HKSAR v. TSANG CHI WAI

[English Translation – 英譯本]
HCMA 680/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 680 OF 2014

(ON APPEAL FROM TMCC 1852 OF 2014)

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JUDGMENT

1. The appellant was charged with one count of inflicting grievous bodily harm. He attended the Tuen Mun Magistrates’ Court for trial and pleaded not guilty to the charge. He was convicted after trial by the Deputy Magistrate (the Magistrate) and sentenced to detention in the training centre. The appellant has appealed against both conviction and sentence.

The Prosecution case

2. In a nutshell, the prosecution’s case is that the appellant together with other people approached the victim and accused him of “harassing (his) girlfriend”.  The appellant then fisted the victim upon which the victim fell onto the ground. The appellant and some other people then went up to kick and fist him, thereby causing him to sustain injuries.[1]

The Defence case

3. During the trial, the appellant neither gave evidence in court nor called any witness to give evidence on his behalf.

4. It was pointed out by the Magistrate that the issue in this case was whether the appellant was the assailant.[2]

Findings of the Magistrate

5. Although there was no specific mention of it by the Magistrate, he in all likelihood was satisfied that the victim was an honest and credible witness and accepted his evidence.  According to the victim, the appellant was the assailant. The Magistrate specifically stated that the victim’s evidence in this regard had been proved to his satisfaction and he thus convicted the appellant accordingly.

Grounds of Appeal

6. On appeal, Mr. Foster Yim of Counsel[3], who represented the appellant in the appeal, advanced the following grounds of appeal:

(1) The charge sheet which the prosecution disclosed to the defence was different from that prepared for plea to be taken from the appellant. This as such caused injustice to the appellant;

(2) The Magistrate had not paid sufficient regard to the contradictions in the victim’s testimony and thereby erred in accepting his evidence;

(3) Accurate identification is the crucial issue in this case.  However, the Magistrate had erred in not directing himself properly on the law;

(4) The Magistrate erred in finding that the victim had suffered grievous harm;

(5) The conviction of the appellant was unsafe and/or unsatisfactory.

Discussion and Consideration

Ground of Appeal (1)

7. The appellant alleged that the present charge i.e., inflicting grievous bodily harm was the charge being put to the appellant at the commencement of the trial. However, the charge as stated on the document received by the defence was assault occasioning actual bodily harm. This had caused injustice to the appellant.

8. Mr. Yim also pointed out that the prosecution admitted that they had made a mistake only after the whole morning court session was nearly over.  Moreover, they merely explained their mistake was a clerical one and indicated that it was not necessary for the prosecution to disclose documents which they did not rely on.  Mr. Yim submitted that this unavoidably had created a circumstance whereby a reasonable bystander might form the view that justice had not been seen to be done, and that a substantial impropriety had occurred in the trial and/or there was a miscarriage of justice.

9. The following are this Court’s observations:

(1) The evidence which the prosecution case relied on had never changed;

(2) Nor were there any changes in theessence of the allegation brought by the prosecution against the appellant.  The case described in the summary of facts[4] with the offence stated therein originally as assault occasioning actual bodily harm had all along been the basis of the prosecution’s allegation.

(3) Even if the charge had changed and the appellant came to learn about it only when the plea was taken, the defence had not been able to indicate whether this matter had created any substantial unfairness or any substantial difficulty or inconvenience for the defence in presenting their case.

(4) The Magistrate commenced the trial proceedings only after the defence counsel acting for the appellant in the trial had acknowledged that it was alright to proceed with the trial.[5]

10. This ground of appeal thus fails.

Ground of Appeal (2)

11. Mr. Yim complained that the Magistrate had disregarded the contradictions in the testimony of the victim and thereby erroneously accepted his evidence.  The contradictions that Mr. Yim had listed out can be noted in the transcript of the trial proceedings[6], the gist of which are as follows:

(1) The victim did not specifically mention in the two witness statements given by him that after the appellant had fisted him and when other people joined in the attack, the appellant had continued with his participation.  Yet, when he testified in court, he said that the appellant did continue with his participation.

(2) The victim said when he was giving evidence that during the whole duration which lasted for five minutes, there was one to two minutes in which he could see the face of the appellant clearly.  However, he had also mentioned that the duration of the time from the moment the appellant started to accuse him to the moment of fisting him lasted about five seconds only, and for the rest of the time he had to protect his head using both hands to cover it from the attack and so could not see clearly the features of the assailant.

