HKSAR v. Yau Kam Lung

[English Translation – 英譯本]

HCMA 21/2020

[2020] HKCFI 2436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 21 OF 2020

(ON APPEAL FROM WKCC 3135 OF 2019)

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J U D G M E N T

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1.The appellant pleaded not guilty to two charges of common assault[1]. He was convicted on both charges by a Deputy Magistrate [“the Magistrate”][2] after trial.  He appeals against the convictions.

Prosecution Case

2.In brief, the prosecution case was that on 29 April 2019, the appellant assaulted two Tobacco and Alcohol Control officers [PW1 and PW2] in the due execution of their duties. 

3.At trial, the prosecution called the two officers in question and further called five witnesses for cross-examination by the defence, including three officers who conducted the anti-smoking operation together with PW1 and PW2 [PW5-7] and two police officers who went to the scene to investigate [PW3 and PW4].  The testimony of the seven witnesses can be summarized in the paragraphs below.

PW1[3]

4.He, together with other Tobacco and Alcohol Control officers, seven in total and in uniform, arrived at King Palace Plaza to conduct an anti-smoking operation.  At around 1531 hours, he received notification from other colleagues asking for assistance on the 37/F.  Upon arriving at the freight lift lobby on the 37/F, he saw six males in the lobby.  As these six males all failed to produce their identity cards for law enforcement, they were requested to retrieve their identity cards from their office and then return to the lobby.

5.He stood at the corner of the corridor and the lobby while waiting.  After a period of time, these six males returned to the lobby. At the same time, the appellant also entered the lobby, holding a bag of rubbish and speaking foul language.  The appellant’s conduct attracted

his attention, he then followed him hurriedly.      

6.Upon reaching the lobby, he saw the appellant pointing at the other Tobacco and Alcohol Control officers [“officers”] with his finger and continuing to speak foul language.  Those officers took one to two steps backwards apparently because they were worried about the situation.  At that time, those six males at the scene also spoke foul language together.   

7.Afterwards, the appellant went over to the rubbish bin and threw the rubbish bag onto the ground, then he swore at an officer surnamed LAM [“LAM”][4]. LAM took a few steps backwards, the appellant continued to swear at LAM and told LAM to pick up that rubbish bag.  LAM refused.

8.The appellant approached LAM from the right hand side and kept on speaking foul language.  He clenched his fists in front of the chest, appearing to be entering a “combat mode”.  At that time, the appellant was also in close proximity to another officer surnamed WU [“WU”][5], with their faces almost touching each other.  PW2 then came up and asked the appellant to calm down, and tried to keep the appellant and other officers separate from one another.     

9.At this juncture, the appellant turned to PW2 and swore at him.  As a result, PW2 took two steps backwards.  The appellant continued to move forward and PW2 continued to move back.  After that, the appellant punched PW2 on the left chest with his right fist, and then pushed PW2 with both hands, causing him to bump his head against the wall behind.

10.PW1 instantly tried to separate them and told the appellant “not to make a move”.  Having heard this, the appellant turned around to face him [PW1], clenching his fists, with his arms away from his body and his chest puffed out towards him.  He moved back, but the smoke door behind blocked his way.  The appellant bumped his right upper chest against PW1’s left upper chest, causing him to move back again and bump his head against the smoke door in the back.  He was a bit dizzy after the impact.

11.Following that, the appellant shouted foul language loudly in close proximity to his [PW1’s] right ear, causing him to suffer from tinnitus.  He told the appellant that he felt great pain in his ear and asked the appellant to move back.  The appellant only moved back after shouting foul language loudly again at his left ear.

12.Afterwards, someone made a report to the police.  While waiting for the arrival of the police, the appellant and another male entered the freight lift.  He [PW1] and PW2 also entered the lift.  Inside the lift, the appellant continued to speak foul language towards both of them.

13.When the lift reached the 3/F, the appellant smoked. Afterwards, the four of them took the lift to return to the 37/F.  Upon arrival, the police were already there.  He pointed the appellant out to the police officer as the person who had assaulted him.  The appellant was arrested by the police officer.  He went to the hospital for medical examination.

PW2[6]

14.As stated above, PW2 was PW1’s colleague.  When people at the scene returned to their office to retrieve their identity cards, he was standing near the rubbish bin on the 37/F.

