HKSAR v. Hau Tin Pui

HCMA 356/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 356 OF 2005

(ON APPEAL FROM STCC 1756 OF 2004)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 12 August 2005

Date of Judgment: 24 August 2005

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J U D G M E N T

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1.The Appellant faced two charges.  Charge 1 was of possession of a dangerous drug.  Charge 2 was of administering a poison or other noxious thing with intent to injure, aggrieve or annoy.  The allegation against the Appellant under Charge 1 is that he was in possession of dangerous drugs in Room 106 of Block C of the Staff Quarters of the Prince of Wales Hospital in Shatin.  The allegation against him under Charge 2 is that in that room and on that date he administered a poison or other noxious thing to a Ms Yau Ting-yim with intent to injure, aggrieve or annoy her.

2.To both charges the Appellant pleaded not guilty but was convicted after trial before Thomas Tsang, Esq. In the Magistrate’s Court at Shatin.  The Magistrate sentenced him to 14 months’ imprisonment by way of concurrent terms of one month on Charge 1 and 14 months on Charge 2.  He now appeals against conviction and sentence.

3.Many of the relevant facts were formally admitted at the trial.  In addition the prosecution called Ms Yau.  She was PW1.  As was his right, the Appellant chose not to go into the witness-box.  But, by cross-examination and speech, the defence put forward a case that Ms Yau was making false allegations against the Appellant because he had turned down her request for a loan of $5,000.  As noted by the Magistrate in para. 12 of his Statement of Findings, “this case eventually hinged on the credibility” of Ms Yau.  Having seen and heard her in the witness-box.  He accepted her evidence.

4.Nine perfected grounds of appeal against conviction have been filed, a Ground 4A having been added by way of amendment.  Ground 1 reads:

“In reaching his verdict, the learned Magistrate had either overlooked and/or failed to direct himself properly in relation to the crucial evidence of Dr. CHEN Char-nie (‘Dr. Chen’).  Dr. Chen was the expert witness of the Prosecution and his evidence directly contradicts PW1’s evidence in a number of material aspects.”

Looking at the Magistrate’s Statement of Findings, particularly para. 14 thereof, I am satisfied that he gave careful consideration to what Dr Chen said and that it did not preclude him from accepting Ms Yau’s evidence.  Ground 1 fails.

5.Ground 2 reads:

“In the SOF, the learned Magistrate had wrongly rejected or failed to attach any weight to the key evidence of Dr. CHEUNG Sing-tak”

Looking at the Magistrate’s Statement of Findings, particularly para. 13 thereof, I am satisfied that he was entitled to accept Ms Yau’s evidence despite the contents of Dr Cheung’s report to which he gave the consideration it deserved.  Ground 2 fails.

6.Ground 3 reads:

“In reaching his verdict, the learned Magistrate failed to take sufficient account of the material discrepancies in the evidence of PW1 who was the crucial witness relied upon by the Prosecution and the only one called.

I am satisfied that the Magistrate approached Ms Yau’s evidence with due care and I do not find Ground 3 made out.  It fails.

7.Ground 4 reads:

“In the premises, the learned Magistrate’s findings are inconsistent with the evidence PW1, PW8 and the Prosecution’s expert witness, Dr. Chen.”

This ground is premised on the grounds preceding it, and it fails along with them.

8.Ground 4A reads:

“At trial, the trial Magistrate had wrongly allowed or omitted to interfere with a series of leading questions put by the Prosecutor during examination.  Further, the trial Magistrate had participated in putting the questions, thereby taking over conduct of the prosecution.”

Having studied them, I am satisfied that the leading questions did not materially prejudice the defence.  As to the questions put by the Magistrate, I am satisfied, having studied them, that they did not involve the Magistrate in taking over the conduct of the prosecution.  Ground 4A fails.

9.Ground 5 reads:

“In the SOF, the learned Magistrate erred in principle in requiring the Appellant/Defendant to prove to the standard of reasonable doubt that “the acts of sexual intercourses were “non-consensual”” and thereby wrongly ruled PW1 to be honest in this respect.”

Looking at what the Magistrate really said, it can be seen that he did not require the Appellant to prove that or anything else.  Ground 5 fails.

10.Ground 6 reads:

“In the SOF, the learned Magistrate failed to identify and to consider properly all the elements of the offences charged and the Appellant can therefore not be convicted of such upon the facts found to be proved.  In particular, he erred in principle in adopting the Prosecution’s submissions and not requiring the latter to prove intent to injure, an essential element of Charge 2.”

I do not understand the Magistrate to have proceeded on the basis that intent to injure, aggrieve or annoy did not have to be proved.  I understand him to have proceeded in effect on the basis, which I consider correct, that the deliberate and knowing administration to an unaware person of poison or other noxious substance can provide a basis on which to infer, as the only reasonable inference, that there was intent to injure, aggrieve or annoy.  It must be remembered that one is concerned with intent and not motive.  Ground 6 fails.

11.Ground 7 reads:

“In the SOF, the learned Magistrate found “This case essentially hinged on the credibility of PW1” and rejected the Duty Lawyer’s submissions without a balanced, objective analysis of and/or explanation.”

Contrary to that assertion, I am satisfied that the Magistrate gave proper consideration to the defence submissions.  Ground 7 fails.

12.Finally on conviction, Ground 8 reads:

“In the circumstances, there remain significant lurking doubts on the Prosecution’s case and the convictions are unsafe and unsatisfactory.”

This final ground of appeal against conviction depends on the ones preceding it.  Like them it fails.

13.Accordingly the appeal against conviction is dismissed.

14.Two perfected grounds of appeal against sentence have been filed. They read:

“	1.	The sentence imposed was manifestly excessive;
	2.	There were findings of the Court and matters advanced in mitigation that merited the imposition of other sentencing options or alternatively, a significantly lower starting point in respect of the custodial sentence.”

In my view, the sentence passed on the Appellant is within the appropriate range and the just and proper course is to affirm it.

15.Accordingly the appeal against sentence too is dismissed.

Mr Jean-Paul Wou instructed by Messrs Tang, Tso & Lau, for the Appellant

Miss Grace Chan, SGC of Department of Justice for the Respondent