HKSAR v. CHAN MEI WAH, YUMMY

[English Translation - 英譯本]

CACC 230/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 230 OF 2015

(ON APPEAL FROM DCCC NO. 1078 OF 2014)

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court):

1.  This is an appeal from the District Court. The applicant was convicted after trial of one charge of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212, and was sentenced to 15 months’ imprisonment by the trial judge (Judge Gary Lam). With the leave of a single judge, the appellant formally appealed to this Court against her conviction.

Dramatis Personae

2.  This case only involved three persons who were respectively the appellant, Mr Leung, the injured person and Mr Lee, a colleague of Mr Leung. Mr Leung and Mr Lee (PW 1 and 2) joined and were employed by the publishing design company set up by the appellant in 2006 and 2008 respectively. The appellant was their superior and boss. The whole company was operated by the above three and no others.

Prosecution case

3.  The incident of wounding took place at noon on 2 July 2013.

Mr Leung’s evidence

4.  According to Mr Leung’s evidence, he started to have sex with the appellant as early as 2007, but they were not in a “romantic” relationship. The situation remained until March 2013. Mr Leung came to know and started going out with another female in June 2013. Having found that out, the appellant arranged to meet with Mr Leung to “talk about the matter” on the night of 20 June, during which the appellant was so emotional that she scratched Mr Leung on his hand and face. However, Mr Leung did not pursue the matter against the appellant.

5.  In the morning of 2 July 2013, Mr Leung went back to work, and used the socket beside the appellant’s desk to re-charged his mobile phone. At noon on the same day, Mr Leung went to Mr Lee’s seat to hand jobs over to him. Mr Leung had to hand jobs over (or “handover”) to Mr Lee because Mr Leung had informed the appellant that he would resign in a certain period of time and leave Hong Kong for “working holidays” overseas.

6.  During the handover to Mr Lee, Mr Leung found the appellant checking on his mobile phone. At the same time the appellant started to curse maliciously Mr Leung and his family. The relevant details as well as the incident of wounding[1] that followed was summarised by the trial judge below, where his focus was obviously only on the appellant’s act of wounding[2]:

“8… on 2 July 2013, while [Mr Leung] was working in the office, the defendant checked on his mobile phone, which was being recharged, and started to curse Mr Leung and his family. So, he went up to reason with the defendant. During reasoning, Mr Leung saw an act done by the right hand of the defendant (with the right hand raised above the head, and the forearm waved forwards up and down). Following that, Mr Leung felt a sharp pain in his left face, with blood dropping on the left wrist. He felt his face with a hand and the hand was soaked with blood. At that juncture, Mr Leung saw the defendant holding a cutter in her right hand and repeating the previous act several times[3]. Mr Leung stepped back and carelessly fell to the floor (with his bottom landed on the floor and face up).”

7.  Having been scared by the attack and seated on the floor after falling, Mr Leung allegedly first said, “I won’t be back here in future”, and then he was accompanied by Mr Lee to St. Paul’s Hospital in Causeway Bay for medical treatment and he was discharged the following day (i.e. 3 July 2013). Photographs of Mr Leung, the injured person, and his medical report were produced respectively as prosecution exhibits P2 and P3 in the trial. P3 indicates that Mr Leung’s lacerations start from the left upper eyelid extending to the lower eyelid, left side of the face until down to the left side of the neck… the injury on the cheek is relatively deeper which was down to the subcutis, and the remaining are injuries to the epidermis.” As far as the treatment is concerned, Mr Leung’s evidence, which is not disputed, is that[4]:

“10. … the left side of [his] face and neck received a total of 61 stitches under general anaesthesia[5].”

8.  As regards the cause of Mr Leung’s injuries, it was explained and recorded in P3 as “facial laceration while at work”. In making an insurance claim, Mr Leung even expressly claimed that his injuries were self-inflicted. Mr Leung did not make a report to the police in respect of the attack on him immediately. He accused the appellant of the offence to the police only one year and two months later. The trial judge summarised his evidence in this regard as follows[6]:

“11. Mr Leung explained that bearing in mind the employer-employee relationship which had lasted for years, and that he was so disturbed after getting injured that he did not want to ‘stir it up’, he did not make a report to the police immediately. After the incident, Mr Leung did not go to work anymore. The defendant, however, made nuisances to him and his girlfriend incessantly by phone and by text, demanding him to account for the unfinished work. Consequently, on 29 August 2014 Mr Leung made a report to the police, accusing the defendant of having attacked him and caused injuries to him.”

