HKSAR v. Makar, Gerges Naroz Fanous

HCMA 208/2022

[2024] HKCFI 723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 208 OF 2022

(ON APPEAL FROM WKCC 4401/2021)

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J U D G M E N T

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Appeal against Conviction Only

Wounding

1.The appellant was convicted after trial of a single count of wounding inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap 212. He was sentenced to 3 months’ imprisonment and granted bail pending this appeal. He now appeals against his conviction only.

The Prosecution Case

2.PW1, the victim was a taxi driver and the only prosecution witness. At nearly 1am on 28 June 2021, a person hailed his taxi on Lockhart Road, Wanchai. That person asked the victim how much it would cost to drive to Tsing Yi and then the appellant opened the rear door, got in and lay down on the back passenger seat. That person through the front passenger window left $200 in cash on the seat next to the victim. A phone was then passed to PW1 and a female voice on the other end of the phone gave him an address, telling him where to drive the appellant. PW1 then set off for Tsing Yi.

3.PW1 saw the appellant, whilst he was driving, sit up before reaching over from the back seat and take the $200. When he arrived at the address, the appellant got out of the taxi without paying the fare. The appellant ignored PW1 when he asked for payment. PW1 got out of his taxi and told the appellant that he was going to call the police. He used simple English words to communicate with the appellant such as money and police whilst pointing at the taximeter. He then used his mobile phone to call the police and make a report. Whilst he was on the phone, the appellant made some hand gestures and approached him with aggression. PW1 moved away but the appellant suddenly ran at him.

4.PW1 ran around his taxi to get away from the appellant but was too slow. When the appellant caught up to him, the appellant pulled and tore his upper garment, which caused PW1 to fall to the ground. Whilst he was on the ground, the appellant kicked his right shoulder and the right side of his head. PW1 then tried to protect himself by holding his arms up in front of his body. The appellant then hugged or grabbed hold of PW1 and spat in his face. At this stage, the appellant had also fallen to the ground and both men were struggling and rolling around on the street with the appellant wrapping his arms around the victim.

5.When a security guard from a nearby building approached them, the appellant walked away and stood nearby. The security guard helped PW1 get up off the ground. When the police arrived, he was sent to the hospital and the appellant was arrested. PW1 said he believed the appellant was drunk when he got into his taxi in Wanchai.

6.It was an admitted fact that the appellant was arrested at 2:10 am at the offence location. It was an admitted fact that PW1 suffered multiple wounds including fractures of the right fourth rib, right clavicle and at the base of the distal phalanx of his right ring finger. There are two medical reports relating to the victim, Exhibits P1 and P2.

7.It was an admitted fact that the appellant went to the same hospital later and treated for an abrasion on his right upper lip and right bilateral elbow as well as a cracked right upper incisor. His medical report is at Exhibit P3. There are photographs of the scene of the offence and of the victim taken on the same day and in Exhibit P4, including a photo of his shirt torn by the appellant.

The Defence Case

8.The appellant elected not to give evidence during the trial. The defence case was put to PW1 and it was suggested that he assaulted the appellant and he broke the appellant’s watch on his wrist and cracked his tooth. PW1 disagreed and guessed the appellant’s injuries and broken watch was because of him rolling around on the ground grappling with PW1.

9.The defence case was that the appellant did not chase him around his taxi. The victim was the aggressor and attacked the appellant. The appellant was only acting in self-defence, defending himself from PW1. It was suggested to him that the appellant intended to pay him. The victim, PW1, disagreed to these suggestions.

10.He was asked in detail about who he spoke to when his taxi was stopped and before the appellant got in, the circumstances of the appellant getting into his taxi, how he knew where to drive the appellant, the phone he was handed with the female on the other end telling him where to take the appellant. Questions were asked about this phone conversation but he did not see who made a call, who passed him the phone nor did he know to whom he spoke. After he was given an address, he gave the phone to the appellant before driving away.

11.PW1 recalled in his evidence that he told the police about this phone conversation and it was in his statement but when shown his statements in cross-examination, he confirmed that he was mistaken and it was not referred to. Much was made of this discrepancy.

12.PW1 agreed that he had a previous conviction for aiding and abetting the management of a vice establishment.

The Magistrate’s Findings

13.The magistrate found the victim, PW1, credible and reliable. From his observation of the witness in the witness box, he observed him to be a simple, unsophisticated and perhaps uneducated person but that did not affect his credibility. Although he had one previous criminal conviction, the magistrate noted it was not related to dishonesty and it was an old conviction.

14.He found there to be no serious or material discrepancies in his evidence. He found there to be no evidence to contradict PW1. His evidence could explain how the appellant chipped his tooth, suffered a lip abrasion and broke his watch face. He believed the assault took place as described by the victim and was satisfied beyond reasonable doubt that the elements of the charge had been proved despite the appellant’s clear record.

