HKSAR v. WONG HON WAI

[English Translation – 英譯本]

HCMA 1115/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1115 OF 1998

(ON APPEAL FROM NKCC NO. 5248 OF 1998)

-------------------------------------

BETWEEN

-------------------------------------

------------------------

JUDGMENT

------------------------

1. The Appellant was charged with one count of common assault, contrary to Section 40 of the Offences against the Person Ordinance, Cap. 221, Laws of Hong Kong.  He was convicted by a magistrate after trial and sentenced to Siu Lam Psychiatric Centre for treatment for a period of 3 months.  He now appeals against conviction and sentence.

2. PW1 resided in a building in Cheung Sha Wan. At the time of the offence, he was about the leave the building. Through the main gate of the building, he saw the Appellant peeping into the building from outside. PW1 then opened the gate and asked the Appellant what he was doing and who he was looking for. When the gate was slightly ajar, the Appellant broke in, bumped into PW1’s chest and entered the building. PW1 followed the Appellant and, in front of the elevator, continued to ask the Appellant the purpose for which he was there. With his right hand, which was holding a key, the Appellant hit PW1’s chest, causing bleeding. PW1 called the police with his mobile phone for assistance. Soon afterwards a police officer arrived and, after investigation, arrested the Appellant and cautioned him verbally. At that time he told the police officer that he was defending himself. The police officer saw a wound on PW1’s chest. The Appellant claimed he was injured, and upon examination a red mark was found on the inside of his left arm. However, PW1 said he had not attacked the Appellant during the incident.

3. The Appellant elected not to give evidence at trial.

4. Having considered the prosecution evidence, the magistrate found PW1 veracious and credible and believed that the Appellant deliberately assaulted PW1. PW1’s evidence was backed by evidence of injury to his chest. The magistrate also noticed the presence of a red mark of 0.5 to 1 inch long on the inside of the Appellant’s left arm. However, the police officer pointed out that the Appellant had not complained to him about being attacked by PW1 but, rather, only told him that PW1 had stopped him. Accordingly, the magistrate did not believe that the Appellant’s left arm was injured because he was attacked by PW1. The magistrate said that, had the Appellant indeed been attacked, his injuries would have been more serious and would not have appeared on the inside of the arm. Therefore, the magistrate refused to accept the Appellant’s claim that he was defending himself from an attack.

5. The magistrate also took into account the fact that, in the course of cross-examining PW1, the Appellant said there was a witness aged 8 to 10 who could testify on his behalf. However, upon inquiry by the magistrate, the Appellant said he would neither call any witness nor give evidence himself. The magistrate reminded himself that the Appellant was a man of clear record and good character, but held that PW1’s evidence was to be accepted. As a result, the magistrate found the offence proved beyond reasonable doubt and convicted the Appellant.

6. Mr Chan, Counsel for the Appellant, raises two grounds of appeal. The first ground is that the magistrate had refused the Appellant’s application to instruct a lawyer to act for him. Counsel points out that there were before the magistrate reports prepared by two psychiatrists, which stated that the Appellant had been suspected of suffering psychiatric illness since 1997. Although both psychiatrists said that the Appellant was fit to conduct the defence at trial, the Appellant did, in the circumstances, need assistance from others in conducting the defence, particularly as the reports stated that his thoughts were disorganized and his speeches illogical. Counsel argues that, in the absence of assistance, the Appellant would not have been able to properly cross-examine witnesses, duly consider whether he should give evidence and properly make closing submissions. Counsel further submits that the Appellant could have raised a defence under the McNaughten Rules by reason of his mental illness.