12. The Magistrate undoubtedly had had a good grasp of the dispute concerning this issue, particularly where this was the crux of the defence’s half way submission in the trial[7].  The Magistrate stated the following in his statement of findings:

“5. The defence pointed out that the matters described by the victim in his testimony differed from those stated in his two witness statements. For this reason, the victim should not be considered as a credible witness.

6. Regarding this issue, as pointed out by the victim in his testimony, he himself could not tell which matters were significant. Moreover, the content of a witness statement depends on how the police officer puts the questions to the witness and whether the questions are put in the detailed way as those in examination-in-chief and cross-examination. Besides, the circumstances described in the victim’s testimony and the witness statements do not indicate material discrepancies.”[8]

13. The evaluation of whether a certain witness is honest and credible falls within the scope of decision of the trial magistrate.  The appellate court can only rely on the written transcript for making its decision and lacks the advantage of hearing the evidence and observing the demeanour of the witness in court.  For such reason, unless the findings of fact made by the magistrate are found to be unreasonable, illogical or the evidence was inherently improbable, or when dealing with evidence, the magistrate had misquoted, or omitted or failed to consider and analyze important issues, otherwise, the appellate court would not easily interfere with the decision of the trial magistrate.[9]

14. The appellant had failed to raise sufficient grounds to persuade this Court that it should interfere with the Magistrate’s finding on this aspect.

Ground of Appeal (3)

15. Although the Magistrate gave only a brief statement of findings, he clearly comprehended that accuracy of identification was the key issue.  In his statement of findings, he stated as follows:

“In regard to the circumstances under which the victim was assaulted including the lighting at the scene, the distance between him and the assailant(s) at the material time as well as the duration of his observation of the features of the assailant, I am satisfied that the person who fisted him was the defendant whom he got acquainted with two to three years ago.”[10]

16. The Magistrate mentioned the following when describing the case of the prosecution:

“Shi Wai Shum (transliteration), the victim said that at the material time, after falling onto the ground upon being fisted by the defendant, the ten odd persons in the company of the defendant also kicked and fisted him. Although the time then was about thirty past eleven in the evening, there was sufficient lighting at the material place. The features of the other party could still be clearly seen within the vicinity of five metres away. The victim said that he came to know the defendant two to three years ago and had come across him on the streets on two previous occasions. The victim stated that before fisting him, the defendant had accused him for about five seconds and in the said incident, he had observed the features of the defendant for about one to two minutes.”[11]

17. The Magistrate did not mention the landmark case regarding this issue, R v Turnbull[12]. Nor did he relate to any guideline on law or mention that he had already reminded himself of the necessity to be especially careful in assessing the evidence on this aspect, as well as the reason for so doing.  However, this does not constitute any ground that would render an appeal to be successful.  This was a case tried by a professional magistrate and not one where factual findings were made by the jury.  The key consideration is whether the Magistrate had displayed a lack of assessment regarding this aspect or that he had erred when he made the assessment[13]. Having perused the transcript of the trial, this Court notes that when giving his evidence, be it in the course of examination-in-chief or during cross-examination, the victim had provided the Magistrate with relevant information for him to make the assessment.  It could also be seen that the Magistrate clearly comprehended that this was a significant issue and had made his finding following assessment.

18. It might be more desirable if the Magistrate had given an account of the details of his assessment more thoroughly.  Nevertheless, it was sufficiently plain that he had a good grasp of the issue in question and made his assessment and his findings accordingly.  Having studied the relevant evidence, this Court also came to the conclusion that the Magistrate was duly entitled to find that the identification evidence was accurate and reliable.

19. Mr.Cliff Ip, the public prosecutor for the respondent, pressed the point that the main issues in this case were whether the victim was credible and whether he had falsely accused the appellant, and not whether his identification was accurate.  He also cited English authorities such as R v Oakwell[14], R v Courtnell[15] and Cape [16], submitting that it was not necessary for the trial Magistrate in this case to direct himself on the  Turnbull guidelines.

20. Mr.Yim, on the other hand, cited the Privy Council case in Beckford v R[17], submitting that when the evidence of an identification witness is questioned, the first thing the court should consider is whether that witness is honest and credible.  Then the other thing the court has to consider that even where the witness is an honest witness, whether he is mistaken about his identification.

