HKSAR v. Otremba, Andrew John

HCMA 473/2024

[2025] HKCFI 4260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 473 OF 2024

(ON APPEAL FROM ESCC 548 OF 2024)

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J U D G M E N T

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1.The Appellant was convicted after trial with one count of “common assault” against Mr Suen, PW1, a taxi driver. The Appellant was sentenced to 10 days’ imprisonment and ordered to make compensation to PW1 of HK$4,000. The Appellant now appeals against both conviction and sentence.

Prosecution Case

2.As briefly summarised by the Respondent, the prosecution’s case is that on 19 August 2023 after midnight, the drunk Appellant boarded PW1’s taxi. Upon reaching the destination, the Appellant failed to pay the taxi fare despite PW1’s repeated demands, and punched PW1’s left shoulder once.

3.PW1 alighted from the taxi and locked the doors. The Appellant proceeded to climb from the left rear passenger seat to the front passenger seat, which had a window open, and attempted to climb out of the taxi. The Appellant also tried to push open the front passenger door. PW1 resisted by pushing against the same door. During this period, PW1’s left forehead was punched once. The punch caused PW1’s eyeglasses to fall to the floor. The eyeglasses, which cost around HK$4,000, were damaged. PW1 also suffered eye pain and visual blurring as a result.

4.PW1 reported the case to the police and was subsequently taken to the hospital. He was prescribed painkillers and was given four days’ sick leave.

Defence Case

5.The defendant gave evidence in court that he and PW1 had a dispute as to the appropriate taxi fare, as the fare was higher than usual but PW1 suddenly attempted to grab the Appellant’s wallet and locked the Appellant inside the taxi without reason. The Appellant then attempted to get out of the taxi, and any injuries the Appellant caused PW1 were either accidental or as a result of self-defence.

Magistrate’s Findings

6.Firstly, on whether PW1 had exaggerated the matter, the Magistrate found it immaterial that PW1’s statement failed to mention the allegation PW1 made in court about the Appellant alighting in the middle of the journey. This allegation only goes to show the Appellant’s level of drunkenness prior to the offence, rather than going towards the material time of the alleged assault.

7.Secondly, the Magistrate found that PW1 had not been exaggerating the Appellant’s drunkenness. Considering PW1’s evidence as a whole, the Magistrate did not consider PW1 to have exaggerated the level of the Appellant’s drunkenness.

8.Thirdly, in relation to being hit by the Appellant on the back of his palm as the Appellant was trying to get out of the taxi, PW1’s first answer was that it was “just a touch” and that it could have been accidental. The Magistrate considered that it demonstrated that PW1 was ready to concede on matters even in the Appellant’s favour.

9.Considering whether PW1 was evasive, the Magistrate found that, firstly, given that PW1 was asked about his own convictions and was warned about his risk of self-incrimination, PW1’s guarded reaction towards cross-examination is understandable.

10.Secondly, PW1 did answer in a detailed and consistent manner, including admitting to locking the Appellant inside the taxi, which may be harmful to his own case. The Magistrate did not find PW1’s demeanour to be evasive.

11.Concerning whether PW1’s evidence is reasonable and consistent, the Magistrate found his evidence is not inherently improbable in any way. Firstly, PW1’s failure to stop the meter is not unreasonable. PW1 could not be sure whether the journey had really come to an end at that time and location.

12.Secondly, PW1’s evidence was that the Appellant tried to push open the door, and that was why PW1 locked all the doors.

13.Thirdly, as for whether it was possible for PW1 to injure the Appellant as they were both pushing against the door, PW1 said he did give thought to it in a split second before he pushed against the door and thought there would be no risk of injuring the Appellant. The Magistrate found that PW1’s explanation was that he did not use much force, so his version was accepted by the Magistrate.

14.Fourthly, on PW1’s version, even if he did lock the Appellant inside the taxi, the Magistrate found that it was not false imprisonment without reason because it is lawful for PW1 to arrest the Appellant for reasonable suspicion of the offence of attempting to make off without payment.

15.Fifthly, the fact that PW1 had no observable injuries is consistent with his medical report (P1). The fact that PW1 reported blurriness in his eyes to the doctor but not the police is also understandable, given that the Appellant’s punch hit PW1’s left forehead as well as knocked off his glasses, so natural for PW1 to describe pain and discomfort around the eye area.

16.The Magistrate also considered that PW1’s failure to inform the Appellant that he had called the police because of his inability to communicate in English is consistent with the broken English that PW1 demonstrated by only managing to use the phrase, “Give me money.” The Magistrate did not find PW1’s failure to inform the Appellant unreasonable.

17.Lastly, the Magistrate also noted that the police had discussed with PW1 the possibility of the Appellant paying compensation in the sum of about HK$3,000 to HK$4,000 for the broken glasses. Considering the circumstances, the Magistrate was saying that this does not raise any suspicion that PW1 fabricated or exaggerated his evidence simply to get any compensation by the Appellant.

