HKSAR v. Jean-paul Gauci

HCMA000523/2003

HCMA 523/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 523 OF 2003

(ON APPEAL FROM ESCC 54/2003)

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Coram: Hon Beeson J in Court

Date of Hearing: 25 September 2003

Date of Judgment: 25 September 2003

Date of Handing Down Reasons: 23 October 2003

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J U D G M E N T

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1.This Appellant was convicted after trial in the Magistracy on one charge of Common Assault, contrary to Common Law and section 40 of the Offences against the Person Ordinance, Cap. 212. The Appellant was conditionally discharged, bound over in the sum of $2,000, and ordered to pay compensation of $3,000 to the victim, or in default, 7 days imprisonment. The Appellant appealed against conviction only.

2.In June 2003, the Appellant sought leave of the court to adduce fresh evidence at this appeal, being evidence of a witness who was present throughout the incident. The Respondent opposed the application, but having considered the facts of the case and the nature of the evidence, I granted leave and Mr Cheng Chung Mau gave evidence at the appeal hearing, based on his statement served on the Respondent.

Background

3.The Appellant was the tenant of the alleged victim of the common assault, Madam Chan (PW1), who let part of a house, No. 6 Mo Tat Wan, Lamma Island to him between mid 2000 and March 2002. In March 2002, the Appellant moved to No. 5 Mo Tat Wan, the next-door premises. In June 2002, Madam Chan agreed to let the ground floor of No. 5 to the Appellant for storage, by way of loan, not by way of rent. On 10 September 2002, the Applicant agreed with PW1 to rent premises on the 1st floor of No. 6 Mo Tat Wan, at a rental of HK$4,500 per month. This lease was for one month only, commencing on 10 September 2002 and due to expire on 9 October 2002.

4.In early October 2002, the Appellant was contacted by one of PW1's sons who said the family wanted the premises back to redecorate. An early surrender of his tenancy was agreed on or before 4 October 2002.

5.On 4 October, PW1, with her Thai domestic helper, PW2, went to clean the premises, believing the Appellant had moved out. PW1 wired the door shut from the inside to prevent access from the ground floor to the 1st floor flat.

The Incident

6.On 5 October around 9 a.m., the Appellant arrived at the premises with two friends and finding the door locked, attempted to open it, not knowing it was wired shut. In doing so he damaged the door. He then used a side door to reach the premises he had been living in. Some of his household possessions were inside. The Applicant did not dispute he had damaged the door.

7.PW1, came up to the 1st floor sometime later and complained vociferously about the damage to the front door. She claimed the Appellant manhandled her, including using his elbows to jostle her out of the room. According to PW1, he put his hands under her armpits, moved her about the room and struck her 20-30 times. The Appellant said all he did was remove the metal shaft of a sun umbrella from PW1, as she was stabbing it at him. He dropped it out the window.

8.Three hours later PW1 called the police and SPC 11384 (PW3) attended at about 1:15 p.m. According to PW3, PW1 showed him the damaged door, but made no complaint of assault and did not request to see a doctor. That was also the Appellant's evidence.

9.PW3, thereafter, acted as a liaison between PW1, her family and the Appellant and a settlement agreement was drafted, signed by the Appellant and by PW3 as a witness. Although dated 6 October 2002, it was common ground the agreement was produced on 5 October 2002. It included an apology to PW1 for "trespassing and for damage done to the captioned property, agreement to pay $2,500 as compensation and agreement to pay all outstanding utility fees and (for the Applicant) to never set foot again in the captioned premises". The parties agreed orally that the compensation would be paid within one week of that agreement i.e. by 13 October.

10.On 13 October 2002, the sum was not paid. On the same day PW1's daughter reported to the police that on 5 October 2002, the Applicant had assaulted PW1. 3 days later PW1 gave a statement - only after that was she examined by a doctor. No injuries were found.

11.On 25 October 2002, the Applicant paid $4,500 for rent and compensation of $2,500 for damage to the door.

12.On 9 December 2002, the Applicant was arrested for common assault.

Evidence

13.The Magistrate in his Statement of Findings noted PW1's complaint that the Appellant put his hands under her armpits and moved her about; struck her many times, and with his elbow drove her from the room. The experience left her "dizzy" but with no visible injuries. PW1 said she reported to police the same day and not only showed PW3 the damaged door, but told him about the assault.

14.PW1's domestic helper, PW2, gave evidence. She did not understand what was being said, but there came a time when the Appellant grabbed PW1's shoulders and used his elbow to push her, thus jostling her out of the room. She claimed she told PW3 of the assault.

15.PW3 said he was shown the damaged door, but that PW1 made no complaint of assault and no request to see a doctor. Accordingly he dealt with the matter as "damage to a door". PW1, wanted assistance from her son and eventually, with input from the son given via telephone, a settlement was arrived at, reduced into writing and signed by PW3 and the Appellant.

16.The defence agreed the tenancy history was correct. The Appellant admitted trying to gain entry by using force and turning his key at the same time, because he was unaware the door was wired inside. He denied using any violence against PW1 and said he offered compensation for the door damage because PW3 was a mediator and he was following his advice.

