HKSAR v. Macdonald, Susan Marr Somerlet

HCMA 611/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF THE FIRST INSTANCE

MAGISTRACY APPEAL NO.611 OF 2015

(ON APPEAL FROM ESS NO 2582 OF 2015)

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BETWEEN

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J U D G M E N T

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Introduction

1.On 15 September, 2015, the Appellant was convicted after trial of a summons alleging her as “being the keeper of a dog not on a leash or under control bit a person in place from which it might wander into a public place, contrary to section 25(1) of Rabies Ordinance, Cap 241.”  She was fined $3,000 by Mr. Simon Ho, Deputy Special Magistrate (“the Magistrate”).   The Appellant was obviously aggrieved by the conviction and she now appeals against the conviction.

The Prosecution Case

2.The biting incident took place in Discovery Bay, Lantau Island.  The victim and the Appellant were residents there at the material time.  At about 6:20pm on 26 July, 2014, PW1, a boy (aged 11), was walking back home with PW2, his mother and his brother.  PW2 was walking in front of her sons.  When they walked up the stairs to La Costa, PW1 saw 3 dogs (“the 3 Dogs”).  Two of the dogs, in yellow and white respectively were tied on the railing by leashes.  The remaining dog was black in colour (“the Black Dog”) with a leash attached to his neck collar but it was not tied to anything.

3.Subsequently, the Black Dog barked and ran towards PW1 and his brother.  PW1 tried to run away but PW1 was bitten at the back of his knee.

4.Having heard the barking, PW2 turned back and saw a black dog wandering.  A man told her, “Bitten”.  She saw a black dog walking around.

5.At that time, PW3 was having a walk with 4 dogs, including a black chow dog (“the Black Chow”) with the assistance of a domestic helper.  She was informed by a male passer-by that a boy had been bitten at the scene.  When she went to the scene, she saw the 3 Dogs including the Black Dog.  On her way to the scene, she did not see any other dog.

6.The 3 Dogs were owned by the Appellant and were later picked up by the Appellant’s domestic helper.  The Black Dog at the scene is called Donald.

7.The family of PW1 and PW2 has not kept any dogs.  It has only kept a cat.

The Defence Case

8.The Appellant, as of her right, elected not to testify at the trial.  Nor did she call any witness to give evidence for her.

The Magistrate’s Findings

9.The Magistrate pointed out that the case for the prosecution is based upon a large amount of circumstantial evidence relating to different matters and the main factual background is largely undisputed in this case.  The identity of the Black Dog and its relationship with the Appellant has already been covered in the Admitted Facts (P1 & P1A).

10.The Magistrate set out the only issue at this trial, viz, whether PW1 was bitten by Donald? He noted that the defence case (as put) suggested that PW1 could have been bitten by another black dog other than Donald as neither PW1 nor PW2 saw the act of the biting at the material time.

11.In his analysis, the Magistrate found that given the fact that PW1 was bitten within just about 2 seconds upon the first glance of the Black Dog and the distance between them was only about 6 meters, it is inherently improbable for another dog appearing at the scene, biting PW1 at the back of his leg and disappearing out of sights of PW1 and PW2 within 1 or 2 seconds.

12.When approaching the purported identification of Donald, the Magistrate reminded himself the special need for caution when the issue turns on evidence of visual identification.  However as this case was about the identification of a dog, the Magistrate pointed out that identification of a dog by its facial or bodily features depends on the witness being sufficiently knowledgeable about dogs.  As the family of PW1 has never kept a dog, he found PW1 and PW2 to be both unfamiliar with dogs to enable them to distinguish one dog from another by reference to those features.  The Magistrate, however, found that all the evidence pointed to the conclusion that PW1 and PW2 have sufficiently identified Donald to be the biting dog by reference to its black colour which is the most important distinguishing feature.

