HKSAR v. Lin Peng

HCMA 547/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 547 OF 2015

(ON APPEAL FROM EASTERN MAGISTRACY
CASE NO ESSC 2054 OF 2015)

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J U D G M E N T

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Introduction

1.The appellant was convicted after trial of one count of inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap 212.  He pleaded not guilty to the charge but was convicted after trial.  He appeals against the conviction.

2.The trial was conducted in Chinese but the appeal was in English.  The Statement of Findings was translated into English.

3.Mr Gerald McCoy SC, leading Kim McCoy, put forward 3 grounds of appeal:

“ Ground 1 — Failure to consider a material/significant inconsistency between PW1’s and DW2’s oral testimony.

Ground 2 — The learned Magistrate erred in law in finding beyond reasonable doubt that the Applicant must have deliberately intended or recklessly caused grievous bodily harm.

Ground 3 — The learned Magistrate wrongly summarized/ misunderstood D’s case.”

4.Mr McCoy SC, in his skeleton submissions, submits that a substituted conviction for common assault is the only safe outcome — with a new sentence to be imposed accordingly.  ‌In his oral arguments, Mr McCoy submits that a conviction for assault occasioning actual bodily harm should be the correct substituted conviction.

Prosecution case at trial

5.Ms Christal Chan, who appears for the respondent, succinctly summarizes the Prosecution’s case in paragraphs 2 to 4 of the respondent’s Skeleton Submissions, which I adopt:-

“ 2. The Prosecution’s case is rather straightforward. There was only one prosecution, PW1 (C/F TONG Lam-hung), called to testify. PW1 was a waitress at the Hong Kong Congee & Noodle Café (‘café’) at Jaffe Road, Wanchai. At the time of the offence, PW1 was working at the café when the appellant went in and ordered for takeaway. The appellant was not happy as he found the food was more expensive than usual and he spoke abusive language at her. (I should add that during the dispute, swearing words were used by both PW1 and the appellant)

3. At that time, PW1’s colleague, i.e. DW2 (C/F KONG Yun-sum), tried to mediate, DW2 asked the appellant to leave first and come back later. DW2 also asked PW1 to stay away. However the appellant refused and he started to make a scene. At that juncture, PW1 took out her mobile phone trying to capture the behavior of the appellant. On seeing that, the appellant ran up to her. PW1 used her left hand to put away her mobile phone immediately as she raised her right hand in front of her face to protect herself. The appellant got hold of PW1’s right hand and he grabbed tight of her right middle finger, right index finger and right little finger. He twisted the three fingers of PW1 which caused her great pain. When PW1 cried out loud, the appellant released her hand.

4. The matter was reported to the police and PW1 was admitted to the Ruttonjee and Tang Shiu Kin Hospital and subsequently had to be treated at the Orthopaedics of the Pamela Youde Nethersole Eastern Hospital.  She was diagnosed with displaced fracture of right middle finger proximal phalange.  Steel pins had to be implanted into the finger of PW1 was a result.”

The defence case at trial

6.I shall adopt what Mr McCoy SC sets out in paragraphs 7 to 11 of his Skeleton Submissions as a summary of the Defence case at trial:-

“ 7. The key issue in the appellant’s at trial was how PW1 became injured and whether such injury was caused in the circumstances as was claimed by the Prosecution and with the specific intent to inflict grievous bodily harm (GBH). On that basis, the appellant opted to testify and called one defence witness — DW2 (the co-worker of PW1, who had witnessed the altercation and ‘split second’ contact between PW1 and appellant [68P]. PW1 ‘washed off his hand’ [548])

8. The appellant’s case was that after work on the day of the incident, he went to order takeout from the restaurant where PW1 worked. There was was a quarrel over the price of the vegetables as he thought the price was unreasonable high, and that PW1’s attitude was very poor. He had intended to lodge a complaint against PW1.