18.For PW2’s evidence, the Magistrate considered that only goes to show that PW1 did not mention the Appellant alighting on the Canal Road Flyover. The court considered that to be immaterial, and whether PW1 mentioned this immaterial detail to PW2 does not affect his credibility and reliability.

19.As to the Appellant’s evidence, the Magistrate was saying that having observed the Appellant’s demeanour and carefully considering his evidence, the Magistrate found his evidence to be unreasonable and illogical.

20.Firstly, the Appellant said he tried to get out of the taxi but not to expose himself to PW1. On one hand, the Appellant had been scared, but on the other hand, he sought further confrontation with PW1 by continuously engaging in the battle of trying to push open the door. Instead, the Magistrate considered that it would have been safer to stay inside the taxi and call for help from within.

21.Secondly, the Magistrate also considered that the Appellant sustaining injuries himself is neither here nor there. His injuries, per se, do not indicate that he was assaulted by PW1. They only point to the fact that the Appellant’s body had bumped against the taxi door.

22.In the circumstances, the Magistrate also did not accept the Appellant’s version of self-defence. The Appellant said his dispute with PW1 originated from his inquiry about the fare, which he thought to be more expensive than usual. If so, why? The Magistrate considered: why did the Appellant not request PW1 to stop the meter and to issue a fare receipt? Instead, PW1 demanded the Appellant to “give [him] money”, but the Appellant made no attempt to overcome the language barrier in communicating with the PW1 but just kept on shouting and swearing at PW1 in English. So all in all, the Magistrate did not consider the Appellant to be truthful in describing his own role in the dispute.

23.The Magistrate was certain that after arriving at the destinations the Appellant who was being drunk, first ignored PW1’s repeated requests to pay and then attempted to leave the taxi by trying to open the door. PW1 therefore locked the taxi doors. The Appellant punched PW1 on his left shoulder once, which was the Appellant’s first act of assault. PW1 left the taxi while locking the Appellant inside the taxi.

24.The Appellant then climbed to the front passenger seat and attempted to leave the taxi while PW1 tried to stop the Appellant. As both of them were pushing the door in the opposite directions, the Appellant punched PW1’s left forehead once, causing his glasses to fall to the ground as well as pain and blurriness in his eyes, which was the Appellant’s second act of assault.

25.The Magistrate was sure that the two acts were not accidental. The Magistrate did not find it possible that the first punch on the shoulder was merely a call for attention. No evidence suggesting the Appellant had attempted to communicate with PW1 either before or after the punch.

26.The Magistrate also did not find it possible that the second punch was an accident when the Appellant knew full well that PW1 was pushing against him. So the Magistrate was sure that the two acts were not done out of self-defence. The Appellant had no reason to suddenly punch PW1 on the shoulder just because PW1 asked for money from the Appellant at that juncture.

27.Then, the Magistrate was also satisfied, given the force of the punches and the overall circumstances, the Appellant must have at least been reckless, so the Appellant is accordingly convicted as charged.

Reasons for Sentence

28.For mitigation, the Appellant is 36 years old. He has achieved success in the area of engineering and data consultancy, and he is responsible for leading a team of consultants on projects earning about HK$90,000 per month. The Appellant has a clear record, and this was a one-off offence committed after having some alcohol to drink. The injuries were not major, and there was some language barrier. The Appellant also agreed to pay compensation of HK$4,000 to PW1 within seven days.

29.The Magistrate considered that the case only involved one charge of “common assault” on a night-shift taxi driver. The charge is relatively less serious, the injuries are not more serious in this case, but the Magistrate considered that there is a need to observe the element of deterrence in sentence.

30.Referring to the magistracy appeal of 香港特別行政區 訴 鄭煒東 (Cheng Wai Tung Stephen) [2023] HKCFI 1891, 香港特別行政區 訴 陳孝晃 (Chan Hau Fong) HCMA 234/2017 and 香港特別行政區 訴 向佑 (Heung Jonathan) [2017] HKCFI 413, the Magistrate was saying that, for these cases, it has been stated that taxi drivers are vulnerable to being attacked by virtue of their profession and, hence, should be protected by the imposition of a deterrent sentence on their attackers.

31.This case also involved a drunken episode. The Magistrate did not consider the Appellant to have any genuine remorse. He was convicted after trial. Throughout the trial, it can be seen that the Appellant was trying to put the blame on the taxi driver making claims that PW1 had “falsely imprisoned” him, and was the person who had repeatedly assaulted him, first by trying to grab his wallet and, subsequently, by pushing the door shut against the Appellant.

32.Considering the lack of remorse, coupled with the seriousness of assaulting a night-shift taxi driver, the Magistrate found that a community service order not appropriate in the circumstances, and given the need for deterrence of violence directed at taxi drivers, the Magistrate considered it necessary to send a clear message to the public that such violence will be met with serious consequences.

