HKSAR v. BRIAN, ALFRED HALL

HCMA 621/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 621 OF 2005

(ON APPEAL FROM ESCC 3093 OF 2004)

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J U D G M E N T

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1.  The Appellant was convicted after trial before Magistrate Casewell of the offence of ‘common assault’, and was sentenced to 6 months imprisonment, sentence to run consecutively to the 18 years imprisonment the Appellant is now serving.  The Appellant now appeals against conviction and sentence.

2.  The prosecution case is based on the evidence of a number of prosecution witnesses who were prison officers.  PW1’s evidence is that he asked the Appellant to return the newspaper he had borrowed but the Appellant said he had not finished reading it.  PW1 took this to be a refusal and reported this to PW2 who was the principal officer on duty.

3.  PW2’s evidence is that as a result of the report he went to the entrance of the cell of the Appellant and asked the Appellant to hand over the newspaper.  The Appellant refused and used abusive language saying that PW2 had no right to ask for the return of the newspaper.  PW2 then decided to enter the cell to retrieve the newspaper from the Appellant who was then sitting on the bed.  When he asked for it again, the Appellant swore at him and threw the newspaper at his chest.  The Appellant then got up and punched PW2 several times.  PW2 fell as a result against the cell wall and against PW1 who was outside the cell.

4.  The alarm was raised and shortly thereafter several prison officers, PW3, PW4, PW5 and PW6 rushed to the cell to render assistance to PW2.  Together they succeeded in subduing the Appellant after a struggle, in the course of which they use a spray called “OC foam” on the Appellant’s face.

5.  PW8’s (Dr Chan) evidence is that he examined the prison officers for injuries and he found the officers injuries were not serious.  The Appellant was also found to suffer some injuries in the accident but also not serious.  The doctor’s evidence is that the injuries are all consistent with the struggle described by the prosecution witnesses.  No photograph of the Appellant’s injuries were taken because the Appellant refused to have them taken.

6.  The Appellant’s evidence is that he had been issued with the newspaper at 3:30 p.m. that day to read for about an hour and he was told that if he did not return it, force would be used to get it back from him.  After he finished his meal at about 5:00 p.m., he saw PW2, PW3, PW8 and PW9 at the entrance of the hall, holding blankets.  Cleaners were told to leave the hall and he sensed something was going to happen.  PW1, PW2, PW3, PW7 and PW9 then came into his cell.  PW2 used OC foam on him to disable him from resisting.  PW7 and PW9 wrapped him with a blanket and PW3, PW4, PW5 and PW6 pushed him and kicked him all over his body.  PW2 grabbed his testicles and buttocks.  The assault lasted between 10 to 12 minutes.  He was further kicked and OC foam was again used on him as a result of which he became blind.  He was dragged to the door of the cell and his head was smashed against the ground two times.  He was taken to the hospital and PW7 threatened him to sign a document.  The Appellant also said that in addition to the injuries found by PW8, he had a swelling on his forehead as a result of being hit there.

7.  The Appellant had made a complaint to the assault at court and to Master de Souza, as a result of which photographs were taken and these showed a black patch on the Appellant’s head.  This also formed part of the Appellant’s evidence.

8.  The Appellant’s case was that he was the victim of assault by the prison officers who gave evidence who punished him or intimidated him for the complaints he had made to the prison and other authorities on the injustice he suffered during his confinement in prison.  He said PW2 often abused him and assaulted him and had used OC foam on him before and he had made complaints in respect of such treatment.

9.  The Magistrate found the prosecution witnesses reliable, consistent and truthful and accepted their evidence.  He found that the medical evidence was consistent with the struggle described by the prosecution witnesses and it did not support the Appellant’s case.  He rejected the Appellant’s story that the prison officers had conspired to assault him as a revenge for his making complaints.  He found the Appellant concocted his story.  He said in his findings:  “I find the prosecution witnesses to be truthful and reliable.  The Appellant did refuse to return the newspaper.  He abused the PW2 with foul language and threw the newspaper at him.  Furthermore, he struck him at least three blows to the chest.  These are clear and unequivocal assaults accompanied by an intention to do so.”

