HKSAR v. Daniel Pike

HCMA 555/2019

[2021] HKCFI 2564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 555 OF 2019

(ON APPEAL FROM KCCC 1619 OF 2019)

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Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 30 August 2021

Date of Judgment: 30 August 2021

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J U D G M E N T

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INTRODUCTION

1.The appellant was convicted after trial before Mr Raymond K.F. Wong, Magistrate on 17 September 2019, of one charge of AOABH contrary to common law and punishable under s39 of the Offences Against the Person Ordinance, Cap 212 and one charge of possession of a Part I poison contrary to s23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138.  Under Charge 1, he was sentenced to 100 hours’ Community Service and to pay compensation of $2,500. Under Charge 2, he was ordered to pay a fine of $2,000. By his Notice of Appeal, dated 5 November 2019, the appellant appealed his conviction.  

THE PROSECUTION CASE

2.On 9 July 2015, at 5.45pm, the appellant was attempting to hail PW1’s taxi on Mody Road outside K11, when the taxi-driver in question indicated it had covered the flag and was Out of Service. He had only just started his 5.00pm to 5.00 am shift but Typhoon 8 had just been hoisted and he was going home. The vehicle was not stationary at that point but the defendant, with two young children, attempted to get in and so PW1 stopped the vehicle and locked the doors. The taxi driver suddenly heard a bang and got out of his vehicle in order to inspect it, whereupon he says he found a slight dent on the fender on the rear nearside part of the vehicle. He reported the incident to the police at which time the defendant and his two young children left the scene. PW1 tried to stop him by grabbing hold of his backpack and said ‘call police’. The defendant turned round trying to loosen PW1’s hand and he released it but the defendant grabbed hold of it and bit PW1’s right hand between the thumb and second finger for 1-2 seconds although it did not bleed. The defendant left the scene with PW1 following and grabbing hold of his backpack. The defendant then turned round and grabbed PW1 by the neck pushing him against a wall and ‘giving him a series of punches to the face’. These took 10-20 seconds and then the defendant left. PW1 followed him onto a bus and told the bus driver not to drive off. The defendant and his children got off the bus followed by PW1 and PW1 tried once more to stop him leaving whereupon the defendant hit his face with his hand and his fist for 2 seconds which PW1 evaded and walked away. The taxi driver’s head was swollen and his nose was bleeding.

THE DEFENCE CASE

3.The defendant, a kindergarten teacher, was with his two young children (aged three and five) and had just come from the MTR, hoping to get a taxi from Mody Road to Hung Hom as Typhoon signal No 8 was up and it was getting late for such young children.  He had been waiting for about 10 minutes for a taxi. He hailed PW1’s cab as it had its light on. He maintained that the taxi had stopped as if to let him into the taxi but as he picked up his children and tried to do so, it moved forward and stopped again. PW1 had turned around towards them once he had stopped and the defendant thought he was indicating to board the taxi but when he tried to get in once more the taxi moved forward again and stopped. He tried a third time to enter the taxi and it started off again. Being frustrated, the defendant accepted that he slapped the car boot with his open palm to indicate to PW1 “What’s going on?”. There was no kick and no kick was ever reported to the police in the first phone call supported by the 999 call record, defence exhibit D2. PW1 replied that he could not remember if he had reported a quarrel or a kick and accepted under cross examination that he had actually reported a pat not a kick. He had not seen it. PW3 affirmed that PW1 had reported a slap of the car to him. The defendant told the court that the out of service sign was only put up when PW1 got out of the car to remonstrate with the defendant who was holding one very small child in each hand. They were three and five years old at the time. The taxi was blocking the traffic lane it was in at this point. PW1 then started shouting angrily at the defendant. The defendant saw PW1 checking his taxi and whilst he did not understand Chinese he thought the driver was looking to see if the defendant had damaged his car and therefore he decided to leave to find a bus. He picked up one child and was carrying her whilst holding the hand of the other child. He had all of their belongings in a backpack. PW1 followed him at close range continuing to yell in a manner which was frightening to the children. From that position, PW1 pulled his shirt and backpack which was pulling on his shoulders. Then PW1 put his arm around the defendant’s neck to pull him back whilst the appellant is trying to keep hold of his children in traffic and bad weather. This is the point at which the defendant bites the driver as his hands are full with his children and he is scared he is going to be pulled over backwards whilst holding his three-year-old in his arms. PW1 then let go of the defendant’s neck but continued to grab hold of his backpack and to try and fight the defendant to the ground without any regard for the safety of the children. As a consequence, the children were now distressed and crying. The defendant tried to go up a staircase to get away from the driver whilst PW1 continued to pull him backwards by the backpack. This was extremely dangerous to the two children, so, once at the top of the stairs he put his daughter down and told PW1 to leave them alone. At some point, he thought PW1 tried to grab the defendant’s son. It was at this point the defendant puts the children to one side and hits PW1 twice in the face in defence of his children. PW1 did not touch the defendant again. The defendant and his children then left to find a bus and got onto it but PW1 persuaded the driver not to leave and so he was forced to alight with his young children and with PW1 just two steps behind. By now the children were very agitated and were crying. The defendant wanted to get away from the source of their distress which was PW1. He crossed Salisbury Road and entered a lift and with his children hid behind him.  He told PW1 not to follow but PW1 kept pressing the button and refused to let the doors close whereupon the defendant pushed him back out of the way of the doors. This continued for five minutes with the defendant trying to leave and PW1 stopping him.  