33.The Magistrate considered that short-term imprisonment would serve a balance between deterrence on one hand and not damaging the Appellant’s prospect of rehabilitation to the point that it becomes crushing on the other hand.

34.Referring to the cases mentioned above, the Chan Hau Fong case and Cheng Wai Tung Stephen case, in the Chan Hau Fong case, it involved a drunken assault on a taxi driver. The appellant used his chest to bump against the victim’s chest, as well as hit the back of the victim’s waist for about 10 times. The appellant had a violence-related conviction about 10 years ago for which he was fined. The court eventually upheld the original sentence of 14 days’ imprisonment.

35.In the Cheng Wai Tung Stephen case, where the appellant kicked the taxi door, climbed up to the driver’s seat, pressed the victim to a corner and used his right elbow to assault the victim’s left skull when the taxi was still in motion, the court also upheld the original sentence of 2 weeks’ imprisonment.

36.In the present case, the Magistrate considered that it involved multiple assaults by the Appellant on PW1 arising out of the Appellant trying to leave the taxi without payment. So the Magistrate took a starting point of 14 days’ imprisonment and reduced it by 4 days to account for the Appellant’s clear record, loss of reputation and career prospects arising out of his present conviction. Eventually, the Appellant was therefore sentenced to 10 days’ imprisonment.

Grounds of Appeal

37.Mr Lee put forward the following grounds of appeal.

1)  The Magistrate erred in accepting the evidence of PW1.

2)  The Magistrate erred in rejecting the evidence of the Appellant.

3)  The Magistrate failed to properly assess the documentary evidence favourable to the defence in the case.

4)  The Magistrate wrongly relied on the evidence of “uncharged acts”.

38.On sentence, taking into account all the background circumstances, 10 days’ imprisonment is manifestly excessive.

39.On the very detailed grounds of appeal, Mr Lee set out the gist of the Appellant’s appeal as follows by way of an overview. Firstly, this is a one-against-one case because the case mainly rests on the evidence of PW1, but PW1 was previously convicted by the court of falsely, intentionally and deliberately fabricating an assault on him by a stranger, which he still attempt to deny.

40.PW1 also got another previous conviction, attempting to put up a false alibi, where his appeal against conviction was again dismissed. In this case, PW1 has multiple previous convictions with a long mental history, while the Appellant was a person of clear record.

41.Third, the Magistrate found that both PW1 and PW2, whose evidence were directly contradictory to one another, but yet still holding that both were honest and believable witnesses, the Magistrate did not find which of these contradictory versions to be true.

42.Fourthly, the Appellant also suffered injuries after the incident. His injuries were never challenged by the prosecution.

43.Fifthly, PW1 also accepted that he had locked the Appellant in his taxi as they had a language barrier and the Appellant tried to leave, but PW1 prevented him from doing so. The Appellant’s response of trying to leave the taxi when he was locked in there against his will was “far from reasonable”, according to the Magistrate.

44.Lastly, the Magistrate also relied on “uncharged acts”, which were never put forward by the prosecution at any stage of the trial.

45.Returning to the detailed written submissions, on the ground 1, the Magistrate erred in accepting the evidence of PW1. PW1 was previously convicted of intentionally fabricating an assault by another person, where he was eventually prosecuted and convicted. Later on, PW1 also falsely tried to put up a defence of alibi when he was charged with criminal damage in another matter, but PW1 still disagreed with the conviction. Relating to grounds 2 and 3, there are photos evidence showing the Appellant’s injuries, which the prosecution has never suggested was caused by others.

46.Concerning the previous criminal convictions, PW1 got a charge of criminal damage in 1997. At trial he called his sister with the view of establishing an alibi, which was rejected by the Magistrate. His appeal against conviction was dismissed.

47.Later on, in 1998, PW1 was also convicted for a charge of “attempting to mislead a police officer”. In that case, he knowingly attempted to mislead a police officer by giving false information that he was assaulted by a female employee of a supermarket. PW1 had deliberately and intentionally misled the police, and that any suggestion that PW1 was assaulted by the employee was a total fabrication.

48.Against all this background, the Magistrate should be extremely cautious when assessing his evidence without any evidence in support, while the Magistrate, only paying lip service to that, saying that he had considered all this background.

49.Also, concerning the contradictory evidence between PW1 and PW2, at the outset, PW1 agreed that the Appellant leaving his taxi in the middle of the journey was something very important to his case, yet this was not in his written statement. But when confronted, PW1 even said that he told the police officer, PW2. He did mention that, but the police, PW2, simply said that it does not matter, and that PW1 could focus on the important stuff.

50.However, PW2 gave evidence in court firmly saying that PW1 never mentioned anything about the Appellant leaving the taxi. These two versions were simply contradictory to each other, but the Magistrate failed to reconcile this inconsistency, and it goes to the very issue of the case, namely concerning the credibility of PW1.