17.Neither of the two friends who accompanied the Appellant gave evidence, although it is clear from his evidence given at the appeal, that Mr Cheng had been present at court and available as a witness, if counsel had wished to call him. Given the nature of this case and the tenor of the evidence, it is unfortunate defence counsel did not see fit to call Mr Cheng, because his evidence may have assisted the Magistrate.

Grounds of Appeal

18.The grounds of appeal were that the conviction was against the weight of evidence, that there was insufficient evidence on which to found the conviction, and that PW1 and PW2 were dishonest in giving their evidence and were not reliable witnesses.

19.The Appellant, who represented himself on appeal, filed a lengthy submission explaining the background of the case, commenting on the Magistrate's handling of the evidence and pointing out discrepancies between the accounts of PW1 and PW2 and certain improbabilities in the evidence. In addition, he reiterated that PW3 had liaised between him and PW1's family, and that the agreement contained no apology for, or reference to, an assault, being confined exclusively to the damaged door.

20.He repeated his denial that he ever touched PW1 and said it was not in his character to assault a 67-year old woman. He expressed concern about probable pressure on PW2, given her status as a domestic helper, to tailor her evidence for her employer's benefit.

21.Various matters have caused me some misgiving about this conviction, in particular, the Magistrate's treatment of PW3's evidence; SPC 11384. In his Statement of Findings (para. 24), the Magistrate outlined his evidence:

"He was tendered for cross-examination. He told of attending a dispute at No. 6 on 5 October. He said he got a call from PW1 at 1:15 p.m. about "an argument with a foreign man". PW3 said he went to the scene where PW1 showed him the damaged door but made no complaint of assault and no request to see a Doctor. He dealt with the matter as a "complaint of damage to a door". He said PW1 was wanting assistance from her son and eventually the son had some input by telephone in consequence of which a settlement was arrived at which was reduced to writing. It was before the court as exhibit D3. It was dated 6th and provided an apology to PW1 for the damage, the appellant promised $2,500 in compensation, agreed to pay "all outstanding utility fees" and "never to set foot on captioned property again". It was signed by the appellant and PW3. Although the exhibit D3 had been prepared on 6th and was dated 6th, the agreement had actually been arrived at by about 2:00 p.m. on 5th i.e. "within 45 minutes of the call". The English version took another day to prepare."

22.Later (para. 38), the Magistrate stated:

"For the reasons set out in my decision of 18th March (the date of trial) I did not believe parts of the evidence of PW3. Particularly I did not believe his claim PWs 1 and 2 had not on 5th October complained of assault."

23.His comments on 18 March were as follows:

"I regret to say I did not form a good impression of the police officer, PW3. I was left with the strong feeling he had not properly pursued PW1's complaints of assault and criminal damage on 5 October but had taken what may have seemed a practical short cut by bringing about the money settlement as to the door damage and treating the matter as then fully resolved.

To give him the benefit of the doubt, it may well be he saw the emphasis of the complaint as being on the door damage and PW1's financial loss as to that. Also, the door damage was there, plain to see, whereas no injuries to PW1 were on display.

In any event, wherever the evidence of PW3 conflicts with that of PWs 1 or 2, I believe that of PWs 1 or 2 and disbelieve that of PW3."

24.This appears to be a very stern view of PW3's evidence, based solely on the evidence of PW1 and PW2, whose evidence must be treated with caution because of PW1's serious exaggeration of events, discrepancies between the accounts of PW1 and PW2; PW2's status as an employee of PW1 and the suspiciously coincidental timing of the assault complaint.

25.It is difficult to believe that PW1, who wanted compensation for her door, would have missed the chance of obtaining compensation for what was, in anyone's terms, a very severe assault. It is improbable, that a woman aged 67, who suffered such an assault would not immediately herself, or at the behest of her family, seek medical attention, to support her claim for compensation. There is no reason why, when the agreement was negotiated, it would not have referred to an assault, if such had occurred.

26.Miss Shine, for the Respondent advised this court that the police file recorded the report of assault as made only on the 13 October 2002; the date the compensation was due and which, it is not in dispute, was not paid on that day.

27.That report was made by PW1's daughter and only three days after that did PW1 make a statement. As a medical examination was done some days after the complaint, it is unsurprising that no medical evidence supports the alleged assault.

28.The Magistrate appears to have accepted PW1's evidence without examining sufficiently closely her possible motive for making a false complaint. Nor did he resolve the discrepancies between the accounts given by PW1 and PW2 about the assault, in particular confusion about its course.

29.The Magistrate did remind himself of the employer and employee relationship between PW1 and PW2, but ignored the possibility that pressure might have been placed on PW2 to support her employer's evidence.

30.Mr Cheng's evidence on appeal confirmed the forced entry and the encounter with PW1. He said PW1 was shouting in Cantonese, but he could not remember what she actually said and had no idea what the argument was about. He saw the Appellant grab an umbrella base from PW1 and throw it out of the window. The Appellant asked a female friend to talk to PW1 and escort her out of the room. While this was going on the domestic helper did not do anything, she just stood there.

