HKSAR v. Ding Hao

HCMA 466/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 466 OF 2015

(ON APPEAL FROM ESCC 362 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 a charge of assault occasioning actual bodily harm. After trial, the Appellant was convicted by Magistrate Colin Wong and was sentenced to serve 180 hours community service. The Appellant was represented by Mr Marash SC both at the trial and in these appellate proceedings. The Appellant now appeals against his conviction only.

THE PROSECUTION CASE

2.This incident arose from a minor dispute.  At the material time, both the Appellant and PW1 were driving along Taikoo Wan Road.  When PW1 was driving in the middle lane along Taikoo Wan Road, it was alleged that the Appellant was trying to cross from the outer lane to the middle one.  Both cars stopped and there was no collision at that point in time.  The Appellant left his car and walked towards PW1’s car.  They started to have verbal arguments.  It was alleged that the Appellant then punched PW1’s face through the window.  As a result of this assault, PW1 released the car brake and his car hit the car of the Appellant.

3.PW3 was a passer-by at the time, and he saw Appellant punching PW1 a few times.  The Appellant then returned to his car.  But PW1 drove his car forward and hit the Appellant’s car.  The Appellant then left his car and assaulted PW1 again.  A report was made.  Upon caution, the Appellant said, “I understand.  I hit him.”

THE DEFENCE CASE

4.At the material time, the Appellant was on the outer lane of the road while PW1 was on the middle lane.  When the Appellant tried to cross to the middle lane, PW1 accelerated quickly and held up his middle finger while preventing the Appellant from cutting the lane.  Both cars stopped.  PW1 stayed inside his car.  The Appellant got out of his car and had a verbal argument with PW1.  Suddenly, PW1 drove his car forward and hit the Appellant’s car.  It was said the Appellant was concerned with his safety, hence he tried to snatch PW1’s car key.  PW1 then grabbed the hand of the Appellant who opened the door of PW1’s car.  The Appellant pressed PW1’s body and pulled out the car key.  The Appellant’s watch fell off at that time.  When the Appellant tried to get back his watch, PW1 assaulted the head of the Appellant.  The Appellant used his hand to fend off the attack and hit PW1’s face once.

5.The medical report of PW1 and the Appellant was produced as P4 and P5 respectively.[1]  It was admitted that the Appellant called the police at 1528 hours while PW1 called at 1531 hours on 1 March 2015.

6.The Appellant who was a self-employed investment fund manager with a clear record, testified in his defence.  The medical report of PW1 revealed: stable vital signs, blood clots at nose, tenderness at left neck, left face, left jaw, right chest wall, right thigh, both buttock, and small laceration at left lower lip.[2]  The Appellant was found to have tenderness at right hand and abrasion at forehead and left hand.[3]

GROUNDS OF APPEAL

7.The re-amended perfected grounds of appeal dated 25 January 2016 listed 4 points:

(1)  The conviction of the Appellant is, in all the circumstances, unsafe and unsatisfactory.

(2)  Having rejected the evidence of PW1, the Magistrate erred in accepting the evidence of PW3 who was an even less reliable witness.

(3)  The Magistrate erred in using the evidence of the police officer relating to an unsigned post-recorded entry in his notebook.

(4)  The Magistrate erred in failing to give himself a full direction on the good character of the Appellant.

8.In court today, Mr Marash SC submitted a 5-page ‘speaking note’ to this Court

DISCUSSION

9.Mr Marash SC in his speaking note reversed the sequence of the arguments by talking about Ground 4 first.

GROUND 4

10.Counsel for the Appellant complained that the Magistrate gave no warning that the Appellant’s positive good character was relevant to his credibility and propensity to commit the offence.  What the Magistrate commented at para 25 of his Statement of Findings were not a direction and were defective.

11.In my view, the Magistrate is a professional judge and it is well accepted that a judge does not have to detail every mental process of his judgment.  The Magistrate mentioned twice in his Statement of Findings that the Appellant had a clear record.[4]  That carried a special meaning for a professional judge as it goes without saying that he was taking this positive character into account in relation to the credibility of the Appellant and the propensity of his committing any offence.  The Magistrate even accepted that the Appellant “is an honest and not a violent person.”[5]

12.This ground of appeal fails.

