HKSAR v. Vandamme, Bastien Matthieu Jacques Roger

HCMA 458/2022

[2024] HKCFI 915

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 458 OF 2022

(ON APPEAL FROM ESCC 962/2022)

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BETWEEN

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J U D G M E N T

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Criminal Damage

1.The appellant was convicted of Charge 1, criminal damage, conch to section 60 (1)  of the Crimes Ordinance, Cap 200 whilst he was acquitted of Charge 2, assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences against the Person Ordinance, Cap 212.  He now appeals against his conviction of Charge 1.

The Prosecution Case

2.On 9 March 2022 at about 1 pm, the appellant went to a convenience store on Lama Island to collect a SF Express Courier Parcel. The proprietor of the store, PW1 had a contract with SF to take parcels on their behalf and to notify recipients to collect it from her directly.  Apparently, collection should be within 48 hours from delivery to her shop.  If not collected, SF staff would take the parcel back to their main depot on Kowloon side.

3.When the appellant went to collect his parcel, he was told by PW1 that it was not possible to collect as it was “over time, not here”.  However, it had not been 48-hour since it was delivered to this store.  It transpired that the parcel was still in the store because the appellant left after being refused and came back not long after with a SF Express employee.  He instructed PW1 to hand over the parcel to its rightful owner, the appellant.  It would appear the situation became heated and PW1 angry but the appellant could not understand the Cantonese spoken between PW1 and the employee.  Eventually, the appellant was able to collect his parcel.

4.When he left the store, the appellant took off a piece of paper from a board placed outside in a public place, Exhibit P5.  PW1 rushed out of the store to get it back and confront the appellant.  There was another notice on the same board that appeared to be related to Exhibit P5.

5.On it was written the following, “SF customers please note due to the severe pandemic door-to-door delivery has stopped.  Therefore, our express mail will increase greatly.  Please customers receive the message on the day.  Pick up the express, if you don’t pick it up on the same day.”  Directly below this was Exhibit P5 taken by the appellant, which said, “you will be blacklisted and we will never accept blacklisted shipments from then onwards”.  Nothing on this notice referred to the agreed 48-hour time period to collect SF parcels.

6.The prosecution’s case is that PW1 rushed out from the store and grabbed the appellant’s arm.  There was pulling and grabbing after which she felt a strong impact on her mouth and she fainted.  She did not know what had hit her face.  Photographs of her mouth and lip injury were produced, as was a medical report.  PW2 the neighbouring storeowner assisted PW1 and gave evidence that PW1 was not the aggressor.

The Defence Case

7.The appellant elected to give evidence and called his wife.  She gave evidence of taking photographs of his ripped upper garment, ripped by PW1.  The appellant had been quarantined or isolated as a close contact of a Covid sufferer when he received a message to collect his parcel.  However, 48 hours had not passed before he went to collect his SF parcel.  There was a dispute and he had to return later having enlisted the help of a SF employee from a depot nearby who helped him retrieve his parcel from the store much to the chagrin of PW1 who had told the appellant that the parcel was no longer there.

8.The appellant believed that PW1 would blacklist him going forward which made him unhappy and he tried to communicate this to PW1 but language was an issue.  When he left the store, he did take down the notice Exhibit P5.  He felt it was wrong for her to blacklist customers who did not pick up parcels on the same day as receiving a message but because he was unable to communicate that to her in Cantonese, he took it down to make the point.

9.She then rushed out of the store and attacked him.  She pushed him and grabbed him with both her hands whilst shouting at him. He told her to stop in English but she got up close to his face and continued to shout at him.  He felt his jumper or upper garment tear.  There was a photograph of his ripped garment in the exhibits.  She then went to punch him and he warded off her swing with his right arm.

10.He was holding Exhibit P5 in his right hand at the time, which became crumpled as he made a fist to stop blows.  He felt the back of his right hand coming into contact with her chin as he warded off PW1 and her blows.  She let him go but then came back and punched his shoulder a few more times whilst shouting at him continuously.  PW2 came over to intervene and separate her from the appellant.  The police were called.

The Magistrate’s Findings

11.The magistrate acquitted the appellant of the more serious charge of assaulting PW1.  She said she could not rule out what the appellant said may have been true.  She did convict the appellant of criminally damaging the piece of paper.  I have read the transcript that includes the evidence of both PW1 and the appellant.  Clearly, PW1’s evidence was contradictory, argumentative, evasive and hard to find credible.  Tempers were frayed and lost in this unfortunate incident, not helped I am sure by the stress and fear created by the pandemic and having to live with it day to day.

