HKSAR v. Cheung Ting Shan
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HCMA000690/2001 HCMA690/2001 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.690 OF 2001 (ON APPEAL FROM ESCC 5116 OF 2000) ----------------------
----------------------- Coram: Hon Tong J in Court Dates of Hearing: 15 August and 15 September 2001 Date of Judgment: 19 October 2001 ----------------------- J U D G M E N T ----------------------- 1.The appellant was originally charged with three offences, namely indecent assault, common assault and assault occasioning actual bodily harm. The appellant pleaded not guilty to the charges and was, after the trial, convicted of one charge only i.e. the last charge of assault occasioning actual bodily harm. The appellant now sought to appeal against the conviction. The trial was originally conducted in Chinese. As the appeal involved legal issues, both counsel wished to prepare the written submissions in English. Parties agreed also that this court's judgment can be given in English. 2.The prosecution had called a total of seven witnesses at the trial. The appellant himself chose to remain silent but he called a doctor to give expert evidence. The main witness regarding the indecent assault charge was PW3. She testified that on 23 November 2000, she was on board of a bus and the appellant had indecently assaulted her by touching her buttock. On that occasion, she only scolded the appellant, as she was in a hurry to return to work. Then on 7 December 2000, PW3 again met the appellant on the bus. She said that the appellant came over to sit next to her so she went to sit elsewhere. She said she later saw the appellant having kicked a woman. That woman was a female passenger who had witnessed the earlier incident of the indecent assault. She was PW2. She also gave evidence and her account seemed to support PW3's testimony. 3.PW4 was Mr Ho. He was a passenger on the bus on 7 December 2000. He heard the appellant having an argument with PW2 and then PW3 joined in and accused him that he had indecently assaulted her a few days ago. Someone then made a report to the police, and the driver stopped the bus by the roadside to wait for the police. The appellant tried to pull open the bus door. The driver requested him not to leave the bus but still, the appellant managed to open the emergency door and got out of the bus. PW4 then chased after the appellant. Then two more passengers joined the chase and together they managed to get hold of the appellant. But the appellant struggled violently. He madly waved his hands and scratched with his fingers. In the struggle, the appellant had injured PW4 in his face and neck area. Finally, they pressed the appellant down on the ground to wait for the arrival of the police. 4.PW5 was another passenger on board who claimed to have seen the appellant having kicked PW2. He also joined in the pursuit of the appellant. During the chase, he had cried out "catch the sex maniac". While struggling with the appellant, he saw PW4 being injured. PW6 was the officer who had first attended the scene. PW7 was the female officer who had taken a witness statement from PW2. Apart from the witnesses, the prosecution also produced the record of interview made by the appellant. The defence did not challenge its admissibility. In the interview, the appellant said, inter alia, that he did not know why the prosecution witnesses were chasing after him. 5.As to the psychiatrist called by the defence, she testified that the appellant was, at the material time, suffering from schizophrenia, paranoia and persecutory illusions. 6.Having considered the evidence, the learned magistrate concluded that he had reservations about the testimonies of PW2 and PW3. But he was impressed by the testimony of PW4. As to PW5, the magistrate found him to be honest but noted that he did not actually see the appellant kicking PW2. Therefore, the magistrate found that he could not rely on PW5's evidence to support the common assault charge. In the end, he dismissed the two charges of indecent assault and common assault. Regarding the psychiatrist called by the defence, the magistrate said he would give full weight to her evidence. He accepted that the appellant was actually suffering from mental illness at the material time as described by the doctor. 7.The magistrate pointed out in his Statement of Findings that he had taken into consideration the following factors in deciding on the 3rd charge of assault occasioning bodily harm :
8.Hence the main issue was one of mens rea, which was whether the appellant, at the material time, thought that he was under attack and merely tried to act in self-defence. The magistrate said he would reject the appellant's claim that he did not know why the men were chasing after him. He found that it was inconceivable that the appellant could have failed to realise that. He considered that what the appellant had stated in the interview with the police deserved little weight as it had never been tested under cross-examination. In the end, the learned magistrate made, inter alia, the following finding of facts :