GROUND 3

13.Counsel for the Appellant submitted that PW3 was a 65-year-old man who wore glasses and “who relied considerably on his imagination, which was well demonstrated by his evidence concerning the driving incident, which led to the later dispute.  PW3’s version of events was not only inconsistent with that of PW1 and the Appellant in a number of respects but was also illogical in a number of respects, demonstrably wrong in others and missed certain crucial parts of what occurred.”[6]

14.It is apparent that PW3 was not good at measuring or estimating distance. Hence at one stage, PW3 mentioned that he was about from 150 metres from the scene, but later reduced it to 6.5 metres.[7]  The Prosecution called 2 passers-by to give evidence: PW2 and PW3.  The Magistrate took the view that PW2’s evidence was of limited use as by the time she noticed the incident, PW1 had left his car already and the alleged assault was over.  The Magistrate commented that, “Even if Defendant was aggressive after the event, it does not mean that Defendant was the one who first assaulted PW1 in the beginning.”[8]  The Magistrate only relied on PW2’s evidence to support that PW1 suffered injury.

15.As regards PW3’s evidence, the Magistrate said he was “only concerned with what PW3 actually saw and not what he inferred in any event.”[9]  The Magistrate further remarked that, “PW3, as a bystander, gave evidence and I have listened to his evidence carefully.  I found PW3 as an honest and reliable witness.  Just because PW1 lied does not make PW3 any less credible.”[10]

16.In my view, what the Magistrate indicated is that he saw PW3, being a by-stander, had no reason or self-interest to lie, whereas PW1 was conscious to “evade his liability from damaging Defendant’s car.”[11] That said, I am of the view that it is not totally fair for the Magistrate to say categorically that the evidence of PW1 cannot be relied upon.[12] The Magistrate only singled out the part about the collision in that he did not believe PW1 “let loose of his brake because Defendant hit him and the car move forward as a result.”[13]  But what about the brawl and the assault?

17.Mr Marash SC said, “It was not denied by A [the Appellant] that he hit PW1 but his defence was that he did so in self-defence.”[14]

18.The Magistrate also evaluated the Appellant’s evidence.  The Magistrate accepted that the Appellant is an honest and not a violent person but that does not mean he would not lose control when he gets angry.  The Magistrate said there was “no explanation on multiple injuries found on PW1’s nose, lips, face, neck and jaw.”[15]  The Appellant only complained about the damage to his car but did not complain to the police that he was physically assaulted.  As such, the Magistrate found the Appellant not a credible witness.

19.It is apparent from the closing submissions made by Counsel for the Appellant at trial[16] that self-defence was not the main thrust of the defence case.  Defence counsel at trial attacked the credibility of PW1 and further submitted that PW2 and PW3 did not “assist the prosecution at all, in fact, they’re rather detrimental to the story of PW1 because they’re not consistent with it.”[17]  In the context of the said closing submission, as far as I can discover, the issue of self-defence was only mentioned once and rather lightly, whereby defence counsel said, “Of course, the defendant has injuries, which we’ve pointed out, which points to him acting in self-defence.  And those injuries are not accounted for by PW1.”[18]

20.The Magistrate considered all the evidence and at the end of the day, the Magistrate found it proved that [19]:

(1)  After both cars stopped, Defendant went over to PW1’s car and punched PW1’s head a few times.

(2)  Then Defendant went back to his car.

(3)   PW1 drove his car and hit Defendant’s car.

(4)  Defendant then went back to PW1’s car and PW1 alighted from his car.

(5)  Defendant started assaulting PW1 again.  PW1 was fending off and there was a fight.

(6)  As a result, the medical report showed the injuries suffered by PW1 as a result of the assault.