Mr Lee’s evidence

9.  Mr Lee’s description of what happened prior to the incident was not exactly the same as Mr Leung’s. Mr Lee said that the appellant, at a table for food, had asked Mr Leung “to hand out the jobs”, but Mr Leung ignored her, and consequently the appellant swore at Mr Leung who fought back by throwing books and seizing her neck[7]. Concerning why Mr Leung suddenly got injured, Mr Lee said that Mr Leung told him “fiercely” not to be “a go-between” and so he had turned around for a brief moment and did not see the very moment in question. Of all the above-mentioned relevant circumstances, the trial judge made the following brief summary[8]:

“12. Mr Lee said, on the day in question, he was also working in the office. Prior to the incident, Mr Leung had a quarrel with the defendant. After that he dashed towards the defendant and did the act of ‘seizing the neck’ to her. Mr Lee sat in his own seat (facing the wall, with the back to the defendant and Mr Leung), thinking of how to deal with the situation. At this juncture, he heard “banging” noises. Having turned around to take a look, he saw Mr Leung sitting in a chair, bleeding in the left side of his face. Mr Lee handed facial tissues to Mr Leung right away, and accompanied him to the hospital by taxi. He ran errands at the hospital, doing odds and ends for him.”

10.  It is further mentioned that Mr Lee said in cross-examination Mr Leung “sometimes would throw tantrums in the office”. On a day in June 2013, Mr Leung even threw keys “directly at” the appellant’s nose, causing bleeding to the appellant’s nose. The appellant eventually did not make a report to the police because Mr Leung was thrusting at himself in his arm forcefully with a pen while he was apologising.

Defence case

11.  The appellant elected to give evidence, but called no witness. Her evidence was as follows: She did not have sex with Mr Leung. She had taken Mr Leung skiing overseas on a reimbursement basis on a number of occasions, and yet all of which were joined by others. She was not unhappy about Mr Leung having a girlfriend. She was unhappy because Mr Leung “played WhatsApp” with the other party and that interfered with his work. She was unhappy for another reason that in a relatively long period of time, Mr Leung kept claiming he would leave the employment for “working holidays” overseas, which was not an ideal situation because Mr Leung had responsibility for the company’s computers and certain important tasks. Although Mr Leung had made clear of his intention to leave, he kept refusing to hand out the jobs despite repeated advice[9]. The appellant denied scratching Mr Leung on the night of 20 June 2013. She confirmed Mr Leung had “thrown keys” at her early in the same month. The appellant explained she kept contacting Mr Leung after the incident in order to take back things belonging to the company, like computer password.

12.  Regarding what happened on the day in question, the appellant claimed that since that morning she had been kindly advising Mr Leung to hand out the jobs as soon as he could, so that Mr Lee and she could gradually take them over. However, Mr Leung “turned a deaf ear” to her words, and was in his haste to eat a cake he had bought when the noon time came. Under such circumstances, the appellant uttered words of insult, causing Mr Leung to respond in the way as testified by Mr Lee. As regards how Mr Leung got injured, the appellant said the same, which was “no idea”. The appellant only admitted that she “kicked” and “pushed” Mr Leung when she was being attacked on the neck. After that, Mr Leung fell backwards and bled in the face[10].

13.  The trial judge went on to summarise the above circumstances, including the various aspects of the background to the incident, quite briefly in a few small paragraphs[11]:

“14. The defendant denied having a sexual relationship with Mr Leung. She said she had treated her two employees, Mr Leung and Mr Lee, kindly. As they all loved snowboarding, she did not mind paying for the overseas snowboarding and being reimbursed by the employees by instalment after returning to Hong Kong.”

15. The defendant said she scolded Mr Leung because of his work attitude and performance on the day in question. Being indignant, Mr Leung threw at her a thick diary (See Exhibit D1, Photo 3), which landed on her upper chest (below the scapular). After that Mr Leung dashed towards the defendant and squeezed her neck with a hand. The defendant pushed Mr Leung away with both hands. Mr Leung fell backwards.

