HKSAR v. Jiaravanon Jiaciplo

HCMA 713/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 713 OF 2007

(ON APPEAL FROM TWS 11470 of 2006)

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BETWEEN

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Before : Deputy High Court Judge Line in Court

Date of Hearing : 23 January 2008

Date of Judgment : 5 February 2008

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J U D G M E N T

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1.This is an appeal against conviction for using abusive language in the bylaw area of Hong Kong International Airport contrary to Bylaws 19 and 62 of the Airport Authority Bylaws made under the Airport Authority Ordinance cap 483. The appellant was fined 1000 dollars.

2.The evidence discloses that on the 22nd of August 2006 the appellant had intended to board a Cathay Pacific Airways flight to New York as a first-class passenger; having entered the restricted area for departing passengers he received a call from his mother telling him that she had forgotten to give him an important gift to take with him; there was not time before the flight departure for him to go out and collect the gift; the mother requested a Cathay ground staff member named Wu Wai Ming, Tommy  (PW1) to carry the gift through into the restricted area; PW1 declined to do so on security grounds explaining that the regulation which governed her in this regard only allowed her to take through a passport or like document; the appellant then spoke over the telephone to PW1 making the same request and receiving a similar answer; the appellant therefore cancelled his flight and some 20 minutes later returned to the check-in counter to confront PW1.

3.The respondent’s case was that the appellant was angry and turned nasty and that notwithstanding PW1 had supplied her full name to him he demanded to have her employee identity number in order that he could complain about her; that she declined to give it; that he became abusive and swore at her; that he then tried to take her photograph to which she objected, calling security and the police.

4.The appellant’s case was that PW1 was unhelpful and rude to him first and had accused him and his mother of being terrorists; that whilst he was not angry he wished to complain about her; that PW1 would not give her full name, he seeing only “Tommy” written on her lapel badge, nor would she give her employee identity number; that he tried to photograph her with his mobile telephone whereon she rudely cursed him in Cantonese; that knowing she was in the wrong for having falsely accused him of being a terrorist she invented a false allegation against him of abusive language.

5.The Deputy Special Magistrate believed the evidence of PW1 and disbelieved the evidence of the appellant and his mother. He gave reasons for doing so and it is criticism of those reasons that is the major plank of the appellant’s case.

6.The respondent’s initial view was that there was force in the criticism and they came here having indicated in a skeleton argument that they would not seek to uphold the conviction. Of course, the orders of this Court cannot be dictated by concession and it was thus that this court was obliged to see if there had been error on the part of the magistrate and if so what effect that error would have on the appeal.

7.The alleged error was said to be found in the use made by the magistrate of an e-mail that had been sent to Cathay Pacific on the day in question by the fiancee of the appellant who had been awaiting his arrival in New York. It was claimed in the perfected grounds of appeal “that the magistrate wrongly relied on the e-mail message to reject the testimony of the appellant and his mother and to conclude that their evidence was of recent invention when in fact the e-mail message was only a hearsay document written by the fiancee who did not witness the incident and who had no knowledge of the matters save for what she had been told by the appellant in a brief and stressed telephone call.”

8.The e-mail had been introduced into evidence by the appellant. He was handed the document and he was asked if he confirmed that the e-mail was true and correct. He said it was. Explaining how it was that his fiancee could relate the matters of complaint which appear in that e-mail, he said that his mother called her up and told her what happened. Later in his evidence he agreed that he had also spoken over the telephone to his fiancee in the course of the incident. He said the conversation was short, he telling her that there was trouble with the ground staff and that he would not be arriving and that it was his fiancee who took the initiative to send the complaining e-mail.

9.At the end of the appellant’s evidence, his counsel applied to produce the e-mail as exhibit D2. The magistrate then said this: “here’s this one e-mail that he came to know about and it’s really not the statement made personally by this defendant and in that case you know about the value of this exhibit even if it is marked.”

10.Under cross-examination the appellant was asked to look at the e-mail, where on the magistrate said, “it is an out-of-court statement and also it’s not really made personally by this defendant himself. And also there involved some parties whose statement were put down, they are not called to give evidence today in court. So I wonder how far really can this exhibit to go? I don’t pay attention to any statements contained therein. That’s the attitude of the court relating to this exhibit.”

11.It is thus clear that the magistrate had well in mind the potential for the document to be used in a way that would offend the rule against hearsay.

