HKSAR v. Clement, Richard Mark

HCMA 445/2022

[2024] HKCFI 203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 445 OF 2022

(ON APPEAL FROM ESCC 2222/2021)

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J U D G M E N T

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Appeal against Conviction and Sentence

1.The appellant was originally charged with one count of inflicting grievous bodily harm contrary to section 19 of the Offences against the Person Ordinance, Cap 212.  After trial, he was convicted of assault occasioning actual bodily harm.  He was sentenced to 8 weeks’ imprisonment in the magistrate’s court.  He was granted bail pending his appeal.  He now appeals against both his conviction and sentence.  He was represented in this appeal by Mr Andrew Bruce SC, leading Mr James Sherry.  Mr Sherry represented the appellant during the trial.

2.The prosecution’s case is that on 29 July 2021 at about 10 pm, the appellant boarded a Route 104 bus outside Wanchai swimming pool travelling towards the Cross-Harbour tunnel to go to Kowloon side.  PW1 was the 60-year-old driver of this New World First Bus.

3.There was an issue with the appellant’s octopus card, which meant he did not pay as soon as he got on the bus.  He spent some time rummaging through his bag.  By the time he returned to the driver’s area and the octopus machine to pay with an octopus card, the fare had been reduced.  The fare had reduced from $10.60 to $6.60.  PW1 tried to stop the appellant paying the reduced fare with his octopus card; he used his hand to block him and the machine.  There was conversation between them, which PW1 said was aggressive and hostile.

4.The appellant walked away but returned with some coins in his hand when the bus stopped again.  It would appear he understood that there was a fare difference and was paying that difference.  PW1 took coins from the appellant’s palm and put it into the cashbox to make up the difference.  More words were spoken between the two men.  The appellant walked towards the back of the bus.

5.The fare issue was over but PW1 took the view that the appellant’s behaviour was impeding his driving so he pulled the bus over onto the hard shoulder near the entrance of the Cross-Harbour Tunnel on Hong Kong side in order to call and report the matter to the bus company.

6.The driver notified all the passengers on board the bus that he was no longer driving any further and a replacement bus would come.  He had left his seat to use his mobile phone.  The prosecution’s case is that whilst he walked towards the rear of the bus the appellant dashed towards him, pushed his chest and scolded him.  He lost his balance and stepped back a few steps.  He then went back to the front of the bus to make a telephone call and he called the police as well.

7.Whilst waiting for the police to come the appellant assaulted PW1 various times including scratching his back, strangling his neck from behind and punching his face with his right fist.  PW1 had called the police a second time and used his body to prevent the appellant from getting off the bus.  Following this, the appellant assaulted PW1 again, punching his face several times.  More assaults followed before the police arrived.

8.The prosecution called PW1, the driver and 2 doctors who examined him after the incident.

9.The defence case was that the appellant was not aware of the fare change when he approached the octopus card machine with his octopus card.  PW1 would not allow him to tap his octopus card and grabbed his right hand forcefully, digging his thumb into his wrist.  The appellant was angry at this physical contact which was painful and swore at the driver.  He managed to tap his card and walk to the back of the bus.

10.The driver PW1 continued to shout at him.  He returned to the driver even though he could not understand what he was saying in Chinese.  The driver drove on a short distance before pulling over.  The appellant then understood there was a problem with the fare so he took out some coins from his pocket and PW1 selected a $5 coin from his palm and put it into the cashbox.  Thinking that the issue was now over, the appellant turned round and walked back to take a seat.  After he moved past the staircase, he saw the driver had got out of his seat and was walking towards him in a confrontational and aggressive manner with arms outstretched.  He did approach the driver and pushed him away using his hand on the driver’s chest.

11.Not long after this, another bus arrived and the passengers all alighted by the main exit door in the middle of the bus.  The appellant was prevented from leaving with the other passengers.  PW1 blocked the appellant with his body and refused to let him get off with the others.  This went on for some time and he was getting anxious, hot and had difficulty breathing.  He had had part of a lung removed during cancer treatment.

