HKSAR v. Chan Hiu Kei Christie

HCMA 102/2020

[2021] HKCFI 2538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 102 OF 2020

(ON APPEAL FROM ESCC 1670 OF 2019)

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BETWEEN

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Before:  Hon Toh J in Court

Date of Hearing:  12 April 2021

Date of Judgment:  12 April 2021

Date of Reasons for Judgment:  3 September 2021

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REASONS FOR JUDGMENT

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1.The Appellant was convicted after trial of one count of wounding, section 19 of Offences against the Person Ordinance, Cap 212. She appealed against her conviction and I allowed her appeal against conviction and quashed her sentence, and herebelow are my reasons.

Background 

2.The incident took place shortly after 2:00 am on 3 June 2018 at a Club in Lan Kwai Fong, Central. Both PW1 and the Appellant were back from universities overseas.  According to PW1, he recognized the Appellant as someone who was acquainted with a friend of his.  So he had a brief conversation with the Appellant, when suddenly for no reason, the Appellant smashed a glass onto his forehead, resulting in a laceration which required 12 stitches.    

3.The Appellant, after her arrest by the police, gave two cautioned video recorded interviews (“VRIs”).  In her 1^st VRI, she asserted that she had been indecently assaulted by PW1 on two occasions inside the Club.  When she went on to the dance floor, she was holding a drink in her right hand, and she admitted she might have unintentionally nudged or touched PW1 when passing him, and PW1 then hit her with his elbow, causing her to lose balance and drop the glass she was holding.  Whereupon PW1 splashed his drink at her. 

4.In her 2^nd VRI about a week later, the Appellant, when shown the CCTV footage of her smashing a glass onto the forehead of PW1, the Appellant did not admit that she was the person depicted in the CCTV. 

5.In court, as the learned Magistrate observed the Appellant had claimed that she had intentionally swung her hand towards PW1 to defend herself.  The Appellant in court also claimed that PW1 came up to her on the dance floor and got closer, and she told PW1 to move away, and pushed him away. But PW1 kept coming closer so she swung her hand to keep PW1 at bay.  PW1 punched her on her shoulder, causing her to lose balance, and she had to swing her hand in order to protect herself.     

6.The Appellant in court identified the CCTV footage as depicting what happened, and the Appellant asserted that she had swung or lifted her arm up, and assaulted PW1 with the glass in order to protect herself.  But at that time, she did not realize she had a glass in her hand, so her defence was that she did not swing the glass at him intentionally to cause him any injury.  She asserted that she was scared at the time and did not really think through her action.   

7.The learned Magistrate analysing the evidence, came to the conclusion that PW1 was not worthy of belief, and the Magistrate also questioned the truthfulness of the Appellant’s testimony.  However, the learned Magistrate relied on the evidence of the VRIs and the CCTV footage, and came to the conclusion that the smashing of the glass on PW1’s forehead could not have been unintentional.  He did not accept that PW1 had punched the Appellant on her shoulder as that was not seen in the CCTV footage. 

8.The learned Magistrate found that there was no bodily contact between PW1 and the Appellant prior to the attack on the forehead of PW1.  

Discussion

9.I have gone through the CCTV footages, and also Exhibit D5 produced by the defence, which are screenshots captured from the CCTV footage.  It was apparent from the CCTV footage that the dance floor was extremely crowded.  People were almost shoulder to shoulder.  The incident happened very quickly and from the screenshots, I can see that just prior to the attack on the forehead of PW1, PW1’s arm was extended towards the upper part of the Appellant’s body.  I cannot see whether his hand actually touched the Appellant.  It is also clear that PW1 was much taller than the Appellant, and to a certain extent, must have caused her some fear if he was even just leaning over her, as she had said he had previously indecently assaulted her on the dance floor.  He was told to go away but he did not and when she splashed liquid over him, he retaliated by doing the same.

10.However, that did not stop his approach to the Appellant, and one could say his action was so insistent that for a single young female, it must have caused her an apprehension that her safety may be affected.     

11.The burden of proving guilt is always on the prosecution.  Since the learned Magistrate had disbelieved PW1, he could only rely on the evidence, i.e. the VRIs and the CCTV footages.  However, as I have observed above, the screenshots taken from the CCTV was quite clear that just prior to the assault on PW1’s forehead, he had not move away, but was in fact insistently closing on the Appellant.

12.On the issue of self-defence, the defendant relied on self-defence.  In view of the above facts which I have stated, I accept, therefore, that at the time the defendant did honestly believe that it was necessary to defend herself.  On the spur of the moment, she did also honestly believe that the amount of force she used was reasonable.  I also found that the learned Magistrate was wrong when he said that PW1, after splashing the Defendant with liquid, had moved away from the Defendant, and did not even look at her. From the screenshot produced by the defence in Exhibit D5, it was clear that he did not move away.

13.I therefore find that there is a lurking doubt in the conviction, and found that the conviction was therefore unsafe and unsatisfactory, giving the benefit of the doubt to the Appellant. 

14.Therefore, I allow the appeal against conviction. 

Mr Jonathan Lin, SPP of the Department of Justice, for the Respondent

Mr Raymond Yu and Mr Wong Poon Chor, instructed by Louis K Y Pau & Co, for the Appellant