51.The Appellant referred to the case of 香港特別行政區 訴 柯育進(Or Yuk Chuen) HCMA 220/2023, where the court considered that the trial Magistrate’s finding that both were credible witnesses was unsatisfactory because if PW1 was a credible witness, why would she lie about the two versions told to her by PW1?

52.Likewise, applying the same logic in that case to the present one, if PW2, the police officer, was telling the truth, why would he lie about whether PW1 having told him about the Appellant getting off the taxi in the midway? Conversely, if PW1 was telling the truth, why would PW2 not make any record in his witness statement?

53.Further, the Appellant is also criticising PW1 who was evasive and refused to answer even some very simple questions. When being asked whether he has all along in his life been truthful to the police, PW1 firmly said, “Yes.” When being asked whether he has ever lied to the police in his life, PW1 gave a clear and unequivocal answer, “No.” PW1 then changed and said that he was convicted and “so what?”.

54.PW1 even went as far as to say that he could not remember the day of his taxi refusing hire conviction, which only took place in 2023, just a few months before the present incidents. PW1 still refused to answer the questions directly put to him simply saying that he could not remember the exact date, but the Magistrate nevertheless was saying that PW1’s guarded reaction is understandable, but the line of reasoning is that there was nothing unclear in the questions asked. However, it was all along PW1’s own case that he locked the Appellant inside the taxi because of the unpaid taxi fare. So in this regard, PW1 did not make any concession admission at all.

55.As to the inherent improbability of the event, the Appellant said that that may be contrary to common sense, because PW1 claimed that during that split second when he tried to close the door, he did pay attention and considered whether it was possible that the Appellant could be injured, and then he said he believed no injury could be caused. It is only against common sense in these circumstances. There must exist a possibility that both of them or at least one of them may be injured during the struggle.

56.What remains clear is that PW1 did not give a truthful answer when he is more than willing to change his answers to suit his interests. However, the Magistrate considered that PW1 did not exaggerate his evidence. As long as PW1 said something against his own case, it is something to be used to enhance PW1’s credibility as assessed by the Magistrate.

57.Further, PW1 is a person with a long history of mental illness under medication. However, the Magistrate never gave any thought to the issue of the mental condition of PW1 at all. As to whether the Appellant had opened the door, PW1 initially made it abundantly clear that he saw the Appellant pushed the door of the car and opened it. In light of all the aforesaid, the Appellant said that PW1 is clearly not a credible, reliable witness.

58.On ground 2, on rejecting the evidence of the Appellant, the Magistrate concluded that the only reasonable reaction would be for the Appellant to stay inside for safety in the circumstances. But the Appellant is simply saying that, firstly, a passenger who is being kept in the confined space of a stranger’s taxi for his safety, would naturally want to leave that space whenever possible, so this is nothing unreasonable at all. To suggest that a person in his circumstances still should prefer to stay in the taxi would be clearly unreasonable.

59.Further, when assessing PW1’s evidence, the Magistrate was of the view that it was reasonable for PW1 to lock the Appellant in his taxi. The Magistrate was also clear of the view that it was reasonable for PW1 to push the door against the Appellant during the struggle. But applying the same logic, if PW1 was afraid at that time, why should he walk over to the other side of the taxi and try to close the door against the Appellant?

60.On the Magistrate’s reasoning of rejecting the Appellant’s version, firstly, there was nothing unreasonable for the Appellant not to make a request to stop the meter and ask for a receipt. It would simply be the obligation of the taxi driver instead of asking the passenger before doing so.

61.Secondly, even on PW1’s own evidence, he did not stop the meter because the Appellant’s emotion was not well. He did not say that he was not sure whether the journey had really come to an end.

62.Thirdly, the Appellant is saying that the Appellant made no attempt to overcome the language barrier in communicating but just kept shouting and swearing at PW1 in English. However, this is not the evidence of the Appellant. The Appellant simply asked PW1, why was the fare so expensive, before and during PW1’s repeated demands for money before he was grabbed by the knee by PW1. It was only then the assaulting between the two of them began. So the Appellant’s version is true or at least could be true. The Magistrate was wrong in rejecting his evidence at all.

63.Ground 3, the Magistrate failed to give sufficient weight to the documentary evidence favourable to the Appellant. This is essentially a one‑against-one case. There was the medical report of PW1, as well as the photos by the Appellant, but there was no objective finding of any injury. The complaint concerning left eyebrow mild tenderness and visual blurring are essential, but the result of self-reporting by PW1. While the Appellant’s photos clearly showed that he had sustained injuries on his arms, and the prosecution never challenged the injuries suffered by the Appellant.

