HKSAR v. WU PENG

          [English Translation – 英譯本]
CACC 18/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 18 OF 2007

(ON APPEAL FROM DCCC NO. 605 OF 2006)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving the reasons for judgment of the Court):

The charges

1. The Applicant was charged with two offences:

1)   Common assault, contrary to the common law;

2)   Causing grievous bodily harm to another person with intent, contrary to section 17(a) of the Offences against the Person Ordinance (Cap. 212 of the Laws of Hong Kong).

2. Charge 1 alleged that the Applicant assaulted the 1^st witness Wong Sheung Ling (王嫦玲) (PW1) on 26 May 2006. Charge 2 alleged that the Applicant assaulted the 2^nd witness Lee Kang Chuen (李鏡泉) (PW2) and bit off the tip of his right thumb.

3. After trial before Deputy District Judge Yim, the Applicant was convicted on both charges and sentenced to 21 months’ imprisonment: 14 days’ imprisonment on Charge 1 and 21 months’ imprisonment on Charge 2, with the two sentences to run concurrently. The Applicant applied for leave to appeal against the convictions and sentences.

4. We granted leave to appeal against the convictions and, treating the application as the appeal itself, quashed the convictions on both charges and made no order for a retrial. We now set out the reasons for our judgment.

Prosecution case

5. The prosecution case revealed that PW1 was a female driver of the Kowloon Motor Bus Company. On 26 May 2006, the Applicant, pushing a baby cart (‘the cart’) on which there was a baby, boarded a bus driven by PW1. For safety reasons, PW1 repeatedly requested the Applicant to scoop the baby out of the cart and fold up the cart. The Applicant, however, ignored her requests. A male passenger on board the bus (i.e. PW2), who heard the Applicant answering PW1 by saying ‘I know’ in Putonghua, relayed in Putonghua to the Applicant what PW1 had said, but the Applicant still made no response.

6. Later, the Applicant realized that if he did not fold up the cart as requested by PW1, she would not start the bus. He therefore scooped up the baby and folded up the cart. However, after the bus started to move, the Applicant unfolded the cart and put the baby on it. The Applicant also pressed his arm against PW2 who was next to him. PW2 managed to push away the Applicant only after 1 to 2 minutes. The Applicant then walked to a location beside PW1 and jotted down her particulars, ignoring the fact that the baby was standing up on the cart. Noting that the baby was standing on the cart and that there was jostling between the Applicant and PW2, PW1 stopped the bus, called the police and arranged for the passengers to take another bus.

7.  Shortly afterwards, another bus arrived. The passengers on PW1’s bus, including the Applicant, alighted and boarded the other bus. PW1 tried to intercept the Applicant and stop him from boarding the other bus but was pushed by him onto the ground. She got back on her feet and said to the Applicant that he was not allowed to board the bus because she had already called the police. However, the Applicant pushed her away again, and she tried to keep her balance by grabbing the Applicant’s briefcase. The Applicant then shoved her hard, as a result of which she fell onto the ground again (Charge 1). This time the other passengers helped her regain her footing.

8. Having witnessed the Applicant pushing PW1 onto the ground, PW2 immediately came up and grabbed the Applicant’s clothing by the chest in an attempt to stop him from leaving the scene. The Applicant instantly grasped PW2’s right hand and then put PW2’s right thumb in his mouth and bit it. PW2 felt pain and tried to push the Applicant’s head away, but the Applicant did not let go. Eventually, he bit off PW2’s right thumb (Charge 2).

9. PW3 was another passenger on board the bus. On her testimony, the Applicant pressed against PW2 with his left elbow on the bus and the latter managed to get free only after some struggle. According to PW3, when the Applicant was getting off the bus carrying the baby and the cart, PW1 approached him and said that she had already called the police. She also asked the other passengers to help intercept him. PW1 grabbed the Applicant’s hand.

10. PW3 further said that PW1 fell onto the ground possibly because she was shoved by the Applicant, but PW3 did not see how PW1 fell down. PW3 also said that, at the front door of the other bus which arrived subsequently, PW1 grabbed the Applicant’s briefcase in an attempt to stop him from boarding the bus and PW1 then fell onto the ground. And at that moment, PW2 stretched out his finger(s) and rebuked the Applicant for shoving PW1 and causing her to fall onto the ground, and the Applicant grabbed PW2’s hand and bit off his thumb.

