HKSAR v. Vincent Thomas

HCMA 327/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 327 OF 2016

(ON APPEAL FROM ESCC NO 1104 OF 2016)

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Before: Deputy High Court Judge C P Pang in Court

Dates of Hearing: 24 November 2016 and 2 February 2017

Date of Judgment: 5 April 2017

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J U D G M E N T

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1.The Appellant was charged with “assault occasioning actual bodily harm”, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212, Laws of Hong Kong.

2.The Appellant pleaded not guilty to the charge before a magistrate at the Eastern Magistracy (“the Magistrate”).  He was represented by a counsel instructed by the Duty Lawyer Service at the trial.  He was found guilty after trial and sentenced to 1 month’s imprisonment.

3.The Appellant now appeals against both conviction and sentence.  At the appeal hearing, he is represented by Mr Phillip Ross.

THE PROSECUTION CASE

4.I shall basically adopt the summary of the prosecution case helpfully prepared by Ms Eva Chan for the Respondent.

5.The prosecution called one witness, PW1.  According to PW1’s evidence, he was at Churchill’s Bar on Lockhart Road with a friend at around 10:30 pm on 29 January 2016.  He was about to leave the bar and was on the pavement three steps outside the bar when he was suddenly struck from behind several times on his left ear. 

6.When he turned around, he saw the Appellant at arm’s length from him and the barman restraining and pulling the Appellant away.  PW1 did not know whether any weapon was used to attack him.  The Appellant then left.

7.PW1 and the Appellant had known each other for 17 years and had met quite frequently for drinks before they fell out in about 2003 over an outstanding bar bill.

8.PW1 was sent to the hospital for medical examination and treatment.  The medical report of PW1 recorded the following: “General condition was fair. There was a laceration about 2 cm in length over his left external ear. He was discharged and transferred to Pamela Youde Nethersole Eastern Hospital.” PW1 gave evidence that he had received 5 stitches to his left ear. 

9.On 8 April 2016, while PW1 was drinking at Churchill’s Bar, he saw the Appellant walking by to another bar.  PW1 reported to the police.  PW1 later took the police officers to one of the bars in the vicinity and the Appellant was arrested.

10.PW1 said during the attack, he was able to observe the assailant for 10 seconds and the lighting condition was bright enough as there were overhead neon lights from the surrounding bars.  PW1 disagreed under cross-examination that he was either mistaken as to the assailant’s identity or he deliberately framed up the Appellant.

11.PW1 agreed that he had accused the Appellant of assaulting him previously in 2005.  When the Appellant was prosecuted in the 2005 trial, PW1 did not attend the court hearing and the case was dismissed.  PW1 explained that he was in Manila on holiday and therefore unable to attend court.  He said the “letter” came too late.

12.PW1 agreed he was convicted on his own plea of “aiding and abetting the making of a false representation to an immigration officer” and received a sentence of 2 months’ imprisonment suspended for 2 years in 1999.

THE DEFENCE CASE

13.The Appellant testified that he could not recall whether he was in the bar on the day in question.  Even if he were in the bar, he must have left the bar at the material time as he was normally home by 9 pm.  He denied having assaulted PW1.

THE MAGISTRATE’S FINDINGS

THE CONVICTION

14.The Magistrate noted that it was a “one against one” case and that the court could draw inferences favourable to the Appellant from the prosecution’s failure to call other witnesses who, according to PW1, had apparently witnessed the incident.  The Magistrate reminded himself that it was for the prosecution to prove its case, and the Appellant did not have to prove anything.  Even if he rejected the defence evidence, he still had to consider whether PW1’s evidence could be accepted to the extent that he was sure of the guilt of the Appellant.

15.The Magistrate acknowledged that even if parties knew and could easily recognize one another, there could still be mistake in recognition.

16.The Magistrate was satisfied that there was sufficient lighting and he found that there was no room for mistaken recognition.

17.The Magistrate noted that PW1 complained about the assault to the Police shortly after the attack, and he followed up some 2 months later when he saw the Appellant by bringing the police officers to arrest him.  The Magistrate found that “If there was fabrication, then it was an opportunistic case in the extreme: PW1 was assaulted by someone and he seized the opportunity to put the blame on the Defendant.”

18.The Magistrate considered the evidence of the Appellant.  He rejected the Appellant’s evidence.  He did not accept that there was fabrication.  

19.The Magistrate said he found the prosecution had proved the guilt of the Appellant beyond all reasonable doubt.

REASONS FOR SENTENCE

20.The Magistrate heard the mitigation that the Appellant was aged 60 and married with 2 sons and 2 step daughters.  He was once declared bankrupt and now unemployed.  His wife was the family’s breadwinner and the Appellant was responsible for taking care of his 2 sons.

