Chan Wing Lok v. The Queen

CACC000480/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 480 OF 1972

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Coram: Rigby, C.J.

Date of Judgment: 8th September, 1972.

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JUDGMENT

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1. The appellant, a man aged 24 years, employed as a security guard by the management of the Hong Kong Hyatt Hotel, Kowloon, was convicted of common assault. Upon conviction he was sentenced to two months' imprisonment, suspended for a period of twelve months. He now appeals against his conviction. In view of the conclusion to which I have come the facts require to be stated in some detail.

2. On Saturday morning, the 22nd April, the male complainant, his wife and mother-in-law, together with three children ranging in age from 7 months to 3 years, were walking through the shopping arcade erected on the ground floor of the Hong Kong Hyatt Hotel building. They had entered by the entrance in Nathan Road and they intended to leave by the entrance (or exit) from Peking Road. According to the evidence of the male complainant, it was their intention, after they had had something to eat, to return to a watch shop in the arcade from which they had previously purchased watches but which they had found unsatisfactory and wished to return them. The male complainant was carrying one of the children, his wife another and the mother-in-law leading the third child by the hand. When they were some four to five yards from the Peking Road entrance, two men came from behind them - from what the male complainant described as "the main part of the hotel". These two men walked quickly passed them and then stood in front of them blocking their way. The two men said that they were security officers and told the male complainant that they were not to use the arcade unless they were potential buyers from the shops there. Indeed, one of them, according to the evidence of the complainant, went so far as to tell him that he could not go through the hotel - by which I understand to mean the hotel arcade - because he was Chinese. Both of the security officers - and, indeed, the defendant - are themselves Chinese. An argument then took place, the complainant, not unnaturally, asserting and insisting upon the right of himself and his family to walk through the arcade. How long the argument lasted is not apparent from the evidence of this witness although his wife said that it lasted for about five minutes. However, eventually the male complainant and his family circumvented the security guards and walked towards the Peking Road entrance with the intention of leaving. As the male complainant was leaving, or about to leave, the arcade he saw a man inside the arcade running towards the glass doors of the Peking Road entrance leading from the street. The male complainant passed through the door and just as his wife was going through the door the man whom the male complainant a moment before had seen running along the arcade, approached them and asked them why they had made such a fuss and further told them that they were not allowed to walk through the arcade. This man was in fact the defendant. The male complainant retorted that they were going back after they had had some breakfast. Thereupon, according to the male complainant's evidence, the defendant seized hold of his the male complainant's, wife, pulled her back through the glass doors into the arcade and punched her on the shoulder with his fist. The male complainant remonstrated and approached the defendant, whereupon the defendant punched him in the stomach and struck him on the shoulder. The male complainant ran into a shop nearby and telephoned the police and the police arrived a short time later.

3. In cross-examination, the male complainant denied that at any time before the assault he had shouted or used bad language. He maintained the defendant had also said to them that Chinese people were not allowed to walk through the arcade. Finally, he denied that he had got hold of the defendant's tie. It is relevant to observe, at this stage, that the learned magistrate, before coming to the conclusion of the male complainant's evidence, made this contemporaneous note on the record - and I quote -

"Witness's whole demeanour in box to-day has been highly excitable; he has tried to complain several times about the way police have handled the case, and has been markedly aggressive in his manner, i.e. has a 'chip on his shoulder')."

4. The complainant's wife also gave evidence. She confirmed that at the material time she and her husband, mother and their small children were proceeding through the arcade when two men came up to them and told them:

"This place is only for tourists, not for you Chinese. You are not permitted to walk around here."

The witness and her husband protested and an argument took place which lasted for about five minutes. Eventually, the witness and her family moved down the arcade and went out through the glass doors of the Peking Road entrance. The witness herself was carrying their youngest child and her husband was carrying another of the children. The witness was the last to leave. She had hardly got through the glass doors when a man, identified as the defendant, rushed up and said:

"If you are not allowed to walk (i.e. through the arcade) that means you are not allowed to walk so why do you make all this fuss?"

The witness retorted that she would walk where she pleased and, indeed, added that "We Chinese" were entitled to walk around there. Thereupon the defendant seized hold of her, dragged her back through the glass doors into the arcade and punched her several times on her chest and upper left arm. Her husband, still holding the other child in his arms, re-entered the arcade and remonstrated with the defendant, whereupon the defendant apparently turned his attentions to the husband and punched him in the stomach. The police were then summoned.