64.Lastly, on ground 4 of the uncharged acts, the Magistrate considered that this case involved allegations of uncharged acts, namely, the Appellant’s attempt to make off without payment. But according to the case of HKSAR v Kwok Hing Tony [2010] 3 HKLRD 769, it was said that the court may admit evidence on uncharged acts to prove the setting and context in which the offence occurred, to explain a defendant’s confidence in repeating the offence, to explain the unusual acts of the complainant, or to explain why the complainant is unable to record the specific date and details of the offence charged.

65.In this present case, the prosecution never sought to rely on any uncharged acts evidence and/or the relevant legal doctrine to support the case. Also, the Appellant did not even open the rear car door when PW1 decided to. So the prosecution never sought to rely on any uncharged acts evidence and/or relevant legal doctrine to support this case. However, the Magistrate mentioned that in his statement of findings.

66.One of the issues also concerning the Appellant acted in self-defence or not, the Appellant did not even open the rear car door when PW1 decided to lock him in, nor did the Appellant say that he was not going to pay. Further, the Appellant was all along in the vicinity. Even after he got out of the taxi and after PW1 called the police, there was no attempt for him to leave the scene. He just waited there for the police. Against this evidence, it is simply impossible for the Magistrate to find that the prosecution had found beyond doubt that the Appellant attempted to make off without payment.

67.The Magistrate also went on to use that finding to satisfy PW1’s act of locking the Appellant in the taxi. The Magistrate said that PW1’s act of locking in the Appellant was not false imprisonment without reason. Even if there may be an issue of whether the charge of making off without payment is the appropriate charge, it may be the more appropriate charge would be failing to pay taxi fare under Regulation 48(1)(b) of the Road Traffic (Public Service Vehicles) Regulations, Cap. 374D, of which the maximum penalty will only be a level 2 fine and 6 months’ imprisonment, and that offence is not an arrestable offence.

68.While there is a similar arrest power under section 58 of Cap. 374D for failing to pay a taxi, it is equally doubtful whether there was sufficient objective evidence supporting a reasonable suspicion of that offence at all.

69.For completeness’ sake, the Appellant is also saying that the Magistrate’s line of reasoning would even be wrongful when the prosecution’s stance all along is that the Appellant was very drunk and that there is an inevitable issue whether he possessed the requisite mens rea of the making off without payment.

70.The Magistrate either materially miscomprehends the evidence and/or used the uncharged acts in a legally impermissible way that renders the conviction to be unsafe and unsatisfactory, so the conviction should be quashed and set aside.

71.Concerning the appeal against sentence, the Appellant referred to the case of Secretary for Justice v Wade Ian Francis [2016] 3 HKC 274. The Appellant mentioned the following features in this case warranting leniency when considering the appropriate sentence.

72.Firstly, the Appellant has a clear record. Secondly, he had consumed a large amount of alcohol. His act was entirely out of his character. Thirdly, the incident started off with a dispute over a taxi fare, the Appellant’s genuine belief that he was overcharged for the taxi fare at that time. Fourthly, PW1’s injuries, even if proven, were very minor, and the Appellant also sustained injuries himself.

73.All in all, having considered all these matters, at least a community service order should be warranted, or at least a suspended sentence could be imposed.

74.Lastly, the Appellant also refers to the case of Chan Chi-Kong v The Queen CACC 544/1969, and also Attorney General v Ng Sai-man [1994] 1 HKC 151, saying that if it is not necessary to send a man to prison for very long, it may well be not necessary to send him to prison at all.

75.Also, in HKSAR v Chun Shing-ngan HCMA 70/2004 the Appellant punched the taxi driver in the head and chased out the taxi driver, even after the driver fled the taxi. He continued to struggle on the ground until the arresting officers arrived. The victim suffered a bruise over the right eye and abrasions to the upper lip. On appeal, his sentence was substituted with an order of 200 hours’ community service order.

76.In the circumstances, 10 days immediate custodial sentence is clearly, manifestly excessive in the present case, the appeal against sentence should also be set aside. Even if the Court is saying that the appeal against conviction should be dismissed, for the sentence, at least a CSO or suspended sentence should be considered in the circumstances.

Respondent’s reply

77.On ground 1, the Respondent is saying that the Magistrate had the benefit of seeing and hearing PW1’s evidence first-hand and had also provided a detailed analysis of why PW1’s evidence is to be accepted.

78.Firstly, concerning PW1’s previous records, the Magistrate recognised their potential impact on his credibility and, also, had directed herself accordingly. Also, saying that PW1’s previous records, per se, do not necessarily render his evidence unreliable, and also do not render PW1 an incredible and unreliable witness.

79.PW1’s previous records are relevant background when assessing his credibility, but the previous records themselves are not central to this appeal. The Respondent is saying that it should be noted that all three criminal convictions of PW1 occurred around 25 years before the instant case. The remaining traffic records included careless driving in 2015 and taxi refusing to hire in 2023.