16. The defendant said that she saw Mr Leung fall backwards, but did not know the reason for the fall. The defendant claimed she did not see what happened after Mr Leung’s fall. The defendant stressed that she pushed Mr Leung away and saw him fall backwards. When she saw him again, he was seated in a chair crying out, “Bleeding”. The defendant maintained that she had no idea as to how Mr Leung had got injured in the face.”

Verdict of the trial

14.  Further below is the trial judge’s analysis of the case (with particular attention paid to the underlined parts)[12]:

“19. This case appears to be a complex one. As to the relationship between the two, the causes of and what happened in the incident, and what had been through a year after the incident, Mr Leung and the defendant gave their own version. At the trial Ms Wong, counsel for the defence, cross-examined Mr Leung substantially on what had happened in terms of his and the defendant’s business and private matters.

20. On the face of it, to find who is right or wrong, who has told lies and whose testimony is credible, it appears that the court should first deal with the intricate relationship between Mr Leung and the defendant and the countless ties, resentment, grievance, love and hatred between them. Nevertheless, on second thoughts, the court needs not deal with them in-depth.

21. The fact that Mr Leung was injured on 2 July 2013 is not disputed. His injuries are obvious to the prosecution, defence and me. The only issue in this case is how Mr Leung came to be injured.

22. The fact that there were only three persons, Mr Leung, Mr Lee and the defendant present at the time of the incident is not disputed either. Evidence shows that immediately before Mr Leung was injured, both Mr Lee and the defendant were not far away from him. All of them were able to hear and see the other two, with their line of sight unblocked (see Exhibit D1, Photos 4, 5, 6, 17 & 18). In other words, Mr Leung’s injuries could be inflicted only by the defendant, Mr Lee or himself.

23. The fact that Mr Lee did not inflict injuries upon Mr Leung is again not disputed. There are left the only possibilities of the defendant and Mr Leung himself. The defence case is that the defendant pushed away Mr Leung with both hands, and he fell backwards. However, the defendant did not see and was unaware of how he got injured. The defendant stressed that she pushed away Mr Leung with both hands to prove she did not have any objects in her hands. Given this account, the defence does not rely on “self-defence” or “accident (where Mr Leung was mistakenly injured)” in defence, and this court does not have to consider these issues.

24. If the defence’s account is true (that the defendant did not attack Mr Leung with a cutter), the only cause of Mr Leung’s injuries is that he was injured by the cutter held in his hand when he was falling backwards. In this regard, the defence relied on Mr Lee’s evidence and the insurance claim form submitted by Mr Leung to the insurance company (Exhibit D2A). Of course there is another possibility that Mr Leung hurting himself deliberately, which, however, was not an allegation made by the defence against Mr Leung, and therefore, in my view, needs not to be considered either.

25. Mr Lee said Mr Leung had told the nurse at the hospital that “he hurt himself”. Mr Leung agreed in cross-examination that he had told the insurance company he cut himself when he lost balance at work. Mr Leung explained he had not reported the case to the police right away or disclosed the truth to others for the purpose of protecting the defendant. It does not slip my mind that Mr Leung did not report the case to the police until one year after the incident.

26. Many things could possibly happen in broad daylight. However, fanciful doubt does not constitute reasonable doubt. When finding the facts concerned, a jury must assess the relevant evidence with the common sense and intelligence of a reasonable person in the community. As a juror, I do not believe that the defendant and Mr Lee did not see or were unware of how Mr Leung got injured. They (in particular the defendant) could not possibly not see how Mr Leung got injured. I find their evidence of this part not the whole truth and they had deliberately concealed the truth. Further, Mr Lee continues to be the defendant’s employee; whether or not the defendant is convicted affects directly his living. I find Mr Lee not an independent witness, his testimony is more than likely to be biased towards the defendant.

27. There are obviously only two possible causes of Mr Leung’s injuries: the defendant attacked him deliberately with a cutter or he hurt himself accidentally. I am aware that in this case there is no expert opinion on how Mr Leung was injured based on the inference drawn from the injuries. I also bear in mind that I should assess the evidence and find the fact by the common sense of a reasonable person in the community. It does not slip my mind the burden of proof is still on the prosecution even if I do not accept the defendant’s testimony.