7. It can be seen from the appeal transcript that the offence with which the Appellant was charged took place on 26 July 1998. On 7 August the Appellant attended a call-over hearing, at which the magistrate adjourned the case for a trial date to be fixed. On 25 September 1998, i.e. the day on which the trial was scheduled to commence, the Appellant did not arrive at the court until after 11 a.m. The magistrate noticed that the Appellant wore strange expressions and spoke in an illogical manner, and hence ordered that the Appellant be remanded in custody so that he could be examined by a psychiatrist who would then prepare a report to help decide whether the Appellant was fit to plead to the charge. The case was adjourned accordingly. On 12 October 1998, the Appellant attended a second call-over hearing. The psychiatrist’s report stated that the Appellant had suffered schizophrenia since 1997, but that he was still fit to plead to the charge. At the hearing, a duty lawyer of the Law Society applied for bail on behalf of the Appellant, but the magistrate refused the application on the ground that the Appellant’s mental condition might pose a danger to the Appellant himself and the society. The magistrate then adjourned the case to 22 October 1998 for trial. The first day of trial saw the following exchange between the magistrate and the Appellant:

Court:            Defendant, according to the court record, you said on the previous occasion that you don’t need a lawyer to represent you in the defence, is that correct?

Defendant:     Correct, yes.

Court:            As you don’t want to have any lawyer to assist you in the plea – in the defence, the court has to explain to you the procedure. Listen carefully and see if you understand what the court is about to tell you.

Defendant:     But I have tried to hire my own lawyer and I was unable to contact my own lawyer.

Court:            Do you now want to find a lawyer or not?

Defendant:     If there is such a safeguard, then of course I need a lawyer.

Court:            The first call-over hearing of your case was on 7 August. You were remanded in custody from 25 September onwards. You attended court again on 12 October, and you were represented by a duty lawyer on that day.

Defendant:     Correct, yes, yes.

Court:            As far as I recall, on the previous occasion the duty lawyer also explained many things to you. If, for example, you further adjourn the case, particularly when you are still detained in custody, if you further adjourn the case and are unable to contact a lawyer, then you will – may be detained for even longer. You [should] consider this carefully. The court is not forcing you not to hire a lawyer, in particular, the court takes into account there are two reports, which I believe has been explained to you. They are psychiatric reports.

Defendant:     But I myself have something called a third-party insurance, but I request to see my insurance agent. I don’t have time to contact him. In addition, in respect of my civil litigation, I have sent out letters to them, but I’m in the prison and no one helps me contact [them], not a single person can help me contact [them].

Court:            Okay. The third-party insurance has nothing to do with this case. The Court now explains [the procedure] to you bit by bit, and you don’t have to speak, you should first listen carefully to what the court says. … (The Court explained the relevant procedure.)

Defendant:     I understand.

Court:            You now tell the court: now that you have heard the explanation, do you intend to commence trial of this case?

Defendant:     I intend to commence trial, because on the previous occasion I requested the lawyer to call upon the plaintiff [sic] to appear and repeat the evidence at that time, as I feel there are doubts about the evidence. 

Court:            If that is the case, then let’s commence the trial. The reason is, if you are able to say there are doubts [about the evidence], I believe you also know what you are doing. In addition, according to the court record, you have mentioned that you don’t have confidence in the lawyer.

Defendant:     This is not what I mean. What I mainly want to say is, I’m supposed to enjoy protection as a member of the public, but even when I reported to the police, he turned round and complained about me and I was adjudged guilty. I feel very aggrieved and unprotected. It was the complainant who on fight [hit] me first.

After the prosecution called the relevant witness, the magistrate asked the Appellant the following:

Court:            Do you elect to give evidence or not?

Defendant:     I’m very sorry, I think there is no need.

Court:            Is there any defence witness you wish to call?

Defendant:     I have hired a lawyer to conduct the defence for me, but he is not here today.

Court:            What’s that?

Defendant:     I have hired a lawyer to conduct the defence for me, but he is not here today.

Court:            I’m asking whether you have any witness who can provide the court with any evidence that may assist you with regard to the circumstances of the incident?

Defendant:     Oh, of course yes.

Court:            Where is he?

Defendant:     He is the relative who bailed me out.

Court:            The one who bailed you out?

Defendant:     He is an owner of the building where the incident took place, he also is.

Court:            You don’t know him?

Defendant:     You are referring to …

Court:            The witness you talked about just now.

Defendant:     A neighbour, it can be said.

Court:            What’s his name?

Defendant:     Kwok Lam Bun.

(Note: Kwok Lam Bun was PW1.)