21.The principles relating to a magistracy appeal are well settled.  “The duty on the appellate court was to conduct a re-hearing and that it should do for its ultimate duty is to determine whether it is satisfied beyond reasonable doubt of the guilt of the Appellant.” [20]

22.The Magistrate did not believe the version of events put forward by the Appellant. In fact, The Magistrate mentioned about the multiple injuries suffered by PW1. In my view, when there was a fight, it was not easy to specify how the injuries can be or was not inflicted.  That explains why the medical report might not be able to show any injury caused by a punch on PW1’s head when it was alleged that the Appellant hit PW1’s glasses.  Hence in my view, it is not fair when Defence counsel said, “The medical report only shows a hard punch on the jaw, on the bone.  The medical report shows no such injury whatsoever.  So he’s not supported by the medical evidence in that regard.”[21]

23.In fact, the Magistrate did not believe that this was a case of self-defence.  The evidence shows that the Appellant left his own car and approached PW1’s car.  A heated argument ensued.  Then it was suggested that the Appellant tried to retrieve PW1’s car key.  Mr Marash SC in his speaking note, said,

“It was not in dispute that A [the Appellant] did manage to retrieve PW1’s car keys by opening PW1’s driver side door and removing them whilst PW1 was seated in the driver’s seat. It was A’s case that there was a struggle in the process of this incident and there was contact between A and PW1 when A tried to retrieve his watch, which came off when PW1 resisted A’s attempt to take his car key.”[22]

24.In court today, I asked Counsel for the Appellant if there was any evidence what kind of watch the Appellant was wearing at the time.  The answer was negative.  In my view, it is common knowledge that a wrist watch with a leather or plastic strap is more difficult to come off than one with a metallic strap with metal buckle.  If the Appellant’s watch came off while he tried to retrieve PW1’s car key, that could mean there existed some sort of a fierce struggle.  On the other hand, if the Appellant was standing right next to the driver door of PW1’s car and PW1 was sitting in the driver seat, one would wonder how could the Appellant open the door.  It would not be difficult for PW1 to lock the door and/or prevent the Appellant opening the door.  It is also strange that the Appellant attempted to retrieve PW1’s car key as PW1’s car had hit the rear of the Appellant’s car.  If the Appellant feared that PW1 might be able to run away or hurt him, he could use his phone to video or take a picture of the car, and then call the police.

25.The Magistrate accepted that it was the Appellant who left the car and walked towards PW1’s car when both cars stopped.  PW3 saw the Appellant punching PW1 through the window of the car.  After PW1’s car hit the Appellant’s car, be it accidentally or deliberately, the Appellant went over to PW1’s car again and this time, it was said, the Appellant tried to snatch PW1’s car key. In these circumstances, it is not difficult to see the Appellant took a more positive or even aggressive acts towards PW1.  Had the Appellant taken the view that PW1 deliberately drove to hit his car, all the Appellant can do was to call the police, and there was no need for him to take the “risk” to snatch PW1’s car key.  Such an act certainly would invite physical contact or even struggle with PW1 as he was sitting in the driver seat at the time.

26.The Magistrate took the view that PW3 actually witnessed the assault and he labeled the assault as the first and second assault.  PW3 had no reason to lie or to help PW1 who gave certain version of events not entirely consistent with that given by PW3.  It was in these circumstances, coupled with the admission made by the Appellant, that the Magistrate was satisfied that the Appellant assaulted PW1 and was not in the act of self-defence. 

27.On the other hand, the fact that the officer might not record the so-called full version of the Appellant in his notebook does not mean the said version would be accepted.  The conversation between the officer and the Appellant was not effected under caution, and it can be regarded as a kind of self serving statements. 

28.Accordingly, the 3^rd ground cannot be substantiated.

GROUND 2

29.This ground concerns mainly with the quality of evidence of PW3, a 65-year-old man who wore glasses.  It was submitted that the Magistrate, having rejected PW1’s evidence, could not safely rely on PW3’s evidence to convict the Appellant. 

30.The Magistrate said, “in considering PW1’s evidence, I have the following observations … Therefore, I cannot rely on PW1’s evidence.” [23]  In my view, what the Magistrate said does not mean he was rejecting PW1’s evidence totally.  Some basic features still existed.  That includes: (1) the Appellant did cross to the lane in which PW1 was driving, (2) after both cars stopped, it was the Appellant who went to PW1’s car, (3) they had an argument, (4) PW1’s car collided with the Appellant’s car, and (5) PW1 was injured.  Counsel for the Appellant in his speaking note at para.10 said it fairly that “the Magistrate found that he could not rely on the evidence of PW1 for the reasons he gave in his Statement of Findings at p.19, paragraph 20 but he could not properly discount the whole of his evidence, particularly where it agreed with the evidence of A and was confirmed by independent reliable evidence.”

