HKSAR v. Lee Kei Lok

HCMA 196/2024

[2025] HKCFI 1808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 196 OF 2024

(On appeal from ESCC 2460/2023)

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J U D G M E N T

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1.The Appellant was charged with one count of theft, contrary to section 9 of the Theft Ordinance, Chapter 210, to which he pleaded not guilty. On 9 April 2024, the Appellant, represented by counsel, was convicted after trial. By filing a notice to appeal on 16 April 2024, the Appellant appealed against his conviction.

Prosecution Case

2.The Prosecution called two prosecution witnesses, Madam Ng (PW1) was the complainant in this wounding case and another witness PW2 was the police officer who took a witness statement from PW1. The parties submitted a set of admitted facts (P2) to confirm certain injuries of PW1 and produce some photographs depicting PW1’s injuries and the offence location. It was also confirmed by admitted facts that the Appellant had no criminal conviction record in Hong Kong.

3.PW1 is the ex-girlfriend of the Appellant and the mother of his two young children. Approximately three months prior to this incident, PW1 and the Appellant moved into a flat in Kennedy Town, i.e. the offence location. At that time, they already had their elder daughter. Later in June 2023, the younger son was born.

4.On the morning of 28 July 2023, i.e. the date of offence, the Appellant and PW1 had already started to argue. The Appellant then brought their younger son to get his vaccination. After return at around 2 pm, PW1 at one stage questioned the Appellant about her bag of gold, which included her own gold jewellery from her late grandfather and the gifts for the children from their family members. PW1 suspected that the Appellant had hid that bag and that also reminded her of the Appellant owing her money. PW1 became agitated.

5.The Appellant who was having food at that time said he would give PW1 the bag after he had finished eating. PW1 also questioned the Appellant about when he would repay her. The Appellant did not reply and PW1 got angry.

6.PW1 was at the time standing near the dining table and the Appellant was sitting on the sofa. They were around two to three meters apart. PW1 picked up a plastic feeding bottle and threw it at the ground. She threw another plastic bottle and then finally threw a glass bottle. The glass bottle broke as it hit the ground. The Appellant got angry and said, “you throw things in my home”. He then got up from the sofa and took a few steps towards PW1. As he did so, PW1 got scared and stepped back but the Appellant grabbed her shoulders with both hands. PW1 felt her feet lift off the ground. The Appellant then threw her backward. PW1’s head hit a sharp corner, which PW1 said should have been the doorframe somewhere between the two doors behind her. PW1 sat on the floor crying. She then discovered blood and realized that she was bleeding on her head.

7.PW1 then went into her bedroom, sat on the bed crying and called her family member, that caused blood stains on the bed as could be seen on photograph P1(6). Eventually an ambulance was called. PW1 was taken to the hospital and had her injuries treated, as stated in paragraph 2 of P2 the admitted facts, including a 2 cm laceration on the right top side of her head with 2 stitches applied.

Defence Case

8.The Appellant elected to give evidence and called no other witnesses.

9.The Appellant is 24 years old, single, raised in Hong Kong, educated up to Form 3 in Hong Kong and then completed his studies in the UK. He returned to HK in 2019 and worked as a purchasing assistant for rice wholesale. Since July 2021, PW1 had been the Appellant’s girlfriend and they had two children together. Appellant described their relationship not being always happy. He produced exhibit D1, a photograph of himself to show his injury caused by PW1’s pinch and exhibit D2, a video clip taken to show the aftermath of PW1 having thrown a plate of vegetables to the floor.

10.On the morning of the date of offence, the Appellant was supposed to take his newborn son to get a vaccination but he woke up late. PW1 threw a tantrum and did not go with him, so he went alone. He called his parents to assist him at the health center and after they had finished, the baby went home with his parents to their Quarry Bay home. The Appellant then bought some takeaway to eat at home. He had called PW1 to ask if she had eaten and to see if she was at home but PW1 did not really answer him and just hung up.

11.The Appellant got home with his McDonalds takeaway and sat down on the sofa. He placed the food on the stools in front of him. He then went to the master bedroom to see if PW1 was there and saw her lying in bed so the Appellant did not pay attention to her and went back to the sofa to eat.

12.Approximately 5 to 10 minutes later, PW1 came out and asked the Appellant where her bag of gold was. The Appellant said he would give it to her after he had finished eating. The Appellant had put the gold on top of the closet so that the external wall scaffolding workers would not be able to see it. PW1 got agitated and said that the gold was hers. PW1 got more and more agitated and started to pick up hard objects near her to throw at the Appellant. Her first throw of thing did not hit the Appellant, but the second throw caused the Appellant feeling something hit at his right arm. The Appellant then turned to look at PW1 and noticed a glass feeding bottle on the dining table. The Appellant immediately stood up and moved forward intending to get hold of that bottle, but PW1 was closer, so she grabbed the bottle first. By the time the Appellant reached for PW1’s hand, she had already thrown the glass bottle from her hand.