8. In his Reasons for Verdict, the magistrate also pointed out why he refused the Appellant’s request to engage a lawyer to conduct the defence for him. The magistrate took into account that the circumstances of offence were not serious, that the Appellant had been detained for more than 20 days, and that there were two reports on the Appellant’s psychiatric illness. The Appellant refused to be represented by a duty lawyer, but then he had not taken any action to hire a lawyer to act for him. The magistrate considered that any further delay in the case would be prejudicial to the Appellant, and therefore decided to proceed with trial.

9. The magistrate’s decision was well-intentioned and had due regard to the Appellant’s interests. In an ordinary case, it would have been a perfectly correct decision. In the present case, however, the Appellant’s refusal to be represented by a duty lawyer might have been influenced by his mental condition. Furthermore, as can be seen from the exchange quoted above, the Appellant did, at the commencement of trial and in the course of trial, once and again request to hire a lawyer and say that he had found a lawyer, although it was not clear whether this was true. Although the medical reports stated that the Appellant was fit to conduct the defence, it would by no means have been easy for him to do so in light of his mental condition. When the magistrate explained the procedure prior to commencement of trial, he told the Appellant that if he was prepared to admit the facts as presented by the prosecution, the court would be in a position to order that he be sent to a psychiatric centre for treatment for 3 months pursuant to the Mental Health Ordinance; and if he did not admit those facts, the case would have to be tried and, upon conviction, the court would also sentence him to a psychiatric centre for 3 months. It can therefore be seen that the magistrate was having regard to the Appellant’s interests. Nevertheless, given that the Appellant might in any event be detained in a psychiatric centre for treatment, it would not have prejudiced him to adjourn the case so as to enable him to look for a lawyer to act for him. On the contrary, judging from his mental condition, he would have faced considerable difficulties in cross-examining the prosecution witnesses in relation to his defence of self-defence or in giving evidence in court on the circumstances of the offence. In these exceptional circumstances, it was inappropriate to refuse the Appellant’s request to hire a lawyer.

10. Turning to the second ground of appeal, Counsel contends that the magistrate failed to consider whether the Appellant was at the material time under the belief that he was being attacked and accordingly pushed and hit PW1, although in fact the Appellant was not being attacked. Counsel submits that, being aware that the Appellant had delusions and disorganized thoughts, the magistrate should have considered whether the Appellant did in the circumstances harbour the belief that he was being attacked, as a result of which he pushed and hit PW1. An English case of Gaynor Oatridge (1992) 94 Cr App R 367 is cited in support.  

11. In Gaynor Oatridge, the English Court of Appeal pointed out that, in cases involving self-defence, the judge must in some circumstances direct the jury to consider whether the defendant genuinely believed he was being attacked or threatened with an attack although in fact he was not being attacked or threatened. In other words, in appropriate circumstances, the judge had to direct the jury on whether the defendant held a mistaken but genuine belief. However, viewing the judgment as a whole, what Mustill LJ meant was that it was not necessary to give such a direction to jury in each and every case involving self-defence and that whether such a direction was needed would depend on the circumstances of the particular case. In the present case, the Appellant did not testify in court and there was simply no evidence to buttress the allegation of self-defence, apart from the red mark on the inside of the Appellant’s left arm and the Appellant’s statement in the course of cross-examining PW1 that “at that time I was defending myself and using my hand to shield off his fist”. Throughout the trial, therefore, there was insufficient evidence or factual basis to enable the magistrate to consider whether the Appellant acted in self-defence because he held a mistaken but genuine belief that he had been attacked or threatened. The question of whether the Appellant did hold such a belief simply did not arise, and it was unnecessary for the magistrate to deal with this aspect. The second ground of appeal must fail.

12. This, however, also serves to show the importance of legal representation to the Appellant. In the present case, in view of his mental condition, the lack of legal representation at trial would plainly put the Appellant under a disadvantage, and the possibility that this had caused injustice to the Appellant cannot be discarded. By reason of the first ground of appeal, the Appellant’s conviction is in my judgment unsafe and has to be quashed. The appeal is allowed accordingly. The parties may make submissions to this Court on the question of whether there should be a re-trial.