HKSAR v. QADEER, ABDUL

HCMA 673/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 673 OF 2013

(ON APPEAL FROM KTCC NO. 6478 OF 2012)

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REASONS FOR JUDGMENT

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Introduction

1.  The appellant appeared before Deputy Magistrate Kenneth Chan at Kwun Tong Magistracy charged with assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences Against the Person Ordinance, Cap 212.  The offence was alleged to have occurred on 25 October 2012 and after pleading not guilty, the appellant’s trial commenced on 4 December that year.  However, for a number of reasons, it did not conclude until 2 October 2013 on which date the appellant was convicted as charged and sentenced to a period of 12 months’ imprisonment, which he has now served.  The appellant appealed his conviction.

2.  At the hearing of his appeal I dismissed it and said I would give my reasons for doing so at a later date.  This I now do.

The Trial

3.  The prosecution called only two witnesses at trial.  The first witness was the victim and the second witness was a bystander who claimed to observe the whole incident and who also used his mobile telephone to video record what was taking place.  Medical reports on both the victim and the appellant were also produced in the course of the trial.

4.  PW1, the victim, is a 52 year-old travel agent who said he was walking alone at the junction of Soy Street and Portland Street, Mongkok at about 3.15 a.m. on 25 October 2012.  He had come from having a drink with a friend when he claimed that a person bumped into him, causing him to feel dizzy as a result.  He said that thereafter he was confused and did not know what really happened to him.  All he could recall was that someone was assaulting him.  He could not recognize who attacked him and did not know why he was attacked.

5.  It was put to PW1 by the appellant’s legal representative that PW1 was in the company of his girlfriend and that the dispute that arose between he and the appellant was due to a misunderstanding by PW1 that the appellant was addressing foul language to his girlfriend.  PW1 disagreed that his girlfriend was with him when the incident took place, though he did agree that he had subsequently called her and that she accompanied him in the ambulance to hospital.  He also disagreed with the suggestions that he was offended and enraged by the appellant’s behaviour.

6.  It was further put to him that as a result of being offended by the appellant’s behaviour, he approached the appellant and slapped him on his left cheek forcefully.  PW1 denied attacking the appellant and assaulting him for about 8 to 10 minutes before the appellant responded in self-defence.

7.  PW2 is a male, 23 years old air-conditioning technician.  He was eating some food at a snack bar near the junction of Portland and Soy Street at about 3 a.m. on 25 October 2013.  At about 3.15 a.m. he said he was about to take a ride back home when he saw the appellant and PW1 quarrelling. He saw the appellant commence hitting PW1 with his fists and also stamping on him with his feet.  He assessed the number of assaults to the victim’s head to be 40 to 50.  He said that he saw the victim falling onto the ground and heard him asking the appellant whether he was insane and whether he had hit enough and imploring him not to assault him anymore.  PW2 said he heard the appellant say something but it was in a language that he did not understand.

8.  PW2 believed the assault lasted for about a minute before the appellant went to an adjacent construction site to pick up a bamboo stick.  The appellant then returned to the victim and PW2 thought that he might hit the victim with the bamboo stick and so he shouted to the appellant “Stop hitting.  Police coming”.  At this time police officers, in fact, arrived in a police vehicle and the appellant went away towards the direction of Nathan Road.  PW2 told the police officers what had happened and witnessed the apprehension of the appellant.

9.  PW2 produced a video recording of the incident which became Exhibit P4.  He had been playing with his mobile telephone when the incident erupted and he used it to record the incident.  He said that he started the video recording shortly after the fighting between the appellant and the victim had begun and he continued it until the police arrived.  He identified the parties in the video.  Once the video footage had been played it became apparent that the video recording did not capture the episode when the appellant went to an adjacent construction site and picked up a piece of bamboo.  PW2 said that he must have stopped the recording when the appellant walked away towards the construction site which he said was about 10 to 15 feet away from the scene.

10.  PW2 maintained under cross-examination that he witnessed the entire incident but he did agree that the video footage did not cover the whole of the incident.  He said that he did not see PW1 ever hitting the appellant.  He said that the quarrel between the appellant and PW1 lasted for about 10 to 20 seconds and the fight that then took place was a one-sided attack by the appellant upon the victim.

11.  When it was pointed out to PW2 in cross-examination that there were some blood stains on the appellant’s shirt, PW2 agreed that the appellant had been bleeding on top of his head and on his face near the mouth.  He explained that the appellant had slipped over and fallen onto the kerb and the ground and injured himself.  He said that this happened in the course of the appellant hitting PW1.  He specifically disagreed that these injuries had been caused by PW1 hitting the appellant.  He also disagreed that PW1 had slapped the left cheek of the appellant with his right-hand thereby causing the appellant to release a can of beer in his hand and that PW1 had grabbed the appellant’s hair and banged his head against the roadside railing and the ground.