80.While the Appellant is suggesting that PW1 still disagrees with the 1997 criminal damage conviction, PW1’s evidence on the matters was ambiguous. His cross-examination ended upon confirmation that his appeal had been dismissed.

81.Concerning the inconsistency between PW1 and PW2’s evidence, that concerned when PW1 be asked about his basis for stopping the Appellant from leaving the taxi, PW1 mentioned that the Appellant had once left the taxi when they were travelling in the midway. PW1 immediately admitted that this was not in his witness statement but claimed that he had told the officers taking his statement. While cross-examined, PW2 confirmed that PW1 did not tell him about the Appellant leaving the taxi during the journey.

82.The Magistrate clearly noticed this inconsistency but considered that that was immaterial because this new allegation that PW1 raised only went to show the Appellant’s level of drunkenness prior to the offence.

83.The Respondent is also saying that the Magistrate viewed that the inconsistency in PW1 and PW2’s evidence did not materially affect PW1’s credibility and reliability. Even if there had been inconsistency, that only concerned a relatively peripheral matter which is supported by the passage of time and the witness’ confusion.

84.When the Appellant is referring to the case of Or Yuk Chuen, the Respondent is saying that that could simply be distinguished on the basis that the discrepancy between the witnesses only concerned, in that case, Or Yuk Chuen, concerned what actually happened at the assault which formed the basis of the prosecution, and also if the witness is credible or reliable is highly fact-sensitive on specific matters. There were multiple issues with PW1’s evidence in that case, but not in the present one.

85.Concerning the Appellant’s complaining that PW1 was evasive, but the Magistrate noted that during cross-examination, PW1 exhibited a guarded reaction concerning about being trapped by defence counsel and repeatedly asked for clarification.

86.Therefore, the Magistrate found PW1’s reaction to be understandable when asked about his previous conviction, had been warned about his risk of self-incrimination, in relation to the defence allegation that he had falsely imprisoned and assaulted the Appellant. In the end, PW1’s evidence was that:

“You keep asking about the date, but I can’t remember when was it. I just remember that I was once prosecuted for refusing hire and was convicted for that.”

87.The Appellant criticised the Magistrate’s reasoning as there was nothing unclear in the questions asked. PW1’s admission to locking the Appellant inside the taxi was not harmful to PW1’s case as it has all along been PW1’s case that admission of something harmful had, in an event, no logical correlation to whether a person was telling the truth. But the Respondent invited the Court to go to the transcript, clearly, concerning those parts of the answers given by PW1. Eventually, PW1 saying in Chinese, “判過有罪添,咁點呀?”

88.It is submitted that, quite contrary to the Appellant’s suggestion that PW1 was evasive, PW1 was actually forthcoming in telling his answers to the Court. The Respondent’s advocate is saying that, referring to PW1 having lost his temper after repeatedly telling defence counsel that he could not remember the exact date of his record.

89.As to the inherent improbability and contrary to common sense, PW1 claimed that it was impossible that he could have injured the defendant when he was pushing the door, while PW1 simply said that it was impossible because it happened only in a split second. It was clearly his own assessment taking into account the amount of force used. It was only a subjective assessment as revealed by the Respondent. There is nothing unusual about PW1’s dismissal of such a possibility.

90.On exaggerating the material aspect of the evidence, the Respondent is saying that in assessing PW1’s reliability and credibility, the Magistrate had already considered a number of factors, including whether PW1 had exaggerated a material aspect, and eventually took the view that he did not exaggerate any matter because, considering PW1’s evidence as a whole, the details PW1 volunteered to describe the Appellant’s drunkenness, and PW1’s concession that one of the Appellant’s hits on PW1 were just a touch and could have been accidental.

91.So PW1 did make a concession against one of the Appellant’s touches. It simply demonstrates a level of objectivity. The Magistrate had correctly taken that into account and considered that PW1 had not exaggerated his evidence.

92.On the mental aspect and reliability of PW1’s evidence, the Respondent is saying that it is revealed in cross-examination that at least since 1998, PW1 had been suffering from a mental illness, but there is no evidence on what the illness is, and the only further details, insofar as his illness, is his unchallenged evidence that he had the mental illness under control by medication and the doctor said he was okay. So the Respondent is saying that it was a groundless assertion that his memory and his evidence had been affected by his mental condition.

93.Lastly, concerning PW1’s response in relation to the opening of the taxi door when defence counsel put to PW1 that before the Appellant first punched PW1, PW1 had seen the Appellant touch a taxi door with the Appellant’s hand, PW1 replied, “佢推個車門,佢打開個車門”. While this initial response was interpreted as, the Appellant “pushed the door of the car and opened it”, a more appropriate translation would have been, “He pushed the door; he opened the door.” But the defence counsel followed up by asking if the door had actually been opened at this stage and PW1 replied that it was not open. That is, it had been locked.

94.The Magistrate took the view that when considering PW1’s evidence in its entirety, his response simply meant that the Appellant was trying to open the door instead of actually opening the door.

