HKSAR v. Kwong Sidney Syi Ran

HCMA 319/2021

[2022] HKCFI 975

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 319 OF 2021

(ON APPEAL FROM ESCC 2092 OF 2020)

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Before:  Hon Toh J in Court

Date of Hearing:  29 November 2021

Date of Judgment:  29 November 2021

Date of Reasons for Judgment:  19 April 2022

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REASONS FOR JUDGMENT

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1.The Appellant was convicted after trial at the Magistrate Court of one count of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap 212.

2.He appealed against his conviction and at the hearing of the appeal after due consideration of counsels’ submissions, this Count dismissed his appeal against conviction and here below are the reasons.

Prosecution Case

3.At the material time, PW1 was the driver of a taxi and on 20 June 2020 at around 0400 hours, the Appellant boarded his taxi near Pedder Street, Central. On arrival at the stated destination in Forbes Street, the Appellant said he did not have enough cash on him to pay for the fare, and so the Appellant gave PW1 HK$40 and his American Express credit card for security before he left to get the money.

4.After walking a short distance, the Appellant returned and accused PW1 for not believing him. PW1 then urged the Appellant to get the money as soon as possible. PW1 said that the Appellant then punched the left front window of the taxi. PW1 then warned the Appellant to stop. The Appellant then left and PW1 took a photograph of the Appellant’s credit card.

5.The Appellant returned with coins in his palm and PW1 put the coins into the coin box and returned the credit card to the Appellant. Suddenly the Appellant punched PW1’s right eyebrow, causing it to bleed and causing PW1’s head to bang backward hitting the headrest. The Appellant then left.

6.PW1 alighted from his taxi, wanting to stop the Appellant from leaving. However, the Appellant then suddenly turned around and punched PW1’s right eye for over ten times and kicked his waist more than five times. PW1 felt his eye and waist were painful. Then the Appellant left the scene.

7.PW1 then reported the matter to the police. PW1 was subsequently treated at the hospital where he was given 5 stitches on his eyebrow. The assault was captured on CCTV outside the Concord Hotel.[1]

Defence Case

8.The Appellant denied that when he returned to the taxi, he had hit the car window and that he had punched PW1 on his eyebrow while PW1 was inside the taxi. Instead, the Appellant gave an account of how rude PW1 was to him and was reluctant to return his credit card. However, eventually PW1 did return his card and he then threw the remainder of the coins in his hand onto PW1’s lap and walked away.

9.While he was walking away, the Appellant stated that he turned around and saw PW1 charging towards him and feared that PW1 was concealing a weapon behind his back. Thus, in order to protect himself, the Appellant claimed that he first barged at PW1 with his shoulder, then when PW1 did not go away, he then punched PW1 and PW1 caught hold of him and that was when the Appellant hit PW1’s face.

10.Thus, the Defence case was that the Appellant was acting in self-defence when he assaulted PW1.

Cross-examination of PW1

11.PW1 conceded in cross-examination that he had failed to mention that he had been punched on the eyebrow while he was in the taxi in his three statements. He claimed that he did not give details in the 1^st statement because he was feeling painful and confused. In the 2^nd statement, he did not know that he had to give so much details.

12.However, he did say in his 2^nd statement that the Appellant had “paid the taxi fare, and then hit me and took his credit card back”. He said that his testimony in Court was the accurate one, namely he gave the Appellant his credit card back, and then the Appellant hit him.

13.PW1 said that after the initial treatment, he had to return to see the doctors for his eye and waist pain, and had been given sick leave by three hospitals and a clinic between 20 June 2020 and 3 July 2020, and from 8 July2020 to 15 September 2020.[2]

14.PW1 also said he could not work because of his waist injury and agreed that this injury was not recorded in the medical report issued by the A&E Department, but first appeared in the certificate issued by a private clinic on 1 July 2020[3].

15.PW1 also admitted that he had previous criminal records which had been set out in the learned Magistrate’s Statement of Findings at paragraph 32.

Magistrate’s Findings

16.The learned Magistrate had carefully analysed the evidence of PW1 and took into account the objection and inconsistencies submitted by the Defence. He dealt with the five points argued by the Defence from paragraph 44 to 54. At the end of the day he found PW1 to be an honest and reliable witness and his evidence was consistent and supported by the CCTV footages[4].

17.For example, the learned Magistrate in considering the Defence’s submission that the Appellant had not punched the window of the taxi had evaluated the evidence of PW1 that he had not mentioned this in his witness statement, and considered that at the time he had been told that the police would only charge the Appellant with wounding and not criminal damage.