21. This Court is of the view that whether it is necessary to consider whether it was a mistaken identification depends on the circumstances of the case.  If identification is plainly not in issue, giving too much guidance to the jury will only create confusion.  In the closing submissions of the trial of this case, the prosecution raised the principles in law regarding identification evidence. The Magistrate in his statement of findings had given his finding in this regard.  The Magistrate had adopted such an approach in dealing with the issue probably because he, in view of factors such as there were a lot of people at the scene at the material time, the duration of the incident was not long and it was chaotic, had considered that it was necessary for him to make an assessment in this regard.  The Magistrate was being cautious and also had not erred in his finding.

22. Mr.Yim had complained that the Magistrate had spent too little time on consideration before coming to his verdict and so he was not sufficiently cautious.

23. The trial Magistrate delivered his oral verdict ten odd minutes[18] after the conclusion of the closing submission.  This was a simple case with the victim being the prosecution’s key witness.  The whole duration spent on adducing the evidence was about one and half hours and the issues involved were not difficult.  This Court therefore does not find it surprising that the Magistrate did not need to spend too much time to arrive at his verdict.

24. This ground of appeal thus fails.

Ground of Appeal (4)

25. Mr.Yim indicated that the evidence on which the trial Magistrate based his finding that the victim had suffered grievous bodily harm could not be regarded as sufficient.

26. In his statement of findings, the Magistrate did not specifically list out any findings he made on this issue.  He pointed out that the issue in this case was whether the appellant was the assailant.[19]

27. This magistracy appeal proceeded by way of re-hearing.  The Court therefore is fully empowered with the jurisdiction to make a finding on this issue.

28.  A medical report[20] was produced as evidence under Section 65B of the Criminal Procedure Ordinance[21].  The report shows the injuries sustained by the victim were as follows:

(1)   the left parietal bone was swollen. Upon touch during examination, it becomes tender.

(2)   left ear slightly painful.

(3)   nasal bridge swollen but there was no hematoma of nasal septum.  The nasal bridge was shown to be fractured upon X- ray examination.

(4)   Bruises sustained on upper lip.  Abrasion noted on inner side of the upper lip.

(5)   Abrasion on the back of the left hand, but range of motion was normal.

29. Mr.Yim submitted that as the victim’s injuries were examined by the doctor only several hours afterwards, there was a gap in the chain of evidence.  Therefore, the Magistrate should not rely on this medical report to make his decision.  On the other hand, the prosecution counsel pointed out that at the time of giving his testimony, the victim mentioned that he felt that his nasal bridge was deviated.  The lip was cracked with profuse bleeding and so was the nose.[22]

30. In light of the circumstances of this case, the Court is of the view that the trial Magistrate was justified in arriving at the conclusion that the content of the medical report reflects the injuries of the victim sustained in the present incident.  The question is whether such injuries were grievous bodily harm.

31. How shall we define grievous bodily harm?  Grievous bodily harm is taken to mean nothing other than actual serious bodily harm which needs not be hazardous or permanent.  Whether the bodily harm should be considered as grievous depends on the finding of facts in each individual case.

32. The victim in this case had been fisted and kicked by others.  The consequence could be serious. Perhaps the victim was fortunate in that he only sustained the injuries as described above.  Having considered certain authorities, particularly the judgment of the Court of Appeal in ONG Nelson D v HKSAR[23],this Courtaccepts the submissions of Mr. Yim that the injuries sustained by the victim of this case perhaps was not so serious as to be considered as grievous.  The appeal is thus allowed.  Applying the powers under section 119(1)(g) of the Magistrates Ordinance as well as pursuant to the section 51 of the Criminal Procedure Ordinance and in light of the authority in R v Wilson[24], this Court sets aside the original conviction and finds the appellant guilty of the offence of assault occasioning actual bodily harm.

Appeal against Sentence

33. After setting aside the original conviction and finding the appellant guilty of assault occasioning actual bodily harm, this Court now considers the sentence of the appellant.

34. The Magistrate sentenced the appellant to the training centre.  He gave the reasons of his sentencing as follows:

“The defendant, now aged 20, has one criminal record. He had been sentenced to the detention centre. In the light that the defendant in spite of having completed his training in the detention centre had failed to turn over a new leaf, I adopt the recommendation of the Correctional Services Department Report and now sentence the defendant to detention in the training centre for further training in the hope that he could turn over a new chapter in life.”[25]

35. In sentencing, the Magistrate had called for reports on suitability of sentencing the appellant to the detention and training centres.