95.On ground 2, concerning rejecting the Appellant’s evidence, the Respondent is inviting this Court to agree with the criticism of the Magistrate because this is not a case when a person would have tried to escape at all costs. The taxi had stopped next to the Appellant’s home. This was merely a dispute that originated from a HK$40 to HK$50 taxi fare and was only HK$10 or HK$20 more expensive than normal.

96.The position of PW1 is also different from the Appellant. He had a vested interest in keeping the Appellant in the taxi to maintain the barrier between the two and ensure that the Appellant had paid the taxi fare and would not escape before the police arrival. On the other hand, the Appellant, in his familiar surroundings, while attempting to leave the taxi, is a fair reaction and is natural, as highlighted by the Magistrate. But his actions he supposedly took was encapsulated by his testimony that he tried to get out of the taxi, but not to expose himself to.

97.On the second criticism, the Appellant effectively is saying that, not counting the later assaulting match, his only attempt to communicate with PW1 was his initial inquiry about the taxi fare being higher than usual, but despite PW1’s repeated demand, there was no attempt to further explain the matter.

98.As the Magistrate pointed out, he could simply tell the taxi to stop the meter and to prevent him from taking off, and even to request for issuing a receipt. Also, which is also highly improbable for PW1 or any taxi driver to have, in the circumstances, suddenly turn around and reach for the Appellant’s wallet.

99.The Magistrate was right to infer that PW1 kept the meter running as he could not be sure whether the journey really came to an end. PW1 said he did not stop because the Appellant’s emotion was not well and figured out that he could later deduct the fare.

100.Concerning ground 3, on the Appellant’s injuries, the Magistrate also considered that both PW1 and the Appellant’s evidence concerned that they were both involved in a scuffle at the taxi door. In these circumstances, as both parties had been pushing against the door, against each other. In the circumstances, injuries could be resulted and there was nothing unreasonable.

101.Lastly, on the uncharged acts, it concerned the Appellant’s potential crime of not paying the taxi fare, but whether the Appellant had committed this offence or not had no bearing on the central issue of the case. Self-defence is clearly inapplicable for the first act, and, in any event, the uncharged acts did not disadvantage the Appellant at all.

102.It is not in dispute that the Appellant did not pay the taxi fare. The circumstances surrounding the failure form the setting and context of the instant common assault case.

103.The Magistrate had also directed herself in relation to such acts, reminding herself that such acts could not be used to infer that the Appellant had the propensity to commit such criminal offence. The direction was not wrong in law and had a benefit to the Appellant, so this ground was without merit at all.

104.Regarding the appeal against sentence, the Respondent is saying that the Magistrate did fully consider the circumstances of the case. Also, referring to the cases of Cheng Wai Tung Stephen, Chan Hau Fong, and Heung Jonathan, the Magistrate held that an immediate imprisonment sentence was unavoidable. 14 days’ imprisonment was taken as the starting point.

105.In relation to the Chun Shing-ngan case, as referred by the Appellant, but in that case that appellant pleaded guilty and exhibited remorse, but not in the present case where the Appellant professes his innocence even until today. So the appeal against sentence should also be dismissed accordingly.

Consideration

106.In the Court of Final Appeal case, HKSAR v Hui Lai-ki [2024] HKCFA 7, it was held that the Magistracy Appeal is conducted by way of rehearing on the evidence before the trial court. 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. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the Magistrate to convict.

107.The Court recognised that 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.

108.On ground 1, concerning that the Magistrate erred in accepting PW1’s evidence. Firstly, much criticism was made by the Appellant on PW1’s previous criminal convictions. In fact, full details had been revealed at the trial, particularly, there were three criminal convictions dated back in 1997 to 1998 on criminal damage and attempting to mislead a police officer, in 2015 for careless driving, and the latest one in 2023 for taxi refusing hire.

109.However, the Magistrate was fully aware of that and stated that extra care and attention had been taken when evaluating PW1’s evidence. Particularly, PW1 had fabricated an assault case against a person, not dissimilar in the present one. See paragraph 55 of the statement of findings. The Magistrate had also borne in mind his latest offence to his taxi driving. It cannot be said that the Magistrate had ignored, nor paid any regard to these matters.

110.Secondly, on the discrepancy between PW1 and PW2, as to whether PW1 had stated to PW2 that the Appellant had alighted in the middle of the journey, the Appellant referred to the case of Or Yuk Chuen and submitted that the discrepancy could not be resolved. However, the discrepancy stated in Or Yuk Chuen was exactly on the actual scenario of assault which was the crux of that case. While in the present one, whether the Appellant had tried to do so in the middle of the journey was simply not material to the alleged assault.

111.Thirdly, on the evasiveness in answering questions, particularly as to whether PW1 had ever lied to the police, it was clear from the transcript that PW1 was much annoyed about remembering the date of his previous offences, and that eventually leading to PW1 stating that he was convicted and “So what?”. That cannot be said as an evasive response at all.