9. During the quarrel, DW2 tried to intervene and stop the quarrelling, and asked the appellant to leave. As the appellant was about to leave, PW1 suddenly took out her mobile phone and pointed it at the appellant, indicating that she was going to film him. The appellant repeatedly requested PW1 to stop filming but PW1 did not listen. The appellant then walked up to PW1 with the sole intention of taking away her mobile phone. Whilst the two were facing each other, the appellant extended his right hand, pointed it at the mobile phone which was in PW1’s hand and requested her to hand the phone over to him so that he could delete the messages.

10. The appellant was not certain whether or how his hand had touched PW1’s hand during this split-second encounter. He only was conscious of PW1 withdrawing her hand as she immediately grabbed the appellant by his clothes, shouting loudly ‘[he was] hitting people’. The appellant stated that he did not hit anyone. PW1 extended her right hand to show him, and accused the appellant of injuring her right hand.

11. During cross examination, the appellant conceded he did not have a polite attitude and had no right to delete the images that were taken of him. The appellant emphasized he was not clear whether he touched PW1’s fingers and did not notice nor know how PW1 came to be injured. But the appellant never suggested that the injury had not happened during the encounter — he just had not at the time realized that in the extremely short time.

12 The evidence of PW2 was that she witnessed a physical altercation between PW1 and the appellant, that there was bodily contact, but she did not see whether the appellant actually grabbed the hand of PW1 or not.” (Emphasis added)

Analysis and assessment of evidence by the magistrate

7.The Magistrate warned himself that the case was basically one against one situation, hence calling for extra caution.  The Magistrate found the evidence of PW1 clear and direct.  Her demeanour impressed the Magistrate as frank and straightforward when testifying in court and she remained unshaken under cross-examination.

8.The Magistrate was aware of the discrepancy between the in-court evidence given by PW1 and what she stated in her written statement as to how the appellant grabbed her fingers resulting in her injuries.  The Magistrate considered the discrepancy as immaterial as the grabbing took place in a split second and the contact was extremely short.  The Magistrate found that it made no difference whether PW1’s fingers were bent outward or downward, the injuries of PW1 tallied with her evidence that her fingers were bent by the appellant.  The Magistrate felt sure that PW1 was an honest and reliable witness and he accepted her evidence.

9.The Magistrate give himself a full Berrada direction as the appellant had a clear record, he also took into consideration the evidence of the character witnesses.

10.In the end, the Magistrate found that the account given by the appellant could not be the truth and he rejected the appellant’s evidence.  The Magistrate found that the evidence of the appellant that the contact between his hand and PW1’s was no more that minor and he had never grabbed PW1’s fingers could not be reconciled with the objective fact that PW1 suffered a serious injury to her right middle finger in the incident, i.e. a displaced fracture which required surgical treatment and PW1 was not yet recovered at the time of the trial.  The Magistrate found in paragraph 13 of the Statement of Findings “Judging from this, the injury to PW1’s finger would not be possibly caused by an impact described by the defendant as so minor that even the defendant himself did not feel it.  If the impact was really that minor, PW1’s finger could not have suffered such serious injury.” The Magistrate also ruled out the possibility of self-harm or other reasons as DW2 confirmed that PW1 cried out in pain immediately at the time of the incident.  The Magistrate was sure that the appellant’s account could not be the truth and he rejected the appellant’s evidence.

11.As for the evidence of DW2, the Magistrate assessed her evidence in paragraph 14 of the Statement of Findings, the certified English translation reads:-

“ 14. As regards the defence witness Ms Kong, her evidence was simple and direct. Although she only witnessed the incident in part, her evidence was more in corroboration with the evidence given by PW1. After careful consideration, the court believes that she was telling what she had seen to the best of her ability. The court finds that she was an honest and reliable witness and accepts her evidence.” (Emphasis added)

12.Paragraph 14 of the Statement of Findings actually reads:-

“ I do not think the Magistrate meant to say the evidence of DW2 corroborated that of PW1. What the Magistrate meant to say is the evidence of DW2 was more in line with the evidence given by PW1.”

Grounds of appeal

Ground 1 — failure to consider a material /significant inconsistency between PW1’s and DW2’s oral testimony.