36. The report indicates that the appellant is suitable for detention in the detention as well as the training centres.  In view of the fact that the appellant was sentenced in September 2011 to detention in the detention centre with regard to another case[26], the reporting officer opined that detention in the detention centre would no longer be of any benefit to the defendant and thus recommended him to be sentenced to the training centre.

37. Mr.Yim submitted strenuously that where there was no grievous bodily harm sustained by the victim, the sentence was excessive.

38. Now the appellant has been convicted of the offence of assault occasioning actual bodily harm[27] after his original conviction had been set aside.  However, the maximum sentence for this offence is the same as that for the offence upon which he was originally convicted, namelyinflicting grievous bodily harm[28], which is 3 years’ imprisonment.

39. Hence, whether a sentence is deemed appropriate would depend on the facts of the case and the overall circumstances involved.

40. As far as the facts of the case were concerned, there were quite a lot of assailants involved in this incident and the injuries sustained by the victim was relatively serious.  As the circumstances involved were serious, the court should consider a custodial sentence.

41. The appellant is not a first offender.  However, his previous criminal record involved offence(s) concerned with possession of dangerous drugs, which is unrelated with an offence of violence.

42. At the time of the incident, the appellant was 19 years old. He was just over 20 years old when the court sentenced him[29].

43. Section 109A of the Criminal Procedure Ordinance states:

“(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

(2)  In this section, court（法庭）includes the District Court and a magistrate.”

44. The offence committed by the appellant is not an excepted offence.

45. Hence, it was appropriate for the Magistrate to obtain and consider relevant report(s) prior to passing sentence.

46. The following gives the gist of the contents of the report:

(1)   The appellant lives together with his family members, which include his parents and sisters.  His father is a vehicle driver who plies between Hong Kong and the Mainland China.  His mother is a clerk;

(2)   He had been a kitchen assistant, a construction worker and a finance agent;

(3)   He was not an attentive student during his secondary school days.  He got acquainted with undesirable peers and quitted school after form three;

(4)   He afterwards undertook a certificate course on mechanics.  However, he failed to complete it;

(5)   He continued to stay in the company of undesirable peers and began to abuse drugs;

(6)   He was eventually sentenced to the detention centre for possession of dangerous drugs;

(7)   During training in detention centre and in the period subject to supervision order, he did not have any undesirable record.

47. In light of the circumstances of the present case, the appropriate sentence should be choosing between a sentence of imprisonment and one involving detention that would provide rehabilitation for the appellant.

48. Regarding the latter option, it is the choice either of the detention centre or the training centre.  Since the appellant had been sentenced to the detention centre before, under section 4(2)(c) of the Rehabilitation Centres Ordinance[30], the choice of rehabilitation centre is already out of the question.

49. This Court had considered the different objects of the two aforesaid sentencing options, the principles involved and its possible rehabilitation effect on the appellant:

(1)   Under section 4(1) of the Detention Centres Ordinance, where a person who is apparently a young offender is found guilty of a relevant offence the court may, if it is of the opinion that in the circumstances of the case and having regard to his character and previous conduct it is in his interest and the public interest that he should undergo a period of detention in a detention centre, in lieu of imposing any other sentence, make a detention order against him.

(2)   Under section 4(1) of the Training Centres Ordinance, where a person is convicted of an offence punishable with imprisonment, then if on the day of his conviction he is in the opinion of the court not less than 14 but under 21 years of age, and the court is satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offence, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre, the court may, in lieu of any other sentence, pass a sentence of detention in a training centre.

50. The primary object of the two aforesaid sentencing options is the rehabilitation of the appellant and not punishment.  The distinction between them is that other than the fact that the length of detention for which the offender will be subject to in these two institutions is different, the detention centre stresses by way of hard and strenuous labour, physical training and excessively strict discipline to deliver to the inmates a short, sharp, shock training within a short period to enable them (in this case the appellant) build up their self confidence, to reflect on their inadequacies and make them become a more law-abiding person and develop greater ability to establish harmonious relationships with other people.  On the other hand, the training centre emphasizes on providing vocational training opportunities and character reformation leading to rehabilitation and prevention of re-offending. The training of the detention centre has a greater deterrent effect whilst the training of the training centre focuses more on vocational training and such training is more on the side of educating the offender.

