HKSAR v. Tsang, Cheuk Him Adley

HCMA 231/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 231 OF 2016

(ON APPEAL FROM STCC NO 2360 OF 2015)

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Before: Deputy High Court Judge Woodcock in Court

Date of Hearing: 23 March 2017

Date of Judgment: 24 April 2017

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J U D G M E N T

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Introduction

1.The appellant was convicted of common assault and now appeals his conviction only.  He was convicted of assaulting Ms. Tsang Siu-yee, PW1 at the Shatin Racecourse on 10 January 2015.

2.He was seen throwing egg-like objections at a group of people walking towards a prize giving podium.  PW1 was a Jockey Club hostess leading the group of VIPs to the podium when she felt something hard and golf ball like strike her right cheek.

3.The issue was whether it was the appellant who hit and assaulted PW1.  The evidence is almost all circumstantial but was it enough to infer guilt beyond reasonable doubt.

The Prosecution Case

4.On 10 January 2015 at 2:30pm at Shatin Racecourse there was a featured race celebrating the 130^th anniversary of the Jockey Club.  The Chief Executive of Hong Kong, the Chairman of the Jockey Club and other VIPs were scheduled to present the trophy to the winner of that race.  There was a podium stage set up for that purpose.  PW1 was responsible for leading this party out of a VIP room and walk them to the podium just as the race finished. There were security personnel around this party of VIPs.  The path she took led them near and passing it to her right, the public audience enclosure nearest the podium.  A half wall and hedge separated the public enclosure and PW1 with the VIPs.  There is a sketch of her route, the podium, the track and the nearest public enclosure: Exhibit P8.

5.Suddenly, PW1 felt a golf-ball-like object strike her right cheek.  It was very painful and drew tears but she continued with her job and the presentation ceremony proceeded without interruption.  She did not see where the object came from but knew it came from her right and from the direction of that nearest public enclosure.  She also saw a Caucasian security personnel jump over a flowerbed nearby and press down on a person.  This was not the appellant.

6.When PW1 led the VIP party off the podium to return to the VIP room after the prize giving she saw an intact egg on the grass very near to the spot where she had been struck earlier.  Her right cheek was swollen and red.

7.PW2 and PW3 were both security officers of the Jockey Club and were on duty some distance apart inside the tiered public enclosure with about 100 people facing and watching the VIPs approach the podium for the prize giving.  PW2 noticed the appellant who was about 5 metres from him raise his arm and throw something brownish and round like an egg towards the VIPs as they walked past and on their way to the podium.  He quickly moved towards the appellant shouting at him at the same time.  Before he could get to him the appellant had taken something out of his rucksack carried in front of him and thrown something again in the same direction.  The appellant was wearing a hoodie garment with the hood up and over his head as well as a surgical mask on his face.  He was carrying his rucksack on his front instead of his back. 

8.PW3 heard PW2 shouting and looked in his direction.  He heard him shout repeatedly “stop throwing things”.  He then saw the appellant with a raised arm throw a round object towards the VIPs.  He rushed over to him as well.  Both PW2 and PW3 subdued the appellant together.  They immediately handed him over to a police officer, PW4.  PW2 later found egg stains on his clothes from contact with the appellant.  PW2 and PW3 marked all their positions on sketches P9 and P10 respectively. 

9.PW4 took the appellant to a security room of the club and at 2:34pm searched the appellant.  He found in his rucksack 40 eggs and some broken eggs.  He also found pliers and some rope in it.  He arrested the appellant at 2:50pm for possession of an offensive instrument and cautioned him.  The appellant said under caution the eggs were for throwing at people but he did not have a specific target.

10.PW4 then made a post-record of the appellant’s admission in his notebook but the appellant refused to sign it.  PW4’s superior read it over again to the appellant and counter signed the notebook himself.  The voluntariness of this admission was challenged.  After hearing from PW1 about the assault and the injury to her cheek the appellant was arrested by PW4 for common assault.