31.What the Magistrate did not accept from PW1’s evidence was that PW1 did not hit the Appellant.  He also did not accept that when PW1 was still in the car, the Appellant hit PW1’s right cheek, and that PW1 only let loose of his brake which then caused his car to move forward and hit the rear of the Appellant’s car. 

32.In my view, the Magistrate had considered the evidence of PW1 and PW3 carefully and accepted that PW1 might have something to hide, in particular, his act to move his car to hit the Appellant’s car.  But given PW3’s evidence and the injury inflicted on PW1, coupled with the Appellant’s admission, the Magistrate came to his factual findings as stated at para.29 of his Statement of Findings. I cannot see his findings are flawed.

33.The Magistrate also took into account of the Appellant’s verbal admission to the police officer in that he said “I did hit him”.  The Appellant refused to sign the post-entry record in the officer’s notebook.  That means that he was exercising his right.  At trial, defence counsel complained that the officer [PW4] did not record in full what the Appellant told the officer on the way to the hospital in the ambulance.  But, in my view, the Appellant could have asked the officer to write for him or he himself wrote down his version of events so that a mixed statement can be produced.  The Magistrate when considering the police officers’ evidence said, “Under cross-examination, PW4 [the arresting officer] confirmed that on the way to hospital in the ambulance, Defendant said PW1 used his car to try to hit him and his car.  WPC 14691 (PW5) is an officer at the scene.  She confirmed that at the scene, Defendant said after the car stopped, PW1 drove his car to Defendant’s car.”[24]  The Appellant did not mention anything about self-defence.

34.I do not accept that “there was only one ongoing incident with no gap in the course of events.”[25]  It is apparent that the collision of the cars must be happened after both cars were stopped in the first place, and consequent upon the heated argument.  Otherwise, the reaction of the Appellant upon the first contact would not be the same.  As observed by the Magistrate, “since Defendant thought PW1’s driving manner was dangerous, he left his car and told PW1, “Do you know how to drive? If you drive like that, very dangerously.  We almost had a collision.”[26]  The collision must be somehow a kind of intervening event which could be caused deliberately or inadvertently.  But it is clear that the Appellant took the positive act to approach PW1.  PW3 witnessed “A’s hand going into PW1’s car”[27], and assaulted PW1.  After the collision, and in light of the Appellant’s reaction at the beginning, it would not be difficult to see the Appellant got furious.  Instead of calling the police right away, it was not common to see that the Appellant was bold enough to retrieve PW1’s car key while PW1 was sitting in the driver seat.  I asked Mr Marash SC and was given no clear answer as to how the Appellant could open the car door while standing close to the car and PW1’s was sitting in the driver seat.  The Magistrate did not believe that at that point in time, the Appellant was retrieving PW1’s car key, instead he took it that the Appellant was assaulting PW1.  The fact that PW1’s car key was found in possession of the Appellant does not preclude the fact that the Appellant assaulted PW1 in the first place.

35.In the circumstances, Ground 2 also fails.

GROUND 1

36.Ground 1 of the re-amended perfected grounds of appeal, saying that “the conviction of the Appellant is, in all the circumstances, unsafe and unsatisfactory”, in my view, is the conclusion to be drawn from the other grounds of appeal, not one of the grounds per se.

37.It was submitted that the Magistrate’s findings on PW3’s credibility, his restricted view in witnessing the incident and his discrepancy with PW1’s evidence are not valid which rendered this is “an appropriate case for this Court to interfere”.[28]

38.In my view, the Magistrate’s findings were not totally and solely built on PW3’s evidence.  He took into account other circumstantial evidence and the Appellant’s admission.  For the above said reasons, I cannot find any flaws in the Magistrates’ findings.  This ground also fails.

CONCLUSION

39.I dismiss the appeal against conviction.  I have considered the issue of costs under the Costs in Criminal Cases Ordinance Cap 492.  After careful consideration, I decide not to issue any costs order against the Appellant in these appellate proceedings.

Mr Edmond Lee, Senior Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent, HKSAR

Mr Daniel Marash SC instructed by Morley Chow Seto for the appellant