passed by ESSO petrol station at Fung Cheung Road, they met the other group again of which D4 was one of them. PW2 led his group into Tigermart convenience store of the Petrol Station clearly for protection purpose. Then some 20 people, including the defendants, showed up outside the store and both parties confronted each other there, separated by a glass door.

3. Prosecution called 3 boys and 1 girl of PW2’s group to testify and they relied on a CCTV (P1) of the store.  D4’s cautioned statements (P4(a to c)) which defence admitted to have been made voluntarily were also relied on. ...”

6.  The quality of CCTV (P1) is not very good.  The learned magistrate said in paragraphs 5 to 7 of her Statement of Findings:

“5. Anyone looking at the CCTV will agree the scene was chaotic. Whilst it captures the course of the event, its quality isn’t superb. It does not pick up the fine details and features of individuals particularly those outside the store are not clear. No identification parade has been held afterwards because all witnesses told police they weren’t able to identify anyone. Court finds myself unable to rely on the identification evidence of PW1 Fung Lee given in court for this reason. It is simply not safe. Hence, the CCTV remains the most objective piece of evidence and Court has watched it thoroughly.

6. It shows 2 groups of people. 5 males and 1 female (PW2’s group) inside the convenience store and 4 males growing up to some 20 (according to a staff of the store) outside. It shows PW2 brandishing his chopper, which he obtained before he went into the store, to prevent people from coming in. People outside were seen pushing the door to stop those inside to come out. People on both sides had talked over phone and the number of people outside grew. The scene was hostile and people were shouting. People outside then started to throw bottles into the store and people inside did the same.

7. CCTV clearly shows 2 sticks appearing:

a) 21:49:51 – held by a male in black T shirt with white color words or signs over his chest, the stick being clearly a red one; and

b) 21:49:52 – held by a male in white T shirt with a black triangular sign over his chest, appearing in the middle.”

7.  The group outside dispersed after about one minute.  Shortly later PW2’s group also left the convenience store and in the course of leaving some of PW2’s group stole various items from the store.

8.  The appellant was arrested at a different location at about 0310 hours on 12 September 2015.  He was not found in possession of any weapon at that time.  Of the three statements made by the appellant, the second one was a mixed statement.

9.  The relevant parts of the second statement are as follows:

“Q(4): At 3:10 a.m. on 12^th September this year, 2015, I declared of you for affray and administered verbal caution. After being caution, you said to me, ‘Sir. I was at the gas station at that time.’ What did (you) mean?

A(4): Sir, as a matter of fact, this incident was like this. Last night I arranged with Ah King, Chu Kwai (transliteration) and Tai Mi to go to play video games at Kam Sha (transliteration) Amusement Games Centre (literal). However, when we got to the entrance of the amusement games centre (deletion), we saw Mo Mo (transliteration), Tai Ma (transliteration), Sai Ma (transliteration) and two boys whom I didn’t know outside Kam Sha Amusement Games Centre. There was disagreement between us (deletion)(Sd)(illegible) and Mo Mo previously and we had had (a) quarrel. On this occasion when we met, we stared one another. Afterwards (we) began to quarrel with Mo Mo’s party.

Q(5): What happened then?

A(5): The quarrel then became heated. Then, Mo Mo’s party suddenly ran away. I saw that Ah King’s party chased after them and I followed to (deletion) chase after (them). However, during the chase I saw that it seemed that Mo Mo was holding a knife. I was scared. It happened that (I) passed by a trash container and saw a red (deletion) broken mop stick. I thus picked up the stick for self-defence just in case. (I) feared that Mo Mo would chop me with a knife. In the end, we chased and got to that Esso gas station.

…

‘Ngai Lance Keng Sum, now I have reason to believe that you committed (the offence of) possession of offensive weapon. Now, I caution you. You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence. Do you understand?’

After being cautioned, Ngai Lance Keng Sum said to me, ‘Sir, I picked up the stick for self-defence just in case only because I feared that Mo Mo would chop me with a knife. It was not the case I wanted to use (it) to attack Mo Mo.’

‘Ngai Lance Keng Sum, I now show you an exhibit seized by the police. It’s a broken red stick. What do you want to say (?) But I remind you that you are still under caution. You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence. What do you want to say?’