THE GROUNDS OF APPEAL

4.In his perfected grounds of appeal, the appellant submits that the learned magistrate was plainly wrong in finding that PW1 was a credible witness and the defendant was not.

5.As to Charge 1, the learned magistrate erred in finding on the facts that:

i) PW1 reasonably believed that the appellant had damaged his car;

ii) PW1 used reasonable force to arrest the defendant;

iii) PW1 reasonably suspected the defendant of damaging his car and as a result failed to consider whether the appellant was acting in lawful self defence of his children.

6.As to Charge 2, the learned magistrate erred:

i) In speculating that a pharmacist would not accept an old prescription for the provision of the drug in question;

ii) the prosecution had not discharged the burden of proof placed upon them that P1 had not been obtained via prescription.

Analysis

7.There is no question that PW1 was injured as a result of the events of 9 July 2015. The defendant accepts that he caused the injuries when pursued by PW1 and at a time when he believed PW1 was going to grab his son. The issue before the Court was whether those injuries were caused as a result of his reasonable self-defence of himself and his children. Once raised, it was for the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence.  The question for the court was therefore whether the defendant actually and honestly believe he needed to act as he did in order to defend himself and his children and was his response, in all the circumstances, reasonable. The learned magistrate went about this exercise by deciding whom he believed and thereafter rejecting in its entirety the evidence of the witness he did not believe. There was no middle ground and there was no analysis of the law as it relates to the events in question. That exercise coloured the magistrate’s views upon Charge 2, which should have been considered wholly separately, as they were entirely dissimilar crimes.

Charge 1

8.In his Statement of Findings (“SoF”), there were a number of instances where the learned magistrate takes a favourable view of the credibility of PW1, which was not canvassed in the evidence in trial. For example, PW1 stated on oath that he had heard a loud bang and had inspected his vehicle and found a dent on the fender. The defendant admitted hitting the boot of the car with his open palm. There was no report of any damage to the police on exhibit D2 (the 999 record) and the officer attending the scene saw no damage and maintained that PW1 did not indicate any damage. This is made out by the fact that no prosecution for criminal damage ensued. Yet, at p21 §42, the learned magistrate finds:

“First of all, PW1 did not actually see the hitting on his taxi. He only heard a loud bang sound. When he alighted, he saw a slight dent mark. In my view, he might mistakenly find a dent mark and it was just an estimation by him.”

9.Those comments were inappropriate and not supported by the evidence. They were, with respect, speculative. There was no suggestion that his finding of a dent mark was mistaken. PW1 was clear he had found a dent on his fender. No one suggested that he thought it was a dent when it was not. The facts as advanced by PW3 was that no dent was reported and no dent was pointed out. This was an issue of credibility. This error was compounded at §43, when the learned magistrate went on to say:

“Secondly, anyone who made a 999 call would normally be quite nervous. It was possible for PW1 not to clearly express himself. Also, there was a dispute between him and the defendant. As a result, a record of a quarrel with a male appeared in the first entry.”