21.The Magistrate noted that the Appellant had one previous conviction for criminal damage but he took no account of it in sentencing the Appellant.

22.The Magistrate emphasized that this was a gratuitous attack from behind and a cowardly one.  There was bleeding in PW1’s ear leading to suturing.  The Magistrate sentenced the Appellant to 1 month’s imprisonment and remarked that the sentence was a bit on the lenient side.

23.In a subsequent application for bail pending appeal before the Magistrate, the Appellant raised that the medical report did not record suturing.  The Magistrate said in his reasons for sentence that even if there was no suturing, he considered the sentence appropriate.

GROUNDS OF APPEAL

24.The following grounds of appeal against conviction are raised:

“ 1. By finding that PW1’s evidence was so strong and cogent that any evidence to the contrary must be rejected, the learned Magistrate has not considered the Appellant’s evidence at all before he was convicted.

2. Merely stating the Appellant’s evidence was insufficient to conclude that the evidence was taken into account by the learned Magistrate before convicting.

3. The learned Magistrate convicted the Appellant without or without adequately taking into account that PW1 had a conviction for dishonesty.

4. The conviction was unsafe as there is evidence available now to show that:

(a) contrary to his evidence PW1 was in Hong Kong on 20 December 2005, and was capable of being a witness at the trial of the Applicant on 20 December 2005; and

(b) contrary to his evidence PW1 did not receive 5 stitches as a result of injuries suffered alleged by the Applicant. ”

25.In the Perfected Grounds of Appeal against Sentence, the following ground is raised:

“ The learned Magistrate erred in failing to consider whether the Appellant should receive a non-custodial sentence, and in any event the sentence was manifestly excessive taking into account the injuries received by PW1.”

DISCUSSION

APPEAL AGAINST CONVICTION

Grounds 1 – 3

26.These 3 grounds can be considered together.  Ground 1 is the main ground which complains that the Appellant’s evidence had not been evaluated and considered at all before he was convicted.

27.I cannot agree with the criticisms of Mr Ross.  The Magistrate did not just “merely state” the defence case. To the contrary, the Magistrate evaluated the defence evidence in details.  He had considered the defences of mistaken identification and fabrication.  

28.The Magistrate analyzed in depth the possibility of mistaken identity. He found that there was sufficient lighting.  Having carefully considered the circumstances of recognizing the Appellant, the Magistrate rejected the suggestion of mistaken identification.

29.In evaluating the Appellant’s evidence, the Magistrate noted that he could not recall whether he was at the bar at the material time, but he denied assaulting PW1 in any case.  The Magistrate reminded himself that the Appellant had no burden of proof.  Even if he rejected the Appellant’s evidence, there would not be automatic conviction.  He still had to consider whether PW1’s evidence could be accepted to the extent that the Magistrate could be sure of the guilt of the Appellant.

30.In my judgment, when the Magistrate said he found “PW1’s evidence so strong and cogent that any evidence to the contrary must be rejected”, it was an expression that having weighed and considered all the evidence, he rejected the evidence of the Appellant and accepted the evidence of PW1. 

31.There is no merit at all to suggest that the Magistrate convicted the Appellant without considering the previous conviction for dishonesty of PW1.  When the Magistrate started to evaluate the possibility of fabrication, he started with referring to the Appellant as a person “not of clear record”.  No doubt the Magistrate had borne in mind the Appellant’s previous conviction for assisting to make a false representation to Immigration Department. 

32.The Magistrate did not simply accept the evidence of PW1.  He did analyze PW1’s evidence, giving weight in particular to the bad blood between the Appellant and PW1.  The Magistrate also noticed that the complaint of assault by the Appellant was made to the police shortly afterwards and that he still pursued it as soon as he saw the Appellant again after 3 months.  The Magistrate rightly observed that if it was a fabrication, it would be “opportunistic to the extreme”.

33.In a magistracy appeal, the appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong.

34.In my judgment, the Magistrate had properly considered all the evidence before he came to his conclusion of conviction. He was entitled to come to his finding that PW1 was a credible witness and reject the evidence of the Appellant. I do not see any basis in this case to interfere with the Magistrate’s findings of credibility of witnesses.

35.There are no merits at all in these 3 grounds of appeal.

Ground 4

36.This ground relates to fresh evidence.

37.On the first day of hearing of the appeal, Mr Ross applied for witness summonses to summon (i) an immigration officer to bring to court the movement record of PW1; and (ii) PW1’s attending doctor to produce his clinical notes to find out whether PW1 received 5 stitches to his ear.