5. In cross-examination, the female complainant denied that either she or her husband had at any time used bad language; she denied that the defendant had tried to shut the glass doors to prevent her or her husband going back into the arcade; she denied that her husband tried to force his way back into the arcade or that he had tried to grab the defendant's tie.

6. Both the complainant and his wife were medically examined after the incident; no sign of injury or bruising was found on the complainant but minor bruising of recent origin was found on the outside region of his wife's upper left arm. In cross-examination the doctor said that such bruising could possibly have been caused by the woman banging into a door.

7. That was the case for the prosecution.

8. The defendant and his witnesses told a somewhat different story. A security officer employed by the Hong Kong Hyatt Hotel gave evidence that he was alone on duty in the hotel arcade at the material time. He saw the male complainant and his party: the elderly woman (obviously the mother-in-law) was carrying a child on her back, the wife was carrying a baby in her arms and the third child, a small boy just able to walk, was toddling along by himself. He approached the elderly lady, told her that he was a security officer and asked her, in effect, to control the child. The old lady seemed satisfied. He also mentioned to the old lady that his instructions, recently received, were to ensure that people using the arcade were properly dressed and he mentioned to the old lady that both she and the younger woman were wearing slippers. The younger woman, who was standing some twenty feet away whilst this conversation was taking place, approached and asked what was the matter. The security officer repeated what he had told the older woman, namely, that children were not supposed to run loose in the arcade and he also added that people wearing slippers were to be asked not to come to the arcade again. The younger woman took offence; her husband came up, used an obscene and offensive expression to the security officer and said in terms that he had been walking there long before the hotel had been built and he proposed to continue to do so. By this time the man and his wife were expostulating in loud voices. The security officer replied that he was simply carrying out the instructions given to him. Finally, the family party moved along the arcade but still talking loudly and attracting some attention. The security officer entered one of the shops in the arcade and phoned the defendant who, at that time, was on duty on the first floor of the hotel. The defendant came down and the security officer told him what had happened; at that time the family party were about to go out through the Peking Road entrance. They went out. The witness saw the defendant follow them out and presumably speak to them although he was unable to hear what was said. He saw the defendant then re-enter through the glass doors and hold the handle of the door from the inside. It was apparent that the complainant was trying to push his way in. The male complainant, in fact, succeeded in forcing the door open, entered and grabbed hold of the defendant's tie. The defendant pushed the complainant's hand away. By that time, the female complainant and the rest of the family had re-entered the arcade and the witness heard the wife cry out that her husband had been assaulted. The witness denied that he had at any time told the complainant that Chinese people were not allowed inside the arcade.

9. The defendant, in his evidence, confirmed that he had received a telephone call from the security officer as a result of which he went downstairs to the arcade. The security officer there told him what had happened, pointed to a man and a woman who appeared to be gesticulating outside the glass entrance doors and causing a certain amount of attention outside on the pavement. The defendant went outside to speak to them. He asked them to move on and not to cause a commotion, telling them, at the same time, that he was a security officer employed by the hotel. Thereupon, according to his evidence, the male complainant said: "Why should we be prevented from entering, you idiot?". Thereupon he replied that according to hotel regulations children in the arcade were required to be kept under proper control and he further said that persons using the arcade were required to be properly dressed - and persons wearing slippers were not properly dressed. The male complainant was obviously not satisfied, declined to go away and said: "Why don't you allow Chinese to enter? What if I go in?" The defendant asked him not to go in and cause a disturbance and he himself re-entered the arcade closing the glass doors and putting his hand on the door handle to prevent the male complainant from re-entering. The male complainant succeeded in forcing the door open, pushed his way in and grabbed hold of the defendant's tie. The defendant pushed his hand away and the next thing that happened was that he heard the female complainant shouting out that he, the defendant, had assaulted her husband. He denied assaulting either the male or the female complainant.

10. The manager of one of the shops in the basement of the arcade also gave evidence. He had taken a prospective customer to a shop on the ground floor to look at watches with a view to purchasing. The prospective customer had gone into the shop while he remained on the outside. The witness saw a commotion in the arcade, saw the male complainant and his party walk through and leave the arcade, saw the defendant come up and speak to the security officer and saw the defendant walk out through the arcade. The witness then saw the defendant re-enter the arcade and hold the door; he saw the male complainant push the glass door open and grab hold of the defendant's tie. The defendant stepped back and pushed off the male complainant's hand. The witness then saw the female complainant and the old lady (the mother-in-law) come through the glass door. At that stage, according to the witness's evidence "..... my customer came out of the watch shop, and I gave my attention to him."