112.Fourthly, as to the inherent improbable version of PW1’s evidence, particularly as to whether there was any possibility of injury to the Appellant when pushing the door against the Appellant, PW1 said it was impossible because it happened in a split second. This was indeed his own assessment instead of stating an improbable version of events.

113.Fifthly, on the exaggeration of evidence, it was unclear in what specific aspect that the Appellant concluded that PW1 had exaggerated his evidence. If it was on the level of drunkenness of the Appellant, the Magistrate had clearly assessed all the evidence as a whole and did not find PW1 had exaggerated the evidence.

114.Sixthly, on the mental aspect of PW1, there was no evidence at all that his memory had been affected by his illness, and he said his illness was under control by medication.

115.Lastly, as to whether PW1 had stated that the Appellant had opened the door before the first punch, the transcript indicated that PW1 only meant that the Appellant was trying to open it. In fact, it was common ground that the doors were locked and, therefore, the complaint is one without merit.

116.The Magistrate clearly had the advantage of receiving PW1’s evidence first-hand. After careful analysis of PW1’s evidence, and given solid reasons to accept his evidence, I have no basis to disturb his findings. ground 1 must fail.

117.On ground 2, concerning the Magistrate erred in rejecting the Appellant’s evidence, especially the Magistrate found that the Appellant could have stayed inside and called for help within, instead of confrontation with PW1, and that the Appellant had made no attempt to overcome any language barriers such as requesting to stop the meter and issue a receipt, but just kept carried on swearing at PW1.

118.However, as highlighted by the Respondent, this is not a case of kidnapping or anything very serious, but just about a dispute of taxi fare of about HK$40 to HK$50, where HK$10 to HK$20 more expensive unexpected by the Appellant. Yet, the Appellant’s version was that he was even grabbed near his right knee, and after that he was quite forceful, and PW1 even reaching his wallet in his right pocket. Then, in between, PW1 only said, “Give me money.” The Appellant said he was scared, and then PW1 had left the taxi[1].

119.If that really happened, as what the Appellant said, it was not surprising that the Magistrate would state that the Appellant would have been safer to stay inside and call for help. Secondly, if the issue was just an overcharging, while the Appellant said PW1 simply said, “Give me money”, there was really no reason at all why the Appellant did not try to clarify the fare issue, but just swearing at PW1.

120.Therefore, the Magistrate was not wrong in rejecting the Appellant’s evidence after careful assessment. After all, it was really highly unusual where a taxi driver would go direct, to grab a passenger, and even attempted to take the passenger’s wallet on his own. Ground 2 also fails.

121.Ground 3 concerning the medical report of PW1 and the Appellant’s photos showing injuries, firstly, for the medical findings of saying left eye mild tenderness, it was consistent to PW1’s evidence. Secondly, it was also common ground that both parties had been pushing against each other over the taxi door, and thus, any injuries thereby suffered by the Appellant were not unusual in any circumstances.

122.The Magistrate also concluded that the Appellant’s injuries, per se, did not indicate that he was assaulted by PW1. The Magistrate finding could not be said is erroneous. This ground also fails.

123.Lastly, on the reliance of uncharged acts. Firstly, although the Magistrate has stated that there may be issues of uncharged acts concerning the Appellant’s potential crime of not paying taxi fare, it appeared nowhere that the Magistrate had relied on any of these uncharged acts in finding the guilt of the Appellant. Instead, it was even stated that that evidence cannot be used to infer the Appellant’s guilt[2]. Therefore, this ground is clearly without merit and must fail too.

124.Therefore, all the grounds of appeal fail, and after rehearing of all the evidence, I am also satisfied the Appellant’s guilt had been proven beyond all reasonable doubt. The conviction do stand, and the appeal against conviction is dismissed accordingly.

125.On appeal against sentence, the Appellant had punched PW1 twice, once on shoulder, and the other on PW1’s forehead, even causing his eyeglasses fallen off and broken. The assault could not be said as minor.

126.The Appellant was convicted after trial and showing no remorse. As stated in the cases of Cheng Wai Tung Stephen, Chan Hau Fong and Heung Jonathan, professional drivers are indeed vulnerable in these circumstances and need to be protected, and a deterrent sentence should be called for.

127.The starting point of 2 weeks’ imprisonment was neither excessive nor wrong in principle, and the Magistrate also discounted 4 days for his clear record and loss of reputation and career aspect. Therefore, 10 days’ immediate imprisonment is appropriate.

128.The sentence do stand and the appeal against sentence is also dismissed accordingly. The Appellant shall serve his sentence immediately.

Mr Jerome Ching, SPP of Department of Justice, for the Respondent

Mr Joseph Lee and Mr Lawrence Pang, instructed by Robertsons, for the Appellant