18.The learned Magistrate also considered the CCTV footages from 04:21:25 to 04:21:37, and pointed out that the Appellant’s actions as recounted by PW1 in Court was supported by the CCTV footages.

19.Similarly, in relation to the 2^nd point that the Defence argued that PW1 was not assaulted while he was inside the taxi. Again further analysis of PW1’s evidence and what he said in his witness statement that he was hit in the taxi, together with the CCTV footages, were sufficient to satisfy the learned Magistrate that PW1’s evidence was accurate.

20.The above are merely examples which showed the learned Magistrate’s thorough analysis of PW1’s evidence and there is no need for me to repeat what he said in his Statement of Findings.

21.The learned Magistrate also evaluated the evidence of the Appellant in Court when he gave evidence, but found that parts of the Appellant’s evidence to be “incredible”, and also that self-defence was not made out.

22.The learned Magistrate also came to the conclusion that the Appellant might have genuinely believed that it was reasonable “or necessary to barge and make the first hit at PW1” because from 04:28:47 to 04:28:49 on the CCTV footages, he could see PW1 did run towards the Appellant and grab his arm.

23.However, the learned Magistrate came to the conclusion that thereafter the Appellant’s application of force on PW1 was neither reasonable nor necessary, and could not have acted in self-defence. The learned Magistrate at paragraph 60 of his Statement of Findings had carefully written out what let him to that conclusion.

24.Therefore, at the end of the day, the learned Magistrate convicted the Appellant.

The Appeal

25.Mr Ho on behalf of the Appellant had submitted the following perfected grounds of appeal:

(1)  The learned Magistrate erred in:

(a)  Not giving any or any proper consideration to the evidence before him on issue of mistaken belief;

(b)  Applying the law in respect of self-defence;

(c)  Convicting the Appellant on inconsistent findings of fact;

(d)  Accepting PW1’s incredible and inconsistent evidence;

(e)  Finding that PW1 was a truthful and honest witness;

(f)  Rejecting the Appellant’s evidence; and

(2)  The learned Magistrate was wrong in law to convict the Appellant.

Discussion

26.The crux of the Appellant’s appeal was the learned Magistrate’s reasoning behind his findings that the Appellant was not acting in self-defence, and his conclusion that the inconsistencies did not affect the reliability and credibility of PW1.

27.As the learned Magistrate said in his Statement of Findings, he had considered the case of R v Man Wai-keung[5] which was cited to him by the Defence. First of all, there are 2 limbs in applying the law of self-defence. Firstly, whether the Appellant had an honest belief, even if mistaken, that at the time he attacked PW1 it was necessary for him to use force to defend himself. Secondly, if so, was the force used reasonable in all the circumstances.

28.As was pointed out by Ms Ng in her written submission for the Respondent, the learned Magistrate did accept the Appellant’s evidence that he might have genuinely believed the first hit against PW1 was necessary because PW1 ran towards him and grabbed his arm, which was corroborated by the CCTV footage.

29.However, for the subsequent punches and kick against PW1, the learned Magistrate rejected the Appellant’s evidence that his mistaken belief was honestly held. The learned Magistrate had considered the CCTV footages from 04:28:50 to 04:29:01.

30.Ms Ng’s written submission was adopted by Mr Lai who appeared in Court on behalf of the Respondent, that at the end of the day, the learned Magistrate was entitled to find that the force used in the subsequent punches and kick was not necessary nor reasonable in the circumstances.

31.I have read the analysis of the learned Magistrate and I find that the learned Magistrate was neither wrong in law nor had erred in his analysis of the facts.

32.It also does not appear to me upon reading the Statement of Findings of the learned Magistrate that the learned Magistrate had committed any error factually in his assessment of the evidence in front of him. He had methodically and logically analysed the evidence of PW1 as supported by the CCTV footages and it was clear that his conclusion was safe and sound.

33.The Appellant also submitted the learned Magistrate should have given him more weight in assessing his credibility as he had a clear record. It is clear to me that the learned Magistrate did take that into account as he did in his Statement of Findings at paragraphs 33 to 35, set out in great details the Appellant’s background. He was also aware of PW1’s past records. So, I do not think that this complaint by the Appellant had any merit.

34.I therefore, having read the Statement of Findings of the learned Magistrate and considered the CCTV footages, I have no doubt that the conviction of the Appellant was safe and satisfactory. There is no merit to the appeal.

35.Therefore, I had dismissed the appeal against conviction.

Mr Anson Lai, PP of the Department of Justice, for the Respondent

Mr Melvin Ho, instructed by Lo, Wong & Tsui, for the Appellant