28. I, by common sense, do not believe that Mr Leung could cut in his face such a long and deep wound when he was falling (even with a cutter in his hand). In spite of what Mr Leung told the nurse and the insurance company that he had hurt himself by accident and the fact that he had not reported he case to the police until one year later, as a juror, I am of the view that he has told the truth and is an honest and reliable witness. I am satisfied that he has told the fact and the truth in his evidence.

29. Due to the uniqueness of the said material issues, I consider the grudges between Mr Leung and the defendant before and after the incident do not assist the court in assessing the witnesses’ credibility and reliability, which therefore need not to be analysed and discussed herein.

30. For the above reasons I find the prosecution have proved beyond reasonable doubt. The defendant is convicted of the offence.”

The leave by a single judge

15.  The grounds of appeal submitted by the appellant before a single judge were not accepted. The single judge considered: judging from the position, length and depth of the wounds, Mr Leung could not possibly inflict the injuries upon himself; Mr Leung must have been lacerated by the appellant who did not possibly do it by accident, the finding of fact by the trial judge in these aspects could not be criticised. Nevertheless, the single judge, after reading the papers, took the view on his own initiative that the trial judge may have erred when dealing with the issue of “self-defence”, and therefore granted leave to appeal concerning this issue. Accordingly, it is the only issue on which the appellant’s “Amended perfected grounds of appeal” is based: “the trial judge erred in not considering the possibility of self-defence by the applicant”.

Discussion

The law

16.  From his analysis, the trial judge is seen to refuse the need to consider the defence of “self-defence” solely based on the appellant’s claim that she did not hold any objects in her hand. This is incorrect. On the contrary, the relevant legal principle has been established by the Court of the Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354. According to Hon Stock VP’s (as he then was) summary of HKSAR v Leung Tak Wing [2013] 3 HKLRD 451, for whatever reason counsel may choose not to avail his client of a defence for which there is a proper evidential basis, the trial judge has a duty to place that defence before the jury for its determination[13]:

“.... for whatever reason counsel may choose not to avail his client of a defence for which there is a proper evidential basis, there is imposed on a trial judge a duty to place that defence before the jury for its determination.”

17.  The reason for establishing the above principle is to enable the jury to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them, so that the defendant would receive a fair trial, and that the defendant would not be convicted of an offence which he ought not to have been found guilty: Alexander Von Starck v The Queen [2000] 1 WLR 1270,  a decision of the Privy Council at p.1275; R v Coutts [2006] 1 WLR 2154，a decision of the Judicial Committee of House of Lords at p. 2159.

18.  Under this principle, even where a particular defence that may apply is not consistent with the defence run by defendant, a trial judge still has the duty to place the defence before the jury for its consideration. As the Court of Final Appeal put it in Ho Hoi Shing (with particular attention paid to the underlined)[14]:

“[The trial judge] is not absolved from this duty even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused.”

19.  It is in fact not uncommon to see a particular alternative which is inconsistent with the defence run by the defendant placed before the jury for its determination. For instance, in the case of an accused who is charged with rape, although he denies having sexual intercourse, if and when there is evidence to show that he genuinely but mistakenly believes the female victim consented to the sexual intercourse, it is still a common practice for the trial judges to place the defence of “being genuinely mistaken” before the jury for its determination at the same time. This is a classic example of the application of the above principle. The underlying reason is that even if the jury disbelieve the defendant’s allegation of having no sexual intercourse, the accused is not deprived of a defence he should have to the accusation.

Threshold of evidence

20.  As to “for which there is a proper evidential basis” that enables the trial judge to take the initiative to raise a defence not run by the defendant, different courts in different cases appear to have interpretations that are different at first glance but they are actually consistent. For instance, in Ho Hoi Shing the Court of Final Appeal cited the Coutts decision: “evidence upon which a reasonable jury might return a verdict”[15]. In the same paragraph, the Court of Final Appeal also cited the observations on the same question in Von Starck,was and described it as the threshold requirement: “evidence that is [not] wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept”[16]. The Court of Final Appeal further put forward that this is a “low threshold”.

Evidence relevant to the case

21.  As stated above, there are a number of details in the evidence upon which the trial judge only touched lightly, or even did not touch at all in this case.

