HKSAR v. Singh Balamrit

HCMA 546/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 546 OF 2015

(ON APPEAL FROM KCCC 2236 OF 2015)

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J U D G M E N T
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1.The Appellant pleaded not guilty to one count of common assault, and after trial, was found guilty by SH Heung, the Magistrate.  The Appellant was sentenced to a term of 4 weeks’ imprisonment but was suspended for 2 years.  A compensation order of $1,000 was made.  The Appellant was represented by another counsel at trial, and in the present appeal proceedings, by Mr Davies.

2.The Appellant now appealed against both his conviction and sentence.

THE PROSECUTION CASE

3.In the morning of 26 April 2015, there was a hockey match at King’s Park Hockey Ground on Wylie Road.  The Appellant was a member of one hockey team and PW1, the victim, was a member of the opposing team.  They wore sports uniform. Both of them played in the game at one stage.  There were 12 players from each team in the game.  It was alleged that in the second half of the game, PW1 was verbally abused by members of the opposing team.  When the ball was out of pitch and the game was paused for a throw-on, PW1 approached the Appellant and asked him, “What did you say?”  Without saying a word, the Appellant hit PW1’s forehead with his wooden hockey stick forcefully.  PW1 felt the pain and asked people around if they saw the assault.  PW1 further complained to 2 umpires of the game.  PW1 stopped playing the game as he felt he was in danger.

4.When the game finished, PW1 made a report to the police.  When the police officers arrived, PW1 pointed out the Appellant who was sitting in the spectators’ stand.  The Appellant was arrested.

5.There was a swelling on PW1’s right forehead as shown in the photo [Exh P3-1]. 

6.PW2 was PW1’s team-mate and he saw PW1 arguing with the Appellant.  They raised their voices.  PW1 and the Appellant were close with each other, and the Appellant was holding the hockey stick in his hand.  PW2 saw the Appellant using the striking end of the hockey stick to hit PW1’s forehead.  PW2 asked the umpires if the Appellant should be penalized, but the umpires said they did not see the alleged assault.

THE DEFENCE CASE

7.The Appellant gave evidence.  He said there was nothing special happened throughout the game.  He did not assault PW1, nor did PW1 approach him.  He did not have any argument with PW1.  He did not know PW1 prior to the game.  He had no idea why the police were called, and why he was alleged to have assaulted PW1.

GROUNDS OF APPEAL

(A) APPEAL AGAINST CONVICTION

8.In the perfected grounds of appeal against conviction and sentence dated 21 November 2015, prepared by Counsel for the Appellant, three grounds were itemized;

(1) the Magistrate erred in relying on previous [out] of court statements made by PW1 and PW2.

(2) the Magistrate wrongly concluded that the identity of the assailant was not an issue, and failed to properly establish that the Appellant was the assailant.

(3) the Magistrate failed to give adequate reasons for rejecting the testimony of the Appellant.

(B) APPEAL AGAINST SENTENCE

9.The sentence is manifestly excessive.

DISCUSSION

(A) APPEAL AGAINST CONVICTION

10.Counsel for the Appellant criticized the Magistrate for her ruling that the prosecution witnesses were impressive witnesses.  It was submitted that there was no evidence adduced by the Prosecution from the umpires or the Hong Kong Hockey Association of the complaints being made against the Appellant.  Such evidence would be hearsay and inadmissible.  It was submitted that the Magistrate erred when she relied on these statements to support her findings that PW1 and PW2 were credible witnesses. 

11.The defence put forward by the Appellant simply was that the Appellant did not attack PW1.  The Appellant basically denied every accusation in that he did not assault PW1, he did not have any argument with PW1 and the latter did not even approach the Appellant.  The Appellant claimed that he had no idea why the police were called and why he was accused of assaulting PW1.  The injury sustained by PW1 might have been accidentally hit by people other than the Appellant. PW1 identified the Appellant as the assailant in the hockey ground after he had made a report to the police. 

