HKSAR v. Ondreka, Adam

HCMA 369/2023

[2024] HKCFI 1484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 369 OF 2023

(ON APPEAL FROM ESCC 954/2022)

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BETWEEN

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J U D G M E N T

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Appeal against Conviction

1.The appellant was convicted after trial of one count of theft, Charge 1 and one count of assault occasioning actual bodily harm,   Charge 2.  On the same day as his conviction, 18 April 2023, the appellant was sentenced to 7 days’ imprisonment for Charge 1 and 4 weeks’ imprisonment for Charge 2; both sentences were ordered to be served concurrently.  The appellant has served his sentence and been released.  He now appeals against his conviction only.

The Prosecution Case

2.The appellant was convicted of stealing several items from City Super supermarket on 13 June 2022 and on the same day assaulting Lam Ting Kwok, thereby occasioning actual bodily harm to the victim, an employee of City Super.

3.The parties admitted certain facts.  It was agreed that the appellant was in City Super at the material time and had a guitar bag with him.  Stolen items were found in his guitar bag that were not paid for and belonged to City Super Limited.  Those items included cookies, cheese, pineapple juice and bottle of coffee with a value of HK$123.  CCTV footage covering the supermarket and IFC mall outside the supermarket was produced.  Lastly, medical reports for the victim of Charge 2 and the appellant were produced.

4.The prosecution’s case was that the victim Mr Lam was a security guard and noticed the appellant in City Super on 13 June 2022 on CCTV from the security room acting suspiciously in the aisles.  He kept the appellant under surveillance.  He saw the appellant walking into the furthest aisles at the back of the store and placing some items in the side pocket of his guitar bag.  He believed he was stealing the items so informed a colleague.  He left the security room to follow the appellant but called for assistance as he thought he might need help.  He then saw the appellant paying for a loaf of bread only.

5.He watched the appellant leave City Super and walk into IFC mall with items unpaid for in his guitar bag.  He and several colleagues intercepted the appellant some distance away from the entrance of the supermarket and asked him to return. At first, the appellant appeared to cooperate, turned round and walked back towards City Super.

6.However, just before entering City Super the appellant suddenly ran away.  The victim, his colleagues as well as security guards chased him from IFC mall.  They managed to catch the appellant and steer him into a stairwell area.  These actions were captured by CCTV and produced.

7.In that back area, the appellant struggled and refused to cooperate.  The victim tried to stop the appellant from running away and was assaulted by the appellant.  The appellant threw punches and kicked him.  It was a very chaotic situation that went on for a long time before the police arrived.  Only after the police arrived did the appellant stopped struggling.  The medical report at Exhibit P5 recorded a lower lip cut, left elbow redness, bilateral knee redness.  PW1 refused an offer to suture his lower lip cut.

The Defence Case

8.The appellant was legally represented and elected to give evidence in the court below.  The defence case was that he did pick up those items of Charge 1 in the supermarket but could not afford to pay for them.  He challenged himself to look for someone in the mall, not the supermarket who would buy those items for him out of kindness.

9.He was not guilty of theft because he had no intention to steal the items when he took them out of the supermarket in the side pocket of his guitar bag.  If he could not find someone to pay for them then, he would have returned to the supermarket and put the items back.

10.When returning to the supermarket with the security guards it was the victim and his colleagues who assaulted him.  This frightened him and he ran away from them.  He did not assault anyone.  He was the victim of an assault.  His medical report, Exhibit D1, refers to tenderness only.

The Magistrates Findings

11.The magistrate found PW1’s evidence credible.  His evidence that the appellant took the stolen items from the supermarket, put them in the side pocket of his guitar bag and walked out of the supermarket without paying for those items was supported by CCTV footage.  The appellant in fact does not dispute that evidence.

12.The magistrate found PW1’s evidence credible as to how the appellant ran away when escorted back towards the supermarket.  The appellant dropped his guitar bag and backpack to stop the security guards catching him.  Again, CCTV footage supports the prosecution’s evidence.

13.There was CCTV footage of the back stairwell of a long and persistent struggle between the appellant and several other men.  The victim can be seen trying to hold onto the appellant.  He can be seen wrapping his arms around the appellant.  The magistrate accepted that the appellant’s actions against and struggling with the victim caused injuries to the victim.