12.It was only after he had been restrained and unlawfully detained by PW1 did he use force against the bus driver in order to get off the bus.  After his arrest, the appellant was also sent to Ruttonjee Hospital, as was the bus driver.

13.The defence case was that the bus driver assaulted the appellant first by grabbing his arm and bruising his wrist when the appellant tried to tap his octopus card on the machine.  Within minutes, the bus driver got out of his seat and approached the appellant with aggression to confront him.  At this moment, the appellant was acted in self-defense.  The appellant pre-empted him by getting out of his seat and approaching him before pushing his chest with his fingers.

14.Then, not long after, PW1 unlawfully restrained and unlawfully arrested the appellant by using his body physically to block the appellant and locking him in the bus alone.  All other passengers had let themselves off the bus.  Only after that did the appellant assault PW1; only after he restrained and detained the appellant.  The force he used was not unreasonable.

15.It was the prosecution’s case that the appellant fractured PW1’s left orbital floor.  However, medical witnesses gave evidence that the fracture was consistent with an injury that had healed well or was an older injury.  Three doctors gave evidence and none could say that the injury to the left eye was caused by the incident on the bus.  This was indeed the reason the magistrate found there to be no grievous bodily harm as required by the charge, hence, a conviction of assault occasioning actual bodily harm.

16.The defence also produced evidence that the PW1 had claimed employee’s compensation from New World First Bus Services Limited in relation to this assault and the claim included that fractured left orbital floor, Exhibits D1 and D2.  The defence put to PW1 and he agreed that this employee compensation claim was the fourth claim he had made in a 10-year span as a bus driver for this company.

Reasons for Conviction

17.The magistrate identified the main issue to be self-defence.  He found PW1’s evidence to be “simple, clear, straightforward and unshaken”.  He found his evidence consistent with the CCTV footage in material aspects.  He accepted his evidence as truth and found him to be credible and reliable.  He found the course of events described by PW1 as the truth.

18.On the other hand, the magistrate rejected the appellant’s evidence because although there was a medical report, Exhibit P3, which found bruising over the appellant’s right wrist palm side, the CCTV footage showed no sign of injury.  According to the CCTV footage, the magistrate did not find it possible for PW1 to have been able to cause this bruising and therefore, the appellant was exaggerating or it was even self-inflicted.

19.He rejected the appellant’s evidence because he did not believe that the appellant was having difficulty breathing after all the passengers alighted when only he and PW1 remained on the bus.  His movements were inconsistent with someone who had difficulty in breathing therefore the magistrate was of the view that he was exaggerating.

20.Although the magistrate rejected the appellant’s evidence in its entirety, he still proceeded on the basis that the appellant might have been acting in the belief that it was necessary to use force to defend himself; acting in self-defence.

21.The magistrate rejected the defence submission that before any assault by the appellant, PW1 had unlawfully detained the appellant on the bus.  He found the driver was entitled to prevent the appellant from leaving the bus until the police arrived according to subsection 101 and 101A of the Criminal Procedure Ordinance, Cap 221.  In short, he found because the appellant had committed an arrestable offence, PW1 could arrest without warrant the appellant and could use such force as is reasonable in the circumstances in affecting or assisting in the lawful arrest of the appellant; including physically detaining him on the bus.

22.At paragraph 40 of the Statement of Findings, the magistrate found before PW1 restrained and stopped the appellant getting off the bus, the appellant had pushed him in the chest, then scratched his back, strangled him from behind around his neck and punched his face from behind.  It was because of this attack, an arrestable offence, PW1 was entitled to prevent the appellant from leaving the bus under the Criminal Procedure Ordinance.  He was not, therefore, illegally or unlawfully detaining the appellant.

23.The magistrate also considered the Public Bus Services Regulation, Cap 230A.  In particular, section 13a (1)(a) which stipulates no passenger shall willfully obstruct, impede or distract the driver of the bus.  The magistrate found PW1 utilised this regulation when he said the appellant had caused nuisance and disturbance and was unable to continue his journey.  He had good reason therefore to stop the bus and call the police.