15.Suddenly, he heard loud sounds followed by some loud noise. After that, he saw the appellant blaming the officer with foul language for obstructing him from throwing rubbish.  He turned around and explained to the appellant that they were taking prosecution action at that time.  He also advised the appellant that he did not have to be that angry.  The appellant, however, continued to swear at him and even punched him with his right fist on the left chest near the clavicle not long after.  The appellant then pushed him with both hands, causing him to move back against the wall behind him.

16.Upon seeing this, PW1 shouted at the appellant to stop, but the appellant continued to speak foul language and bumped his chest against PW1.  He moved back in consequence of this impact.  Later, PW2 saw the appellant shouting foul language at PW1’s left ear and right ear from a short distance.  He also heard PW1 saying, “It hurts.  Stop.”         

17.Therefore, he [PW2] asked for assistance from other officers to make a report to the police.  While waiting for the arrival of the police, he noticed that the appellant and another male intended to leave the 37/F by lift, PW1 and he thus entered the lift as well.  Inside the lift, the appellant continued to swear at them.  Upon reaching the 3/F, the appellant smoked. Afterwards, the four of them took the lift to return to the 37/F.  Upon arrival, he related the whole incident to the police officer and then went to the hospital for medical examination.

PW5-7 [7]

18.Simply put, the three witnesses were not aware of what was happening between PW1, PW2 and the appellant because they were focusing on their prosecution work. To their recollection, they did not see or remember seeing any body contact between PW1, PW2 and the appellant.

PW3 [8]

19.PW3 made enquiry of PW1 and PW2 on the 37/F that day. He confirmed that he made no record of the appellant punching PW2 nor the appellant swearing loudly next to PW1’s ears in his own witness statement. He indicated that the absence of records meant that PW1 and PW2 had not mentioned the relevant incidents to him.

PW4 [9]

20.PW4 was the police officer who took a witness statement from PW1. With regard to what had happened during statement-taking, he said:

(1)     He forgot whether PW1 had mentioned to him that the appellant was in a “combat mode”.

(2)     He remembered asking PW1 whether the appellant was moving his hands and feet about after PW1 had described the situation, which PW1 agreed, therefore he wrote “moving his hands and feet about”.

(3)     He made no record of PW1 bumping against the door and feeling dizzy as a result. If PW1 had told him about it, he would have put it down in PW1’s statement.

(4)     He also made no record of the appellant swearing at PW1 and PW2 in the lift. Similarly, if PW1 had told him about it, he would have put it down in PW1’s statement.

Defence case

21.The appellant gave no evidence nor called any defence witness during the trial. His denial towards the accusation can be seen from the cross-examination.

The Magistrate’s findings [10]

22.The Magistrate considered the evidence of PW1 and PW2 to be clear and direct, and without any inherent improbability. He found both of them to be honest and reliable witnesses, and gave full weight to their evidence.

23.The Magistrate believed that the evidence of PW3 and PW4 would not undermine that of PW1 and PW2.

24.The Magistrate found PW5-7 to be unreliable witnesses and placed no weight on their evidence.

25.Based on the evidence of PW1 and PW2 which the Magistrate accepted, he concluded that the Prosecution had proven all the elements of the charges beyond reasonable doubt and convicted the appellant on both counts of Common Assault accordingly.

Grounds of appeal

26.Mr Simon So [11]for the appellant raised the following grounds of appeal:

(1)     The particulars of offence for both charges were ambiguous. While more than one basis for conviction were provided in the Prosecution’s evidence, the Magistrate did not identifywhich particular act it was that he relied upon in convicting the appellant, therefore rendering the conviction unsafe.

(2)     The Magistrate did not or did not fully and properly deal with the inconsistencies in the evidence of PW1, PW2 and PW5-7, nor did he give sufficient weight to the evidence in favour of the appellant, hence again, the conviction is unsafe.

(3)     Based on the reasons stated above [whether singly or in combination], the conviction is unsafe and would remain so even at a retrial.

Discussion

Grounds of appeal (1)

27.The particulars of offence for the two charges only stated that the appellant assaulted PW1 and PW2 respectively without giving further details or specifying the act of assault.

28.Mr So made three criticisms:

(1)     The allegations in both charges involved more than one criminal act, which was bad for duplicity[12];

(2)     As the charges contained ambiguous allegations and did not specify the alleged acts, the conviction is unsafe, especially when the charges failed to give the appellant a clear idea of the allegations against which he had to defend himself, which is against the principle of fairness; and

(3)     The Magistrate failed to state the particular act upon which the appellant was convicted.