12.  In the course of the cross-examination some confusion was created when PW2 agreed with the defence that it was after all the incidents that the defence claimed had occurred, that he took out his mobile telephone to record the incident, thereby suggesting that he was agreeing that these incidents alleged by the defence did, in fact, occur.  However, in re-examination he clarified any misunderstanding created by this answer and clearly denied the defence suggestion that PW1 had hit the appellant or caused injuries to him.

13.  Apart from medical reports on both the appellant and the victim, the other exhibit was the video footage of the incident, Exhibit P4, captured by PW2.  This footage lasts for about 1 minute and 40 seconds and shows the appellant sitting on the ground whilst the victim is lying on the ground with his head next to the appellant’s leg.  The appellant can be seen punching the head of PW1 with both of his hands for about 13 times.  The appellant then gets up from the ground and is seen either kicking or stamping his feet on the head of PW1 for about 29 times.  It is possible to see blood on PW1’s nose and PW1 trying to fend off the appellant’s blows with his limbs or by grabbing the legs of the appellant.  Throughout the whole footage PW1 is not seen attacking the appellant in any way.

14.  The magistrate ruled a case to answer and the appellant then elected to give evidence and in the course of so doing produced as Exhibit D1 the medical report prepared on him.

15.  It was the appellant’s case that the victim was a complete stranger to him.  He said that whilst he was talking to a friend on his phone, he noticed the victim and a female at a distance of 8 to 9 feet away from him.  The appellant said that he looked at this woman when he was making jokes with his friend over the phone.  In the course of conversation with his friend, he used foul language.  He said that he thinks that PW1 may have misunderstood him and thought that he was teasing the woman.

16.  He said that all of a sudden, PW1 rushed towards him and asked him what had happened.  PW1 then slapped him hard on his left cheek and this blow was with sufficient force to cause him to lose his grip on a can of beer and of his mobile telephone.  He said that he did not know what was going on and he tried to pick up his mobile telephone.  PW1 then grabbed his hair with both hands and hit his head against the railing on the ground.  He said he then asked PW1 “What happened? Who are you? Why are you hitting me? What kind of grudge you have against me?”  He said he also asked PW1 “Had anybody sent you to beat me?  Why?”. He said that as PW1 assaulted him, he was speaking foul language in Chinese which the appellant could not follow.  The appellant then asked PW1 “What had I done? What is my fault?”

17.  The appellant claimed that the attack by PW1 lasted for 8 to 10 minutes during which the appellant said his head was banged by PW1 against the ground, the railing, a wall and other hard objects.  His head started to bleed profusely and his shirt was stained with blood.  He said that he thought that PW1 was going to kill him and that he had to do something to save himself.  He then pushed PW1 with all his strength and managed to free himself from PW1’s grip. What happened thereafter was, according to the appellant, what was captured in the video footage that was Exhibit P4.

18.  Under cross-examination the appellant explained that he was unable to do anything in response to PW1’s attack in those 8 to 10 minutes preceding the video footage.  He said initially he was not scared when he received the many injuries to his face but found that he was bleeding heavily and thought that PW1 was going to kill him.  At that time, he said he wanted to save himself and run away.

19.  When cross-examined about whether he had applied physical force to PW1, he simply answered that one could see on the video to decide whether that was force or not.  He disagreed that he was not apprehending any physical threat from PW1 when he was attacking PW1 as shown in the video footage.  He stated that he had never been afraid of PW1 at any stage but maintained that he had been beaten up by PW1 for 8 to 10 minutes prior to the beginning of the video footage.  He described his assault on PW1 as only a reply to what PW1 had done to him.  He disagreed that he had injured himself by slipping over in the course of attacking PW1 and denied also trying to use a bamboo stick to attack PW1.

20.  A medical report on the appellant, Exhibit D1, was produced and this document showed that the appellant was treated on 25 October 2012 by a doctor at the Accident & Emergency department of Kwong Wah Hospital.  He was described as smelling of alcohol but was fully conscious with multiple haematomas and a laceration of about 1 cm long on his scalp.  He was known to be suffering from thrombocytopenia which is a condition involving a reduction of platelets in his blood.  For this reason he was admitted to the Neurosurgical Ward for further management.  The Admitted Facts reveal that he remained as an inpatient at the hospital from 25 October to 30 October 2002 for a head injury in the Department of Neurosurgery at Kwong Wah Hospital.  A medical certificate granting him 6 days sick leave was also produced as Exhibit D3.

The Magistrate’s Statement of Findings

21.  The magistrate accepted that PW1 was a honest witness who gave his evidence in a straightforward manner.  However, because his recollection of what happened was so vague he felt it unsafe to rely on his evidence and said that he would attach no weight to PW1’s evidence except for the fact, which was not disputed by the appellant, that PW1 was the one who appeared in Exhibit P4 as the man lying on the ground.