11. Upon the evidence adduced, the magistrate acquitted the defendant of assaulting the male complainant but convicted him of assaulting the wife.

12. Eight grounds of appeal against conviction have been filed by Mr. Gunston who appears on behalf of the defendant, but the substantial ground of appeal was that the facts as found by the magistrate were contradictory to, and inconsistent with, the evidence as put forward by the prosecution and that the conviction was, therefore, unreasonable and illogical and ought not to be allowed to stand. In my judgment there is considerable force in Mr. Gunston's contention and it is for that reason, and for that reason alone, that I have set out at some length the conflicting stories as presented by the prosecution and the defence witnesses.

13. In his reasons for finding, the magistrate said this:-

The magistrate then made a reference to the medical evidence relating to bruising of recent origin on the female complainant's upper left arm. He finally acquitted the defendant of the charge of assaulting the husband but convicted him on the charge of assaulting the wife. It is apparent from the findings of fact which I have quoted that the magistrate accepted the evidence that the male complainant who, to quote again the magistrate's own words, "was an excitable little man" forced his way back into the hotel arcade, grabbed hold of the appellant's tie and, to quote again the words of the magistrate:

"I have no doubt that a blow or blows were exchanged."

14. The difficulty about the whole of these findings of fact coupled with the conviction itself, is that it is substantially consistent with the evidence given by the defendant and his witnesses and it is clearly contrary to the evidence of the male complainant and his wife. Both of them said that it was the wife who was first assaulted. Both of them said that the defendant pulled the wife back through the doors into the arcade and assaulted her and it was only then that the husband, when coming to the wife's assistance, was assaulted by the defendant. The husband denied that he had tried to force his way back into the hotel arcade. The wife denied that the defendant tried to shut the glass doors to prevent them getting back into the arcade; she denied that her husband tried to force his way back into the arcade. Both of them expressly denied that the husband, having forced his way back through the glass doors into the hotel arcade, tried to grab the defendant's tie.

15. On the other hand, the magistrate's findings of fact are entirely consistent with the defence evidence that the male complainant did, in fact, try, and try successfully, to force his way back into the arcade and that, having done so, he grabbed hold of the defendant's tie. That, in fact, was a clear finding that it was the male complainant who, in the first instance, assaulted the defendant. Whilst it is true that the defendant denied it, it is hardly surprising if, as the magistrate himself surmised, blows were then exchanged between the parties.

16. Reading the grounds of decision as a whole, it is manifest that the magistrate, and not unreasonably so, took a strong view of what he considered to be the high-handed conduct of the two security officers in their attitude towards persons - and particularly Chinese persons - making use of the arcade. On his own express findings of fact -consistent with the defence evidence and very substantially at variance with the testimony of both complainants - I have no doubt whatsoever that the view the magistrate took as to what he considered to be the high-handed conduct of the security officers, both coloured and prejudiced his decision as to whether, on the facts, the charges had been proved beyond reasonable doubt.

17. There are, however, additional factors apparent in the course of the magistrate's statement of findings which, in my view, support the conclusion that in reaching his decision the magistrate was, perhaps unconsciously, biassed by the view he had taken of the conduct of the security officers. In the course of his grounds of decision, and at an earlier stage than the passage which I have quoted, the magistrate made reference to the security officers, the defendant, the defence witness, a Mr. Wan Wan-loi and a Mr. Ho Keung - a security officer who, incidentally, was not called as a witness - and described them as:-

"... having the attributes and mentality of an American gangster; as being men who when they have authority vested in them abuse it, and when they come up against authority, attempt to defy it. They seemed to me men who, having adopted some of the less civilized forms of western life, despise the customs of their own people; who, lacking education in the wider sense of the word (through no fault of their own), have not the sense or understanding to use their discretion or exercise any tolerance in carrying out their employers instructions."

Whilst it is, of course, true that I did not have the advantage accorded to the magistrate of hearing these witnesses give their evidence and noting their demeanour, I have examined the record in this case with some care. It may well be true to say that the two security officers, allegedly acting upon instructions given to them, behaved in a somewhat high-handed and unreasonable manner, but it does seem to me, with great respect to the learned magistrate, that to describe them as "having the attributes and mentality of an American gangster" and "as being men who when they have authority vested in them abuse it, and when they come up against authority, attempt to defy it" is to make use of injudicious, unfair and extravagant language which was hardly justified by the facts of the case.