29.Mr So cited the following authorities in support of his arguments:

(1)    R v Chan Kang To[13];

(2)    Chim Hon Man v HKSAR[14];

(3)    HKSAR v Aamir Hussain[15]; and

(4)    HKSAR v Lee Chi Keung (transliteration)[16].

30.I agree with Mr Lau Tak Wai, Senior Public Prosecutor for the respondent, that the authorities cited by Mr So are very different from the present case. Hence they do not lend much support to Mr So’s arguments.

31.The rule against duplicity is a long-established legal principle, which is also stipulated in Rule 2 of the Indictment Rules.[17] Its application is not limited to indictments, but also to charge sheets in the District Court and the Magistrates’ Court. The main purpose of the rule is to give the accused a clear understanding of the Prosecution’s allegation against him/her in the relevant charge, allowing him/her to prepare for a suitable defence. It also allows the fact finder to make finding of facts based on the evidence before him in respect of the allegation, in order to ensure a fair trial. [18]

32.In practice, it is often hard to determine what constitutes an offence by one precise formula. The decision is to be be made by applying common sense and knowledge on the premise that the requirement of procedural fairness and justice is met. For instance, a charge would not be bad for duplicity despite involving more than one criminal act if the acts could be regarded as part of the same transaction, as long as that is what fairness and justice require in the circumstances.[19]

33.The Court of Final Appeal in HKSAR v Yeung Ka Sing Carson[20]made the following observation:

“Where a number of acts of money laundering are connected in such a way that they can be regarded as forming part of the same transaction or criminal enterprise then it will be legitimate to charge them in a single count unless there is a risk of injustice to the defendant. Such injustice might lie in uncertainty or inadequate notice as to the case the defendant has to meet, confusion or prejudice resulting from different defences to different aspects of the prosecution case, problems of admissibility of evidence, or uncertainty as to the scope of an ultimate verdict. If these or other considerations that may be raised in a particular case are capable of being met, without unfairness, by appropriate measures of trial management then a court may well conclude that the rule does not prevent aggregation for the purpose of framing a charge or charges. The multiplicity of the acts of dealing alleged by the prosecution, and the common purpose of concealment, made this a proper case for aggregation of charges.”[21]

34.Many incidents of assault are not limited to a single act of assault.  As in this case where there were two counts of offence, should a single count of offence be charged against the accused as it was now, or should the accused be charged with a separate offence based upon each act of assault, and consequently facing multiple offences?  In the circumstances of this case, bringing multiple charges against the accused would, in my view, create the situation as described by the Court of Final Appeal in HKSAR v Yeung Ka Sing Carson[22], where no useful purpose would be served[23]. I cannot, of course, rule out the possibility of separating the charges if circumstances so warrant, such as change in the  circumstances involving different acts of assault, or if the evidence shows that it involves different grounds of defence.

35.The Court of Final Appeal in Chan Tak Ming v HKSAR[24] pointed out that criminal charges are to be formulated concisely, accurately and informatively. [25]

36.Generally, in magistrates’ courts, the prosecution should have disclosed the brief facts of the case and the relevant witness statements to the defence before the commencement of a trial.  In this case, there was no sign of any irregularity. The prosecution’s allegation was simple and straightforward.  At the trial, the defence did not say they could not understand what the prosecution’s allegation was about, nor did they ask to be provided with a more detailed or clearer basis of prosecution.

37.I do not think the prosecution’s approach to this case has breached the rule against duplicity, nor do I think the particulars of the offence were so ambiguous that they impeded the defence of the appellant.

38.Mr So quoted, in his submission, the following paragraphs from the closing submission of the prosecuting counsel at the trial:

‘No doubt it is crucial that the court “needs” to decide whether the act of common assault did take place in this case. If it did, what were the movements that constituted this act of common assault? The prosecution’s reply on the law is that, since the defence completely denied that such acts had ever been committed, should the court find the act of assault involved includes the loud screaming by the ears of the two prosecution witnesses, namely the first and second prosecution witnesses, which had caused them pain, there is indeed a basis to constitute common assault in law. That is the prosecution’s only reply on the point of law.’ [26]

and criticized that even the prosecution unknowingly found a difficulty and failed to understand clearly the basis of prosecution.  At first glance, the above submission does give such an impression.  However, it was unequivocal in context because prior to this paragraph, the prosecuting counsel was quoting authorities to point out that speaking loudly by the ear could constitute a case of assault.  His submission in this paragraph was only limited to this purpose.