24.Despite these findings, he still found the appellant may have been acting in self-defence and went on to consider whether the force used by the appellant in self-defence was reasonable.  He identified three episodes where he found the appellant attacked PW1.  He found the force used by the appellant was excessive and that the prosecution had proved beyond reasonable doubt that the appellant was not acting in self-defence at the time but intended to assault the driver.

25.Having accepted the medical evidence that the orbital fracture was unlikely to have been caused during this incident, he acquitted the appellant of inflicting grievous bodily harm.  The remaining medical findings were that PW1 suffered tenderness at posterior neck and right shoulder.  He had redness with tender swelling with a bruise over right face and an abrasion over upper lip.  Therefore, the magistrate convicted the appellant of a lesser charge of assault occasioning actual bodily harm instead.  

26.The magistrate sentenced the appellant to 8 weeks imprisonment.  The magistrate found the injuries suffered by PW1 serious and lingering.  The magistrate took into account that this was an atrocious attack on a public bus driver who was performing his duty.  He found PW1 had showed no signs of aggression towards the appellant at all.  He had done nothing more than just prevent the appellant from leaving the bus in order to wait for the police to arrive.  He found an immediate custodial sentence therefore warranted.

Grounds of Appeal

27.With regard to this conviction, I have set out below the complaints from the appellant’s “perfected grounds of appeal”.

(1)  The magistrate erred in fact in finding that the sequence of events as described by PW1 was supported by the CCTV footage.  There were material inconsistencies that were not dealt with.  Inconsistencies that affect the findings that PW1 was a credible witness.  Inconsistencies that affect the determination of whether the appellant was acting lawfully in resisting his detention on the bus by PW1.

(2)  It is submitted that the magistrate failed to take into account the inconsistencies of PW1 as to the sequence of events, in particular as to the times and sequence of assaults.

(3)  It is submitted the magistrate erred in fact and law by identifying the main issue to be one of self-defence.  It is submitted the main issue was in fact whether the appellant was justified in physically resisting his unlawful detention by PW1 on the bus.

(4)  It is submitted the magistrate erred in law by relying on and basing findings on the Public Bus Services Regulations, Cap 230A when this was not raised during the trial or with the appellant.  This regulation was not part of the prosecution case.  The appellant therefore had no opportunity to make submissions addressing this regulation or the courts reliance on this regulation.  The appellant was thereby prejudiced without an opportunity to make submissions.

(5)  The magistrate erred in law in that he misapplied the Public Bus Services Regulations.  On a true construction of the Regulations, an arrest is a necessary precondition of any detention under the Regulations.  There was no arrest and if there was, it was unlawful.  PW 1 was not entitled under the Regulations to detain the appellant.  Therefore, the appellant was falsely detained, imprisoned, and entitled to resist PW1.

(6)  It is submitted the magistrate erred in law in his application of sections 101 and 101A of the Criminal Procedure Ordinance, Cap 221.  Section 101 requires evidence of an arrest and not merely a detention.  No arrest was communicated by PW1 to the appellant.  In any event, it is submitted the CCTV footage clearly demonstrates that the appellant was illegally detained before the assault, which PW1 said was the basis for him detaining the appellant.

(7)  It is submitted the magistrate failed to consider whether PW1 was lying or exaggerating about his injuries when it was doubtful that his left orbital eye injury was sustained in this incident.  The magistrate should have weighed this in the balance in his assessment of PW1’s credibility.

(8)  It is submitted the magistrate erred in finding that PW1 could not have caused the bruising on the appellant’s arrest because there was no sign of the bruise on the CCTV footage.  The magistrate wrongly assumed that a bruise would appear immediately upon contact.  Further, the magistrate was wrong to find that the bruise on the wrist was caused either by the appellant himself or by PW1 when he was trying to protect himself.  The finding was based on unwarranted speculation.

(9)  There is one ground against sentence and that was the 8-week sentence imposed was manifestly excessive.

Legal Principles - Appeals

28.A magistracy appeal is conducted by way of a “rehearing” on the evidence heard before the magistrate.  The legal principles concerning the approach to magistracy appeals include the principle that the appellate court will only depart from the lower courts finding of fact and assessment of the credibility of a witness where the finding of fact is plainly wrong.