13.The Magistrate found both PW1 and PW2 to be honest whose evidence he could rely.  In PW1’s case, he did not find any material discrepancies in his evidence that cast doubt on his evidence.  The Magistrate was also of the view that whether PW1 could identify Donald in one or two photographs is not material.  He cited the case HKSAR v Ho Chiu Fung, HCMA 713/2014 (a Chinese Judgment) where the victim too could not identify the biting dog by the photograph.  On the basis of totality of the circumstances in that case, including the colour of the dog, it does not prevent an irresistible inference against the defendant being drawn. In PW2’s case, The Magistrate did not find PW2 to be evasive.  Although on some occasions, she did not answer the questions in a direct manner, the Magistrate did not find her trying to evade the questions deliberately.

14.The Magistrate also found PW3 to be an independent witness.  He found that it was highly improbable for her to fabricate evidence against the Appellant and she did not have any motive to do so.  The Magistrate found that PW3 arrived at the scene within a short time (only about 1 minute according to PW1) after the biting took place and her evidence was consistent with the evidence of PW1 and PW2.  Her undisputed evidence was that the black dog was free and the other 2 dogs were tied to the railing.

15.The Magistrate also rejected the suggestion by defence that it was possible that the Black Chow was the biting dog.  He found that there was no substance in this submission. (see paras 80-88 of the Statement of Findings)

16.The Magistrate concluded that all three witnesses (PW1-PW3) were able to identify and recollect the colour of the dog which bit PW1 and on the basis of the proven facts, the only irresistible inference was that Donald was the black dog that bit PW1at the scene.

Grounds of Appeal

17.Mr. Kamlesh Sadhwani, on behalf of the Appellant, both in the trial and in this hearing, put forward altogether 6 grounds in support of the appeal as follows:-

(1) The Magistrate erred in his determination that PW2 was honest and that he could rely on her evidence.

(2) The Magistrate failed to deal with certain discrepancies in the evidence of PW1 and/or PW2 and the discrepancies between the evidence of PW1 and PW2.

(3) The Magistrate erred in arriving at the conclusion that the colour of Donald was the most important distinguishing feature.

(4) The Magistrate was wrong to hold that it is inherently improbable for another appearing at the scene, biting PW1 at his back and then disappearing out of the sights of PW1 and PW2 within 1-2 seconds.

(5) The Magistrate erred in drawing the only irresistible inference that Donald was the dog that bit PW1 at the scene.

(6) In the above circumstances, and/or generally, the conviction is unsafe and or unsatisfactory.

The Respondent’s Position

18.First, Mr. Derek Wong, Senior Public Prosecutor, on behalf of the respondent, submitted that all the arguments advanced were well-settled by the Magistrate in his Statement of Findings with reasons given and the appellate court should not intervene with those findings which were reasonable. 

19.Second, Mr. Wong submitted that the alleged inconsistencies between PW1 and PW2 mainly related to their description of the physical appearances of the Black Dog.  As the Magistrate had already found that both witnesses were unfamiliar with dogs so they would not be able to distinguish one dog with another by referring to their other bodily features, the discrepancies in their evidence did not cast any doubt on the Prosecution case.

20.Third, Mr. Wong submitted that the Magistrate correctly found that the colour of the biting dog was the most distinguishing feature.  He referred to the Magistrate’s finding that the 3 Dogs were the only dogs at the scene at the material time and only the Black Dog could walk around freely and the colours of the 3 Dogs were separate and distinct.

21.Fourth, Mr. Wong reiterated that on the undisputed evidence, apart from the 3 Dogs, there was no other dog at the scene at the time of the attack.  He submitted that the Defence has never put to PW1-3 that there were other dogs thereat.  The Magistrate’s finding that it is inherently improbable for another dog to enter into the area and bite PW1 and left the scene without been seen by PW1 and PW2 is unimpeachable.

22.Fifth, Mr. Wong submitted that the Magistrate had correctly found that PW1 could identify the colour of the dog even by fleeting glance.  He reminded the court that the colour of a dog is a permanent feature and as the biting dog was black in colour which was so distinct from the colours of the other two dogs at the scene that it could hardly lead to any possible wrong identification.

23.Finally, Mr. Wong submitted that the Magistrate’s findings are both logical and reasonable and the appeal should be dismissed.