Under caution, Ngai Lance Keng Sum said to me, ‘Sir, this is the mop stick which I took at that time and was intended to be used for self-defence just in case.  I used (it) for self‑defence just in case only because I really feared that Mo Mo would chop me with a knife.  I did not intend to use (it) to hit someone.’ ”

GROUNDS OF APPEAL

10.  Ground 1 concerns the good character of the appellant, it is said that:

“13. The Magistrate erred in law in not properly considering, if at all, the Appellant’s credibility when assessing the exculpatory parts of his written record of interview.”

11.  Ground 2, which is under the heading “Speculation”, concerns the various findings made by the learned magistrate which Mr Beel submits were speculative with no proper evidential basis and had not been established to the required standard of proof.

CONSIDERATION OF THE SUBMISSIONS

Ground 1

12.  As said, Ground 1 concerns the good character of the appellant.

13.  It is common ground that the appellant was 15 years old at the time of the offence and he had a hitherto clear record.

14.  It is also common ground that the second cautioned statement is a mixed statement.  In fact the learned magistrate also reckoned that the three cautioned statements given by the appellant are mixed statements:

“9. …P4(a-c) are mixed statements, Court has considered the entirety of their contents. Since D4 did not testify, his assertions in P4 were not tested under cross examination at all.”

15.  The learned magistrate dealt with the clear record of the appellant in paragraph 9 of the Statement of Findings:

“D4 did not testify in court and it is his right. Court will not draw any adverse inference due to the exercise of such right. He has a clear record and Court reminded myself of the relevant legal principles. P4(a-c) are mixed statements, Court has considered the entirety of their contents. Since D4 did not testify, his assertions in P4 were not tested under cross-examination at all.”

16.  Mr Beel complains that in the paragraph cited, the learned magistrate “correctly reminded herself of the propensity direction but erroneously attributed the consideration of a credibility direction only if the Appellant had testified” (paragraph 16 of the appellant’s submission).  He cites HKSAR v Soo Chun Sou Dominic,CACC 262/2008 and HKSAR v Hsu Ming Mei [2013] 1 HKLRD 286 for the general principle that where a defendant’s case is encapsulated wholly within a mixed statement given to the police, and the defendant is of good character, unless there is reason not to do so, a credibility direction should be given.

17.  Mr Daryanani, who appears for the respondent, submits that the exculpatory parts of the appellant’s second cautioned statement, i.e. he picked up the stick for self-defence just in case as he feared that Mo Mo (PW2) would use the knife to chop him and it was not the case that he wanted to use the stick to hit/attack Mo Mo was just a bold assertion not supported by details.  Hence the non-direction on credibility is not a material irregularity.  Mr Daryanani submits that as a magistracy appeal is a re-hearing, notwithstanding the non-direction on credibility, I can affirm the charge if the evidence proves to the required standard that the appellant had no need for self-defence and he did intend to use the broken mop stick to (i) attack; or (ii) fight with PW2 and his group should they come out.

18.  I do not think a fair reading of paragraph 9 of the Statement of Findings supports the contention that the learned magistrate addressed the issue of propensity only but failed to address the issue of credibility.  The learned magistrate is a professional magistrate.  The “relevant legal principles” referred to in the statement “He has a clear record and Court reminded myself of the relevant legal principles” must include both a propensity direction and a credibility direction, hence the word “principles” appears in plural.  Immediately after the aforesaid sentence, the learned magistrate referred to:

(i) P4(a-c) are mixed statements in nature;

(ii) the learned magistrate had considered their contents in entirety; and

(iii) the fact that the appellant did not give evidence means that his assertions in P4 were not tested by cross examination.

19.  The references to (i) to (iii) immediately after the mentioning of the good character of the appellant and “the relevant legal principles” show that the learned magistrate had given herself a credibility direction and when she addressed (i) to (iii), she had borne in mind the good character directions.

20.  In my judgment, the learned magistrate did not err in giving the appellant a good character direction on propensity only, paragraph 9 of the Statement of Findings shows that the learned magistrate had directed herself both in terms of the propensity and credibility when she addressed the good character of the appellant. In my judgment, the learned magistrate had properly considered the effect of the appellant’s good character on his credibility when assessing the exculpatory parts of the cautioned statements.

