HKSAR v. Fong E Fong Candy

HCMA 108/2020

[2020] HKCFI 3133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 108 OF 2020

(ON APPEAL FROM ESCC 754 OF 2019)

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of Common Assault and fined HK$3,000. The appellant appeals against her conviction.

PROSECUTION CASE

2.In March 2019 at around noon, the victim (PW2) was in St Paul’s Hospital for medical consultation.  He was in a wheelchair and accompanied by his daughter Madam Hong Mon (PW1) and a domestic helper Delia Sasil (PW3).  They were waiting outside the consultation room.  The appellant suddenly appeared and tried to talk to PW2.  Upon seeing this approach, PW1 immediately reported to the police and requested the defendant to leave.  At that time, PW3 turned the wheelchair round in order to prevent the defendant from approaching PW2.  There was a struggle as the defendant and PW3 were grabbing for the wheelchair handle. In the midst of this struggle, the defendant grabbed PW2 by throwing her arm around his neck (see Photo P4(2) and P4(3) which were photos taken by PW1).  Subsequently nurses turned up and separated the parties.  The incident was also captured by CCTV which was produced as Exhibit P1.  The appellant was subsequently arrested and under caution she said she held onto PW2 because she was afraid that he would fall (see Exhibit P6).  She also gave a similar account in Exhibit P7.

DEFENCE CASE

3.The appellant elected not to give evidence nor called any witnesses.  The Defence submitted that the appellant had not assaulted PW2 and that in order to regain her balance had accidentally grabbed PW2 and defence counsel invited the court to view the CCTV footage closely.  Further, without any basis in evidence, defence counsel submitted that the appellant had made an honest mistake in her cautioned interview by “imagining” that she held onto PW2 because she was afraid that he would fall.

MAGISTRATE’S FINDINGS

4.The learned magistrate made very extensive analysis of each prosecution witnesses’ evidence. He was fully aware of the background of unhappy events between the appellant and the prosecution witnesses and he actually warned himself to approach the evidence of both PW1 and PW2 with caution because of this.

5.The learned magistrate also dealt with the minor inconsistencies in PW1’s evidence and accepted her explanation that the account she gave to the police was less detailed than her account in court because she was anxious to bring her father home for dinner and also the learned magistrate found that these inconsistencies were not material.  He also found that PW1’s evidence was consistent with the CCTV footage which was produced in court and so he accepted PW1’s evidence as truthful and reliable.

6.The learned magistrate also accepted that the photos taken by PW1 (Exhibit P4) were a true depiction of what had happened and also the CCTV footage showed clearly the events that ended in the assault on PW2.  The learned magistrate had very carefully made a graph of each of the scene in the CCTV footage with description as set out in his Statement of Findings.

7.The learned magistrate also considered the evidence of PW2 and concluded based on the evidence and the CCTV footage and the facial expression of PW2 in the photograph that PW2 did not consent to being grabbed by the appellant.  PW3’s evidence was also consistent with the photographs and the evidence of the other prosecution witnesses and although she had language difficulty in understanding what was said, her evidence was that the appellant had grabbed PW2’s neck, and that was consistent with the photographs and that she heard PW2 saying to the defendant, ‘Say away from me.’

8.The learned magistrate was well aware of the fact that the defence was that the appellant had lost her balance and therefore had only grabbed hold of PW2 in order to steady herself.  It can be seen from the Statement of Findings the learned magistrate had gone through the CCTV footages very carefully and concluded that that was not the case.  In conclusion the learned magistrate found that the assault is one of battery and that the appellant had indeed applied force to PW2 by grabbing his neck from behind and that PW2 had never consented to such force being applied and therefore the force was unlawful.  And he also found that the touch on PW2 was not accidental and thus convicted the appellant.

APPEAL

9.The appellant appeared in person at the appeal hearing but relied on the perfected grounds of appeal as drafted by her former counsel Mr Chan.  These are:

(1)     The Magistrate erred in rejecting the appellant’s case that the alleged assault on PW2 was in fact an ‘unintentional’ touch when the appellant lost balance after being assaulted by PW1; 

(2)     The learned magistrate erred in finding that the appellant intended to assault PW2 against the weight of the evidence; 

(3)     The learned magistrate erred in finding that the appellant was not telling the truth in her cautioned statement and drew adverse inference against the appellant on this basis;

(4)     The learned magistrate’s finding that PW1 and PW2 were reliable witnesses was unsafe and/or unsatisfactory; and

(5)     The conviction was unsafe and/or unsatisfactory.