11. Following the incident,  PW1 and PW2 were sent to the hospital for treatment. PW1 was diagnosed to be suffering from contusion to her right shoulder blade, low back and right leg. As for PW2, the tip of his right thumb was almost detached, and the site sustained bone fracture and required correction, amputation as well as skin graft for the purpose of covering the injured area. PW2 was hospitalized for 9 days. The tip of his thumb suffered from numbness and the dexterity of his fingers was reduced. After discharge, he had to undergo physiotherapy and occupational therapy.

The Applicant’s defence

12. The Applicant elected to give evidence at trial. He said that PW1 spoke to him after he boarded the bus, but he did not understand Cantonese. He later realized that PW1 wanted him to scoop the baby out of the baby cart and fold up the cart. He therefore picked up the baby from the cart. However, as he was holding the baby with both hands, he was unable to fold up the cart, and so he had no alternative but to put the baby back to the cart. On seeing this, PW1 pulled up when the red traffic light was on and then told the Applicant loudly to fold up the cart. The Applicant was not happy with PW1’s attitude and walked to the location beside her to jot down her particulars for the purpose of making a complaint in the future. PW1 was angry in reaction to that. Subsequently, PW1 drove the bus into a bus stop. After the bus came to a halt, PW1 again asked the Applicant to fold up the cart, but he did not know what to do. At that moment, PW2 scolded him in Cantonese. The baby, who was awakened by the voice, stood up on the cart and cried. The Applicant then heard PW1 say that she had already called the police. After the bus stopped, the Applicant alighted from it to board the other bus that had arrived. He admitted that PW1 did fall onto the ground twice but asserted that he had never pushed her away or made her fall because his hands were occupied in holding the baby and pushing the cart. Nor, he said, did he intend to hurt PW1. According to the Applicant, before her first fall, PW1 did grab his sleeve and he turned in an attempt to get away from her. He then saw her fall onto the ground. Later, when he was about to board the other bus, PW1 again approached him and grabbed his briefcase, causing the strap thereof to fall from his shoulder to his elbow. PW1 then let go of her grip. After he boarded the bus, the Applicant saw PW1 lying on the ground. When PW1 got back on her feet after her second fall, the Applicant had in fact boarded that bus already. However, on seeing PW1 dumping his cart on the road, he got off the bus. At that juncture, PW2 came up to him, shoved him rashly and then attacked him with the fist. The Applicant carried the baby in his arm and held the briefcase with his other hand to shield the baby’s head from attack. PW2 started by hitting the Applicant on the shoulder and chest. He then grabbed the Applicant’s suit collar with one hand and assaulted him with the other hand. After a moment, when the suit became loose amidst the struggle, PW2 grabbed the Applicant’s tie while continuing to assault him. In the course, on the verge of suffocation, the Applicant instinctively opened his mouth, and PW2 assaulted his mouth with his hand, which he thrust into the Applicant’s mouth. Being aware that PW2’s fingers were in his mouth, the Applicant bit PW2’s fingers in self-defence, but PW2 kept hitting him with his fist.

Deputy Judge Yim’s verdict

13.  Deputy Judge Yim accepted the evidence of PW1, PW2 and PW3 on the incident and rejected the Applicant’s defence.

14.  Deputy Judge Yim ruled that, when the Applicant first shoved PW1 and made her fall, he was already aware that the force he used was strong enough to make her fall and get hurt. In spite of that, he then even more forcefully pushed PW1 onto the ground. Deputy Judge Yim therefore found that, when he shoved PW1 for the second time, he deliberately applied stronger force, knowing that it would inflict more serious injuries on PW1. That was an intentional and malicious act. Deputy Judge Yim further found that the Applicant had inflicted grievous bodily harm on PW2 by biting off his thumb tip.

Fresh evidence: Cheung Hon Man

15. Cheung Hon Man (張漢文) worked in the vicinity of the scene of the incident. He was passing by the scene on a bicycle and witnessed what happened. On the following day, he read Sun Daily and noticed that its report about the incident was at variance with what he had witnessed. He immediately called Sun Daily, relating what had actually happened and asking the newspaper to report the truth. However, Sun Daily replied that the arrested man had already given to the police an account of the incident, the content of which was the same as what Mr. Cheung had witnessed, and that Cheung need not worry about it. 

16. In early December 2006, Mr. Cheung read Sun Daily and came across another report about the case. The case was at that time being tried, but the content of the report was completely different from what he saw on the day in question. He therefore called Sun Daily again, and the reply he received was that the report was prepared on the basis of information provided by the court.