Discussion

24.The first two Grounds of Appeals revolves around the credibility and reliability of PW1 and PW2 which were already argued before the Magistrate. Ground (3) to Ground (5) are nothing but attempts to criticize the Magistrate to reject the suggestion by the defence that it was another black dog which bit PW1at the material time. As correctly identified by the Magistrate and to which Mr. Sadhwani also agreed, the only live issue in this case is whether the circumstantial evidence adduced by the Prosecution is sufficient to lead to an irresistible inference that the biting dog is Donald, the Black Dog owned by the Appellant. Ground (6) is only an all-embracing ground in the most general terms.

25.As for Ground (1) and (2), despite the criticisms of the credibility and reliability of both PW1 and PW2, the undisputed fact remains that both did not witness the very act of biting at the material time.  I therefore fail to see therefore how the credibility or inconsistencies of the two witnesses on some other peripheral matters could possibly affect the basic fact and that is PW1 was attacked momentarily after the Black Dog was barking and ran towards him at a short distance before he turned round and ran away from the Black Dog.  What is more important as highlighted by Mr. Wong in his submission is that it was never suggested to either PW1 or PW2 by the Defence during cross-examination that there was another dog at the scene at the material time.

26.Furthermore, the Magistrate had the advantage of seeing and hearing the witness and was in a better position to assess his credibility. The appellate court would only depart from a magistrate’s determination of a witness’s credibility if it was “plainly wrong”.

27.I would like to repeat the following passage by Stock J. (as he then was) in R v Kwong Wing On and Another, HCMA 574/1996:

‘12. Pausing at this juncture, I would say this : that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

28.There is no substance on the first two Grounds.

29.Ground (3) to (5) can be dealt with together.

30.I also fail to see how the Magistrate has committed an error when he held that the colour of the biting dog is the single most important identifying feature, especially when the colours of the other two dogs are yellow and white respectively. As rightly pointed out by the Magistrate, both PW1 and PW2 did not possess sufficient knowledge about dogs to be able to identify the biting dog with reference to any facial or bodily feature of a dog.

31.The Magistrate has demonstrated that he was fully aware of the need to be very cautious of the identifying evidence of the biting dog by the following paragraphs in his Statement of Findings:

“61. No doubt, the attack of the black dog was unexpected and sudden. Like a human being, a dog’s facial expression and body appearance change constantly. Unlike a human being, at least for most of the times, it does not wear any clothes.

62. Identification of a dog by its facial or bodily features depends on the witness being sufficiently knowledgeable about dogs. The family of PW1 has never kept a dog. I find PW1 and 2 to be unfamiliar with dogs to enable them to distinguish one dog from another by reference to those features.

63. The main bulk of the cross examination of PW1 & 2 is related to their ability to identify Donald by reference to those features, including its eyes, ears and tail, and its collar and leash. Various discrepancies have arisen out of this area.

64. Applying the principle set out in Keane to the present case, all these inconsistencies have to seen in the whole context and the totality of the evidence. Central to the prosecution case is that there were only 3 dogs at the scene and that Donald was the only black dog and free to wander around while the other two dogs were tied to the railing. It is not disputed that before the biting it was barking and running towards PW1.

65. All the evidence points to the conclusion that PW1 and 2 have sufficiently identified Donald to be the biting dog by reference to its colour (ie. black). It is totally different from the colour of the other two dogs at the scene. This is the most important distinguishing feature which Donald carries with it.

66.    It is submitted for defence that PW1 has a gleeting glance of Donald before the bite.  I agree to this.  Even so, I find that he had sufficient time to identify its colour.  Given that PW2 had much more time after she turned back, I find that she had sufficient time to identify its colour.”

32.The Magistrate has also sufficiently alerted to the suggestion by the Defence that it was the black Chow or other dogs that bite PW1.

“Did the Black Chow or other dogs bite PW1?

80. It is submitted for defence that the Black Chow was a likely candidate of the biting dog. In my view, there is no substance in this submission.

81. First of all, it is clear from PW3’s undisputed evidence and the video footage that she and the Black Chow were together before she learned about the incident and went to the scene. They were and had been walking slowly on the path, and the Black Chow was under the control of PW3 and Helper B.