DISCUSSION

10.It was asserted by the appellant both in the trial and at the appeal that she was assaulted by PW1 thus causing her to lose her balance and having to grab hold of PW2 in order to stop herself from falling.  This matter was a live issue before the learned magistrate who had carefully analysed the CCTV footage and also the evidence of PW1.  PW1’s evidence was found to be truthful and reliable and she had denied that she had assaulted the appellant in anyway.  On appeal, the appellant made this court sit through repeated viewing of the CCTV footage alleging that she had been kicked.  I could not see that she was kicked.  There was a foot which was extended for a second but it never showed that it had touch the appellant in such a way that it would have caused her to lose her footing.  The foot that had been extended was as if someone was taking a step or, in the struggle, trying to seek purchase of the foot by lifting the foot and putting it down again.  Furthermore, as pointed out by Ms Yu for the prosecution, the appellant had not given evidence so there was no evidence that she had been assaulted in anyway.  Furthermore, this allegation of being assaulted was not initially made when she was interviewed by the police.  Her assertion at the time of her interview was that she was grabbing hold of PW2 in order prevent him from falling.  Therefore, there is no question whatsoever in my mind that the learned magistrate made a proper finding, based on all the evidence before him, that the appellant was not assaulted by PW1 nor did the appellant lose her balance and finally, that the appellant did not grab hold of PW2 because she had lost her balance.

11.As for ground 2, the learned magistrate from the evidence of the photographs to the CCTV footages and the evidence of the prosecution witnesses could only come to the only irresistible inference         that the appellant has intentionally grabbed hold of PW2’s neck.  And, furthermore, she did so in that way in order to try to talk to PW2 and to stop the wheelchair from moving. Therefore, I have no doubt whatsoever that the learned magistrate made the proper findings in this case based on the evidence.

12.In relation to ground 3 as for the appellant’s cautioned statement there is no basis whatsoever for the assertion in ground 3 that the learned magistrate drew adverse inferences against the appellant based on the findings that the appellant was not telling the truth in a cautioned statement.  There is simply no evidence of that at all in the Statement of Findings. 

13.Ms Yu noted in the cautioned statement of the appellant she did mention that someone had wanted to pull the wheelchair away in order ‘to stop me from having any conversation with (PW2)’ and in answer to question 18 why she had held on to PW2’s neck, her answer was ‘I don’t remember with which hand/arm I held him. However, I felt that PW2’s wheelchair was moving at that time.  I feared that he would fall and feared that I would also fall.  I bent over in an attempt to protect him and protect myself.  That’s why I held (PW2)’.  Also as Ms Yu noted, in reply to defence counsel’s submission that the appellant only ‘realize’ that she was assaulted by PW1 when she saw the CCTV footage after the cautioned statement was made.  The learned magistrate dealt with it in a most succinct way and most correctly by saying that the appellant had given a detailed account as to why she had held on to PW2 in her cautioned statement and she made it when her memory was still fresh and because she was a barrister by profession she would have known the importance of her statement that she had given to the police officer and would not have misspoke in the way as senior counsel for the defence had urged the court to accept.

14.Finally, in relation to the allegation that the witnesses, particularly PW1 and PW2 were unreliable.  I have already dealt with that by pointing out that the learned magistrate was fully alive to the poor relationship between the parties and in fact had warned himself to be cautious of the evidence of prosecution witnesses in view of this.

15.Finally, my observation from having viewed the CCTV footage many times was that it can be seen from the footage that the appellant had intentionally grabbed hold of PW2 by putting her arm around the neck of PW2 in order to stop the wheelchair from moving and in order to get close to him in order to speak to him.  I therefore find that the conviction was neither unsafe nor unsatisfactory and therefore the appeal is dismissed.

Ms Margaret K W Yu, SADPP (Ag) of the Department of Justice, for the respondent

The appellant appeared in person