17. Subsequently,  Mr. Cheung purchased a copy of Apple Daily and read its report about the case. He then called Apple Daily and related to a staff member thereof what he saw on the day in question. He was then told to contact by phone the staff of Court No. 23 on 7/F of the District Court Building. Subsequently, he got in touch with a clerk of the District Court, who told him that as the case was being tried, he should lodge an appeal after the conclusion of the trial.

18. On 23 December 2006, Mr. Cheung learnt from Apple Daily that the trial had concluded and sentences had been passed. However, the content of the report was different from what he saw on the day in question. Thereafter he received a phone call from the solicitor acting for the Applicant. He told that solicitor what he had witnessed and later, at the request of the solicitor, provided information to the police. On 28 December 2006, in the company of a solicitor, Mr. Cheung went to Sheung Shui Police Station and gave a statement, the content of which is reproduced below:

Sometime after 1 pm that day, having finished my lunch, I was cycling along Pak Wo Road bicycle track in the direction of Fanling on my way back to the school for work. When I reached the bus stop off the school, I saw a stationary 273A bus. A man in suit was standing at the bus stop and pushing a baby cart on which there was a baby. He was surrounded by 3 or 4 persons who scolded him in foul language. The front and middle doors of the bus were both open. Some of the passengers on the lower deck also scolded the man in suit. However, I have no idea how and why they scolded him. I was about 4 metres away from him. About 2 minutes later, another 273A bus arrived. The driver of the first bus told the passengers on board that the police had been called, and she asked them to board the other bus which was behind her bus. After all the passengers from the bus in front had boarded the other bus, the man in suit pushed the baby cart towards the other bus and lifted it with both hands to get on the bus through the front door. After boarding the bus, he pushed the cart to the centre of the bus. At that moment, the driver of the first bus, who had been chasing after the man, got onto that bus. She pulled the cart to get it off the bus through the front door, and also said that the police had been called and the man was not allowed to go. The man in suit pulled the other end of the cart. When the driver stepped onto the ground while pulling the cart, she got wrong footed, lost her balance and went down on her knees. At that juncture, she shouted that the Mainland guy was pushing and assaulting her. She then regained her footing and continued to pull the cart to get it off board. Eventually, both the cart and the man in suit were off onto the ground. The driver continued to pull the cart to the roadside, and I saw her tripping over the concrete barrier on the roadside and falling flat on the ground. She again shouted that she was assaulted by the Mainland guy. Three to 4 male onlookers then approached the man from the roadside and took him from the road to the pavement. I then carried the cart from the road to the pavement. And then I saw one of the men grabbing the man in suit from behind and striking a blow with his left hand from behind towards the man’s lower back, while two other men were grabbing the man’s clothing by the chest and his right arm respectively. I was about one metre behind the man to his left. Seeing that the baby had stood up on the cart, I immediately scooped up the baby. As the men continued to assault the man in suit, I shouted at them, saying that they should stop the assault in the presence of a child. They then stopped. The man in suit then came to me and I passed the baby back to him. At the same time, I saw that one of the men, whose hand was bleeding, still wanted to kick the man in suit. I shouted at him, telling him to stop. After that, the parties calmed down. I took a look at the bleeding man and noticed that his thumb was broken. As the people involved had calmed down and the police had been called, and I was in a hurry back to work, I then left the scene! 

19. In the same statement, Mr. Cheung also answered the following questions regarding the case:

Q4:   Did you clearly see how the man, who had his thumb broken, got injured?

A4:   I did not see that because the man in suit had his back towards me and therefore blocked my sight.

Q5:   In the course of the incident, did you hear the man in suit say anything?

A5:   Throughout the incident, the man in suit said a few times in Putonghua, ‘you Hong Kong people are bullying me, a Mainlander’.

Q6:   You said the driver pulled the baby cart from the second bus onto the ground. Does ‘the ground’ refer to the road or the pavement?

A6:   The road.

Q7:   Do you have anything to add?

A7:   When the man in suit was being assaulted, he was in fact got hold of by others. He could not have grabbed someone with both hands and bitten him as described in the newspaper. Nor had he pushed the driver onto the ground. For this reason, I am coming forward to have the facts clarified with the police.

20. Mr. Cheung gave another statement to the police on 21 January 2007, in the course of which he gave the following answers to questions concerning the circumstances of the incident:

Q1:   When you first contacted the solicitor handling this case, what did you say to him in giving an account of what you saw?