18. At the conclusion of the morning hearing the learned magistrate very proper warned the witness, Wan Wan-loi, who was still in the course of giving evidence, that during the lunch time adjournment he should not speak to anyone concerning the case. Upon the resumed hearing the magistrate at once cross-examined the witness as to the person with whom he had had lunch and it transpired that he had had lunch with a Mr. Ho Keung, who was himself a security officer employed by the Hong Kong Hyatt Hotel but not in fact a witness in the case. It would appear that before the luncheon adjournment the learned magistrate, as I have already said, told the witness in court not only that he should not speak to anyone during the adjournment about the case but that he should have lunch "on his own". Mr. Ho Keung was called before the court. In answer to the questions put to him by the magistrate he admitted that he had been in court before the luncheon adjournment and had heard the warning given by the magistrate to the witness. He said, however, that he thought the magistrate's warning was confined to the defendant and the complainants and he added that he had no connection with the case. The learned magistrate apparently took a very serious view of the matter and, indeed, went so far as to say that he was sending the papers to the Director of Public Prosecutions for him to consider whether any contempt or any other offence may have been committed. The magistrate, in his grounds of decision, again makes reference to this incident and to Mr. Ho Keung, whom he described as being "responsible for the disgraceful incident relating to the 2nd Defence Witness during the luncheon adjournment yesterday" and whom he couples with the defendant and the other security officer called as a witness as being persons "having the attributes and mentality of an American gangster". Again, with the greatest respect to the learned magistrate, whilst it is entirely proper for him to have warned the witness that during the luncheon adjournment he should not discuss the case with anyone else, I know of no authority or custom of this court, or any other court, which goes so far as to prohibit a witness who has not completed his evidence, having lunch during the adjournment, with someone not himself a witness in the case and to refer to Mr. Ho Keung as being "responsible for the disgraceful incident" and attributing to him the mentality of an "American gangster" was in my view wholly unjustified.

19. A further matter to which I would wish to refer. The following passage is to be found in the magistrate's grounds of decision and I quote it:-

"I have myself had occasion to take issue with another internationally-known hotel in this Colony over the attitude of indifference which I experienced towards local residents as opposed to foreign tourists. If in fact the Hyatt maintains such an attitude, or (more seriously) an attitude of hostility towards local residents as was alleged by the prosecution witnesses who were the complainants in this case, then I trust that there will be a sufficient body of local opinion which will make it clear that such an attitude is not welcome in Hong Kong."

20. Suffice it for me to say that what may, or may not, have been the experience of the magistrate in the treatment accorded to him in some other hotel in the Colony was a matter of complete irrelevance to the issue with which he was dealing in this case. The passage quoted above can serve no useful purpose and would have been very much better excluded. Indeed, if anything, it might have been argued that as a result of some personal experience of the magistrate elsewhere the passage tended to show some degree of bias against the hotel referred to in this instance and its employees. On the facts as found by the magistrate I am satisfied that it would be unsafe to allow this conviction to stand. The appeal must accordingly be allowed, the conviction quashed and the sentence set aside.

21. Finally, as to the sentence itself - a sentence of two months' imprisonment suspended for twelve months. On the facts of this case I am in no doubt whatsoever that the sentence was manifestly excessive and if the appeal against conviction had been dismissed I would have had no hesitation in setting aside that sentence. The well-known case of O' Keefe⁽¹⁾ is clear authority for the proposition that a suspended sentence is a sentence of imprisonment and, to quote from the case itself:-

"..... before one gets to a suspended sentence at all, a court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fine, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment: is immediate imprisonment required, or can I give a suspended sentence?"

22. The defendant in this case was a young married man of 24, with a clear record who had never been in trouble before. It was manifestly clear from the medical evidence that, at worst, the female complainant had sustained minor bruising on her arm. In such circumstances, even if there had been adequate grounds for conviction, a suspended sentence of two months' imprisonment was manifestly excessive and out of all proportion to the nature of the offence, and I would have had no hesitation in setting it aside.

Representation:

Gunston for Appellant.

Stapp, C.C. for Crown/Respondent.

(1) (1969) 53 Cr. App.R.91