HKSAR v. Olivier Laurent Renucci

HCMA 1098/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1098 OF 2007

(ON APPEAL FROM TWCC 2225/2007)

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BETWEEN

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Before:  Deputy High Court Judge Geiser in Court

Date of Hearing:  19 December 2007

Date of Handing Down Judgment:  14 January 2008

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J U D G M E N T

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1.On 26^th October 2007, the Appellant was convicted after trial by a Magistrate sitting in Tsuen Wan Magistracy, of a single charge of inflicting grievous bodily harm contrary to Section 19 of the Offences against the Person Ordinance, Chapter 212, Laws of Hong Kong.  He was sentenced to 3½ months imprisonment.

2.The Appellant has appealed against sentence and conviction and was released on bail pending appeal on 26^th October 2007.

3.On 19^th December 2007, I allowed the appeal and quashed the conviction on the grounds that the proceedings were a nullity and I consequently set aside the sentence of 3½ months imprisonment.  I now give my reasons for allowing the appeal and will also rule on the Appellant’s application for costs.

4.Essentially, the facts which the learned Magistrate found to be proved against the Appellant were that at the relevant time, that is, about 4:00 a.m. on 5^th August 2007 on board Air France AF184, he, that is the Appellant, head-butted the victim Mr Simeon Bertrand a cabin attendant on board the aircraft causing an undisplaced crack over the tip of the victim’s nasal bridge.  He further found the head-butt to be both unlawful and malicious and he was satisfied that the injuries sustained by the victim were consistent with grievous bodily harm.

5.Mr Egan on behalf of the Appellant has filed four perfected grounds of appeal.  The first of those grounds is that the lower court lacked jurisdiction to hear the case because the document under Schedule 3 of the Aviation Security Ordinance which was marked as exhibit “P1” and incorporated into admitted facts and which was purportedly completed in accordance with Section 12C(2) of the Aviation Security Ordinance, was defective.

6.It is suggested that the document which is called a “Request and Undertaking” was defective in two ways.  Firstly, whilst it was signed by the commander of the aircraft, it was not dated nor was it witnessed by a police officer in Hong Kong.  Whilst this is perfectly correct, I do not consider that this fact per se invalidates the document.

7.However, Mr Egan makes a much more fundamental point in respect of this document, because he points out that it is a requirement under Section 12C(1)(b)(ii) that the commander of the aircraft and the operator of the aircraft (in this case Air France) give the undertaking.  What happened in the present case is that it is apparent that whilst the commander of the aircraft did give the undertaking, there is no undertaking on the part of the operator, but rather the victim of the assault, Mr Simeon Bertrand.

8.The importance of the undertaking is that as the offence took place on board an Air France aircraft and therefore “In France”, the undertaking effectively protects the Appellant from double-jeopardy as he could also face prosecution in France for this offence.

9.Mr Reading who appears for the Department of Justice in this matter has it seems to me, taken a most responsible attitude and concedes the appeal on this ground, he likens the situation to those cases brought under the Prevention of Bribery Ordinance where the Secretary for Justice’s consent has to be obtained prior to prosecution.

10.Mr Reading has considered the possibility of applying for a re-trial, but once again most responsibly, bearing in mind considerable practical difficulties, he has decided against taking this course.

11.I find myself in complete agreement with both Mr Egan and Mr Reading in so far as ground 1 is concerned.  The proceedings before the Magistrate due to the material defect in the request and undertaking are a nullity and I therefore allowed the appeal, quashed the conviction and set aside the sentence of 3½ months imprisonment.

12.Mr Egan seeks costs against the Department of Justice.  The general rule is of course that a successful Appellant should be awarded his costs unless he has brought suspicion on himself, or unless the appeal has been allowed on a technicality.  Mr Egan in support of his application for costs prays in aid grounds 2, 3 and 4 of his perfected grounds of appeal.  He further argues that the lack of a proper request and undertaking as required under Section 12C of the Ordinance was not so much a technicality, but more a series of blunders from the outset of the prosecution that manifested itself right up until the time of the hearing of the appeal itself when Mr Reading properly conceded the matter.  Whilst this is of course correct, it is also correct to say that the Appellant’s own lawyers in the court below did not pick up the point either.  That having been said however, it is my judgment that this appeal has been allowed on a matter which is purely of a technical nature.  Moreover, having considered grounds 2 to 4 of Mr Egan’s perfected grounds of appeal, I am not persuaded that there is any merit in any of them.

13.As far as ground 2 is concerned, even if this ground were to succeed; it would simply have resulted in the charge being amended to one of assault occasioning actual bodily harm.  This would have no bearing on the question of costs.

14.There is no merit in ground 3.  The Appellant was represented in the lower court by experienced counsel and it is quite clear from the transcript that the Appellant spoke both French and English.  Indeed right from the outset, counsel for the Appellant told the learned Magistrate that the Appellant could speak and understand English.  With regard to the fact that some of the evidence of the witness PW1 was taken via double interpretation, i.e. from French to Cantonese to English, some of it from French to English and on occasions the witness answering directly in English, the Magistrate had the advantage of observing the witness whilst he gave evidence and as the transcript suggests, was able to assess his evidence accordingly.

15.As far as ground 4 is concerned – there is similarly no merit in this ground.  The learned Magistrate’s Statement of Findings are extremely comprehensive and demonstrate that he had properly evaluated the evidence and assessed the credibility of the witnesses before reaching his conclusions.

16.The application for costs is denied.

Mr John Reading, SC, of the Department of Justice, for the Respondent

Mr Kevin Egan, instructed by Messrs Robertsons, for the Appellant