13.Mr McCoy SC submits there are 2 main inconsistencies/ discrepancies between PW1’s and DW2’s evidence, namely:-

(i) PW1 gave evidence that the appellant twisted her fingers once/twice with all the might.  The entire action took only 4 seconds. It appears that DW2’s evidence materially differs from PW1’s.  DW2 gave evidence that the appellant and PW1 had engaged in a mutual pulling and tugging action against each other which was then followed by a cry from PW1.

(ii) PW1 gave evidence that she grabbed the appellant’s with his left hand and said to him “You cannot go away.  (You) are not allowed to go.”  DW2 gave no evidence to that effect.

(iii) Mr McCoy SC submits that the Magistrate erred when he failed to consider and explain the material discrepancies and divergence between PW1 and DW2, though he had accepted them both to be truthful and credible.

Ground 2 — The learned Magistrate erred in law in finding beyond reasonable doubt that the applicant must have deliberately intended or recklessly caused grievous bodily harm.

14.The principal submission advanced under Ground 2 is that there is insufficient evidence for the Magistrate to infer that the appellant had the specific intent to cause injury to PW1, or foresaw the risk of such an injury.

15.Mr McCoy SC submits that for the appellant to be convicted on the basis recklessness, it must be proved that he consciously saw the risk of injury to PW1 and went ahead with his actions, i.e. the grabbing and twisting of PW1’s fingers, in any event.  The evidence and split second context showed only a general intent on the part of the appellant to grab the phone in which he had contacted PW1 but not a specific intent to cause grievous bodily harm (the mens rea for murder).

Ground 3 — The learned Magistrate wrongly summarized/misunderstood D’s case.

16.Ground 3 complains that the Magistrate erred to summarize the appellant’s evidence at paragraph 13 of the Statement of Findings as:-

“ The appellant and PW1’s hands, at most, were in brief contact; the appellant never grabbed PW1’s fingers”

17.Mr McCoy SC submits that the appellant’s evidence was in effect that “he did not know or was not sure whether PW1’s hand was touched or not.  It could have been the mobile phone which was grasped to indirectly cause the pressure on the finger.  Such a finding is ultimately relevant to the learned Magistrate’s finding on the credibility and reliability of the appellant’s evidence.  ‌Had the learned Magistrate properly considered the evidence, it should have led to a reasonable doubt.”  (Paragraph 38 of the appellant’s Skeleton Submissions Against Submissions)

18.Mr McCoy SC argues that the Magistrate had “reversed-engineered” from the fact of the fact of the injury of PW1 that the appellant must have been caused it maliciously as opposed to accidentally or negligently.

The Respondent’s submission

On Ground 1

19.Ms Chan submits that PW1 testified that the appellant’s act of grabbing her fingers took place in extremely short moment and her evidence was supported by her injuries.  As for DW2, it is clear from her evidence that she only seen the incident in part.  Ms Chan submits that there is no “material and significant discrepancies”, if at all, in the evidence of PW1 and DW2 that “would lead or should lead a tribunal to doubt credibility on central facts” (as per Stock J (as he then was) at paragraph 12 of R v Kwong Wing On and Another HCMA 574/1996).  Adequate reasons were given by the Magistrate in his analysis of PW1’s and DW2’s evidence not only why he believed their evidence but also why he did so.

On Ground 2

20.Ms Chan submits that the Magistrate addressed the issue of mens rea correctly.  He decided whether the appellant intended or foresaw the harm to PW1 by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances, as required by Section 65A of Criminal Procedure Ordinance, Cap 221 and came to the conclusion that that the appellant “must have done that deliberately to harm PW1 or recklessly bent PW1’s fingers knowing clearly that by so doing grievous harm would be inflicted on her and yet still did that to her.”

21.Ms Chan submits that the facts in HKSAR v Estrella, Hazim Angelina HCMA 1096/2006, relied upon by the appellant, were very different from the present case.  ‌In Estrella,theevidence as to the appellant’s intent, or as to her being recklessly, was purely circumstantial.  PW1 was able to give a clear account of how the appellant started the argument and injured her by grabbing her fingers with great force which caused the fracture of her finger when the mobile phone was in the left hand of PW1, not the other hand which the appellant grabbed.