82. During cross-examination, it was never suggested to PW3 that the Black Chow had parted from her control or attacked PW1. Since this is an important issue and PW3 did not have any opportunity to answer to this allegation, it is unfair to her.

83. Had the Black Chow at any time attacked PW1 as alleged, PW3 or Helper B would most probably have led it away from the scene as far as possible. It is inherently improbable for Helper B to keep it standing in the vicinity of the scene when Helper A, the 3 Dogs and PW2 walked towards them.

84. When asked why Helper B took the dogs to a staircase, PW3 explained that it was an attempt to avoid the 3 dogs being led by Helper A. Based on common sense, I find this answer to be reasonable. Even in normal circumstances, it is most sensible for Helper B to avoid confrontation between the 7 dogs. This is even more so when, as she was acutely aware, one of the 3 Dogs had bitten someone.

85. It is submitted by defence that in the video footage the Black Chow tried to attack a passer-by dog whereas Donald was calm after the incident, thus suggesting that the Black Chow instead of Donald was the biting dog. The alleged attack is not clearly shown in the video footage. There is no evidence of any fight between these two dogs. It was denied by PW3.

86. It is submitted that Donald was calm after the incident. As to the relevance of such conduct to the incident, there was no expert evidence to support the defence case. It is significant to note that Donald is only a Labrador mixed. Even if (as admitted by PW3) a Labrador is generally friendly with children, this does not necessarily apply to every Labrador, let alone a Labrador mixed.

87. I do not consider PW4 an important witness. He is not an expert. Whether or not Donald is a normal dog is not material. I give no weight to his evidence.

88.    It is submitted that, as shown in the video footage, during the period from about 17:46 to 17:57 (being the times shown therein) there were some dogs in the vicinity of the scene.  The time of the biting incident is outside this time frame.  There is no evidence that those dogs were still present in this area at that time, not to mention that any of them did go to the scene.  I do not see any substance in this submission.”

33.During the hearing, I had the opportunity to view the very CCTV footage as referred by the Magistrate.  I fully agree with the above comments of the Magistrate which were only fair and I fail to understand how Mr. Sadhwani would be able to say that PW3 was hiding her dogs away (implying that there might be something wrong) when all she was trying to avoid was a confrontation or a scenario when the 7 dogs fought together.  The Magistrate has carefully considered the possibility and in my mind, based on his careful analysis, he was perfectly entitled to reject the fanciful suggestion by the defence that it was the Black Chow or any other dog that bit PW1.

34.After rejecting the notion that it was another dog that suddenly bit PW1 from behind and disappeared very quickly after the biting, on the basis of the facts as accepted by the Magistrate, the only irresistible inference must be it was the Black Dog, Donald that bit PW1. 

35.There is nothing from the defence to explain, contradict or undermine the evidence adduced by the Prosecution in this trial. 

36.On the other hand, under s, 25(2) of the Rabies Ordinance (Cap 421),  it is a defence for the Appellant to prove that :

(a)    she took all reasonable measures to prevent the animal from biting, or

(b)    the animal was willfully provoked by someone other than himself.

37.As the matter stands, no evidence was ever adduced by the Defence and at the same time, there is also nothing emanated from the Prosecution case which can possibly avail the Appellant of the statutory defence. 

38.Ground (3) to (6) also fails.

Conclusion

39.For these reasons, I am satisfied that the Magistrate fairly and properly considered the issues raised by the Appellant and was not plainly wrong in his findings as to the credibility of the prosecution witnesses especially PW1-PW3.  The submissions of the Appellant were no more than an attempt to have a “second bite at the cherry” and repeat their arguments already made to the Magistrate which he has fully considered and rejected.

40.I find no basis to interfere with the Magistrate’s finding of facts and the conclusion that he has reached.

41.The appeal is accordingly dismissed.

Mr. Wong Chun Hin, Senior Public Prosecutor of the Department of Justice, for the Respondent HKSAR

Mr. Kamlesh Sadhwani instructed by Yeong & Ko for the  appellant