11.Around and near the VIP podium Jockey Club staff found three intact eggs and several broken eggs.  Inside the public enclosure were broken eggs.  There is a sketch of where broken eggs were found: Exhibit P1 and P1a.  P2 is a photograph album showing the layout of the public enclosure, the track and the podium as well as the broken eggs and egg stains found.

12.The appellant was interviewed under caution and admitted he had bought 60 eggs in Mongkok at about noon that same day and then went directly by MTR to the Shatin Racecourse.  His subsequent interviews P4, P5 and P6 were not challenged.

13.Most of the prosecution evidence was not challenged; Exhibit P7 is the admitted facts.  PW2 and PW3’s evidence of witnessing the appellant throwing objects in the direction of the VIP party was not challenged by the defence.  It was not denied.

14.The prosecution say the appellant committed a battery when he recklessly applied unlawful force upon PW1 by throwing eggs in her direction.  He would have foreseen the possibility that an egg would strike her or anyone in that direction but he nevertheless took that risk when he aimed eggs towards that VIP party.

The Defence Case

15.The appellant did not give evidence in either the special issue dealing with the voluntariness of his admission under caution nor in the general issue of the case.  The magistrate did not draw any adverse inference from this election. 

16.It was admitted the appellant threw objects as described by PW2 and PW3 but put to them that they did not see where those objects landed.  They both agreed they concentrated on the appellant after he was seen throwing something and not the rest of the public in that enclosure.  The point of this was to submit there was a possibility another person or other people threw eggs as well; not just the appellant. 

17.The witnesses agreed there was some booing when the VIPs walked to the podium.  The defence suggest this supports the possibility there were others throwing objects or eggs.  It was also submitted the prosecution failed to prove the object thrown by the appellant was the object that hit PW1’s face and therefore failed to prove he assaulted PW1; the actus reus was not proved.  The appellant may have made an admission of throwing eggs but he did not specify PW1 as the target so the admission was not “wholly inculpatory” to quote the defence counsel from the transcript (p 193 of the appeal bundle at B).  This submission was made to submit there was no prima facie case to answer after the close of the prosecution’s case.  This submission failed. 

18.It was suggested to PW4 the appellant did not make any admission under caution.  He said nothing.  It was put to PW4 the post-recorded admission was fabricated by the police officer. PW4 wrote in his notebook the sentence “The eggs were for me to throw at people but I did not target anyone specific. For the hemp ropes and pliers, I always kept them in the rucksack for no specific purpose.” but this was not uttered by the appellant.  PW4 denied this. 

19.The transcript of the trial was called for and at pp 133-221 of the appeal bundle. 

The Magistrate’s Findings

20.The magistrate took into account evidence of the witnesses and properly reminded himself the appellant had a clear record.

21.He believed the evidence of PW4 and found the prosecution able to prove beyond reasonable doubt the appellant uttered the admission and it was said after he was cautioned.  It does not matter it was said after the arrest for a different offence.  The appellant was aware it arose out of the allegations he was intercepted for throwing objects and was then found in possession of eggs. 

22.The magistrate rejected the submission that the fact the appellant refused to sign the post-recorded notebook entry proves it was not made voluntarily.  He was satisfied there was no impropriety from PW4 or any police officer.  He admitted the notebook into evidence and attached full weight to that admission. It was in line with what PW2 and PW3 saw him doing in the public enclosure. 

23.He considered the evidence of PW1, PW2 and PW3 (much of what they said was not in dispute) and found them all credible and reliable witnesses.  He rejected the submission it was possible someone other than the appellant threw something that hit PW1.  There were other security personnel present and no one else was seen or stopped from throwing things like the appellant. 

24.He was sure from the evidence PW1 was hit by an egg.  He took into account all the evidence to infer that the only irrefutable inference was that PW1 was hit by an egg thrown by the appellant.  He considered the fact an intact egg was seen by PW1 on the ground not long after she was hit and at about the same place as she was hit.  PW2 and PW3 saw him throw egg-like objects in PW1’s direction at about the same time as PW1 said she was hit; when she was leading the VIPs to the podium.  The appellant admitted he had eggs to throw at people and was found in possession of 40.  The timing of the events made the magistrate sure of his findings.