22.Ms Chan submits that there is ample evidence upon which the Magistrate could find the mens rea proven when he convicted the appellant.

On Ground 3

23.Ms Chan submits that the Magistrate had not misapprehended the evidence of the appellant.  The appellant’s evidence that he was not sure whether or not PW1’s hand was touched should be considered in conjunction with his evidence “(t)here was no physical contact thereafter”. The evidence of the appellant was that there was no physical contact at that stage and there was no contact thereafter.

A consideration of the submissions

Ground 1

24.It is obvious from the Statement of Findings, which was prepared in Chinese, that Magistrate did not find that the evidence of DW2 corroborated that of PW1, he just found that the evidence of DW2 was more in line with the evidence of PW1.

25.I do not think there is any material discrepancy between the evidence of DW2 and that of PW1.  DW2 gave evidence that she told the appellant to leave the café but she did not know if he had left.  She had to go back inside to work and she did.  DW2 also testified that she did not know how exactly how the appellant and PW1 started pulling and tugging each other, according to DW2, after she had gone back inside the café, she then saw the appellant and PW1 were pulling and tugging each other, and she went out to mediate again.  The evidence of PW1 was that the grabbing and twisting of her fingers happened in an extremely short moment.  The act of grabbing and twisting could take place after DW2 had gone into the café and before she looked at the appellant and PW1 again. 

26.As for the pulling and tugging between the appellant and PW1, I do not think there is much difference between the evidence of PW1, i.e. PW1 grabbed the clothes of the appellant with her left hand to stop him from leaving and said “You cannot go away.  (You) are not allowed to go.” and the evidence of DW2 that she saw both PW1 and the appellant were pulling and tugging against each other, pulling hand, PW1 held up one hand, (not as the appellant’s Skeleton Submissions suggest “one of PW1’s hands were (sic.) held (18.4)” complained about the pain to her hand and requested someone should make a report to the police for her.  What DW2 witnessed was obviously what took place after the grabbing and twisting of PW1’s fingers and PW1 was then preventing the appellant from leaving, hence the pulling and tugging and the calling for police report.

27.A realistic attitude should be taken, as Stock J (As Stock NPJ then was) said in The Queen v Kwong Wing On & 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.In my judgment, the discrepancies/inconsistencies identified in Ground 1 are more apparent than real.

29.Ground 1 fails.

Ground 2

30.With respect to Mr McCoy SC, the offence of “Inflicting grievous harm” under section 19 of the Offences Against the Person Ordinance does not require proof of specific intent to cause grievous bodily harm (the mens rea for murder).  One must not confuse the mens rea required for section 19 with the mens rea required for section 17, i.e. “Wounding with intent”.

31.The House of Lords in D.P.P. v Majewski [1977] AC 443 held that offences of assault (including assault occasioning actual bodily harm, and section 20 offences (the English counterpart of section 19 offences) required no specific intent.  Lord Elwyn-Jones adopted the following passage from the speech of Lord Simon of Glaisdale in D.P.P. v Morgan [1976] AC 182 at 216-217:-

“ I take assault as an example of a crime of basic intent where the consequence is very closely connect with the act. The actus reus of assault is an act which causes another person to apprehend immediate unlawful violence. ‌The mens rea corresponds exactly. The prosecution must prove that the accused foresaw that his act would probably cause another person to have apprehension of immediate and unlawful violence, or would possibly have that consequence, such being the purpose of the act, or that he was reckless as to whether or not his act caused such apprehension. This foresight (the term of art is ‘intention’) or recklessness is the mens rea for assault. For an example of a crime of basic intent where the consequence of the act involved in the actus reus as defined in the crime is less immediate, I take the crime of unlawful wounding. ‌The act is, say, the squeezing of a trigger. ‌A number of consequences (mechanical, chemical, ballistic and physiological) intervene before the final consequence involved in the defined actus reus. The prosecution must prove that the accused foresaw that some physical harm would ensue to another person in circumstances unjustified by law as a probable (or possible and desired) consequence of his act, or that he was reckless as to whether or not such consequences ensued.”