29.Moreover, the test in deciding whether the magistrate has erred in a manner that the appeal should be allowed is whether it is just for the conviction to be quashed.  Notwithstanding the absence of any error by the magistrate, the appellate court must still perform the statutory requirement of conducting a “rehearing”.  The court should examine closely whether on the evidence adduced the charge was proved beyond reasonable doubt, failing which the appeal should be allowed.

30.The trial magistrate enjoyed the advantage unlike the appellate court, of having seen and heard the witnesses giving evidence.  Therefore, the reliability and credibility of witnesses is within the ambit of the trial magistrate’s assessment.

31.The credibility of witnesses in this case is central to the issue.  It is unrealistic to expect magistrate to deal expressly with every detail referred to by the defence in its attack of the credibility of witnesses.  A microscopic dissection of a transcript or a Statement of Findings or submissions will always uncover something unreasonable, a failure to answer a question directly or at all, a piece of evidence not included in the statement of a witness which usually make up the bulk of the grounds of appeal.

32.When this is the case, Stock J (as he then was) pointed out in R v Kwong Wing On, HCMA 574/1996 that “in the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive.  The magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point.  A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

33.Unless the magistrate is shown to have misquoted, or omitted, or failed to consider and analyse any significant aspect of the evidence, the conviction must stand.  Unless findings are shown to be unreasonable, illogical, or inherently improbable the conviction must stand.

Consideration

34.Grounds 1 and 2 can be dealt with together.  The appellant’s argument is that apart from the moment when the appellant uses his fingertips to push PW1’s chest after PW1 left his driver’s seat and walked towards the back of the bus towards the appellant, there was no other physical interaction before PW1 had used his body to prevent the appellant from leaving the bus through the centre door with all the other passengers.  The relevant CCTV footage supports that argument.

35.The respondent argues that it was the prosecution’s case that the physical detention by PW1, that is when he used his body to block the appellant’s path and access to the exit door, only took place after the first episode of physical attack.  The very same one identified by magistrate.

36.The magistrate found that the first episode of attack was shortly before 22:25:58.  The magistrate found that whilst the other passengers were getting off the bus, the appellant scratched PW1’s back from behind 2 to 3 times, strangled his neck from behind with his left arm and punched his face with his right fist.

37.The magistrate found that the second episode of attack was at 22:36:59 when the appellant from behind strangled PW1’s neck from behind with his left arm and punched his face with his right fist at least 7 to 8 times.

38.The appellant points out that the description of the assaults and the timing of the first and second episodes of attack come from the evidence in chief of PW1.  However, he did in cross-examination and this did not seem to appear to have been considered by the magistrate, concede and agree that the first time he was punched by the appellant was at 22:26:33, not earlier.

39.Therefore, the described first episode of attack in the magistrate’s findings do not accord with the prosecution’s evidence.  CCTV footage did not capture this described first episode of attack.  This is critical because if there is no physical interaction between the two men other than the push to the chest before PW1 clearly detains the appellant on the bus then, there is merit in Grounds 1 to 3 and even to some extent Grounds 4 to 6.  It is clear from the CCTV footage that PW1 prevented the appellant getting off the bus with the other passengers from 22:25:12.

40.I have viewed all the CCTV footage myself in chambers as well as been taken through much of it during the appeal hearing.  There is a blind spot just after the driver’s seat and the staircase.  This is in fact where the two men were there or thereabouts between 22:17 to 22:27.  I will set out what can be seen from the first interaction between the appellant and PW1 until the police arrive and what cannot be seen.

(a)  The first interaction between the two men is at 22:11:32 when the appellant got on the bus and PW1 used his finger and aggressively pointed at the appellant’s face.  The appellant’s mask was just below his nose covering his mouth.

(b)  At 22:11:51, PW1 is seen still berating the appellant about his mask.  The appellant can be seen returning to the octopus machine to pay and at 22:14:06, PW1 grabbed the appellant’s wrist to prevent him tapping his octopus card.