A1:   I told the solicitor that on that day I was riding a bicycle to school after lunch. Upon reaching the 273A bus stop off the school, I saw the Mainland guy pushing the baby cart with a baby in it. He was surrounded by 3 or 4 persons, who scolded him as a Mainland guy. Then the second bus arrived and the passengers left the first bus and boarded the second bus. The Mainland guy was the last one to board the second bus. The driver of the first bus then went to the second bus, intending to move the baby cart off the bus. When she was moving the baby cart onto the ground, she lost balance and fell. She accused the Mainland guy of hitting her, and then other people went up to him and hit him. During that time, when the driver tried to pull the baby cart back onto the pavement, in the course of which she fell onto the ground again. Then someone grabbed the Mainland guy and dragged him onto the pavement, where he was hit with fists and legs. At that moment, I saw the baby standing and crying on the cart, and so I went up and scooped up the baby. Having done so, I told the group to stop fighting in the presence of a baby. When the Mainland guy approached me, I saw blood at the corner of his mouth. Then someone tried to rush over to hit the Mainland guy again. I noticed that the thumb of that person was broken and bleeding, and I shouted at him to stop him. Subsequently, as they had stopped fighting, I went back to school for work!

  Q10:    Can you tell me the respective positions of all the parties involved when AP was being assaulted?

A10: At that time, the Mainland guy was facing Sheung Shui Government Secondary School. To the Mainland guy’s right, someone was grabbing his arm. Another person was grabbing his neck from behind, and a third person was hitting him from the left.

21. On 29 November 2007, i.e. the first day of hearing of the present appeal, Mr. Cheung told us how he contacted the newspaper and court staff and eventually went to the police station to give statements. We adjourned the hearing and ordered the police to investigate the incident in light of Mr. Cheung’s account. In response to the investigation, Sun Daily indicated that it would not provide information to the police unless ordered by the court to do so. A reporter at Apple Daily’s court news unit revealed to the police that he was told by his company that Mr. Cheung had previously called the company, saying that he had read newspaper reports on the circumstances of the wounding case and the outcome of the court case against the Applicant but that the circumstances were different from what Mr. Cheung had witnessed at the scene. The newspaper therefore passed Mr. Cheung’s phone number on to the reporter so that he could contact Mr. Cheung direct in respect of the matter. That reporter later made enquiries with Mr. Cheung, recorded what Mr. Cheung said about what he had seen at the scene, and subsequently reported it in the newspaper. The reporter knew the solicitor formerly acting for the Applicant and therefore told that solicitor Mr. Cheung’s phone number and the circumstances of the incident. Thereafter, the reporter was no longer involved in the matter.

22. Mr. Cheung appeared in court again on 23 September 2008, the second day of hearing of the present appeal. He again described how he got in touch with the newspaper and eventually went to the police station to give statements, as well as the circumstances of the incident. He was also cross-examined by Miss Louisa Lai, Senior Assistant Director of Public Prosecutions.

Assessment of Cheung Hon Man’s evidence

23. In our judgment, Mr. Cheung is a veracious and credible witness. He is a school janitor who has received only primary education. We find him a simple yet upright witness. Under cross-examination, when asked why he did not approach the police direct and tell them what actually happened, he replied that he sought clarification with the newspaper because of its untrue report on the incident. He added that he was someone who was reluctant to have any involvement with the authorities. After the incident, he sought advice from his colleagues on how to handle the matter. Some of them encouraged him to provide information to the police, but some warned him that he might face retaliation if he testified, and he decided not to contact the police. Subsequently, it was only with the company of a solicitor that he was willing to go to the police station to provide information. We accept Mr. Cheung’s explanation. He is plainly a person with the traditional mindset of ‘never going to the authorities as long as one is alive’. In our view, given the considerable influence of the local media on the public, it was not unusual for Mr. Cheung to elect to contact the media instead of the police after the incident. 

24. The time at which Mr. Cheung contacted the newspaper publisher and the court was in accord with the dates of trial. The case was heard in the District Court from 4 to 6 December 2006, with the Court receiving evidence on the first two days and hearing submissions from both parties on the third day. Deputy Judge Yim gave judgment on conviction on 7 December 2006 and adjourned the case to 22 December 2006 for sentencing.

25. Mr. Cheung jotted down the telephone number of the newspaper publisher on the back of a Mark Six ticket dated 5 December 2006, i.e. the second day of trial. The content of the subsequent telephone conversation between Mr. Cheung and the court staff also shows that the court had given judgment on conviction and was yet to pass sentence.