32.In short, for proof of intent under section 19, the Prosecution only have to prove that a defendant had the foresight of some physical harm to some person, albeit of a minor character, might result.

33.Lord Diplock said in R v Mowatt 19670 51 Cr App R 402:-

“ In s.18 the word maliciously adds nothing. The intent expressly required by section is more specific than such element of foresight of consequences as is implicit in the word “maliciously” and in directing a jury about an offence under this section the word ‘maliciously’ is best ignored.

In the offence under Section 20….  The word ‘maliciously’ does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequences of causing some physical harm to some other person.  That is what is meant by ‘the particular kind of harm’ in the citation from Professor Kenny.  It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the section, i.e. a wound or serious physical injury.  It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result.”

34.It short, for the offence of “Unlawful and Malicious Wounding or Inflicting Grievous Bodily Harm” under Section 19, the mens rea required is either that the defendant either intended to cause physical harm to the victim; or actually foresaw that his act might cause physical harm to the victim, and yet ignoring that risk went on and did the act.  This is what is meant by the word “maliciously” in Section 19.  The prosecution does not have to prove that the defendant intended or foresaw wounding or serious harm.

35.In the instant case, the Magistrate found at paragraph 17 of the Statement of Findings that “The defendant must have done that deliberately to harm PW1 or recklessly bent PW1’s fingers knowing clearly by so doing grievous bodily harm would be inflicted on her yet still did that to her.  As a matter of fact, PW1’s right middle finger was seriously injured as a consequence.”  In the above passage, the Magistrate by finding that the appellant did the act under complaint, i.e. the deliberate bending and twisting of PW1’s fingers, knowing clearly by doing so grievous bodily harm would be inflicted on PW1, found that the appellant had the intent to inflict grievous bodily harm on PW1 (as said, in law, the prosecution only has to prove the defendant intended to cause physical harm to the victim). 

36.For the alternative finding that that the appellant was acting recklessly, it would have been better for the Magistrate, having found that the appellant intended to cause grievous bodily harm on PW1, to go on to explain why he also found in the alternative that the appellant was acting recklessly.  The Magistrate’s failure to explain his alternative findings on recklessness, in my judgment, is not fatal if his conclusion on the appellant’s intention is correct.

37.The Magistrate found PW1 an honest and reliable witness after a careful consideration of the evidence.  PW1 gave evidence that as she took out her mobile phone trying to take picture of the appellant, who was making a scene, the appellant lunged towards PW1.  PW1 used her left hand to put her mobile phone away and raised up her right hand to protect her face. It was at this juncture that the appellant grabbed her fingers of her right hand with all his might.  The Magistrate found that whether the fingers were bent outward or downward made no material difference. 

38.The Magistrate heard and rejected the evidence of the appellant that he was focusing on getting PW1’s mobile phone at all times and that he did not know whether it was PW1’s mobile phone or her hand that he had touched.  The Magistrate rejected the appellant’s evidence that PW1’s injury was an accident.

39.I agree with the respondent’s submissions that the facts of the instant case were very different from the facts in Estrella. In the present case, PW1 was not holding her mobile phone with her right hand, PW1 was putting away her mobile phone with her left hand and using her right hand to protect her face at the time.  There was no room for confusion of which hand of PW1 was grabbed; there was no room for mistake on the part of the appellant that in trying to reach out for the mobile phone of PW1, which was in PW1’s left hand, the appellant grabbed and twisted the right fingers of PW1 by accident.

40.In my judgment, the appellant, by grabbing and bending the fingers of PW1 with great force, albeit in a moment of anger, must have intended to cause physical harm to PW1.  The Magistrate in fact found that the appellant deliberately bent PW1’s fingers knowing clearing by so doing grievous bodily harm would be inflicted on her.  The finding that the appellant intended to inflict grievous bodily harm is more than enough for “Unlawful and Malicious Wounding or Inflicting Grievous Bodily Harm” under Section 19. In the present case, there is ample evidence to support the findings by the Magistrate.  It is difficult to see how the appellant, by deliberately bending and twisting the fingers of PW1 with great force, could possibly suggest that he did not intent to cause some physical harm to PW1.