21.  Ground 1 fails.

Ground 2

22.  Ground 2 (1) challenges the learned magistrate’s finding that PW2 had not shown the chopper on the street (Appeal Bundle page 77 letter I).

23.  Ground 2 (2) concerns the findings made by the learned magistrate that the appellant had not seen the chopper held by PW2 whilst the appellant was following PW2.

24.  The statement which is made the subject matter of complaint under Ground 2 (1) and (2) appears in the oral reasons given at the time of the verdict but not in the Statement of Findings, the learned magistrate said this when she convicted the appellant:

“So, when did defendant see PW2 carry a chopper, which was in a white plastic bag? D4 said he saw it during the chase and, out of concern for his own safety, he pick it up, however, PW2 did not show the chopper on the streetso court does not believe that D4 -- court does not believe D4’s assertion that he saw the chopper on the -- whilst he was chasing the group on the street.” (emphasis added) (page 77, letter H-J of the Appeal Bundle)

25.  The learned magistrate stated in paragraph 11 of the Statement of Findings:

“Court finds it is abundantly clear PW2’s group was confronted head on by defendants outside the petrol station. When did D4 see the chopper when the CCTV shows it was still kept in a white plastic bag which was held by PW2? D4 said he saw it during the chase and out of concern for his own safety he picked up the broken mop P2. Since the CCTV nowhere shows a chopper being exposed outside the petrol station, Court doesn’t believe D4’s assertion that he has seen it there. If D4 did see it on the street, question is why didn’t he leave? There was no fighting at that time and the best way to protect himself was to leave. Yet he chose to pursue PW2’s group, why? There was at that stage no need for self defence unless D4 was prepared to engage in an actual confrontation or fight with PW2. His assertion that he has no intention to attack PW2’s group with his stick made no sense at all.”

26.  Mr Beel submits that it was never established from the evidence that either PW2 had not shown the chopper in the street or that the appellant had not seen PW2 holding the chopper prior to arriving at the petrol station.

27.  I agree with the submission of Mr Daryanani on this issue.  As the learned magistrate pointed out in paragraph 11 of the Statement of Findings, the CCTV shows that PW2 took out the chopper from a white plastic bag. 

28.  The appellant first mentioned the chopper/knife in answer 5 of P4(b):

“… However, during the chase I saw that it seemed that Mo Mo was holding a knife…”

The appellant went on to tell the police in answer 6 that:

“Upon reaching the gas station, Mo Mo’s party all went into the convenience store of the gas station while I and Ah King’s group were outside the convenience store. I saw that Mo Mo took out a knife again, pointing at us. I was very scared at that time, so I did not walk over there too close. Then it was in fact very chaotic. I didn’t see clearly what happened in the meantime. After a while, (I) heard someone say, ‘Make a report to the police’ Ah King said ‘Go’. I thus followed and left.”

29.  The appellant never suggested that PW2 had shown the chopper before he had entered the convenience store.  According to his explanation, he saw that it seemed PW2 was holding a knife during the chase and PW2 took out the knife again, pointing at the appellant’s group when PW2 was inside the convenience store.  

30.  Mr Beel complains that the appellant did not say he saw PW2 was holding a chopper during the chase, but only that he saw it seemed that PW2 was holding one.  In my judgment, it does not matter whether the appellant saw a chopper or something which seemed like a chopper during the chase, in either case, he should leave if he was really concerned about his own safety.  In my judgment, if PW2 had shown the chopper to the appellant during the chase, the appellant would not have said “… However, during the chase I saw that it seemed that Mo Mo was holding a knife…”  The above answer given by the appellant, taken together with the CCTV, reinforce the learned magistrate’s finding that PW2 had not shown the chopper on the street.

31.  In my judgment, whether PW2 had shown the chopper to the appellant prior to his entering the convenience store does not advance the appellant’s case. If during the chase the appellant, from what he saw, suspected that PW2 was holding a chopper (answer 5), he had no reason to chase after PW2.  If prior to PW2’s entering the convenience store, PW2 had in fact displayed the chopper and pointed it at the appellant, all the more the appellant should not have pursued after PW2’s group. 