25.He accepted the appellant may not have intended to hit PW1 but “by throwing eggs towards the presentation party, the Defendant must have realized that the eggs might hit someone among the presentation party, and therefore I find the Defendant to be reckless as to whether the eggs would have hit someone from the presentation party”, I quote from para 34 of the Statement of Findings at p 73 of the appeal bundle. 

Grounds of Appeal

26.The perfected grounds of appeal set out six grounds of appeal but in essence there are only two grounds.  One being there was insufficient evidence to draw the irresistible inference drawn by the magistrate.  It was possible someone else threw something that hit PW1.  The magistrate applied the wrong standard of proof in that the evidence did not prove the offence beyond reasonable doubt.  In fact, it was submitted there was a lurking doubt.  Paragraphs a to c and f of those grounds essentially argue this ground. 

27.The 2^nd ground in para’s d and e refer to the magistrate not allowing defence counsel to pursue a line of questioning.  The appellant did not get a fair trial and it was orally submitted the magistrate had a closed mind.  I quote:

“d. that the magistrate erred in taking the view that whether PW3 could rule out the possibility that other spectators were throwing eggs was not a matter upon which the eyewitness could give evidence, but was a matter for the court (to infer);

e. that in doing so, the magistrate wrongly disallowed a crucial line of questioning, which deprived the appellant from eliciting evidence which would refute what turned out to be, the key factual basis relied upon by the magistrate to convict the appellant;”

28.The skeleton argument which was full and detailed was expanded upon during the hearing.  It set out the law in relation to a common assault.  Common assault includes battery and a battery is the unlawful application of force, intentionally or recklessly upon a victim.  The submission was that the prosecution had to prove beyond reasonable doubt the objects PW2 and PW3 saw the appellant throw had to be the same object that struck PW1’s face before it can be a common assault in the form of a battery, paras 22-27 of the skeleton argument. 

Discussion

29.A magistracy appeal is an appeal by way of rehearing, that is to say, a rehearing on the evidence before the magistrate, the principles relating to a magistracy appeal have been reiterated in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383 by McWalters J (as he then was).  He said the appellate court is required to assess the evidence and come to its own conclusion and is required to make up its own mind as to whether that evidence proves the essential elements of the offence beyond reasonable doubt.  An appellate court will not depart from a magistrate’s findings unless it is satisfied that the finding is “plainly wrong”. 

30.As far as the facts are concerned, the appellate court should appreciate that the magistrate enjoyed the advantage of having seen and heard the witnesses in court, whereas the appellate court can only rely on the transcript. Whether a witness is credible or reliable is a matter entirely for the magistrate to decide.  Here, credibility is not an issue in this appeal.  However, if the findings of fact made by the magistrate are unreasonable or illogical or contain inherent improbabilities; or if in dealing with the evidence the magistrate erred in his reference to material facts, or omitted or failed to consider material facts, then the conviction will be rendered unsafe.

31.The only issue was whether it was the appellant who threw an object that hit PW1 in the face.  There was no challenge to the evidence that he did throw objects in her direction.  The magistrate identified this issue and found the evidence collectively considered together allowed him to draw the irresistible inference it was the appellant who hit PW1 with an egg. 

32.I have reassessed the evidence and read the transcripts.  The unchallenged evidence that supports this finding includes:

(1) PW1 was hit from the right by a golf ball like object as she approached the podium leading the VIPs.  She then saw an egg on the grass near where she had been struck. 

(2) The appellant was stood facing the right side of PW1 as she approached the podium. 

(3) It was not denied PW2 and PW3 saw the appellant throw round objects towards PW1 and the VIPs as they approached the podium.  The timing of this is significant here.