12.The e-mail was a fairly long one in the circumstances, giving the full name of PW1, relating amongst other things the request and its refusal, the movements of the appellant and the missing of his flight, the refusal of PW1 to give her employee identity number; the appellant wanting to make a complaint regarding her work ethic, and cooperativeness, and rudeness; that PW1 called the police and said that she wished to make a personal complaint on account of profanity thereby making false accusations against the appellant.

13.At the forefront of the evidence of the appellant was a claim that PW1 had actually accused him of being a terrorist. Mr Grossman SC readily conceded that such an accusation was unlikely and that what the appellant really meant was that he had been treated as if he was a terrorist. I agree with his concession, but the transcript makes plain that the appellant deliberately went beyond claiming he was being treated like a terrorist and asserted that he had also been accused of being one. Indeed, defence counsel at trial submitted that the appellant wasted his first-class ticket because he wished to deal with that accusation or insult from PW1.

14.The appellant was clearly a worldly man of intelligence studying at an American university, with a degree already under his belt. One can have no doubt that this distinction between being treated as if he was a terrorist, due to security reasons being given as the reason for being unable to comply with the request, and actually being accused of being a terrorist would not have been lost upon him. He said this in his evidence “I am a public figure. Accusing me as a terrorist is very serious to me. So to me it is a lawsuit matter.” He said that he wanted to sue for defamation.

15.The evidence of the appellant and his mother was to the same effect in this regard, the mother having said of PW1 “she claimed that we are asking her to transport a bomb or illegal items across the security checkpoints.”

16.PW1 denied accusing them of being terrorists.

17.It was thus an important feature of the case, potentially significant and helpful in deciding the issues of credibility, as to whether or not the accusation had been made and if not why was it said to have been made.

18.The use that the prosecutor made of the e-mail in cross-examination of the appellant was to point out that the accusation which was now at the forefront of this case did not feature in the e-mail as a matter of complaint at all.

19.The appellant responded by saying “that he did not get the chance to mention that”. It was thus not the case that oversight or editing by the fiancee in New York explained the lack of his complaint in this regard. No questions were asked of the mother about the e-mail.

20.There was thus a point to be made for the respondent to the effect that both the appellant and his mother regarded the accusation as important and yet it did not feature in the e-mail. This was not to use the e-mail in any way that offended the rule against hearsay. The truth of the assertions in the e-mail was not an issue and the respondent did not rely upon any assertion in the e-mail to prove anything. On the contrary, its use was to infer what it was the appellant and his mother had said or not said at the time.

21.The use which the magistrate made of the e-mail in this regard likewise did not offend the rule against hearsay. He judged that the failure to have brought up the accusation such that it was included in the e-mail damaged the credibility of the appellant and his mother and indicated that they had put their heads together to invent the accusation for the purposes of the trial.

22.In his statement of findings the magistrate pointed to the terrorist accusation and said “if that’s really the case, the appellant should make it a point and have it named front and centre in the e-mail message, rather than missing this important or essential accusation out of the picture.”

23.That was an unhappy way to phrase it in my view, as it associated the appellant too closely with the drafting of the e-mail. However, such infelicity does not indicate any use by the magistrate that contravened the rule against hearsay. Further it does not indicate to me that the magistrate truly thought that the appellant was the author of the e-mail or dictated its contents, for such would be quite contrary to what he said in the course of the evidence and to which I have referred.

24.Accordingly, I cannot see how the magistrate can be said to have wrongly relied on the e-mail message. Upon hearing counsel for the respondent upon the concession it became apparent that he had not appreciated that the evidence revealed that the mother, as well as the appellant, had spoken to the fiancee and told her what had happened. Without that evidence the magistrate would have been in error in using what was missing from the e-mail in the assessment of the mother’s credibility, but such was not the case. Following discussion about the way the e-mail was used and in the light of this evidence concerning the mother calling the fiancee, the concession was withdrawn. The concession also provoked argument about what the position would be if there was in fact error as suggested.

25.Mr Grossman SC contended that if I could not rely on the magistrate in his assessment of the credibility of the witnesses then the conviction must be quashed.

26.There can be no doubt since the decision of the Court of Final Appeal in the case of Chou Shih Bin v. HKSAR FACC 11/2004 that the nature of an appeal under section 113 of the Magistrates Ordinance is a rehearing on the evidence that was before the trial court; that whilst the appeal judge does not have the advantage the magistrate enjoyed of receiving the evidence at first-hand, the jurisdiction was at large and that it was the duty of the appeal judge to come to his own conclusion on the evidence. This court has to look at the evidence and decide if it supports the conviction. That is done by the application of the burden of proof to the evidence and if there is a reasonable doubt as to guilt the conviction must be quashed.