12.After careful consideration, the Magistrate ruled that all 3 prosecution witnesses were impressive witness and they gave clear, cogent and compelling evidence.  It was said on material aspects, the evidence of these prosecution witnesses were consistent with each other. 

13.On the other hand, the Magistrate did not find the Appellant a credible witness.  Counsel for the defendant did not put to PW1 that he was never approached by the Appellant.  The Magistrate found that PW1 and PW2, who did not know the Appellant prior to the offence, had no motive to make up the story and to set the Appellant up.  They did not exaggerate the incident, and had no reason for them to do so.  The Magistrate said identification was not an issue in this case.  The Magistrate remarked that,

“The medical examination of PW1 revealed that ‘a swelling was observed on the right side of his forehead on which tenderness could be elicited.”[1]

14.For some reasons, which might well be tactical but of which should not be encouraged, it was admitted that the Appellant had one previous but unrelated conviction in March 2005.[2]

15.The principles relating to Magistracy Appeals are well settled.  A Magistracy Appeal is a re-hearing on papers.  The ultimate duty of the appellate court is to determine whether it is satisfied beyond reasonable doubt of the guilt of the Appellant.  It is obvious that the Magistrate has the advantage of hearing and seeing witnesses who testified before her.  In the present case, the Magistrate “found all 3 prosecution witnesses were impressive witnesses.  They gave clear, cogent and compelling evidence.”[3]  The Magistrate remarked that “the credibility of PW1 and PW2 was in no way shaken by these minor inconsistencies viewed in the context of a sudden unexpected attack with an item of sports gear, ie the hockey stick, being used as a weapon when the game was paused for a throw-in and an argument was ongoing.”  The Magistrate was sure that,

“PW1 and PW2 did not make up or exaggerate the incident. There did not appear to be any reason for them to do so. I was sure they had not identified the wrong person and indeed identification was never an issue. I was sure that PW1 and PW2 had not invented the story. I was sure that PW1 and PW2 were honest and reliable witnesses telling the whole truth in court. They had tried their best to give an accurate account of what had happened. I believed them.”[4]

16.On the other hand, the Magistrate did not believe the Appellant, and said,

“he was neither honest or reliable. I had no doubt his account generally and as to the events in the incident in particular was not to be believed. … The evidence of the defendant was inherently improbable. I did not accept the defendant’s evidence.”[5]

FIRST GROUND OF APPEAL

17.Counsel for the Appellant submitted that the complaints to the umpires or the Hong Kong Hockey Association would have been inadmissible as it would have amounted to no more than hearsay, and the fact that the witnesses had made the complaint is irrelevant and should have been ignored by the Magistrate.

18.In my view, what the Magistrate referred to was the fact that complaints were made which were actions taken by the prosecution witnesses, not the truthfulness of the content of the complaint per se.  It is the fact that the Magistrate accepted both PW1 and PW2 as credible and reliable witnesses and relied on their version of events, based on which she convicted the Appellant.  This ground of appeal fails.

SECOND GROUND OF APPEAL

19.The identity of the Appellant as an assailant was now challenged.  It was submitted that “at no time was it admitted by the defence that the applicant had a dispute with PW1 and the prosecution was put on notice that they would have to prove that such a dispute took place.  This can be seen from the set of admitted facts, prepared by the prosecution, in which the defence specifically deleted the paragraph which stated that the applicant had been involved in a dispute with PW1.”[6]