13.There were two stools between the Appellant and PW1. To avoid knocking over the stools, the Appellant leaned his body forward with his feet on the ground and reached for PW1’s hand. At the same time when PW1 threw the glass bottle, the Appellant’s hand touched PW1’s hand. The next thing that the Appellant came to know was that PW1 was sitting on the floor crying.

14.The Appellant thought PW1 was crying simply because she was on the floor. The Appellant went back to eat but later noticed that she was bleeding. The Appellant then brought her tissue paper to stop her bleeding and called 999 at the same time.

15.The Appellant also gave evidence about their ongoing issues including legal proceedings at the family court that he had commenced for the custody of his children.

The Magistrate’s Findings

16.After giving herself standard directions on law like the burden and the standard of proof and the requirements for drawing inferences, the Magistrate described the Appellant’s case as simple. It was the Appellant’s case that he did not grab, throw, or push PW1. He simply leaned forward towards PW1 and the only contact he had with PW1 was at the time when he tried to grab the bottle from PW1’s hand. It was at that time that his hand touched her hand. The Appellant agreed during cross-examination that the contact was a very slight touch. The Appellant was further cross-examined as to whether the main cause leading to PW1’s injury was, upon the Appellant’s understanding, that PW1 just lost balance herself. The Appellant said he was not sure if she stepped on something or slipped, or might be both.

17.The Magistrate found the Appellant’s version unreasonable. She commented that, if the Appellant only had a “slight touch” with PW1’s palm and that was the only physical contact he ever had with PW1, it could not have caused PW1 to fall and hit her head. The Magistrate also observed that, the Appellant, being in close contact with PW1 at the time, should have been able to see clearly all the actions of PW1. He nevertheless was unable to say whether she lost balance, slipped, tripped or fell. He simply said that after that “slight touch”, she was already sitting on the floor crying. The Magistrate found it wholly incredible as the Appellant was at such a short distance away from PW1 and the size of the dining area was small. The Magistrate therefore did not find the Appellant to be an honest and reliable witness and did not accept his version of how the incident occurred.

18.On the other hand, the Magistrate had also considered the evidence of the Prosecution including the Defence criticisms of PW1’s evidence being contradictory to or inconsistent with her witness statement taken by PW2. Those were matters like the timing of the parties moving into the flat, the circumstances under which PW1 threw the bottles, and how PW1 described about being grabbed and thrown by the Appellant. The Magistrate accepted PW1’s explanations and took the view that her evidence was clear, direct, simple and forthcoming. The Magistrate found her to be an honest and reliable witness and accepted her evidence in full. The Magistrate accepted that the incident occurred in the way as PW1 described and that her injuries also appeared to be consistent with the way she said the incident had occurred. The Magistrate did not accept the Defence suggestion that PW1 might have tripped on something accidentally.

19.Based upon the accepted evidence, the Magistrate found that the Appellant had grabbed PW1 by her shoulders in the way she described and pushed her backward. As the Appellant was much larger in build and taller than PW1, the force used by the Appellant caused PW1 to be thrown backward. As PW1 was standing near the doorway of the two room doors, she then bumped her head against the sharp edge of a doorframe, thus causing the 2 cm laceration on the right top side of her head which required stitches.

20.The Magistrate was certain that when the Appellant acted that way, given the location where PW1 was standing, he could foresee the risk of PW1 being thrown back and hitting the doorframe but ignored that risk and still went on to act in that way. In the circumstances, the Magistrate was satisfied that the charge had been proven beyond reasonable doubt and convicted the Appellant accordingly.

Grounds of Appeal

21.The Appellant relied on two grounds of appeal as follows:-

(a)  Ground 1: The Magistrate erred in failing to give a Liberato direction and thereby failing to properly analyse the evidence of the Appellant which resulted in the conviction being unsafe and unsatisfactory.

(b)  Ground 2: The Magistrate erred in accepting PWl’s evidence as she had failed to take into any or sufficient regard to PWl’s motive to lie in this case and also erred in rejecting the evidence of PW2 without any evidential basis. As a result of these errors, this had rendered the conviction unsafe and unsatisfactory.

My Analysis and Decision

22.According to the Court of Final Appeal’s decision in HKSAR v Hui Lai Ki (2024) 27 HKCFAR 265, magistracy appeals are to be conducted by way of rehearing. The judge must be satisfied that the Appellant’s guilt has been proven beyond reasonable doubt on the evidence, failing which the appeal must be allowed. An appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of fact based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

23.I have considered all the written and the oral submissions by the parties but do not seek to repeat all of them here. Very briefly, the Appellant complained that the Magistrate erred in accepting PW1’s evidence by failing to properly consider her evidence including her motive to lie and at the same time erred in rejecting the Appellant’s evidence. On the other hand, the Respondent, by reciting the Magistrate’s reasons as I had summarized above, contended that there was ample evidence to convict and the conviction should stand.

24.Leaving aside the issue of a Liberato direction, I am of the view that the two grounds of appeal can be considered and dealt with together. After all, l am at the end of the day required to conduct a “rehearing” by considering all the evidence to see if I can be satisfied that the Appellant’s guilt has been proven beyond reasonable doubt on the evidence.