27.In undertaking the task the court is obviously assisted by the statement of findings produced by the magistrate, especially in relation to matters of credibility. If for some reason this court were to find no such help in the statement of findings, does it preclude upholding the conviction by reliance on the evidence before the court?

28.Whilst Mr Grossman SC said that he could never recall an appeal from the magistracy being decided by the appeal court relying on its view of who was telling the truth without regard to the findings of the magistrate, I believe that he conceded that as both a matter of law and common sense there was nothing to stop that happening. Otherwise it could be the case that overwhelming evidence rightly convicted an appellant yet he would have his conviction quashed if the magistrate had happened to give some silly reason for disbelieving his account of the matter.

29.The correct approach must surely be, and I believe no party dissented from this, that if this court decides not to rely on the magistrate’s assessment of credibility then it could look to the evidence in the transcript and form its own view; that the court would bear in mind it lacked the advantage of receiving the evidence first-hand but would not shrink from allowing the appeal if it entertained a reasonable doubt as to the guilt of the appellant, but equally if it were sure that the evidence established guilt it would dismiss the appeal.

30.I might add that it is not so much the demeanour of the witnesses that one misses in undertaking this task of judging on paper. I find the cases to be rare where the way a man behaves in court or the manner in which he delivers his evidence, especially when done through translation, plays a truly significant role. The advantage the trial judge has is of being able to receive a continual stream of information that informs his judgment of the evidence as the evidence unfolds. There is a continual impact (or there should be if the advocates confine themselves to the real issues), which is harder to experience from a transcript. It is the sum of all those perceptions that leads to findings concerning credibility. It is the difficulty of adequately describing that process in words that leads so often in these appeals to criticism.

31.Returning to the appellant’s submissions to the effect that I should not rely on the magistrate’s assessment of credibility, Mr Grossman SC went through the reasons given by the magistrate for not believing the appellant and his mother and criticised each one in turn. Some of those criticisms are well made, but for the most part I judge a difference of expression and emphasis would meet such criticisms, because underneath there were valid points to be made.

32.I have already referred to the point made by the magistrate about the e-mail not mentioning the accusation of terrorism. I judge it to be a valid point that the joint communications of the appellant and his mother did not cause their bull point to make its way into the e-mail when other detail did. The magistrate also noted that the e-mail lacked the claim that PW1 would not give her full name, although it did mention the failure to produce her employee number and that the profanity PW1 allegedly uttered did not feature.

33.In regard to these last two matters the magistrate expressed himself trenchantly. The force of the points was not really sufficient to carry such trenchant expression. All that needed to be said, and it is how I view the evidence, is that taken together there is some significance in the failure of their big complaint to get through and is it not a little more than coincidence that the some of the detail that does get through happens to coincide with the evidence of PW1 and that these two matters, which PW1 did not accept, did not. I do not suggest that such points by themselves are of any great import but they are available to be made and they go into the scales when it comes to the final judgment.

34.I agree with Mr Grossman SC that the point about the appellant’s failure to find out the name of the general manager of Cathay at Singapore was not a good one, and that the failure to remember his name or to go and find it out prior to the trial was not unreasonable. The relevance of this was that the appellant had once lost a suitcase whilst travelling with Cathay and in the course of pursuing his complaint in that regard had met the general manager of the airline in Singapore who had told him to take the employee number of staff with whom he was dissatisfied in order to prosecute a complaint.

35.I again agree the appellant’s submission that points five and six mentioned by the magistrate at paragraphs 42 and 43 of the statement of findings are really the same point and that its expression is not in the clearest terms. The basic point was that an intelligent man like the appellant would have clearly appreciated that he could have identified PW1 as the subject of his complaint by reference to her name Tommy and the time and place of the incident in question. A moment’s thought, at least by a man not blinded by anger, would tell one that the idea of there being two ladies called Tommy working at the same check-in desk at the same time was fanciful. Why then did the appellant persist, as he acknowledged, in seeking her employee number. The magistrate judged that he had an ulterior purpose which was to put undue pressure on PW1. I agree with that judgment. Whilst I might not myself have used the phrase undue pressure it is clear what was meant, namely unreasonable conduct designed to discomfort PW1.

36.It is thus that I reject the submission that the judgment of the magistrate was fatally flawed in regards to credibility. I am willing to receive his help from the statement of findings, remembering that he received the evidence at first-hand. However, lest I be wrong in that assessment, I am willing to decide the case, and do so, without the help of the statement of findings. That is because on the evidence before me there is sufficient material for me to form a judgment. This will involve matters that the magistrate did not canvass in his statement of findings, although I suspect he may have had them in mind, as well as those points I have already mentioned but expressed differently.