22.  In respect of PW2 he accepted him as a member of the public independent of PW1 who happened to witness and record the incident by chance.  He said that he was satisfied that this person gave evidence without any self-interest or ulterior purpose.  He referred to the incident in PW2’s cross-examination where some confusion arose as to whether or not he was agreeing that PW1 had attacked the appellant but said that this matter had been finally clarified and he was satisfied that PW2 was an honest and reliable witness and he would give full weight to his evidence.

23.  In respect of the video footage Exhibit P4 he noted that it had been admitted into evidence by consent and that the accuracy of its content was admitted pursuant to section 65C of the Criminal Procedure Ordinance.  He said that he was satisfied that the video footage showed the truth of what happened.

24.  As to the appellant’s evidence, he described it as illogical, nonsensical and self-contradictory.  After analysing his evidence, he concluded that he could not believe it and that it did not represent the truth.  He rejected the appellant’s evidence.

25.  He went on to consider all the points advanced before him by counsel for the appellant at trial.  After considering those points, however, he said that it did not affect the view he had formed in relation to PW1 and PW2’s evidence.

26.  The magistrate then went on to address the issue of self‑defence that was relied upon by the appellant.  However, crucial to his consideration of this defence was his finding that PW1 never attacked the appellant at any stage and his finding that flowed from this that the appellant did not believe that PW1 was going to kill him.  It therefore followed that he did not accept that the appellant was compelled to act as he did in order to defend himself.  Nor, he concluded, was the appellant’s conduct a reasonable response to PW1’s conduct. Rather, the appellant’s assault upon PW1 was, he found, “a one-sided attack by the defendant on PW1 who was lying helplessly on the ground”.  He therefore found that any unlawful force applied by the appellant to PW1 in the course of this incident was not done for self-defence.

27.  The magistrate, however, went on to consider what the position might have been had he accepted the appellant’s claim that PW1 had earlier assaulted him.  Making such an assumption he then referred to the images of the appellant assaulting PW1 that were captured by the video footage and described them as not being defensive actions and so even on the appellant’s own case, in respect of these assaults, he could not rely on the defence of self-defence.

28.  He then made findings of facts and, as a consequence of these findings, he thereupon convicted the appellant.

Grounds of Appeal

29.  The appellant did not file any grounds of appeal in relation to this appeal but at the hearing of it he handed up to the court a handwritten document containing a list of his complaints.  All these complaints relate in one way or another to the evidence adduced at trial and the magistrate’s acceptance or rejection of particular pieces of evidence.  The first complaint is that the magistrate wrongly rejected the appellant’s evidence in relation to how the argument started for, in the absence of that evidence, there was no explanation for why the assault took place.  The appellant also went on to complain about aspects of PW1’s evidence and how, in light of these problematic aspects, the magistrate could find that PW1 had not initiated the assault.

30.  In respect of PW2 the appellant complains that this person did not witness the entire incident and did not capture the entire incident on the video recording that he took.  He suggests that PW2’s evidence was flawed and had to be corrected at the invitation of the magistrate when the magistrate intervened in order to lead PW2 into giving correct evidence.  Finally, in respect of PW2, it was said that the discrepancies in his evidence made it unreliable.

31.  In respect of his defence of self-defence he referred to the medical report which showed injuries to his scalp which he said established that he was, in fact, attacked by PW1 as stated in his evidence.

32.  For all of these reasons he asserted that his conviction is unsafe and unsatisfactory.

Discussion

33.  There is no merit in any of the appellant’s complaints.  The magistrate was well aware of the problems with PW1’s evidence which is why he relied on it to only a very limited extent.  The fact that it meant he could not identify a reason for the quarrel between PW1 and the appellant in no way detracted from his reliance on the evidence of PW2.  Although PW2 could not say how or why the quarrel started, he did observe the whole of the incident, from its non-violent stage to when it became violent.

34.  On the evidence before him the magistrate was entitled to find that PW2 was an honest and reliable witness and did, in fact, observe all of the violence associated with this incident.

35.  Of course, a telling piece of evidence was Exhibit P4, the video recording made by PW2.  It supported PW2’s evidence but, more importantly, it completely contradicted the evidence of the appellant that he was acting in self-defence. The video recording shows a totally vulnerable and defenceless PW1 lying on the ground, completely at the mercy of the appellant and the appellant repeatedly striking him.  The magistrate was quite right to say that even on the appellant’s own case the assaults recorded on the video recording were clearly of a retaliatory nature and were not committed in self-defence.

36.  I find no error in the magistrate’s analysis of the evidence, findings of fact and application of the law.  However, this being a rehearing I have considered the matter afresh but have no hesitation in reaching the same conclusion as the magistrate.  I am satisfied beyond reasonable doubt of the guilt of the appellant.

Conclusion

37.  For these reasons I dismissed the appellant’s appeal against his conviction

(Ian McWalters) Judge of the Court of First Instance High Court