12.The magistrate essentially convicted the appellant of criminal damage on his own evidence.  He said in his evidence that he removed the notice Exhibit P5 to send a message to PW1 and make his point clear in light of their language barriers.  The magistrate’s finding was this did not constitute a lawful excuse.  She found his evidence of removing the notice showed he was reckless as to whether the piece of paper would be damaged.

13.The magistrate noted there was no evidence from the owner of the piece of paper how it had been attached to the notice board before it was removed by the appellant.  PW1 was not asked.  The magistrate found the appellant must have torn it off the noticeboard and damaged it because from the photograph Exhibit P1 (5)  there appeared to be scraps or bits of paper on the board she found to be the remaining parts or missing parts of Exhibit P5.  Her finding was that it is clear the notice was torn down and not removed carefully.  Hence, she found the appellant reckless as to whether he damaged the paper or not.

Grounds of Appeal

14.The appellant, represented by Mr Terry Kan and Mr Elson Tong put forward one ground of appeal and that is “The magistrate erred in finding that the appellant had caused damage to the notice.  She should have found that there was no or insufficient evidence as to:

i)  the condition of the notice prior to the committing of the alleged offence;

ii)  how the notice was attached to the noticeboard;

iii)  the manner in which the Appellant removed it from the noticeboard and whether the removal caused damage to it.

As such, the magistrate should have held that there was a reasonable doubt as to whether the appellant had caused damage to the notice.

Legal Principles

15.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.  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. 

16.The credibility of witnesses in this case is central to the issue.  The trial magistrate enjoyed the advantage unlike the appellate court, of having seen and heard the witnesses giving evidence.  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.

17.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.

Considerations

18.This is an appeal about whether a piece of paper with an objectionable notice printed on it was destroyed or damaged by the appellant.  Did he intend to destroy or damage it or was he reckless as to whether it would be destroyed or damaged?  The damage allegedly was that three corners were missing but the notice itself was intact. The damage to this piece of paper was negligible.

19.Obviously the more serious charge of assault dominated the questions put in chief and in cross-examination to both witnesses.  What it means is that the facts surrounding this piece of paper were not fully canvassed or even established.  The magistrate acquitted the appellant of that assault offence.  A reading of the transcript shows that must have been the correct decision.  There was no fault with the decision to prosecute in light of the injuries to PW1’s face and the facts surrounding the delivery of a parcel and the piece of paper of Charge 1.

20.There is no doubt that PW1 said the appellant “took” one of the pieces of paper on the board.  The appellant said he “removed” one of the pieces of paper because he disagreed with the content, that PW1 would blacklist him.  He also used the words “took” or “took away”.  He denied he “tore” the paper.  PW1 did not say the appellant tore the piece of paper.  The magistrate made a finding that he did tear it because there were bits of paper left on the board and bits of paper missing from Exhibit P5.

21.The magistrate assumed it was torn by the appellant because of the bits of paper left on the board.  Assuming, guessing or speculating cannot play any part in proving guilt.  In any event, the corners missing on Exhibit P5 as seen in the photograph Exhibit P1(6)  do not appear to match 3 pieces of paper on the noticeboard as seen in Exhibit P1(5).  Therefore, other possibilities or inferences exist other than the one drawn by the magistrate.

22.Counsel for the appellant submits that in the absence of any evidence from PW1 as to how Exhibit P5 was attached to the noticeboard, what state it was in before the appellant “removed” it, was there any previous damage or was it intact means there is more than one inference that can be drawn.  I agree with that submission and find there is merit in this appeal.

23.Therefore, I find the conviction unsafe and unsatisfactory.  The appellant’s appeal against conviction is allowed and his conviction quashed.

Costs

24.I make an order nisi that the respondent pay the costs of the appellant in this appeal, such costs to be taxed if not agreed.

25.I make an order nisi that there be no order as to costs of the trial below.

26.Should any party seek different orders as to costs, written submissions should be lodged and served on the other party within 14 days of the handing down of this judgement, with liberty on the other party to lodge and serve written submissions in reply within 14 days thereafter.

27.If no written submissions are received seeking a different order as to costs before the expiry of the relevant period, the orders nisi will become absolute.

Mr Wilson Choi, Senior Public Prosecutor of Department of Justice, for the Respondent

Mr Terry Kan & Mr Elson Tong, instructed by YTL LLP, for the Appellant