20.The fact that certain paragraphs were deleted from the draft Admitted Facts[7], in my view, should not taken as a kind of “evidence” indirectly.  If a specific paragraph was deleted, it means that that paragraph should not be presented to Court or indirectly made it known to the Magistrate.  Both parties should have prepared another clean set of the Admitted Facts, but that was not done, in my opinion, for the sake of convenience.  Of course, it was the Prosecution’s duty to prove a dispute did happen and the offence was committed.  When the Magistrate said “indeed identification was never an issue”, what she meant is that the Appellant was one of the players in the game, and he was identified by the Prosecution witnesses in the hockey ground on the same day.  At that time, the Appellant was still wearing the game uniform and was sitting in the spectators’ stand.  The version put forward by the Appellant was that he never had an argument with PW1, let alone assaulting PW1.  The Admitted Facts stated that, “At around 1045 hours on 26 April 2015, PW1 and his hockey teammates were having a match with the Defendant’s team at King’s Park Hockey Ground, Number 2-6 Wylie Road, Yau Ma Tei.”[8]

21.In this context, if the Magistrate accepted the evidence of PW1 and PW2 together with the line of cross examinations by the defence counsel, then what remains to be decided by the Magistrate was whether there was a row which was followed by the assault.  The Magistrate chose to accept the evidence of the Prosecution witnesses, and reject that of the Appellant.  There is no need for “an express agreement by the defence that identification is not an issue”[9] in the present case as the Magistrate was entitled to draw the reasonable and irresistible inference from all the available evidence.

22.Again this ground fails.

THIRD GROUND OF APPEAL

23.Counsel for the Appellant criticised the Magistrate for failing “to give adequate reasons for rejecting the testimony of the applicant.”

24.In my view, the Magistrate was presented with a dichotomy between PW1’s version and the Appellant’s version.  There is no version of in-between.  If the Magistrate accepted the version presented by the Prosecution witnesses, for which the Magistrate has no doubt as to what happened, then it must follow that the testimony of the Appellant was rejected.

25.Accordingly, this ground also fails.

(B) APPEAL AGAINST SENTENCE

26.It was submitted that

“the applicant, who has no previous history of violence was convicted of the offence of common assault. The incident arose out of an altercation during a sporting event. It was not premeditated and consisted of a single blow on the spur of the moment. It did not result in any serious or permanent injury. In the circumstances, any sentence of imprisonment sentence [sic] is manifestly excessive.”[10]

27.The Appellant had one previous record of theft back in March 2005 for which he was fined $3,000.[11]

28.In the reasons for sentence, the Magistrate considered that

“the defendant used the hockey stick as a weapon to hit on the head of PW1. The attack was unprovoked. It was indeed a serious offence. … The defendant was convicted after trial. There were no mitigating factors such as to merit any reduction from the starting point.”[12]

29.The Magistrate also considered that by suspending the sentence of 4 weeks’ imprisonment for 2 years, “this would provide the defendant with a strong incentive not to re-offend and to reform.”[13]

30.Although the incident arose out of an altercation in a sports event, the Appellant used a hockey stick to assault PW1 which could have caused a serious injury to the victim.  Had it resulted in serious or permanent injury to the victim, the Appellant would surely have to face a more serious charge to reflect its gravity.  To that extent and in this context, the Appellant was “fortunate”.  The maximum sentence of this offence is one year imprisonment.  The Magistrate sentenced the Appellant to 4 weeks’ imprisonment but spared him from actually serving the jail term.  That is the kind of leniency and mercy from the Magistrate that the Appellant should be grateful for.  She also expected that the Appellant would not re-offend and would reform himself.

31.I find that the grounds of appeal against sentence cannot be substantiated.

CONCLUSION

32.For the reasons above said, I dismiss the Appellant’s appeal against conviction and sentence.  The compensation order of $1,000 is to be paid to PW1 within one month from the date of this judgment.

COSTS

33.I am also satisfied that the appeal was without merit, and in accordance with section 13(a) of the Costs in Criminal Cases Ordinance, Cap 492, order that the Appellant is to pay the costs of the appellate proceedings to the Prosecution, and the costs to be taxed if not agreed. 

Mr Prakash L DARYANANI, Senior Public Prosecutor of the Department of Justice, for the Respondent HKSAR

Mr Oliver DAVIES, instructed by C.M. Chow & Company, for the Appellant