(c)  At 22:15:44 to 22:16:17, the appellant had coins in the palm of his hand obviously to pay any fare difference.  PW1 took a coin from the appellant’s palm.  PW1 was already holding his mobile phone in his hand as if to make a call.  He waved the appellant to go away.  The appellant went to take a seat.

(d)  At 22:16:27, PW1 made a call to the bus company and then at 22:16:35 he got out of his seat and walked towards the back of the bus.  At 22:16:40, the appellant who had got out of his seat and met PW1 in the corridor pushed his chest with his fingers causing PW1 to take one-step back.  After that, PW1 was on the phone for several minutes.  At 22:19:42, a female passenger wearing white talked to the appellant.  She then at 22:20:05 approached PW1 to speak to him.  At 22:19:51, Cross-Harbour Tunnel staff arrived at the front of the bus and PW1 can be seen opening the front door of the bus before he closed it again at 22:20:26.  At 22:21, the female in white stops talking to PW1.

(e)  At 22:21:57, the appellant and PW1 were obviously talking to one another with both pointing fingers at each other.  The female in white is stood between them.  At 22:23:04, the front door was opened again and this same female in white talked to the tunnel staff.  At 22:23:41, PW1 got out the bus and at 22:24:30, he got back on the bus whilst talking to the tunnel staff with gestating arms.  At 22:24:55, outside the bus, tunnel staff can be seen hailing another bus, instructing it to stop in front of PW1’s bus.

(f)  At 22:25:12, all passengers got up together ready to get off.  At this precise moment, the appellant was in front of PW1 and it would appear the woman in white was trying to mediate and pulled the appellant to one side, away.  PW1 locked the front door whilst all the passengers gathered at the middle main exit door.  PW1 puts himself between the appellant and that exit door.

(g)  At 22:25:33, the passengers had to push a button and let themselves out of that exit.  The bus driver did not help them because he was busy stood between them and the appellant.  At 22:25:43, PW1 can be seen stood between the appellant and that exit.  At 22:25:50, PW1 can be seen on CCTV footage and from the movement of his shoulders clearly he is being pushed from behind by the appellant trying to get past but he stood firm.  At 22:26:03, something happened because passengers can be seen looking towards the two men.  At 22:26:20, it is clear the appellant is prevented from getting off by PW1.

(h)  Between 22:26:20 and 22:26:56 clearly the appellant was trying to get past PW1 whilst he strenuously used his body to block the appellant.  At 22:26:56, a tunnel staff got on and walked towards them but got off the bus again, not before PW1 at 22:27:36 instructed the tunnel staff to lock and shut the middle exit door whilst he was still blocking the passageway preventing the appellant from leaving.  PW1 denied telling staff to lock that door.

(i)  Between 22:28:50 and 22:31:02 the appellant can be seen banging on the windscreen to get the attention of the Cross-Harbour Tunnel staff on six separate occasions.  At 22:31:30, the appellant can be seen trying to open the front door by pulling the handles and trying to get the attention of the staff outside at the same time.

(j)  At 22:35:30, both men were by the middle door with PW1 stood between the door and the appellant.  The appellant can be seen trying to open the middle door by pulling handles and pressing buttons on more than one occasion.  By 22:37, the appellant did drag and push PW1 away from the door and toward the rear of the cabin where he assaulted and punched PW1; there is a struggle.  It stops and at 22:39:25, PW1 walked to the front of the bus with the appellant walking behind him.  At 22:40:40, a police van arrived and not long after that, the police boarded the bus.

41.I have read the transcript of the evidence of PW1.  He was a witness who appeared reluctant to answer questions directly in cross-examination.  He eventually agreed that it was he who initiated physical contact by grabbing the appellant’s arm.  At first, he would only agree he pressed the appellant’s wrist and did not grab him, but when shown the CCTV footage, he agreed.  In re-examination, he said he suspected that the appellant deliberately tried to dodge the correct fare and save $4.

42.He said that the appellant disturbed him after he paid with coins because he was swearing as he walked away to take a seat.  That was why he decided to terminate the journey.  However, from the CCTV footage, he had taken out his phone before the appellant offered coins.  It would appear he was already intending to make a call and stop the journey before the appellant produced coins.

