HKSAR v. Estrella, Hazim Angelina

HCMA1096/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1096 OF 2006

(ON APPEAL FROM ESCC 4284 OF 2006)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 31 January 2007

Date of Judgment : 31 January 2007

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J U D G M E N T

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1.The appellant was convicted after trial at the Eastern Magistracy of an offence of Wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212 (“the Ordinance”).  She was sentenced to six months’ imprisonment and appeals both her conviction and sentence.

2.The facts of the case as found by the magistrate were unusual.  In the early hours of the day of the offence, the appellant went to the female restroom at a bar in Lan Kwai Fong.  She entered one of the two operating cubicles.  The victim, an air stewardess who had flown into Hong Kong only a few hours earlier, then entered the restroom and went into the other available cubicle. 

3.Some of the victim’s friends then came into the restroom and formed something of a queue waiting for a free cubicle.  The victim left her cubicle and noticed that the cubicle which the appellant was using remained occupied.  She knocked on the door and asked if there was anyone there.  After the enquiry was repeated and the victim had knocked on the door again, the appellant opened the door.  At that time, the appellant was apparently speaking on a mobile phone while she was sitting in the cubicle. 

4.There was then a further enquiry from the victim who asked the appellant if she was alright.  The appellant said “I am fine” and then swore at the victim and kicked the door shut.  At that moment the victim’s right hand was on or near the doorframe near the lock, and part of the distal portion of her right middle finger (perhaps one centimetre or so) intruded into the frame recess and was amputated by the forcibly closed door.

5.The police were called as was an ambulance.  The victim had the presence of mind to have her friends recover that part of her finger which was amputated by the closing door and place it on ice, but the subsequent operation apparently was only partially successful in reattaching the separated portion of the finger. 

6.The appellant’s case which was rejected by the magistrate had been that while she had shut the door firmly she had not kicked it closed as the prosecution alleged, and had not seen the victim’s hand or finger intruding into the area of the door frame, or foreseen it would be struck by the closing door.                               

7.The victim and the appellant were the only witnesses who gave evidence as to what happened in the washroom.

8.The appellant’s evidence, as I say, was rejected by the magistrate and that was for a number of reasons, including inconsistencies between her own evidence and that which had been put on her behalf by counsel in cross-examination, and inherent improbabilities in her own evidence.

9.It may be that some of the inconsistencies relied upon by the magistrate could be considered to verge on the trivial, especially where the criticized evidence of the appellant concerned details of what had occurred during the space of a very short period of time in which the event had occurred.  But as a whole, I am of the view that the magistrate was entitled to reject the appellant’s evidence.  That is particularly so in view of her assertion in evidence that she had noticed nothing unusual in the restroom when she came out of the cubicle and had not realized the victim’s finger had been injured until she had been apprehended by the bar doorman outside the restaurant.  That was in spite of the fact that there were bloodstains found in the rest room and the amputated part of the victim’s finger was later located in the restroom.                                         

10.Mr King, on behalf of the appellant, advances a number of grounds of appeal.  But perhaps the most cogent was adopted from the original grounds of appeal to the effect that the evidence was insufficient to found the appellant’s conviction.  Mr King relies on other grounds of appeal the tenor of which amount to the same thing, in that they assert that on the evidence the magistrate was wrong to infer the requisite intent in the mind of the appellant.     

11.It can be seen from what has been set out above that the magistrate, in my view, was entitled to dismiss the appellant as a reliable witness.  But the prosecution still then had to prove its case against the appellant.  The most important matter that had to be established was that the appellant intended to cause or was reckless as to causing harm to the victim when she closed the cubicle door.

12.The evidence as to the appellant’s intent, or as to her being reckless (i.e. foreseeing the risk of injury to the victim but closing the door anyway : see R. v. G. and Another [2004] 1 AC 1034) was purely circumstantial.                  

13.The magistrate concluded after referring to the positioning of the victim’s hand on the doorframe and the appellant’s view of the victim :

“…. In those circumstances and having regard to the close proximity and the lighting condition, the Defendant must have been able to see PW1’s [the victim’s] hand and that she had deliberately slammed the door shut.  Even if I were wrong, there was no dispute that PW1 was very close to the door.  Having regard to the close proximity of PW1 to the door, even if the Defendant had not noticed the exact position of PW1’s finger, it would have been obvious (even to a child) that PW1 was at high risk of being injured if the door had been slammed shut in her face.  The Defendant was wholly reckless as to whether she would cause injury to PW1. ….”

14.I may say I cannot see any sufficient basis for those conclusions to have been arrived at so as to satisfy the criminal standard of proof.  I say that for these reasons : It is plain that even though the appellant’s rested upon the doorframe of the cubicle, which was in truth simply the front wall of the cubicle, it was only the tip of one of her fingers which entered into the recessed part of the doorframe into which the door closed.  How long the victim had her hand in position so that the finger intruded into the door recess was unknown.  The precise location of her hand was an issue at trial and the victim herself in evidence was unsure where her hand had been resting.  She had not realised at the time that her finger extended into the door recess of the frame.  How visible was the intrusion of the victim’s finger into the recessed part of the doorframe was an important issue at trial and was explored in evidence in necessarily only the most general terms.

15.Taking that all together, it seems to me that even though the appellant may have realised the victim’s hand was upon, or was touching some part of the doorframe which, as I say, was simply the external wall of the cubicle, it may well have been that she had not realised that some part of the victim’s finger intruded or might have intruded into the door recess.  I cannot see how on the evidence before the magistrate the contrary conclusion could have been proven.  And that being so, how an intent to cause injury to the victim or a foreseeing of the risk of an injury could have been inferred on the part of the appellant to the criminal standard.

16.It is a fact of human nature that things are done carelessly or negligently and without forethought.  In the present case there seems little doubt that the appellant, whatever her evidence, had closed the door in anger.  The force used was sufficient to amputate the victim’s fingertip, and even on the victim’s evidence which was accepted by the magistrate the appellant was agitated by the victim’s intrusion upon her privacy.

17.But closing a door forcibly is simply part of the actus reus of the offence and does not necessarily throw light upon the intentions of the appellant.  Particularly in this case where the appellant may well have felt a sense of intrusion.

18.I should say also that following R. v. G. (supra), there is no doubt that Caldwell recklessness has for all intents and purposes left the criminal law.  It has certainly left section 19 of the Ordinance.  For a defendant to be convicted of a criminal offence on the basis of recklessness, it has to be proven that the defendant consciously saw the risk of injury to the victim and went ahead with his or her actions in any event.

19.In the early hours of the morning, in a less than perfectly lit restroom at the back of a bar in Lan Kwai Fong, in circumstances of acrimony, it seems to me that there was a real possibility not only that the appellant did not see the victim’s finger partly intruding into the door recess and therefore did not intend the specific injury which occurred, but also that the appellant did not foresee the risk of injury to the victim as a result of her slamming the cubicle door.

20.The magistrate may well be right, the appellant may have intentionally or recklessly injured the victim.  But I do not see how on the evidence the possibility of a lesser culpability, simple carelessness or negligence can be eliminated.

21.In my view, the evidence before the magistrate was insufficient to allow her to arrive either at a finding that the appellant intended to injure the victim or was reckless as to causing her injury.

22.For that reason I allow the appeal and the appellant’s conviction and sentence are set aside.

Mr Vincent Wong, SGC of Department of Justice, for HKSAR

Mr Alexander King, SC and Ms Amanda Whitfort, instructed by Messrs Haldanes, for the Appellant