26. More importantly, Mr. Cheung has in the Court given a well-organized and completely truthful account of the course of events that he witnessed. He was indeed at the scene at the material time. In fact, in the evidence at trial there was also mention of a man riding a bicycle turning up at the scene. Despite the rather rigorous cross-examination, the credibility of Mr. Cheung’s evidence was unimpaired. As regards the material facts pertaining to Charge 2, he frankly admitted that he did not witness the Applicant biting another person. We fully believe and accept Mr. Cheung’s evidence.

Legal principles 

27. Section 83(1)(a) of the Criminal Procedure Ordinance (Cap. 221 of the Laws of Hong Kong) provides that the Court of Appeal shall allow an appeal against conviction and set aside the relevant conviction if it thinks that under all the circumstances of the case the conviction is unsafe or unsatisfactory. Once fresh evidence is admitted, the only issue for the Court of Appeal is whether such evidence would render the conviction unsafe or unsatisfactory: see R. v. Pendleton [2002] 1 All ER 524 and Stafford v. Director of Public Prosecutions [1974] AC 878.

28. In Stafford, Lord Cross of Chelsea pointed out the following three possible consequences of the Court accepting fresh evidence:

First, where the fresh evidence will create in the case new complexity so that the court will be satisfied that the conviction is unsafe, the court will quash the conviction and not order a retrial.

Second,  where the fresh evidence, though credible and relevant to the facts of the case, is not of such weight as to cast any reasonable doubt on the prosecution case, the court will uphold the conviction.

Third,     where, having considered the fresh evidence or the evidence adduced by the prosecution in rebuttal, the jury may convict the defendant or may acquit him, the court will have to order a retrial.

Unsafe conviction

29. In the present case, we are of the view that Mr. Cheung’s evidence has rendered the convictions unsafe and unsatisfactory. Mr. Cheung is an independent witness of the incident which gave rise to the two charges against the Applicant. Two items of material evidence given by him are diametrically opposed to those adduced by the prosecution:

First, on both occasions PW1 was pulling the cart before she fell onto the ground. She fell by herself and was not shoved to the ground by the Applicant.

Second,  the Applicant was being attacked by several persons, including PW2, when he bit off his thumb. The circumstances at that time were chaotic.

30. The discrepancies between the aforesaid two items of evidence and the original evidence have a direct bearing on the court’s assessment of the evidence. They go directly to the issues of whether the Applicant did shove PW1 onto the ground and cause grievous harm to PW2 with intent as alleged.

31. The original evidence on the circumstances in which PW1 fell is entirely different from Mr. Cheung’s account. Miss Lai submits that, even on the Applicant’s own evidence, the circumstances were merely that PW1 was grabbing the Applicant’s sleeve and his shoulder bag and there was no mention of PW1 pulling the Applicant’s baby cart, was and this is different from Mr. Cheung’s account. In our view, this does not mean that Mr. Cheung’s observation was erroneous. According to the Applicant, he was carrying the cart when he boarded the second bus, and subsequently PW1 tossed it onto the street. In our view, it was not entirely impossible for PW1 to have pulled the cart apart from pulling the Applicant’s clothing. In light of the discrepancies in evidence, the Applicant’s conviction on Charge 1 is unsafe.

32. Turning to Charge 2, PW2’s evidence was that after he saw PW1 fall down, he came up and grabbed the Applicant’s clothing by the chest and stopped the Applicant from boarding the second bus, and the Applicant instantly grabbed PW2’s hand, put it in his mouth and then bit his thumb. He felt pain and tried to free his right hand from the Applicant’s mouth but in vain. The Applicant opened his mouth only after he had bitten off part of PW2’s thumb tip. According to Mr. Cheung, the person whose thumb was bitten off was one of those who were assaulting the Applicant and at that time that person was not at all aware that his thumb had already been bitten off. As that person continued to kick the Applicant, Mr. Cheung shouted at him to stop him and told him that his thumb was bleeding. Only then did he realize that his thumb tip had been bitten off. If, as PW2 said, the Applicant got hold of his thumb, put it in his mouth and bit it immediately after the two of them had body contact, then he could not possibly have been unaware that his thumb was bitten off. More importantly, Mr. Cheung’s evidence lends support to the Applicant’s case that he bit PW2’s thumb because he could not breathe and had to defend himself as a result of PW2’s attack. 

Conclusion

33. In our assessment, Mr. Cheung’s evidence is highly credible. We are satisfied that his evidence does render the convictions unsafe. In our judgment, the present case falls within the first scenario set out by Lord Cross. We therefore allow the appeal, set aside the convictions and make no order for retrial.