43.He said he left his seat to walk the rear of the bus to ask the other passengers to make a judgement on the appellant.  He was gesturing with his arms out in front of him as he walked and talked but he disagreed he was conversing with the appellant.  The appellant’s evidence was that this move from his driver seat was to confront the appellant.  The appellant pre-empted the confrontation by stepping up to PW1.

44.I have looked at the CCTV footages and studying the movements and actions of PW1 between 22:16:40 and 22:25:50, I find it inconsistent to his evidence that by then he had been scratched, strangled and punched in the face in the blind spot area which was the reason he blocked the appellant and prevented the appellant alighting with the other passengers.  He can be seen walking around, getting on and off the bus, talking to tunnel staff and to the female in white.  He does not appear to be indicating he had been assaulted; scratched, punched in the face nor strangled.  He is not looking distressed or in pain and in any event, he agreed himself he was not punched until after 22:26:33.

45.The CCTV footage in my view does not support PW1’s evidence; it does not support his evidence that he was assaulted by the appellant, which led him to prevent the appellant leaving the bus by blocking him with his body.  The CCTV footage in my view supports the appellant’s submission that only after PW1 blocked the appellant’s path and exit did he physically try to remove PW1.  There is merit in Grounds 1 and 2.

46.In Ground 3, the appellant suggests the magistrate erred in fact and law by identifying the main issue to be one of self-defence.  The main issue identified by the appellant was whether he was justified in resisting the unlawful detention by PW1 on the bus when all other passengers alighted.  Self-defence was raised during the trial and in final submissions.

47.It appears the appellant’s complaint is that not enough emphasis or consideration was placed on whether the appellant was justified in resisting the unlawful detention.  However, in light of the magistrates findings that there was scratching, strangling and a punch which was why PW1 refused to let the appellant get off the bus, the magistrate rejected that submission outright. As the respondent submits, once the magistrate made a finding that the appellant was not detained on the bus unlawfully, there was no reason for him to go into details as to whether the appellant was justified in resisting the so-called unlawful detention.

48.A reading of the Statement of Findings does have the magistrate identifying the main issue to be one of self-defence but he does also address the submission that the appellant had been unlawfully detained on the bus by PW1 when the magistratre rejects it.  There is no merit in Ground 3.

49.Grounds 4 and 5 can be dealt with together.  The appellant submits the magistrate erred in law in referring to the Public Bus Services Regulations to find justification in PW1’s decision to terminate the bus journey and call the police when this was not part of the prosecution’s case and the appellant had no opportunity to make submissions.  In addition, the magistrate wrongly applied the Public Bus Services Regulations.

50.The magistrate refers to section 13A (1) (a) of the Regulation, which stipulates “no passenger… shall… wilfully obstruct, impede or distract the driver of the bus.”  The magistrate found PW1 thought the appellant had caused nuisance and disturbance so he was unable to continue his journey and therefore according to that regulation, he had good reason to terminate the bus journey and call the police, paragraph 39 of his Statement of Findings.

51.It was not part of the prosecution’s case that the appellant had committed an offence under this Public Bus Services Regulations.  Whether or not PW1 had grounds or was right to decide himself to terminate the bus journey was not a focus of the trial for either the prosecution or the defence.  Although, it was suggested by the defence during the trial and in final submissions that PW1 had no justification to leave his seat and go to confront the appellant who had taken a seat.

52.The first mention of this regulation comes in the Statement of Findings. The appellant is aggrieved he was deprived of any opportunity to address it or make any submissions.  The appellant was not given an opportunity to comment or submit on this Regulations referred to by the magistrate, but I do not see any prejudice suffered.  The reference to that Regulations does not appear to be related to the magistrate’s findings that the appellant was not unlawfully detained on the bus by PW1.

53.I do not agree that the magistrate’s reference to that Regulations was to rely on it to decide whether there had been an unlawful detention or an unlawful arrest.  The magistrate was not suggesting that this Regulations gave PW1 the power to arrest the appellant for a breach of the Regulations and he relied on it.  It was not suggested that the appellant was in breach of any such Regulation and therefore the detention of the appellant by the driver was lawful.