32.  I do not agree with Mr Beel that the learned magistrate found that the appellant hadn’t seen the chopper while chasing in the street in her oral reasons but changed this finding to the appellant not seeing the chopper outside the petrol station.  The learned magistrate just explained the oral reasons more clearly in the Statement of Findings.

33.  Ground 2 (3) concerns the finding made by the learned magistrate in paragraph 12 of the Statement of Findings that PW2 had not taken the chopper to the game centre.

34.  It was never the defence case that PW2 had a chopper when he was at the game centre. 

35.  PW2 gave evidence that he picked up the chopper on the street while he was running.

36.  The learned magistrate disbelieved PW2’s evidence as to how he came by the chopper, the learned magistrate said in paragraph 12 of the Statement of Findings:

“Just as Court believes PW2 obtained his chopper from a hidden source (Court has no reason to believe he took it with him to the game centre for fun in the first place).”

37.  In my judgment, the learned magistrate had good reason to find that PW2 would not carry a chopper to the game centre for fun.  The fact that PW2’s party chose to leave the game centre after the quarrel became heated supports the learned magistrate’s findings.  The learned magistrate, for good reason, rejected PW2’s evidence that he picked the chopper up on the street during the run.  A finder of facts can count on his/her common experience to consider whether a chopper is something that one would come by in the street.  Having rejected the evidence of PW2 in that regard, the only reasonable inference opened to the learned magistrate was that PW2 obtained his chopper from a hidden source.

38.  It was never the appellant’s case that he saw PW2 had the chopper at the game centre, the appellant in reaction picked up the mop stick for self-defence.  According to the appellant’s own case, he saw it seemed that PW2 was carrying a chopper when he was chasing after PW2.  In the present case, from where PW2 obtained the chopper had nothing to do with the appellant’s decision to grab the broken mop stick and his intended use of it.

39.  Ground 2 (4) concerns the observation made by the learned magistrate that the broken mop stick (P2) looks like someone had just broken a normal one into two.  I have seen the mop stick in court.  The broken end of the mop stick has a sharp edge to it.  The description made by the learned magistrate is an appropriate and I would not disagree with her observation.

40.  Ground 2 (5)-(8) concern the findings made by the learned magistrate:

(5) the appellant had not come by the mop stick by chance;

(6) the mop stick had been stored somewhere by the appellant’s group;

(7) the mop stick had been obtained from the petrol station; and

(8) as there were at least two red sticks involved they are likely to come from the same mop stick.

41.  The paragraph which is made the subject matter of complaint under Ground 2 (5)-(8) is paragraph 12 of the Statement of Findings:

“Where did P2 come from? It is half a mop-stick which looks like someone has just broke a normal one into two. Did D4 get it by chance? Just as Court believes PW2 obtained his chopper from a hidden source (Court has no reason to believe he took it with him to the game centre for fun in the first place), Court doesn’t believe D4 came by P2 accidentally. It’s likely his group obtained a mop stick stored somewhere or they simply took it from the petrol station where such stick was often seen, There are at least 2 red sticks involved in this case. It’s likely that they are the 2 broken half of one mop stick.” (emphasis added)

42.  It is clear from paragraph 12 that whilst the learned magistrate rejected the appellant’s explanation that he picked up the mop stick from a trash container, she was not making a finding of facts that that the mop stick had been stored somewhere by the appellant’s group ( Ground 2 (6) ) or that the mop stick had been obtained from the petrol station ( Ground 2 (7) ), hence the learned magistrate carefully used the word “likely”.  In other words, the learned magistrate did not find it as a fact proved that the mop stick was something that had been stored by the appellant’s group or that they found it at the petrol station.

43.  I agree with Mr Daryanani that the learned magistrate clearly explained why she said there were at least two red sticks involved in the case in paragraph 8 of the Statement of Findings.  One was with PW4 and one that the appellant had carried and then dropped, and finally seized by the police i.e. P2.

44.  As for the learned magistrate’s rejection of the explanation given by the appellant that he picked up the broken mop stick accidentally, given the findings made by the learned magistrate that at least two red sticks were involved in the case (one thrown into the convenience store and later held by PW4 and the other one P2 carried by the appellant) and they look like two broken halves of one mop stick, the learned magistrate had good reason to reject the appellant’s explanation that the half mop stick carried by him was found accidentally from a trash container.  Furthermore, as the learned magistrate pointed out, as the appellant did not testify, his assertions in his cautioned statements were never tested by cross examination.  In my judgment, the learned magistrate had given cogent reasons why she did not believe the mop stick was picked up accidentally by the appellant.