38.In respect of the summons to the Director of Immigration, Mr Ross submitted that the immigration record can find out whether PW1 was in Hong Kong on the date of trial of the last complaint of assault by PW1.  It can prove that PW1 lied in court when he said he was not in Hong on the trial date in 2005.

39.I refused to issue this summons. I was of the view that the conditions for fresh evidence to be adduced under section 83V of the Criminal Procedure Ordinance were not satisfied (see Mohammad Mahabobur Rahman v HKSAR, FACC 9/2009; (2010) 13 HKCFAR 20 ).  

40.First, according to the affirmation of the Appellant, one Mr George Jones told the Appellant on 21 December 2005 that he saw PW1 on or around 19 December 2005. This vague information does not suggest that PW1 was in Hong Kong on the trial date (20 December 2005).  The application is only a fishing exercise to try to find new evidence that the Appellant believes might assist his case. Moreover, the Appellant already had this information at the trial of the present case.  PW1 could have been cross-examined at the trial, but he was not.  I do not see any reasonable explanation for the failure to do so.    

41.Secondly, I do not think the presence or absence of PW1 in Hong Kong on the trial date of the 2005 case will have material relevance to the credibility of PW1 in respect of his evidence about the assault in the present case. It is only a collateral matter.

42.In his oral submission on 2 February 2017, Mr Ross submitted that PW1 lied on the basis that he could not have received a “letter” after the trial date of the 2005 case as a notice to attend court would be by way of a court summons. The criticism has no basis as it is not clear what sort of “letter” PW1 meant. This was not explored at all when PW1 mentioned about the letter in his evidence.

43.In respect of the summons to doctor, I do not think it is necessary to summon the doctor wasting his time in attending the court.  Instead of issuing the summons, I directed the prosecution to find out from the attending doctor the requested information and to provide the same to the Appellant. The Appellant had liberty to seek for further directions from the court.

44.The appeal hearing was resumed on 2 February 2017. The Appellant relied on the Respondent’s confirmation as fresh evidence that “no stitches were observed to have been applied to PW1’s ear after he received medical treatment at the Accident and Emergency Department of the Ruttonjee Tang Shiu Kin Hospital on 30 January 2016 at 12.25 am.” The Respondent fairly raised no objection and I received this as fresh evidence.

45.Having received the fresh evidence, the next task for the court is to decide what effect it has in the present appeal.

46.Mr Ross submits that this should be treated as evidence that PW1 perjured himself when he gave evidence that he received 5 stitches.  The main relevance of the evidence, he submits, are: (1) the severity suggested by the suturing gave rise to the inference that the injury was caused intentionally and could negative a defence of accident; (2) the sentence would have been less severe; (3) it affects credibility of PW1.

47.I do not accept the submission that the fresh evidence suggests that PW1 perjured in court.  It is one thing to say he did not receive suturing at Tang Shiu Kin Hospital on 30 January 2016.  It is yet another thing to say he received no suturing at all.  There is no evidence that he did not receive suturing subsequently.

48.In any case, I do not think the fresh evidence would likely affect the conclusion of the Magistrate.

49.By way of re-hearing of the case, I do not find this evidence affects the credibility of PW1 relating to the attack.  It is not disputed that PW1 was attacked and he sustained 2-cm laceration on his left ear.  Whether or not he received suturing is not material and does not affect the strength of his evidence.

50.The submission that the exaggeration could negative the defence of accident does not hold water, as it was not the defence of the Appellant.  It would be too far-fetched to speculate that PW1 exaggerated in order to pre-empt this defence.

51.Having considered the fresh evidence adduced by the Appellant, I do not find that the fresh evidence cast any doubt on the prosecution case. 

52.Ground 4 also fails.

53.I am satisfied beyond reasonable doubt that the prosecution has proved the guilt of the Appellant.

54.The conviction is neither unsafe nor unsatisfactory.  The appeal against conviction is therefore dismissed.

APPEAL AGAINST SENTENCE

55.The Magistrate did not take into account of the Appellant’s previous conviction.

56.I agree with the Magistrate that it was a gratuitous and vicious attack.  It was also a cowardly attack being an assault from behind.  It was not an attack by a single punch.  While the Magistrate accepted that there was no evidence of any weapon being used and the injury was not a permanent one, the assault caused a 2-cm laceration and bleeding to the left ear of PW1.  Had the Appellant not been restrained by another person, the injury of PW1 could have been more severe.

57.Whether PW1 received suturing to his ear or not, his injury was serious. The sentence of 1 month’s imprisonment cannot be said to be manifestly excessive or wrong in principle.

58.The appeal against sentence is also dismissed.

Ms Eva Chan, SPP of the Department of Justice, for the Respondent

Mr Phillip Ross, instructed by Messrs Eric Cheung & Lau, assigned by D.L.A. for the Appellant