Grounds of Appeal

15.The four grounds of appeal can be summarised as follows:

a.  The magistrate erred in evaluating and accepting the evidence of the victim.

b.  The magistrate failed to consider the appellant acted in self defence.

c.  The magistrate failed to consider the appellant’s injuries and damage to his watch being evidence to support the counter allegation that it was PW1 who assaulted the victim.

d.  The conviction is unsafe and unsatisfactory

Legal Principles- Appeals

16.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.

17.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.

18.The trial magistrate enjoyed the advantage unlike the appellate court, of having seen and heard the victim, PW1, give evidence. Therefore, the reliability and credibility of that witness is within the ambit of the trial magistrate’s assessment.

19.The credibility of the only witness in this case is central to the issue. It is unrealistic to expect the magistrate to deal expressly with every detail referred to by the defence in its attack on the credibility of PW1. 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 witness statement.

20.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

21.To support the 1^st ground, Mr William Allen for the appellant complains the magistrate was wrong not to find the evidence of the victim vague, inconsistent and blatantly untrue. It was so problematic that he was wrong to find PW1 credible. He reiterates that the victim was vague as to provenance of the $200, whether it was put on the front seat by the appellant’s friend who stopped his taxi or in the back seat or if the appellant had taken it during the journey. Mr Allen suggests it does not make sense for PW1 to say the appellant refused to pay the taxi fare when his friend had given him $200 to pay it.

22.Miss Zena Yuen for the respondent gave a succinct reply. This issue and in fact, all contentions raised by the appellant in this appeal were considered and dealt with by the magistrate in full; that is, there is a full analysis with reasons given for findings made.

23.It is alleged PW1 told lies about the phone call made at the time the appellant got into his taxi and lay down on the back seat. If the call was important then why was it not mentioned in his witness statement? Why did he insist it was when it wasn’t part of that record?

24.The respondent points out that the magistrate dealt with this inconsistency and found it immaterial. This happened long before the assault took place and is of little importance to the facts. There had to have been some communication to PW1 where to take the appellant. The defence does not suggest the appellant told PW1 himself so someone had to have given him an address. The fact he was sitting in the driver seat waiting for an address and does not recall seeing someone make a call or knowing who was on the other end of the phone he was given is neither here nor there. In any event, there is no contrary evidence to suggest otherwise.

25.The victim accepted he was wrong when he said the phone call details were included in his witness statement. The magistrate found his mistake or that omission did not greatly affect his credibility which must be right.

26.The appellant sustained an injury to his lip, tooth and elbow plus his watch was damaged. Yet, PW1 claims he did not fight back or hit back which must be a lie in light of those injuries.

27.The magistrate accepted his evidence that during the course of the attack on the victim, both men ended up on the ground rolling around during this assault. This was a conclusion he was entitled to reach from the evidence presented. The injuries to the appellant’s mouth and elbow could very well have been sustained when the appellant fell to the ground. Similarly, his watch could have been damaged at the same time. There was no contrary evidence to suggest they did not both end up on the ground at some stage.

28.The appellant submits the magistrate erred in commenting on the victim’s background including his criminal record which were comments deemed improper and unfair to the appellant. This complaint has no merit whatsoever.

29.The magistrate was entitled to consider the victims background, education level, demeanour and the manner in which he answered questions. The appellant wanted the magistrate to take into account and consider his past criminal record as affecting his credibility. The magistrate did and found it was not related to any offence of dishonesty nor was it an offence of violence. He found it did not affect PW1’s credibility.

30.There is no merit in 1^st ground. The magistrate fully analysed PW1’s evidence and those inconsistencies stressed. He found them to be neither material nor serious enough to affect his credibility. I agree with that finding.

31.The 2^nd and 3^rd ground can be considered together. Mr Allen submits the magistrate failed to address his submission that the appellant had no apparent or logical motive as a man with a clear record to attack PW1. The magistrate’s failure to consider it and consider the defence of self-defence by the appellant makes the conviction unsafe and unsatisfactory.

32.I agree with the respondent and agree that motive is not an element of the offence. It does not need to be considered. The magistrate was entitled to find the elements of this charge proved beyond reasonable doubt on facts he found proved.

33.The mere suggestion in cross-examination of the appellant acting in self-defence does not raise the defence. In any event, the magistrate considered the answer to that suggestion by PW1 and accepted it. He accepted PW1 was not the aggressor nor did he fight back causing the appellant injuries or damage to his watch.

34.The magistrate found the explanation from PW1 to be reasonable and truthful, not a fanciful speculation on his part. That evidence can logically explain away the injuries and the damage. There is no merit in either ground.

Conclusion

35.I have reminded myself of the principles on “rehearing” magistracy appeals. I find no wrong, fault or flaw in the magistrates findings. He gave cogent analytical reasons for the findings of fact he made. He thoroughly evaluated the evidence of the victim; I would have come to the same conclusion as to his credibility. I see no reason to disturb this safe and satisfactory conviction.

36.Accordingly, I dismiss the appeal. The appellant is required to serve the sentence imposed by the court below with immediate effect.

Miss YUEN Man Kong, Zena, Senior Public Prosecutor of Department of Justice, for the Respondent

Mr William Allan, instructed by Messrs. Mohnani & Associates, for the Appellant