14.The magistrate found the CCTV footage itself proved the appellant’s testimony was unreliable and contradictory.  The CCTV footage shows the appellant in aisles acting furtively. In aisles where there were no other customers, he quickly putting items into the side pocket of his guitar bag.  If he were intending to approach people to ask them to help him pay for the items, then he would not need to secrete them in his guitar bag or act so furtively.

15.The appellant’s evidence made no sense when he said he did not have the courage to approach anyone inside City Super so decided to go into IFC mall to find a suitable person.  The magistrate believed his evidence was a total fabrication.  Moreover, the CCTV footage shows him exiting the supermarket and walking with purpose away from the exit.  He was not looking around for people he could approach.

16.The magistrate rejected the appellant’s evidence that he did not know who these men were who surrounded him near the escalator of the more.  Their uniforms made it clear plus he appeared to cooperate and return to the supermarket with them.

17.The appellant was found to be unreliable and fabricated his evidence.  His evidence he was assaulted, which made him run, is not supported by the CCTV footage.  He is seen suddenly dropping all his personal belongings and running away.  The magistrate found that he was trying to flee the scene because he had been caught shoplifting.

18.The magistrate was satisfied that all the elements of theft were proved beyond reasonable doubt.  The prosecution witness was credible and reliable.  The appellant’s suggestion he had no intention to steal but was going to return the items to the shop if he could not find someone to pay for them was rejected outright as ludicrous.

19.The magistrate rejected the appellant’s claim of self-defence as far as the second charge is concerned. The magistrate found the appellant intentionally assaulted the victim and was reckless as to whether his assaults would injure him.  The appellant’s continuous struggle against the victim and other security guards with force was an attempt to escape apprehension.  The CCTV footage of the struggle is clear.  Therefore, the magistrate believed the elements of Charge 2 were proved beyond reasonable doubt as well.

Legal Principles

20.It is a clearly established approach and principle that a magistracy appeal is conducted by way of a rehearing on the evidence before the trial court.

21.Such further evidence as the appellate court may admit within its statutory power can supplement this.

22.Where findings of fact are based on oral testimony of witnesses, the appellate court would be subject to limitations and must exercise caution.   The magistrate enjoyed the advantage of having seen and heard witnesses giving evidence, which the appellate court does not enjoy.

23.However, the appellate court must work within those limitations when undertaking its duty to rehear the trial to reach its own conclusion on disputed issues of fact or law.

24.If the appellate court is not satisfied on the evidence of the appellant’s guilt beyond reasonable doubt, then the appeal must be allowed.  If the appellate court comes to a different view on that evidence, that justifies a decision to allow the appeal.

25.What this means is that the appellate court is required to consider and weigh all the relevant evidence and reach its own conclusion as to whether the elements of charges are proved to the requisite standard, beyond reasonable doubt.

Grounds of Appeal and Discussion

26.The appellant represented himself in his appeal and his handwritten grounds of appeal have been carefully and fairly summarised by the respondent in written submissions.  I have had the opportunity to consider the transcripts, CCTV footage, exhibits, Statement of Findings, written and oral submissions.

27.The 1^st Ground – PW1 was not an honest and truthful witness.  His oral evidence contradicted the CCTV footage.

28.There is no merit in this ground.  The magistrate at length and carefully considered the credibility of the victim, PW1.  Moreover, I agree CCTV footage supports his oral evidence. CCTV does not support the appellant’s case, evidence or submissions.

29.The 2^nd and 3^rd Grounds – PW1 was not telling the truth when he said he indicated he was a security guard and invited the appellant to return to the supermarket.  He only said “hi” to the appellant.  The appellant turned to return to the supermarket on his own initiative.  It appeared the victim did not speak English at all.

30.There is no merit in these grounds.  The magistrate considered at length this part of PW1’s evidence in conjunction with the CCTV footage and gave valid reasons for accepting this part of his evidence.  It was not raised during the trial whether PW1 could speak any English or not.

31.The 4^th Ground – counsel for the appellant during trial did not put to PW1 that he in fact assaulted the appellant.

32.There is no merit in this ground.  The appellant testified to PW1 being the most active, most eager to touch and the most eager to use force out of all the security guards against him.  Others also touched, pushed, pressed, kicked and even choked him.  Counsel did put to PW1 that he was sitting or kneeling on the floor in the stairwell with both arms around the appellant’s legs during the struggle.  PW1 essentially agreed and this part of the struggle is shown in the CCTV footage.