39.Mr So also criticized that the Magistrate did not explain the act upon which he based his conviction.  The Magistrate did not state the factual basis of his conviction in clear paragraphs.   There is indeed room for improvement in terms of expression.  However, with regard to the statement of findings in its entirety, the Magistrate obviously based his conviction on the facts as described by PW1 and PW2 with which he was satisfied.  His statement of findings reads as follows[27]:

‘16. I have examined the evidence of the first and second witnesses. It is noted that the description the two of them gave as to what happened was more or less consistent. Both of them said they saw the defendant hit at the left chest of the second prosecution witness with a punch of the right fist, before pushing at the chest of the second prosecution witness with his hand(s), causing the second prosecution witness to step back and bump against the wall behind him. The first prosecution witness tried to stop the defendant by shouting at him, but the defendant turned to the first prosecution witness and bumped against the first prosecution witness’s left upper chest with his right upper chest. Further, the defendant used foul language by the left and right ears of the first prosecution witness in a very loud voice right next to his ears. They maintained their version during cross-examination, and I noted that they were not shaken at all.’

40.The acts of the appellant as described by these two witnesses respectively support the two counts of offences concerned.  The Magistrate has given his reasons in the Statement of Findings and he cannot be said to have failed in his duties.

41.This ground of appeal fails.

Ground of Appeal (2)

42.This ground of appeal concerns the assessment of credibility of the prosecution witnesses by the Magistrate.  Mr So criticized that the Magistrate did not sufficiently and properly deal with the inconsistencies in the evidence of the prosecution witnesses[28], nor did he provide reasons in this regard in his findings.[29] The conviction is therefore not safe[30].

43.The rationale of Mr So’s submission is as follows.  PW1 and PW2 said they were attacked.  However, PW5-7, who were performing their duties together with PW1 and PW2 at the scene, indicated that they could not remember or did not see the circumstances as described[31]. The Magistrate found that PW5-7 were not reliable witnesses and would not give any weight to their evidence.[32] Instead, the Magistrate was satisfied that PW1 and PW2 were honest and reliable witnesses and gave full weight to their evidence.[33] The question is the Magistrate did not fully explain how he dealt with the evidence of PW5-7.   What is more important is that the evidence of PW5-7 was not merely inconsistent with that of PW1 and PW2, it could even be described as favorable to the Appellant.  However, by finding that PW5-7 were unreliable witnesses, the Magistrate did not further consider the impact it had on the credibility assessment of PW1 and PW2 before erroneously/ arbitrarily finding that the two were credible.  That was wrong and the reasons given were not sufficient.

44.PW5-7 said they were so focused on performing their prosecution duty that they did not pay attention to what was happening between PW1, PW2 and the Appellant. In respect of their evidence, the Magistrate has the following observation:

‘As to the evidence of PW5 to PW7, the three of them indicated that their attention was focused on handling the prosecution work they were doing at that time and they did not pay attention to what was happening. However, taking into account the location in which they were found, which was not a very large and open space, as well as the number of persons at the scene, I find that it was impossible for them not to have noticed what was happening in the surroundings, nor do I find their explanation a credible one. I therefore find that PW5 to PW7 are not reliable witnesses and would not give any weight to their evidence.’[34]

45.Having considered the circumstances at the scene and the acts alleged by the prosecution, the Magistrate did not believe the explanation given by these three witnesses as to why they had not noticed the circumstances surrounding them.  It was a finding that the Magistrate was entitled to make based on the evidence.

46.Another criticism by Mr. So was that it was improper for the Magistrate to further decide not to attach any weight to their testimony without giving sufficient reasons. More importantly, the fact that the court could not totally believe the reason that the three witnesses gave for not paying attention to the surrounding circumstances can only imply that the court could not be satisfied with the reason they gave, and that does not mean the court should automatically reject their evidence as to not paying attention to the alleged circumstances.

47.In his submission, Mr. So raised the possibility that the alleged incident actually did not happen, but PW5-7 concocted the reason as they were unwilling to tell the truth. Hence, in view of the evidence, the Magistrate had the duty to analyse the effect of the testimony of PW5-7 on the testimony of PW1 and PW2 before finding whether the testimony of PW1 and PW2 was true.

48.On the other hand, Mr. Lau argued that the Magistrate had already discharged his duty in dealing with the relevant evidence.