51. It was pointed out by Cons VP in the case of R v Wong Kwok Kin[31] that the court should not be inclined to sentence the defendant to the detention centre instead of the training centre for the reason that the training centre has a longer period of detention.  The seriousness of the offence can be a factor of consideration.  However, this should not be the sole factor of consideration for the court to determine its sentencing decision.  Consideration should have regard to the nature and the purpose of the training.

52. Power V-P[32] of the Court of Appeal pointed out in the case of HKSAR v Tsang Jack Sheng[33] that the court should consider all the background features of an offence and of an offender and place those matters in the context of what is best for him and best for society as a whole.

53. In this case, the Magistrate imposed a training centre order on the appellant.  The Court of Final Appeal in the case of WONG Chun-cheong v HKSAR[34] laid down the guidelines for consideration in making a training centre order:

(1) Under section 4(1) of the Training Centres Ordinance[35], the court before imposing the training centre order should first be satisfied that the two basic threshold requirements are met.

(i) the offence is punishable with imprisonment; and

(ii) that the offender is aged between 14 and 21.

(2) The court should consider if detention is “in the interest of the community”, especially whether it is in the interest of the community to adopt a rehabilitative approach. Taking into consideration the overall circumstances, even if a rehabilitative approach is needed, the interest of the community may require that the rehabilitative approach to give way to a punitive or deterrent sentence.

(3) In the absence of an over-riding interest of the community to dismiss the sentence option of passing a training centre order, the court must be satisfied that such order is expedient for the offender’s rehabilitation and the prevention of crime.  In determining this, regard must be paid to the character of the offender, his previous conduct, as well as the circumstances of the offence, i.e. the specific facts involved and the nature and gravity of the offence determined by those facts.  If the sole finding of fact upon conviction is that the offence committed is a minor offence, then this cannot be taken as the ground for considering whether it is necessary to sentence the offender to the training centre for rehabilitation.

(4) Having considered the circumstances of the offence, it is up to the court itself to decide whether adopting the reformative approach for the purpose of rehabilitation would be expeditious or whether this sentence is too excessive or too lenient.  Where the circumstances of the offence are such that a training centre order would be too lenient, the court is entitled to reject that option notwithstanding that the offender would otherwise be regarded as a suitable candidate for training.  Similarly, where the offence committed is minor and would not otherwise call for a punitive custodial sentence, detention in a training centre would, save in exceptional cases, be inappropriate, notwithstanding the offender's suitability as a candidate for training.

(5) Under section 4(1), where training centres order is not the sole option of sentence for consideration other than imprisonment, save in exceptional cases, section 4(1) should actually be taken to mean that unless the offence is so serious thereby enhancing the possibility of calling for an immediate punitive custodial sentence, the offender shall not be sentenced to detention in the training centre.[36]

54. When citing the above case in the case of HKSAR v WAN Hong-kin[37], Barnes J pointed out that:

“In giving the guidelines, the Court of Final Appeal never linked up the maximum period of detention in a training centre [generally from 18 months to 3 years] to the maximum sentence of the offence concerned. In other words, where all the circumstances meet the criteria set out in WONG Chun Cheong, a court is still entitled to make a training centre order even though the maximum sentence of the offence concerned is lower than the period of detention under a training centre order.”

55. As far as the nature and circumstances of the present case is concerned, it is definitely not a case that involves a minor offence which calls for a non-custodial sentence.  On the other hand, in light of the overall circumstances, it is not a case where imprisonment is mandatory.  The option of imposing a training centre order is not excessively lenient.

56. The appellant has been detained in the training centre for about a year.  This Court has also considered the changes and adverse impact which may arise from interrupting the training of the offender at the moment.

57. It seems that the appellant’s detention in the detention centre has not brought about any prominent reformative effect on the offender. Besides, the appellant had been detained in the detention centre for some duration already.  He was subjected to a supervision order after release.  The Correctional Services officers should have had a rather thorough understanding of the appellant’s character and conduct and be competent enough to conduct a good assessment on the reformative approach of the appellant.

58. The Correctional Services Department officers are of the view that detention of the appellant in the training centre is in the interest of the community and the appellant’s personal interest.  The Magistrate plainly concurred with this view and this Court in consideration of the principles stated above shares the same opinion.

59. In light of the aforesaid reasons, the appeal against sentence is dismissed. The original sentence of a training centre order is upheld and the appellant shall continue to be detained in the training centre for training.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P. Y. Lo, Barrister-at-law.