33.The 5^th Ground – relates again to PW1’s credibility.  The magistrate was wrong to believe the appellant ran away before re-entering the supermarket and wrong to believe PW1’s evidence.  It was PW1 who used violence against the appellant before entering City Super without provocation.

34.This ground is without merit.  The magistrate’s finding that the appellant suddenly threw down all his belongings and ran before re-entering the supermarket was based on credible evidence supported by CCTV footage.

35.The 6^th Ground – the magistrate was wrong to find the stolen items concealed by the appellant.

36.This ground is without merit.  There was a translation issue cleared up during the appellant’s evidence.  The appellant’s evidence that the side pocket of his guitar case was open was translated as “transparent”.  What he meant was that it was not zipped up and therefore open.  The magistrate accepted that.  She made no finding the appellant zipped up the side pocket after putting stolen items in it.

37.The 7^th Ground and 9^th Ground can be considered together – the magistrate failed to consider the appellant’s struggle was him acting in self-defence.  She failed to consider his evidence that he was running to find staff of IFC mall to help him after staff of City Super had assaulted him.  She failed to consider the appellant was the victim of an assault.

38.These grounds are without merit.  On the evidence I have considered, the appellant did not run because he was assaulted.  There was no assault on him.  He ran because he had been caught stealing from the supermarket and trying to walk away.  It took several men to catch him and subdue him before the police arrived.  The CCTV footage refutes the appellant’s suggestion that the victim and other security or staff members acted aggressively, unreasonably and initiated the physical struggle.

39.The 8^th Ground – the magistrate failed to consider the evidence that the appellant punched and bit PW1 was not captured on CCTV.

40.This ground is without merit.  A reading of the transcript shows the victim describing the assault using the CCTV footage played in open court during the trial.  He said that the appellant threw punches and bit him within seconds of entering this stair well area of the mall.  CCTV did not cover that area.  A viewing of the CCTV during the appeal confirms that not the entire area behind the exit doors leading from the mall was visible or captured by CCTV cameras.

41.The magistrate considered this point and was aware that not the entire incident or struggle was captured by camera.  She nevertheless believed the appellant was trying to escape and used violence against the victim, reckless as to whether he would sustain any injury.

42.The 10^th Ground and 11th Ground – these grounds are related to the 8^th Ground.  The appellant submits PW1 mentioned the struggle was chaotic and his walkie-talkie dropped to the floor.  This means it could have been his walkie-talkie that hit him in the face and injured him; not the appellant.  The last ground claims the appellant kept his physical movements to a minimum and did not defend himself against the violent staff and security officers.

43.These grounds are without merit.  PW1 did say his walkie-talkie was dislodged because a forceful blow from the appellant landed on him and dislodged it.  CCTV footage shows the appellant run away from the supermarket and its staff.  The footage shows him struggling for a very long time with several men hanging off him, trying to subdue him and control his limbs.  Essentially, these grounds are inconsistent with the CCTV footage.

Conclusion

44.This appeal is a rehearing on the evidence before the magistrate. Credibility is the crucial issue and I am disadvantaged by not having the advantage of hearing witnesses give evidence.  However, I have transcripts of the oral evidence and clear CCTV footage of the mall and City Super.

45.The CCTV footage corroborates PW1’s evidence.  The CCTV footage refutes the appellant’s case and submissions made in his grounds of appeal and during the appeal hearing.  I have considered and weighed up all this evidence and reached my own conclusion.

46.I am not persuaded that the magistrate has erred in her assessment and rejection of the ludicrous evidence of the appellant.  There is more than sufficient evidence for the magistrate to conclude as she did on both charges.  Her findings and reasons given are more than valid; they are correct.

47.I am sure that an inference of guilt for both offences was properly drawn on the evidence of this case.  Like the magistrate, I am also sure all elements of both charges were proved beyond reasonable doubt.

48.In the circumstances, the magistrate was justified in convicting the appellant and I find no basis for disturbing these convictions.  This appeal against both convictions is dismissed.

Mr Peter Leung, Public Prosecutor of Department of Justice, for the Respondent

The Appellant appeared in person