(4) PW2 saw the appellant reach into his rucksack he carried on his chest and not his back before he threw a second time. 

(5) 40 eggs were found in his rucksack 2 to 3 minutes after he was apprehended and PW1 hit.  Nothing else one would or could throw was found in his rucksack. 

(6) The appellant admitted the eggs were for him to throw at people.  (This was challenged but found to have been said to PW4 under caution.)

(7) He admitted he had bought 60 eggs to the racecourse but only 40 were found in his rucksack.  However, some intact and some broken eggshells were found near him, the track and near the VIP podium. 

(8) PW2 and PW3 who were positioned behind the appellant when he raised his arm up to throw did not say they saw anyone else do the same action in the public enclosure.

(9) There was some distance between the public enclosure and the path of the VIPs, some 10 metres at least.  This meant some obvious throwing action was required to throw eggs that distance. 

33.The submission the prosecution had to prove the objects PW2 and PW3 saw the appellant throw hit PW1 is a non-starter.  This argument fails.  It was submitted the magistrate made this finding and that finding cannot be proved.  I do not agree he made such a finding and this cannot be a correct reading of the Statement of Findings.  In it at para 33 I do not agree it says the magistrate was certain PW1 was hit by one of the eggs PW2 and PW3 saw the appellant throw.  His words cannot be twisted to fit a submission or make a submission.  He clearly is saying when one reads the whole paragraph that he found PW1 was hit by an egg and that other evidence such as PW2 and PW3’s evidence, the appellant’s admission, the timing of his throws towards PW1 when PW1 passed in front of him convinced the magistrate the appellant was throwing eggs.  He goes on to say having made those findings and considered the timing of the events in evidence as well as noting an absence of any other evidence to suggest otherwise, he was sure PW1 was hit by an egg thrown by the appellant. 

34.The magistrate found the prosecution had to prove the appellant was throwing eggs towards PW1 and was therefore reckless as to whether the eggs would have hit someone from the presentation party.  His subsequent finding the appellant recklessly threw eggs and one hit PW1 was enough to prove the elements of the offence.  Battery was proved.

35.I agree with the magistrate and on the papers and transcript before me I would have drawn the very same irresistible inference.  There is more than sufficient evidence collectively to be sure it was the appellant who was throwing eggs indiscriminately and that one of them hit PW1’s face.  There is no lurking doubt.  The main ground of appeal fails. 

36.The suggestion it was possible someone else was throwing eggs other than the appellant was considered and rejected.  There was no evidence to suggest otherwise.  It was a bare assertion.  Moreover, the evidence, especially the timing considered relevant, clearly points to the appellant being the offender. The fact a person was pressed down by security nearby does not make it therefore likely more than one person was throwing eggs. 

37.The magistrate did not allow defence counsel to ask PW3 if he could rule out the possibility that there was someone else throwing eggs.  PW3 did not mention seeing anyone other than the appellant throwing anything.  It was for the magistrate to make that finding.  This ground has no merit and fails. 

38.I did consider the ruling the admission by the appellant was made voluntarily.  The magistrate found PW4 a credible and reliable witness.  I will not interfere with that finding; it is not plainly wrong.  There is no reason or justification to go behind his finding on the credibility of the witness.  He had the advantage of hearing and seeing PW4 give evidence and study his demeanor.  I saw no other reason for interfering with that ruling.

Conclusion

39.In conclusion, the magistrate’s findings were not unreasonable, illogical or inherently improbable.  The magistrate did not fail to consider any material fact or misunderstand or misquote any material fact.  I am satisfied the magistrate fairly and properly considered the issues raised.

40.I find no basis to interfere with the magistrate’s findings of fact and his assessment of the credibility of the witnesses.  The evidence proved beyond reasonable doubt it was the appellant who assaulted PW1.  Therefore, the appeal is dismissed.

Mr. Pierre Lui PP, of the Department of Justice, for the respondent

Ms. Emma TC Tsang, instructed by Vidler & Co, for the appellant