CHEN JAY v. HKSAR

HCMA 662/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 662 OF 2012

(ON APPEAL FROM ESCC 2445 OF 2012)

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BETWEEN

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J U D G M E N T

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1.  The Appellant was charged with one charge of ‘Criminal Damage’ and the allegation is that on the day of the offence outside the carpark entrance to Stanley Plaza in Stanley, he did without lawful excuse damage the roof of a private car which belonged to the PW1.

2.  The facts are very simple.  According to PW1, he was in his car together with his wife and they were lining up to going into the Stanley Plaza carpark.  Before he reached the carpark, his way ahead was blocked by a bus and also in front of the bus were several motor cars.  As we all know, the carpark was at the location where the car had to turn left onto a ramp to reach the entrance to the carpark.  PW1 said he concluded that the car which was waiting in front of the bus were waiting to go into the carpark or that there was a traffic jam.  10 minutes later, after the cars started moving and the bus had left, he said he noted there was still a car in front and he saw the Appellant waving the car away from the entry ramp in order to solve the problem of the traffic jam.

3.  According to the Learned Magistrate, he said PW1 was unclear as to what happened to the car in front of him.  He said he heard the Appellant directing him to move ahead rather than turn left into the entry ramp.  PW1 said he tried to reason with the Appellant and insisted that he wanted to drive into the carpark and the Appellant refused his request.  PW1 said he asked the Appellant for his name because he was going to complain to the Stanley Plaza Management as he thought, mistakenly, that the Appellant worked for the Stanley Plaza Management.  The Appellant at that time revealed his real name to PW1.  PW1 said either he or his wife told the Appellant that they were going to call the police and the Appellant said to them they may do so.  Then he said that the Appellant then approached the nearside of the car and clenched his fists, raised his arms and brought his fists down to strike the top of the car and PW1 said he heard two banging sounds.  At that juncture, PW1 said he feared for his wife’s safety so he drove the car away to the exit side of the ramp and then got out of the car.  And by that time the Appellant had returned to his car and drove away.  Subsequently after about 10 minutes, PW1 successfully parked his car and when his wife got out of the car she noticed two dents on the body of the car on the panel between the sun roof and the left front car door.  A police report was made, the Appellant was subsequently arrested and under caution the Appellant denied striking PW1’s car and said he only knocked on the car window and subsequently, in a cautioned interview, when the police wrongly told the Appellant that his fingerprint was found on the sun panel of the car the Appellant said he might have put his hand on the sun panel when he bent over to speak with PW1’s wife.

4.  The Appellant at the trial, gave evidence and the Appellant had a clear record.  The Appellant’s evidence was that he had driven to the location and his car was stationary behind the double‑decker.  He did not know why there was a traffic jam and so after waiting for some time, he got out of the car and went to have a look and at the head of the queue was the car which was blocking traffic and he managed to persuade the lady driving the car to go away because she was causing the traffic jam and the lady in that first car said that she would leave if the Appellant persuaded the other cars to leave.  So having successfully persuaded the first car driver to drive away, the Appellant said he told the driver of the second car to drive away too. After that was done, when he asked PW1 to drive away, he was ignored so he knocked on the car window on the passenger’s side of PW1’s car and spoke with PW1’s wife.  Subsequently, the Appellant said PW1 drove the car to the exit ramp and then got out to stop the car and accused him of being crazy and the Appellant said he revealed his name was “Jay Chen”.  The traffic having been effectively unblocked by that time, the Appellant then got into his car and drove away.

5.  In his evidence, the Appellant also confirmed that at the beginning of the trial, he had been offered a binding‑over option, but he had refused to accept the option on the basis that he cannot admit to doing something he had never done.  The Appellant also relied on several character references which were placed before the court.

6.  The Learned Magistrate having heard the evidence, then analysed the evidence before him correctly identifying that this was a “one to one” situation and then proceeded to accept that PW1’s evidence had been truthful and honest and reliable.  He then concluded that the Appellant was not truthful or reliable and at the end of the day, he convicted the Appellant.

7.  Now I would note here is that the Learned Magistrate considered that photographs which were produced by the Prosecution, did not take the issue of damage to the car much further, and that he did not consider that PW1’s evidence need any corroboration and said he accepted PW1 as a witness of truth and therefore that the Appellant caused two dents on PW1’s car.

8.  Now on the appeal, Mr Leung had made several grounds of appeal.  The first two grounds can be considered together in that it points to the fact that the Learned Magistrate was wrong in concluding that the damage to the roof was caused by the Appellant and that the Learned Magistrate had not given sufficient regard to the possibility that the dents might have been on the roof before the offence took place.

9.  What evidence is there that the Appellant had caused the dents on the roof?  There is only the evidence of PW1 that he saw the Appellant raise his fists and strike on the top of the car twice.  But one must remember that after that had been done, PW1 then drove the car forward to the exit ramp.  He never thought at that time to check his car and the Appellant then got back into his car and drove away.  PW1 then drove his car into the ramp in order to wait to gain entry into the carpark and after he parked his car, it was only his wife who subsequently noticed that there were two dents on the roof.  PW1 gave evidence that he did not check his car that day, but he said that his maid cleaned the car and if there was any damage to the car, she would inform him.  PW1’s maid was not called to give evidence.  Neither was there any evidence to suggest that the impact by the fists of the Appellant would have caused the dents on the roof as claimed by the prosecution.

10.  Admittedly, cars have different metal construction, perhaps some metal may be thicker than others nevertheless there was no such evidence before the Learned Magistrate and for the Learned Magistrate to conclude that the evidence was sufficient to point to the fact that the Appellant caused the dents, he must be satisfied that the circumstantial evidence was such that it was the only irresistible influence to draw.

11.  On the evidence before him, it is only one of the many inferences that he could draw from the evidence.  The Learned Magistrate did not expand further apart from saying that he accepted the evidence PW1 as a witness of truth and therefore he accepted that the dents were caused by the Appellant.  I agree with Mr Leung that it is not sufficient.

12.  As for another ground which bears mentioning is how the Learned Magistrate dealt with the issue of binding‑over to be of good behaviour.  The Learned Magistrate in paragraph 54 & 55 of his Statement of Findings, having suggested that he would not speculate on the reason why the Appellant rejected the binding‑over order because this is not an issue the court must decide, in the next sentence, he went on to say that in considering the Appellant’s evidence, the court had also taken into account his refusal to be bound over as a way out of the criminal proceedings, but this did not alter the court’s conclusion that the Appellant’s evidence was untruthful and unreliable.

13.  I have read the paragraph over and again and I failed to understand what the Learned Magistrate was saying in relation to the matter.  The evidence from PW1 was clear that he rejected the binding‑over offer because he did not commit the offence.  Obviously, as Mr Leung pointed out, this was a matter that the Learned Magistrate should consider overall in the context of the evidence for the Appellant, so I failed to understand from the Statement of Findings if the Learned Magistrate did consider it or not.

14.  However, this being a magistracy appeal, I have looked at the evidence that was before the Learned Magistrate and I am not satisfied that the conviction was safe and satisfactory, so the appeal therefore is allowed.  The conviction is quashed and the sentence set aside.  I think is the fine and compensation money has been paid, they should be returned to the Appellant.

15.  Costs of this appeal to the Appellant and to be taxed if not agreed.