10.  He convicted the Appellant as charged.

11.  The grounds of appeal may be summarized as these:-

(1) PW2 was acting unlawfully and against Prison Rules when he went into the cell to retrieve the newspaper and he was compelled to report this to the Chief Officer.  PW1 and PW2 were in breach of their duties.

(2) The injuries shown by the photographs are inconsistent with the account of PW2.

(3) PW8, the doctor who examined the Appellant had not noted his injuries and that was an effort to conceal them, and had colluded with the prosecution witnesses.

(4) The prosecution had interfered and deprived him of legal advice.  The police had refused to allow him to make telephone calls.  The police was wrong to interview the prosecution witnesses only and not him.

12.  On the 1^st ground, the Magistrate had dealt with it in his findings.  He found it was not unlawful for PW2 who was a principal officer to retrieve the newspaper from the Appellant.  I agree with the finding of the Magistrate.  In any case even if the officer had acted in breach of his duty in retrieving the newspaper, this was no excuse for the Appellant to assault the officer.  This ground must fail.

13.  On the 2^nd ground, the question of whether the injuries shown in the photographs are consistent with the account of PW2 on the assault, had been ventilated at the trial.  The Magistrate had the benefit of hearing the evidence from both sides and the medical evidence of the doctor.  He found the injuries suffered by the officers consistent with the kind of contact injuries one might expect from subduing someone in a brief struggle.  This is a finding of fact and there is evidence to support that finding.  The Magistrate was entitled to make the finding he did.  This ground also fails.

14.  On the 3^rd ground, this is also a question of fact.  There is no evidence of collusion between the doctor and the prosecution witnesses on the injuries suffered by the Appellant.  Dr Chan found no head injuries when he examined the Appellant on 2 June 2005.  The medical report from the doctor indicated that the patch or mark as shown in the photographs taken after the Appellant complained to Master de Souza did not appear until the entry at 14 June 2005, which was almost 2 weeks after the incident of assault.  The Magistrate was entitled to find the mark or patch and any injury found later could not be attributed to the incident on 2 June 2005.  There is no substance in this ground.

15.  On the last ground, there is no evidence that the trial had been unfairly conducted by the prosecution and the prosecution had deprived the Appellant of legal advice or had interfered with the conduct of his defence.  In any case, the Appellant was represented by counsel at the trial, the Appellant had mentioned in his evidence in chief his complaint of assault and the refusal by the police to let him phone his lawyer.  The Magistrate was aware of such evidence.  Even though the Magistrate did not deal with this question in specific terms, he did mention in the statement of finding this:  “I found the defendant’s account to be a concoction.  It was a clearly colourful and exaggerated account of what he would wish to have happened but had no foundation in reality.  The defendant has obviously found his detention difficult and has issued complaints against many people who have dealt with him.  The allegations of assaults made against the prosecution witnesses in my view is a defensive mechanism to divert attention to what happened that afternoon, to divert attention onto what he said were assaults against him.  It is a transparent attempt to deception and I reject it in its entirety.  The truth is, in this case, is that the defendant has fabricated his story of assault”.  From this paragraph, it is more than clear that all the allegations made by the Appellant had been considered by the Magistrate and he had rejected them entirely as being untrue.

16.  The question decided in the case were all questions of facts and the Magistrate having heard the evidence of the witnesses for the prosecution and the Appellant and having seen them giving evidence, he was entitled to assess the evidence and decided what evidence he accepted and what evidence he rejected.  I see no ground to interfere with the Magistrate’s finding of fact and the appeal against conviction is dismissed.

17.  As regards his appeal against sentence, the Appellant is serving a sentence of 18 years imprisonment.  From the way the Appellant reacted to the order of the prison officer and his subsequent assault on him, it appears that he did not care to comply with rules in prison and he could well afford to remain in prison longer.

18.  The Magistrate in his reasons for sentence mentioned that the offence committed by the Appellant within a prison is a serious matter especially when the offence was committed against the people in authority within the prison.  He considered that the appropriate sentence should be one of 6 months’ imprisonment consecutive to the 18 years’ imprisonment the Appellant is then serving.

19.  I agree entirely with the Magistrate.  6 months’ imprisonment for common assault in the circumstances as revealed by the evidence in this case is neither manifestly excessive nor wrong in principle.  Accordingly I dismiss the appeal against sentence.