41.As said, it would have been better for the Magistrate to explain why he found in the alternative that the appellant was acting recklessness.  In my judgment, the failure is not material as the Magistrate findings on the appellant’s intention are unassailable.

42.Ground 2 fails.

Ground 3

43.The following is an extract of the appellant’s evidence in chief:-

“ A: At that time the distance between she and me was very close. So I used my right hand intending to seize her mobile phone because she was holding it up with both of her hands.

Q: That means she was still holding the mobile phone with her hands above the head?

A: Yes, yes. Then I intended to take her mobile phone with my right hand, take her mobile phone with my hand.

Q: Go on please.

A: When I was trying to get the mobile phone, I don’t know, it was kind of chaotic at that time, I didn’t know whether her mobile phone or her hand had been touched. I am not so sure, I was trying to get it and then she at once --

M Pause. Pause.

A: Hm.

M: Yes.

A: Yes. I was not so sure whether I had really touched her at that stage. And then she withdrew her hand immediately and I did not see the mobile phone anymore. Since I was unable to get the mobile phone, so (I) withdrew my hand a little and pointed at her like before and said, “Where is your mobile phone? Give me your mobile phone. Give me your mobile phone.” I was saying that over and over again.

Q Just a moment. Okay. Go on please.

A: Yes. And then because my finger, with her, it was very close, and then she thought that I was going to hit her so she used — she used her hand like this, to shield herself, with the other hand.

Q: Well, since you’re only guessing why she did it, therefore please don’t say this.

A: Okay.

Q: Simply tell the court what you saw will be okay. Okay?

A: Okay.

Q: Alright. And then what happened?

A: There was no physical contact thereafter. And then I was thinking — and then suddenly she used her — I like this. She was facing me. She used this hand. That is my right hand. That should be, she was at this side—

Q: Left hand.

A: — left hand, yes.

Q: Her left hand.

A: Because I was wearing a windbreaker that day, she was grabbing my hand like this.

Q: That means the wrist—

A: The sleeve.”

(Pages 231M to 233L and of the Appeal Bundle)

44.The following is an extract of the appellant’s evidence under cross-examination:-

“ Q: If you resorted to seizing, I believe that a certain amount of force must have been used. I dare not say it was violent but you had to do it with some force or certain action before obtaining the phone by seizing it, right?

A: I reached my hand forward. Whether there was any touch at that moment, I was not very sure.

Q: Just a moment, Mr Lam. At the time when you lunged forward attempting to seize her phone, had you thought or considered this action of yours would possibly cause injury to the others?

A: Never thought of that.

Q: Never thought of that. That means, I don’t care, in any event, I want to seize it, so I seize it. I don’t care if people nearby would possibly get injured, I don’t care at all, right? Never thought of that at that time.

A: Never thought of that.

Q: Alright. Well, just like what I have heard you say just now, and actually you also said this during examination in chief. You said you did not know whether you had touched her. Just be fair, actually did you mean you did not know or you did not remember? Which one is correct?

A: I did not know. Because that was just a brief moment and it was rather chaotic when I went forward to get the camera. I did not know whether I had touched her or not.

Q There was actually another thing I want to clarify with you. Like what I have said just now, the incident before us does not usually happen to you. So it must have been sealed in your memory. When you lunged to the lady, actually there was only one purpose. That was to seize her phone. How come you did not even know whether you had touched her or not? Judging from your evidence, you actually remember every single thing very clearly, things like what had been said, at which stage the other colleague came out. You remembered all these very clearly. How come you are only unable to tell was whether you had touched her?

A: Because when I went to get the camera, it was like that, because she was holding up the hand and then I lunged forward, but it was a very short duration when her hand was holding the mobile phone. Because she was holding it up like this, therefore my point was to take her mobile phone. But whether I had touched the mobile phone or the hand, I am not very sure. Because she withdrew her hand just a moment after.