31.He had never seen the Appellant jostle PW1, or lift her up by the armpits. PW3 arrived as he was about to leave and he gave his ID number on request. The officer did not tell him why he was there, or ask him to make a statement, or to be available as a witness. He did not hear what the PW3 spoke to the Appellant about.

32.It seems inconceivable that if PW1 had reported an assault as she claimed, that PW3 would not have taken statements from, or at least questioned, two eye-witnesses to the incident.

33.The Magistrate accepted PW1 as an excitable witness who had over-stated parts of her evidence, but nevertheless thought her honest and reliable. Part of the exaggeration was her claim to have been pushed to the floor during the Appellant's alleged assault; that was not supported by PW2.

34.The Magistrate stated that such of PW1's evidence as was exaggerated was "due to hyperbole driven by her excitable nature and the plain outrage she still evidenced at the Appellant's treatment of her". The Magistrate should have gone on to consider whether a witness who exaggerated to that extent, might also be a witness who had a rather shaky memory of what actually happened, or who may have been untruthful.

35.The Magistrate said he did not believe the Appellant's evidence but his comments suggest a reliance on demeanour, despite his saying he placed little weight on it:

"He made a poor impression as a witness. He was hesitant and bumbling in his replies, he had a very nervous manner throughout and especially when giving evidence in direct contradiction to that of PW1 he noticeably avoided the gaze of all in court and seemed most uncomfortable generally. I am well aware of the danger of relying on observations as to demeanour in making assessments as to credibility. I placed very little weight on this aspect at all. Of much more importance was my view as to the inherent improbability of the appellant's account in evidence. I simply didn't believe him."

36.He referred to the inherent improbability of the Appellant's account without explaining why it was so improbable, particularly as it was supported, in relation to the aftermath at least, by the evidence of PW3, an investigating police officer.

37.The Magistrate appears to have given little consideration to the actual improbabilities in this case:

(1)	It is highly unlikely that an investigating police officer would deliberately ignore a complaint of assault from an elderly, indigenous, resident of an island community where the officer is stationed.
(2)	If PW3 had ignored such a complaint it is very unlikely PW1's family would have failed to follow it up very swiftly.
(3)	If PW1 had been assaulted as she claimed, it is inconceivable that she, or, on her behalf her family members, would not have included mention of, or compensation for, such assault in the agreement.
(4)	That there was no reason why PW1's family, knowing of the alleged assault, would not have insisted on PW1's immediate attendance for medical examination and/or treatment.
(5)	That the complaint of assault, according to the police record, coincided with the discovery that the compensation money was not in the account as agreed, which suggests the possibility of the assault complaint being used to enforce payment.

38.I can see no reason why the police officer would have "buried" a common assault charge - there was no suggestion he was protecting, or favouring the Applicant, or had any reason to do so. The Magistrate suggests that PW3 ignored the complaint of assault to make his own life easier. In fact PW3 spent a great deal of time helping negotiate a settlement between parties in dispute, when it would have been simpler, and quicker, to charge the Appellant with Criminal Damage ignoring compensation.

39.I have no doubt that police officers, attached to an island, or rural, community devise ways of dealing with "neighbour disputes" as simply and satisfactorily as possible. PW3 acted as the liaison between PW1's family and the Appellant. He helped negotiate an agreement that was to settle the argument. That agreement ensured that PW1 was compensated substantially for, what appears from the photographs to be, rather minor damage to the door. A charge of Criminal Damage could have been considered and, after investigation, preferred, but it was not an obligatory course. Such a charge might have been the cause of a continuing quarrel, or ensured the preservation of bad feeling between island residents.

40.Because of the Magistrate's complaints I obtained a transcript of PW3's evidence. I can see nothing in his evidence to suggest obfuscation, improper handling of the complaint, nor any dereliction of duty. Nor did PW3 say anything that might justify the Magistrate's "strong feeling he had not properly pursued PW1's complaints". I note those feelings were not sufficiently strong for the Magistrate to refer the case to CAPO, or to the Secretary for Justice, at the end of the trial.

41.The Magistrate's interjections, which are also recorded in the transcript, show his annoyance at some of PW3's answers, which he thought confusing. Such confusion was minor and arose from problems of interpretation and the Magistrate's own interruptions. None of the answers indicate that PW3 was lying, or not carrying out his duty.

42.The Magistrate's comments imply that PW3 deliberately ignored a complaint of assault; possibly colluded with the Appellant to avoid dealing with an assault charge; failed to record PW1's complaint in full; negotiated a compensation agreement to avoid dealing with an assault complaint and, ultimately, perjured himself in court. His comments rely on evidence given by PW1 which appears so exaggerated that it deserved much more caution than he gave it.

43.The Appellant submitted that a complaint had been made "to police" about PW3, presumably to CAPO, but it had been withdrawn and not pursued.

44.Overall, I have real doubt about the safety of this conviction. The appeal is allowed and the conviction quashed. The Binding Over Order is rescinded and any compensation paid is to be returned to the Appellant.

Representation:

Ms Lynda Shine, SGC of Department of Justice, for the Respondent

Gauci, Jean-Paul, Appellant, in person