22.  Examples concerning Mr Leung are: he was scratched by the appellant on 20 June 2013; immediately before the incident the appellant swore at him “that a boy born in future to that girl and him will be an idiot” and at his father “not knowing how he was like that”; having heard that, he “could not put up with it” and “walked up hurriedly”; he was looking at [the appellant] while he was walking and asking [the appellant] in a loud voice “what do you want” and “have you sworn enough”, and Mr Leung was then only 15 feet away from the appellant.

23.  Those concerning Mr Lee follow. The evidence he had given but was not quoted by the trial judge including: Mr Leung sometimes threw tantrums in the office; Mr Leung, on a day in June 2013, threw keys at the appellant and injured her nose; prior to the incident, Mr Leung ignored the appellant’s advice for him to hand out the jobs; the appellant accused Mr Leung of “being born to a woman but not taught by the mother, a typical thug of Tuen Mun”; Mr Leung first fought back by throwing at the appellant “a thick book” which landed on her “chest”, and then he “cried out: what are you saying” and “dashed towards” the appellant, and because Mr Leung shouted to stop him from being “a go-between”, he did not see what happened after the seizing of the neck.

24.  Lastly are those concerned the appellant. Except for what was recorded in paragraphs 11 and 12 in the above, her other evidence put aside by the trial judge includes: Mr Leung said he would go on “working holidays” and that had been said for two to three years; at the time of the incident she was swearing at Mr Leung using words: “being born to a woman but not taught by the mother, like a thug of Tuen Mun”; Mr Leung threw a “A4 hardcover” book at her which landed on her chest, and the blow was so forceful that it caused “bruises” to her chest; Mr Leung then asked “what are you saying”, and then “dashed up quickly” and “squeezed my neck” with a hand; the appellant found “it hurt so much” and therefore she “kicked [Mr Leung’s] foot” with her leg and “pushed away” Mr Leung with both hands (which was more than merely “push” as mentioned by the trial judge).

25.  The above three people’s evidence shows Mr Leung and the appellant were on bad terms, no matter out of disputes over relationship or work, to such an extent as reflected by the physical conflicts (the appellant was thrown at and injured on the nose in early June? Or Mr Leung was scratched on 20 June?)they had 12 days to a month before the incident. Against this background, together with the said three person's descriptions of the incident at the time, it would be hard to say that the trial judge would not to be left with the impression that Mr Leung was provoked and even acted aggressively, as well as (according to Mr Lee and the appellant) that violence might have been actually used. For this reason, the relevant evidence had undoubtedly reached the threshold as referred to in Ho Hoi Shing. In fact, the appellant said she had kicked and pushed Mr Leung. These acts themselves had constituted ‘self-defence’. What is material is whether or not she used a cutter and -- in split of second – whether or not her cutting another person’s face with a cutter was in excess of what was required of her to defend herself.

26.  It should be mentioned here that the trial judge had not expressly and wholly rejected Mr Lee’s and the appellant’s evidence, in particular about Mr Leung “seizing” or “squeezing” the appellant’s neck. The trial judge made it clear that the only point he did not accept was that the two persons did not see how Mr Leung got injured (See Reasons for Verdict, para 26). Further, in determining whether it was necessary to take the initiative to consider the issue of “self-defence”, the trial judge in substance was not deciding which of the witnesses in this case were credible and which of them were not. What he must decide was whether there was evidence in this case upon which a reasonable jury might return a verdict. With due regard to fairness, the trial judge should also inform both the prosecution and the defence of the relevant issue soon after he was aware of its emergence to enable counsel for both parties to contemplate what must be done to it.

Conclusion

27.  The trial judge misdirected himself in law in refusing the need to consider “self-defence” on the basis that the appellant’s claim was that she was not holding any objects in her hand. This error is wholly sufficient to undermine the safety of the conviction in this case. As the trial judge had not ruled on certain material matters at the time of the incident, and this Court do not have the advantage of hearing evidence directly from the 3 witnesses, we ourselves cannot, by taking the place of the trial judge, rule on the prospect of success of “self-defence” in this case. For these reasons, the respondent’s assertions that using a cutter to cut in the face was excessive force and that the defence of “self-defence” surely could not be established, on which the respondent asked the Court to apply the ‘proviso’ in this case, were accordingly rejected.

Verdict

28.  We allowed the appellant’s appeal and quashed her conviction and sentence. As she has almost served her sentence, we would not order a retrial.