Q: Well, had anything been touched? I mean, if I take your word for it that, ‘I don’t know whether I had touched the mobile phone or the hand’, well, had anything been touched?’

A: I am not quite sure.

Q: You are not even sure if anything had been touched?

A: Hm.

Q: Mr Lam, actually every single thing you have told the court, you remember them very clearly except this one thing. That is whether you had touched the female victim. Is it a deliberate act on your part not to tell the court?

A: No.

Q: Alright. Well, I shall continue with my questioning. This lady, the female victim, had a dispute with you, I mean after you had entered the café, an argument ensued, finally the police arrived, I believe it did not last for a long time, right? 10 odd minutes, I believe, more or less.

A: More or less.

Q: More or less, not very long. Actually the female victim was within your sight all along, right?

A: Yes.

Q: She was within your sight all along. Then I would like to — well, I would like to ask you again, other than — within these 10 odd minutes, other than — let me put it this way, within these 10 odd minutes, could it be possible that this female victim had her right middle finger injured to the extent that it was fractured, but you had not noticed could it be possible?

A: I did not notice this thing at all.

Q: Did not notice at all.

A: Hm.

…..

A: At that time, because I kept pointing at her all the time, there was no physical contact, but she suddenly grabbed my sleeve — by the cuff.

Q: Just a moment. Just now you said there was no physical contact, right? Just now --

A: No. I was only pointing at her. I then — I said you — because I could not see the mobile phone, I pointed at her and said, ‘you take out the mobile phone again. It must be delete(d).’

Q: Because previously when I was asking you question, you kept saying that you did not know whether there was any physical contact with her.

A: This was earlier, the first time when I tried to get the camera. I did not know whether I had touched her. And then she withdrew immediately.

Q: That means the second time was the time you said ‘after she withdrew’? You very clearly remember that there was no — no contact the second time.

A: No, had not touched her.”

(Pages 244Q to 247Q and 253 E to R of the Appeal Bundle)

45.The evidence of PW1 was that she used her left hand to put away her mobile phone when the appellant ran up to her.  She raised her right hand in front of her face to protect herself (Pages 166I to 170E of the Appeal Bundle)

46.Given the appellant’s evidence that he was not sure whether he had touched anything and any contact between the hands of the appellant and PW1 must have taken place within a very short duration, the Magistrate was right to summarize the appellant’s evidence as “The appellant and PW1’s hands, at most, were in brief contact; the appellant never grabbed PW1’s fingers”

47.I agree with the respondent’s submissions that taking into consideration the evidence of the appellant as a whole, the Magistrate had not misapprehended the evidence of the appellant.  He was quite entitled to reject the evidence of the appellant.

48.The appellant was not acting in self-defence. The way that he described how he reached out his hand for the mobile phone of PW1 could not have caused a fracture to the right middle finger of PW1.  The Magistrate accepted the evidence of PW1 that the mobile phone was in her left hand when her right fingers were bent and twisted, hence ruling out the possibility that it was the mobile phone grasped which caused the pressure on the right middle finger indirectly, as suggested by Mr McCoy SC.  In my judgment, the Magistrate was correct to find that the injury to PW1’s right middle finger tallied with her evidence it was caused by bending and twisting with great force. 

49.The Magistrate rightly ruled out the possibility that the injury to the right middle finger was the result of accident.  There was no possibility that PW1’s injury was caused by self-mutilation as DW2 confirmed that PW1 cried out in pain at the time of the incident.

50.Ground 3 fails.

Conclusion

51.The Magistrate had made no error of law and of facts.  The grounds put forward by the appellant all fail.  I perform my statutory duty of conducting a rehearing.  I have the benefit of the full transcripts of the trial.  Having considered the evidence, I am satisfied beyond reasonable doubt that the appellant has been proven guilty beyond reasonable doubt. 

52.The appeal against conviction is dismissed.

Ms Chan Shuk Yi Bertha Christal, SPP of the Department of Justice, for the respondent

Mr Gerard McCoy SC, leading Mr Kim J McCoy, instructed by Tsang Chan & Woo, for the appellant