10.At no point did either party suggest that PW1 was nervous. PW1 did not give such evidence. Under cross examination, PW1 agreed he may not have reported the damage to his car. The actual point arising is that this report was said to have been made before any face to face interchange between PW1 and the defendant. It was his first action after discovering the alleged damage. As a consequence, there could not yet have been a quarrel to report. On the basis of these two examples, the learned magistrate found PW1 a credible witness and in doing so ignored the independent evidence of PW3, which was in conflict with it and also placed no weight upon PW1’s own evidence under cross examination that his memory of events was vague and that he could not remember a number of the events. The findings of the learned magistrate in this respect were plainly wrong.

11.As for the previous convictions of PW1, which included an assault upon a woman when drunk, the learned magistrate dismissed these as not being indicative of PW1 as a hot-tempered person. I do not understand how he could have done so without the circumstances of that offending. In any event, this comment was in the face of PW1’s own evidence that he had shouted at the defendant, that he called the police and that he doggedly followed the defendant and his two very small children grabbing his backpack and leaving his car to block a lane of traffic for what appears to have been no damage at all to his car. Perhaps not indicative of a hot temper but certainly not indicative of a cool temper either. This was a significant over reaction to the initial incident.

12.At §48, the learned magistrate went on to state:

“After quite a lengthy cross examination, he was not shaken and his evidence remained firm”.

That was patently not the case. At p119A-J, the driver stated he told the police that he believed the defendant kicked his car and that it was damaged. At p120M however, when that was challenged and it was put to him no such record was made, he said it was too long ago to remember what he reported. He said the same again when it was put to him that he made no such report either when he made his witness statement to the police at a later date. Eventually, he conceded that he had only reported a slap with a hand. Mr Ross then put to him that he had reported to the police that he had explained to the defendant that he was off work already which was why he was not carrying passengers and yet that was not the case because he spoke no English and accepted he had not said this to the defendant. Later he accepted that although he had told the court he had a swelling to the back of his head, the medical evidence makes no mention of it. At the end of the cross examination he accepted his memory of events was vague. It was clear that the witness was not being completely frank with the Court and whilst, it was possible that he may have been believed in other respects, it was equally clear that his evidence had been undermined in respect of this part of his evidence. That being the case, it was incumbent upon the learned magistrate to take this into account when assessing his reaction that day and his motivation to pursue a man with two tiny children in bad weather whilst abandoning his undamaged vehicle in traffic.

13.The magistrate gave no weight at all to the facts as to the nature of the events even where they were accepted by PW1.  He placed no weight on the fact that this was a man at tea time with two very young children. One who was three and the other five years old. No weight on the fact that the driver was the one who had shouted first and that they were crying and distressed throughout. No weight to the fact that, even if justified, there was a strange man following them just 3-4 feet away over some 30 minutes and no weight to the fact that at one point the stranger was preventing them using a lift and there had been several altercations between him and their father. No doubt with a significant amount of shouting in Cantonese and English. This same approach was used to assess the behaviour of the defendant. No weight at all was given to the circumstances the defendant found himself in as the carer of two very small children in a typhoon 8.

Charge 2

14.Having rejected the evidence of the appellant out of hand under Charge 1, the learned magistrate took a similar approach to Charge 2. The appellant raised the issue of his medical condition and supported it with documentation. This was not undermined. The issue was whether the appellant obtained the medication from a pharmacy or not. The learned magistrate took the view that the prescription was too old and from the date, rather than the content of the prescription as to the appellant’s medical condition, drew the irresistible inference that the appellant could not have obtained the drug lawfully. Given the evidence of the appellant’s medical background and all that was known about him, there was another reasonable inference which could have been drawn in his favour and which was not rebutted by the prosecution.

Conclusion

15.An appeal of this nature is a trial by way of rehearing. I have been provided with the whole transcript. I take the view that the learned magistrate was plainly wrong to do as he did when he found PW1 to be an honest and reliable witness unshaken by the cross-examination. In all the circumstances of this case, I find that the appellant was acting in reasonable self defence of his young children and I allow the appeal on Charge 1 and set aside the sentence of the magistrate. As for Charge 2, the appeal against conviction is allowed and the sentence of the magistrate set aside.

16.There will be no order as to costs.

Ms Audrey Parwani, SPP, of the Department of Justice, for the Respondent

Ms Sezen Chong, instructed by Tsang Chan & Woo, assigned by the Director of Legal Aid, for the Appellant