25.As revealed from the evidence of PW1 and the Appellant as well as the admitted facts, there were various matters which were not in dispute at the trial. Those included the fact that the parties were having an argument and that PW1 was throwing bottles at the material time in the living room which was quite a small area with miscellaneous items, and that PW1’s head was eventually injured (with also tenderness at lower back and buttocks as well as bruises on knees).

26.The key issue of dispute was a factual one and that it was how PW1 was injured.

27.PW1 described the incident as a deliberate act by the Appellant, as she said it was the Appellant who grabbed her shoulders, lifted her off the ground, threw her backward and caused her head hitting a sharp object.

28.On the other hand, the Appellant denied having grabbed and thrown PW1 backward (though his hand had come into contact with PW1’s hand when PW1 was about to throw a bottle) and that he reckoned that PW1 might have lost balance or slipped or both and accidentally hurt herself. The Appellant’s version, in more detail, was that, since there were two stools between himself and PW1 at that time, he had to lean his body forward with his feet on the ground to avoid knocking down the stools when he was trying to stop PW1 from reaching for the glass bottle which he believed PW1 would throw next. The Appellant then heard the sound of glass shattering and the next thing that he noticed was that PW1 was already on the floor. The Appellant therefore believed that PW1 had lost her balance and fell.

29.It appeared that the Magistrate rejected that Appellant’s version mainly for two reasons. First, she was not convinced that the Appellant’s “slight touch” with PW1’s palm could have caused PW1 to fall and hit her head. Second, the Appellant being in close contact with PW1 at the time should have been able to see clearly all the actions of PW1 and yet he was unable to say whether she lost balance, slipped, tripped or fell.

30.After consideration, I was not convinced that those were valid or sound reasons to reject the Appellant’s version.

31.First, it was never the Appellant’s case that his contact with PW1’s hand had caused her to fall. The Appellant’s evidence in essence was that he did not do anything to cause PW1 to fall but as it was a fact that she did fall so he believed that she fell accidentally because she lost her balance.

32.Second, it was possible or at least not unreasonable for the Appellant not being able to describe all the actions of PW1 and give clear evidence as to why or how PW1 fell. PW1 fell suddenly and it happened in a split second. More importantly, even according to PW1’s own version, she was the aggressor in the incident as she first threw two plastic feeding bottles and lastly a glass bottle which broke into pieces on the ground. It was reasonable or at least possible for the Appellant’s attention to be attracted by the throwing and the shattering of the glass bottle (as he said he heard the sound of glass shattering and the next thing that he noticed was that PW1 was already on the floor), not to mention that there were two stools between himself and PW1 (which was accepted by PW1) and that the Appellant had to lean forward to avoid the stools which would naturally divert his attention to some extent.

33.In fact, as a matter of common sense, when PW1 was acting in such an emotional way, by being agitated and even throwing items including glass bottle, the possibilities of her slipping or tripping over something or losing balance and then falling over onto the floor could not be discounted. I found this particularly possible when I closely examined the interior of the living room when the incident took place, where it was small and crowded with many items around, as depicted in the relevant photographs P1(2) to (8).

34.I had also considered the various criticisms arising from the discrepancies between the Appellant’s evidence in court and her witness statement, for instance, about the number of bottles thrown by PW1 and the circumstances under which they were thrown, whether and how PW1 was lifted by the Appellant, and the earlier argument of the parties on the date of offence before the incident. Those matters in isolation might not be significant or could have been explained away by PW1 as the Magistrate found, but if considered together the cumulative effect of which would have a bearing on the credibility of PW1 which was particularly crucial in a case of domestic dispute like this one.

35.Lastly, though I could not be sure as to whether this was a case of frame-up as suggested by the Appellant, I did not lose sight of the fact that the parties were not on harmonious terms and there was an ongoing custody battle over the children. That added to my sense of unease or uncertainty.

36.No doubt the parties were having an argument, PW1 was injured on her head in this incident and the Appellant at least had physical contact with PW1 immediately prior to her fall (though the Appellant only claimed it to be a “slight contact”), suspicious as it was, I could not be sure as to how PW1’s injuries came about. In other words, I could not be sure as to whether it was a deliberate assault as described by PW1 or it was an accident as suggested by the Appellant. The two grounds of appeal, as far as the criticisms about the Magistrate’s full acceptance of PW1’s evidence and her rejection of the Appellant’s evidence are concerned, should succeed.

37.After conducting a “rehearing” by carefully looking at all the evidence, I could not be satisfied that the Appellant’s guilt had been proven beyond reasonable doubt under the charge. The appeal against conviction is allowed, the conviction quashed and the sentence set aside.

38.The Respondent in the written submission applied for a retrial in the event that the appeal was to be allowed. In view of all the evidence, my reasons for allowing the appeal and all the other circumstances, I do not consider this an appropriate case for ordering a retrial.

Mr Prakash Lachmandas Daryanani, SPP, of Department of Justice, for the Respondent

Ms Lam Priscilia T.Y. and Mr Ho, Ching Him, instructed by Morley Chow Seto, for the Appellant