45.  Ground 2 (9) concerns the finding made by the learned magistrate that there was no reason for the appellant to be armed after PW2’s group had gone into the store and were not able to come out.

46.  The learned magistrate said in paragraph 13:

“Wherever D4 got his mop stick, Court finds there is no reason at all for him to arm himself with it when PW2’s group has already retreated into the convenience store. D4 took it with him to the store and there he saw PW2 pointed the chopper at him. PW2’s people weren’t able to come out of the store because someone has blocked the entrance. Whilst PW2 might have been brandishing his chopper inside, D4 could simply just walk away. He was not in any imminent danger at all and his group has already soared up to 20 people. For him to remain armed with the stick outside the store Court finds his intention was to use it to attack or fight with PW2’s group should they come out. D4 said his group left only because they knew someone had called the police (answer 6 in P4b).”

47.  I agree with the analysis of the learned magistrate, the appellant had no reason to arm himself with a stick after PW2’s people had retreated into the convenience store and were besieged.  The appellant was not in any imminent danger at all.  The learned magistrate was right to find that it was the appellant’s intention to use the stick to attack or to fight with PW2’s group should they come out.

48.  Ground 2 (10) complains that the learned magistrate erred in law and in fact, by wrongly finding that the appellant intended to use the mop stick to attack PW2’s group should they come out of the convenience store.  In my judgment, on the evidence accepted by her, there is ample evidence her finding that the appellant had the intent to use the mop stick to attack PW2’s group.

49.  Ground 2 fails.

THE LEGAL PRINCIPLES GOVERNING APPEAL BY WAY OF RE‑HEARING

50.  In HKSAR v Fok James Alistair, HCMA 82/2015, Zervos J said:

“4. The principles relating to a magistracy are well settled. As noted by McWalters J (as he then was) in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, a magistracy appeal is a rehearing on the papers. He explained at paras 59 and 60 that the duty of the appellate court was not to determine whether error had been made, and if so what the consequence of such an error would be as if conducting an appeal in the strict sense, but rather whether any error that had been identified prevented the appellate court from performing its statutory duty of conducting a rehearing. He noted that if the appellate court could conduct the rehearing that it should do so and if it could not then it should allow the appeal, making such order or orders as seen to it, in the circumstances, to be just. He further noted that even if no error had been identified and no ground of appeal made out then that was not the end of the matter as the duty on the appellate court was to conduct a rehearing and it would do for its ultimate duty is to determine whether it is satisfied beyond reasonable doubt of the guilty of the appellant.

5. McWalters J summarized the relevant legal principles at para 66 by providing eight statements of principles of which the last four are of particular relevance to the conduct of a magistracy appeal and to the discussion in this judgment. They state that:

‘(5) The appellant court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong.

(6) Error by the magistrate, especially one constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(7) The test in determining whether an error by a magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(8) Absent the appellate court identifying any error by the magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the appellate court to be satisfied that on the evidence adduced by the prosecution. The guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.’

6. The particular difficulty for an appellate court in the conduct of a magistracy appeal is when it is invited to interfere with the magistrate’s assessment of the credibility of a witness.  The magistrate has had the advantage of seeing and hearing the witness and is in a better position to assess his credibility. It is for that reason that an appellate court will only depart from a magistrate’s determination of a witness’s credibility if it is plainly wrong. McWalters J at paras 32 and 33 provides a useful discussion on the limitation on an appellate court of no having seen and heard the witnesses. This issue leads to the next question as to how an appellate court determines whether a magistrate was ‘plainly wrong’ in his assessment of the credibility of witness.”

REHEARING AND CONCLUSION

51.  For the reasons, both Ground 1 and 2 fail.  I can detect no material error by the learned magistrate in her assessment of the evidence and the findings.

52.  I am satisfied on the evidence adduced by the prosecution, the guilt of the appellant in relation to Charge 6 had been proved beyond reasonable doubt.

53.  The appeal against conviction is dismissed.