37.Let me start by looking at the evidence concerning the alleged accusation of being a terrorist. As I have already said the evidence simply cannot be explained away by saying that the appellant meant something different. The idea that PW1 made such a direct accusation is a claim I consider to be wholly unrealistic. Why then did the appellant persist with it at trial?

38.I believe the answer lies in this answer that he gave in his evidence in chief: “I did not use any foul language against her. This is my theory, because she realised that she made a great mistake by accusing me of carrying a bomb or asking her to transport illegal items or bomb, so she knew that if I reported this to upper management she would get fired, therefore she had to do this at that time”.

39.In other words it was to provide a motive for PW1 to invent a false complaint. It is thus that I perceive dishonest invention at work in order to deal with an obvious strength in the prosecution case and weakness in the defence case to the effect that why would someone routinely at work doing this job choose to invent a false allegation against a first-class customer.

40.In my judgment, asking who it was that lost their temper and became angry provides an insight as to who is telling the truth here. The appellant claimed that PW1 was rude in the initial telephone call between the two of them. She denied it. She said he was angry. He denied it. I judge the inherent probabilities to be all in favour of PW1 here. All she had to do was to state the company regulation, which is what in effect she says she did. What stimulus was there for her to step outside the usual conduct her job called for and commence the rudeness? None comes to my mind. What stimulus was there for her to invent a false complaint? It was argued that her knowledge of his intention to complain was sufficient. I reject that. If she had done nothing wrong which would justify complaint all she had to fear was a false complaint by the appellant. For someone allegedly in fear of losing their employment, I judge PW1 would have perceived the risk of defending a baseless complaint as not putting her job in danger, whilst inventing a wholly spurious allegation, when there were others present to overhear, would do just that.

41.What stimulus was there to prompt the defendant to anger? The answer is obvious: missing his flight and losing a first-class ticket over a matter which he perceived could have been resolved in his favour with a little exceptional treatment of the sort he felt was due to a first-class passenger such as himself.

42.It is also worth remembering the nature of the crime here in the context of the human emotions at play. The crime was a regulatory one attracting a fine of 1000 dollars, reflecting that the worst of the mischief was using the f word in temper. It is not difficult to see how in these circumstances a man of good character, for the appellant was such, could let his anger rule his tongue.

43.The evidence disclosed that at the time PW1 declined to settle the matter if an apology were forthcoming from the appellant. If there was any truth therefore in the suggestion that PW1 prosecuted a false complaint against a man she knew to be innocent out of fear of losing her job, this was an opportunity to achieve just that without the risks involved in perjured evidence.

44.On the evidence before me I was sure that the conviction was a good one and that it discharged the burden of proving guilt for sure.

45.Other points were taken, and the first ground of appeal was to the effect that the magistrate, having found PW2 to be unreliable in effect dismissed her evidence in total, thereby ignoring some points that could be said to have been in favour of the appellant. PW2 on the face of it was a witness that did the appellant a great deal of harm, for she was a Cathay employee on duty at the scene who testified that she had heard the appellant using the words of which complaint is made. However the reasons set out in paragraphs 47 and 48 of the statement of findings, which concerned some discrepancy between her evidence and the statement taken after the incident, a dispute about what she saw on the appellants mobile telephone and what the telephone he produced in court was capable of showing and her assertion that her concern was whether her meal break would be spoilt when was required to make her statement. He reasoned that, given that preoccupation, her observation might have been rendered cloudy and so he regarded her evidence as unreliable, if not untruthful.

46.The argument here in court did not embrace whether or not I should judge the adequacy of that reason for rejecting the evidence of PW2 and I do not do so, as in the circumstances it was not necessary in order to support the conviction. The point was made that this witness was basically hostile to the appellant and therefore those things said in his favour, which are set out at paragraph 15 of the appellants written submissions, should count significantly in his favour. The points are small ones. I take them into account, but they do not affect my judgment.

47.As to the remaining grounds, there is no need for me to deal with them individually. They can be described as jury points. I am aware of them and have taken them into consideration in reaching my judgment on the evidence.

48.Accordingly the appeal is dismissed.

Mr Simon Tam, Senior Government Counsel of the Department of Justice, for the Respondent

Mr Clive Grossman, Senior Counsel and Mr Kenneth Wong, instructed by Yung, Yu, Yuen & Co, for the Appellant