54.This brings me to Ground 6.  The appellant argues that the magistrate erred in law in his application of sections 101 and 101A of the Criminal Procedure Ordinance, Cap 221.  The magistrate said at paragraph 40 of his Statement of Findings that “in view of the attack by the defendant, PW1 was entitled to prevent the defendant from leaving the bus until police arrival: subsections 100 and 101A of the Criminal Procedure Ordinance, Cap 221.  All parties agree this was a typographic mistake and the magistrate must have meant section 101, not 100.

55.The appellant asserts that section 101 requires evidence of an arrest and not merely a detention.  There is no evidence that PW1 verbally communicated and arrest to the appellant.  The respondent submits there was no need to verbally declare an arrest by PW1.  Moreover, it was not an issue during trial that there was no arrest or if there was, it was unlawful.  The respondent says it was clear that the arrestable offence was assault occasioning actual bodily harm and committed before PW1 decided he would detain the appellant on the bus.  The defence has always been that there was no assault or arrestable offence before PW1 detained the appellant on the bus.

56.The magistrate referred to this power of arrest by those without a warrant because of his findings that the appellant attacked PW1 before he detained him on the bus.  He detained him because he had already been physically attacked and did not want him to get away before the police arrived. The magistrate was referring to the sections in the Criminal Procedure Ordinance because it gave PW1 the power to lawfully detain the appellant after he committed an arrestable offence.

57.I do not need to discuss further the submissions from both parties because as I have said above, I do not find it proved that there was an assault as described by PW1 as scratching, strangling and a punch, which could constitute assault occasioning actual bodily harm before PW1 physically detained the appellant.  The push captured on CCTV footage at 22:16:40 if not in self-defence, was not an arrestable offence; at most, it was common assault. In any event, magistrate never focused his mind on whether this push was the assault invoking section 101A of the Criminal Procedure Ordinance.

58.Grounds 7 and 8 relate to the credibility of PW1 and the appellant respectively.  The appellant suggests PW1 was exaggerating his injuries and must have known his orbital fracture was an old injury.  This therefore should have affected his credibility but was not considered by the magistrate.  The magistrate did indicate he had considered all submissions made at the end of the trial but none caused him to doubt credibility and reliability of PW1.  The respondent suggests that this is sufficient.  No magistrate is expected to address every point raised.  There is no merit in this ground.

59.For that last ground, Ground 8, I agree the magistrate was wrong to find PW1 could not have caused the bruising because there was no sign of bruising on the CCTV footage.  That would be an assumption that a bruise would developed instantaneously.  In addition, PW1 eventually admitted in cross-examination he grabbed the appellant’s wrist.  The CCTV footage shows he grabbed the appellant’s wrist.  The magistrate made a finding that it was not possible he caused such a serious injury.  The injury was a bruise; to suggest that the appellant had caused the injury himself or it was caused when PW1 was trying to protect himself during an assault is speculation.  There is merit in this ground.

Conclusion

60.This is a rehearing and on the evidence adduced, it is not proved beyond reasonable doubt the appellant committed the charge of assault occasioning actual bodily harm.  The CCTV footage does not support the evidence of the only prosecution witness, PW1.  I find the conviction unsafe and unsatisfactory.  Accordingly, the appeal is allowed.  The conviction is quashed and sentence is set aside.

61.Any application by the appellant for costs of the trial and of the present appeal must be made in writing within 14 days from the date hereof.  Any objection to the appellant’s application by the respondent must be made in writing within 7 days thereafter.  The appellant shall provide a response, if any, in writing to the respondent’s objections within 3 days thereafter.  The court will hand down its decision on the appellant’s cost application (if any) within 6 weeks.

Ms Irene Poon, Senior Public Prosecutor and Ms Herriatta Lai, Public Prosecutor of Department of Justice, for the Respondent

Mr Andrew Bruce leading Mr James Sherry, instructed by Massie & Clement, for the Appellant