49.In particular, he emphasized that PW5-7 only said that they had not witnessed/did not recall whether there was any bodily contact between the appellant and PW1 or PW2, or they had not clearly heard/paid attention to what other people were saying. They were not saying that the assault did not take place or that the two of them fabricated it out of thin air. The alleged assault was short-lived and sudden, therefore their evidence did not contradict the evidence of PW1 and PW2 which would have affected the credibility of the two of them.

50.He pointed out that in assessing the credibility of PW1 and PW2, the Magistrate had considered the circumstances that had transpired in the trial as follows:

(1)     PW3, who gained an understanding of the situation from PW1 and PW2 at the scene, expressed that the circumstances were as set out in paragraph 19 above.

(2)     PW4, who took the statement from PW1, expressed that the circumstances were as set out in paragraph 20 above.

The Magistrate stated how he dealt with these matters:

“18.     As to the point about moving his arms and legs about, I am aware that PW4 confirmed that after PW1’s account of the incident he asked PW1 whether “moving his arms and legs about” was an apt description of the circumstances at that time and PW1 agreed. Coincidentally this assertion was consistent with the explanation given in court by PW1. Hence, I accept the explanation by PW1 in this regard and am of the view that the relevant description was suggested by PW4.

19.      As to the part about taking the lift to the 3rd Floor for smoking, the explanation by PW1 was that the police constable at that time did not put this line of questions to him in detail, the reason being that the police officer expressed to him that the evidence in this respect was not a salient point of the offence of assault. It follows that there was no record on the written statement as the police officer did not ask such questions. On the other hand, PW2 expressed that this line of questions was not put to him by the police officer. In my view, this is a reasonable explanation because the charge in the present case is common assault. There is no correlation between the relevant details and the assault, therefore there is nothing unreasonable about the police constable not asking them about the circumstances in this respect.

20.      Therefore, I would accept their explanation on these two points.

21.      As to the point about shouting in foul language in his ears and feeling dizziness, from the evidence there appears to be an actual omission. However, considering that the situation was relatively chaotic at the material time, I am of the view that PW1 might have only momentarily forgotten to raise it with the police constable.

22.      Therefore, having considered all evidence, I am of the view that the evidence given by PW1 and PW2 was clear and direct, and there was nothing inherently improbable about their evidence. Accordingly, I find both of them to be honest and reliable witnesses and I give full weight to their evidence.

23.      The evidence by PW3 and PW4 only served to confirm that PW1 and PW2 had not mentioned to them certain details of the events. Nevertheless, based on the reasons I set out above, I do not think that the evidence by PW3 and PW4 would undermine the evidence by PW1 and PW2.”[35]

51.I have carefully considered the effect of the evidence by PW5-7 on the credibility of PW1 and PW2.

52.While I would not deny the possibility that the evidence as a whole sufficiently supported the charge, the manner that the Magistrate dealt with the evidence was unsafe. Although it is true that PW5-7 did not say in clear terms that the alleged assault had not happened, the fact-finder must take into account the circumstances of the material location, in particular the fact that it was only a small space, and that something had happened at that time while the three witnesses all said that they were not aware of the assault. The fact-finder must then consider whether this implies the possibility that the alleged assault had not happened at all. Of course, the fact-finder is entitled to find reasons to be satisfied with the evidence of PW1 and PW2 from the evidence, having considered the evidence of these three witnesses. Likewise, he or she is entitled not to be satisfied with the account of these three witnesses, as the Magistrate had done in the present case.

53.However, in the circumstances where the account given by these three witnesses had a clear bearing on the credibility of the testimony of PW1 and PW2, it is incumbent upon the Magistrate to explain why he ignored and disregarded their account of not paying attention.

54.The way that the Magistrate dealt with the evidence was that he came to the conclusion that their evidence could be disregarded simply because he did not believe their explanation for not paying attention. Not only was this unsafe, the Magistrate also failed to give reasons for doing so.

55.The unsatisfactory manner of dealing with the evidence had a material bearing on the safety of the conviction.

56.I rule that this ground of appeal is established.

Ground of Appeal (3)

57.It was submitted by Mr. So that the grounds he set out, whether taken independently or in aggregate, would render the conviction unsafe.

58.As I am of the view that that the Ground of Appeal (2) is established, this ground of appeal would necessarily be established.

Conclusion

59.For the above reasons, I allow the appeal and order that both convictions be quashed.

Mr Simon So, instructed by Messrs Wai & Co., for the appellant

Mr Derek Lau, Senior Public Prosecutor of the Department of Justice, for the respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.