The magistrate found that the only purpose of the appellant's conduct at the time was to use violence against the pursurers, with the intent to escape from the scene. Hence he concluded that the 3rd charge proved beyond a reasonable doubt. 9.The appellant had raised the following grounds in the appeal :
10.Counsel for the appellant had referred me to an English case which, the face of it, was very similar to the present circumstances. That is R v. Self [1992] 3 All ER 476. In that case, a customer in a shop had walked away with a bar of chocolate without paying. The shop assistant followed him and tried to arrest him. A member of the public helped by exercising a citizen's arrest. The appellant resisted and assaulted both the shop assistant and the member of the public before he was eventually apprehended. He was charged with theft and two counts of assault with intent to resist or prevent his lawful apprehension contrary to section 38(a) of the offence against the Person Act 1861. After the trial the appellant was acquitted of the theft charge, but was convicted of the assault charges. On appeal, Garland J held that:
11.Mr Tse, Counsel for the appellant, argued that the same logic should apply to the present case. The prosecution submitted otherwise. The simple point taken by the prosecution was that the applicable statutory provisions in England and Hong Kong were rather different. Mr Cheng, for the prosecution, referred me to section 24(5) of the Police and Criminal Evidence Act 1984, the wording of which was as follows :
However, in Hong Kong, section 101(2) of Cap.221 stated that :
12.Mr Cheng had very helpfully traced the background of the legislative change regarding this section. It appeared that the Hong Kong Legislature had decided in 1967 not to follow the exact wording of the English Act. In any event, Garland J held that the power of arrest would depend on, in hindsight, whether an arrestable offence had been committed. So, if the defendant was found not guilty of the main offence by the court, then, the citizen would have no power to make the arrest in the first place. I had raised a number of issues with Mr Tse concerning the consequences of this approach, and the difficulties faced by any citizen who had to decide whether to help by making an arrest. Mr Tse argued that the citizen who made a wrongful arrest should be made responsible in a civil suit by the arrested person. He submitted that there was nothing wrong about that as the law should protect a person from wrongful arrests. 13.The decision of Self is of course persuasive authority in this court, although I found I could not entirely agree with its reasoning. Since, however, the wording of the provision being considered in Self is different from the present section, I need not comment further as I agree with the respondent that it is distinguishable and the principle stated in could not assist the appellant. 14.The trial magistrate had obviously made a careful anaylysis of the evidence before reaching his decision. As a matter of common sense, I would agree that a person in the circumstances could not have failed to appreciate why he was being chased. But what about the appellant's mental condition? He was not just anyone being chased. He was a mental patient suffering from persecutory illusions. Did it affect his understanding and did he appreciate the right and wrong of his action? In reaching the conclusion that the appellant must have known why he was being chased, the learned magistrate seemed to have left out the consideration of his mental illness. Mr Cheng argued that obviously the magistrate did not consider the appellant's mental illness to be serious enough to have any particular effect on his understanding at the time. If such is the case, it must be stated clearly as it is a material finding. 15.On hearing an appeal, I am not in a position to decide on the factual issues. That should be a matter for the trial magistrate. However, I could not say that, on the evidence, the only conclusion that could be reached must be that despite his mental illness, the appellant must have known why he was being chased, and that his struggle was nothing else but an assault on PW4. It was particularly so when the magistrate found that witnesses pertaining to the indecent assault and the common assault charges were actually not reliable witnesses. Based on this finding, and assuming that the appellant had never done any of the acts of the assault on the bus, the situation was that he was being accused by the alleged victims, the bus had stopped, door closed and the driver not allowing him to leave. How did the appellant with his mental problem perceive all these in his mind? I am not in a position to say. But the learned magistrate should have dealt with these matters and made known his finding. 16.In the circumstances, I have to accept that there is some merit in the appellant's submission, particularly on appeal ground number two. I shall allow this appeal, quash the conviction and set aside the sentence.
Representation: Mr Raymond H.C. Cheng, GC for DPP, for HKSAR Mr Paul T.Y. Tse, instructed by Messrs Lau, Chan & Ko, for the Appellant |