HKSAR v. Hui King Kwok

cacC 230/2007

in the high court of the

hong kong special administrative region

court of appeal

CRIMINAL APPEAL NO. 230 of 2007

(on appeal from DCCC NO. 204 of 2007)

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BETWEEN

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Before: Hon Stuart-Moore VP, Stock JA, and Beeson J in Court

Date of Hearing: 23 July 2008

Date of Judgment: 23 July 2008

J U D G M E N T

Hon Stock JA (giving the judgment of the Court):

Introduction

1.On 29 June 2007, the applicant was convicted by Judge Chua in the District Court of assault with intent to rob, contrary to section 10 of the Theft Ordinance, Cap. 210.  He was sentenced to three years’ imprisonment.  He now seeks leave to appeal against conviction and sentence.

The allegation

2.The complainant was one Choi Ching-kit (‘Choi’).  His evidence in-chief was to the effect that on 9 February 2007, at about 3:30 pm, he was about to cross King’s Road, Causeway Bay, when a man whom he did not know (the applicant) approached him and said that he, Choi, owed him money.  But, said Choi, he did not know him at all, let alone owe him money.  Choi’s wallet was in his right shirt pocket and the man tried to grab hold of the wallet, declared ‘robbery’ and struck his back whereupon Choi telephoned the police.  There was then a further assault upon Choi’s forehead and the applicant fled, pursued by Choi and two passers-by.  The police caught the applicant who was taken to the police station.  Choi was examined by a doctor at the hospital: he had a swelling and bruise over his right forehead and tenderness on his back.

The defence

3.The applicant testified.  He is Fukienese.  So is Choi.  The applicant said that he had known Choi since about 1996 and had met him on quite a number of occasions in that time.  The applicant was known to him as “Choi Sai”.  In 2002, the applicant had come to know a female by name Sze Lai-na who was a Mainlander.  The applicant lent her $5,000 and Choi acted as a guarantor.  Choi had himself written a document, which was the guarantee, in a restaurant in Paterson Street, Causeway Bay.  It also had a telephone number on it, purportedly that of Choi, which the applicant had noted.  The money was never returned by Sze, so the applicant tried to contact Choi by telephone but without success and went to an address in Lok Ka Centre which he understood to be Choi’s.  His attempts were unsuccessful.

4.Then on 9 February 2007, he saw Choi in the middle of King’s Road and approached him and asked him about the loan in respect of which Choi was the guarantor and said that he wanted his money.  Choi answered that it had nothing to do with him.  Choi was in the company of another person.  The applicant suggested they find a restaurant where they could discuss how the matter might be resolved.  An argument ensued.  Choi called the police and told them that he was being harassed by someone and reported the location.  The person who was with Choi suggested that the applicant leave because the police were coming and the applicant was about to do so when Choi assaulted him on his right wrist and lower forearm.  The applicant was very angry and hit Choi on his head but, he said in evidence, “I was not his equal in terms of hitting the other person.  So I ran.  His friend had not run after me.  Choi Sai then shouted out in a loud voice ‘robbery’.  I continued to run away and I was really frightened because I was not his match when it comes to hitting the other person.”  (By ‘other person’, we understand, particularly in the light of evidence about the respective heights of the applicant and Choi, that he was referring to Choi).  He denied any attempt to rob Choi.

5.He said that at about 5:30 pm that day at North Point Station the applicant handed the piece of paper on which the guarantee was written to the police.

6.The guarantee document read as follows:

“Choi Sai, guarantees that Sze Lai-na will pay off in late December.  For example, (if) Sze Lai-na is not in Hong Kong I will not be responsible for it.  If $5,000 is not paid I promise I will be responsible for looking into it.”

“Choi Sai” appears at the foot of the document as does a telephone number.

7.All of this was put to Choi in cross-examination.

Key points

8.There are certain key features of the evidence and in particular of Choi’s answers to the account given by the applicant that must be noted:

(1)  On numerous occasions in the course of his testimony, Choi said that he did not know the applicant; for example: “I did not know him at all and he did not know me.”  There was one occasion in which he let slip the phrase “I did not know him very well”, but that was overwhelmed by his frequent insistence that the applicant was unknown to him.  He had also told the police that the applicant was unknown to him.

(2)  Choi insisted in evidence that he had never been known as “Choi Sai”.  But a witness was called on behalf of the applicant, a Mr Lee, who said that he had known the complainant for some time and that the complainant was known as “Choi Sai”, and the significant point is that this evidence was not challenged.

(3)  The address in Lok Ka Centre where the applicant had tried to locate him had indeed been the complainant’s address.

(4)  There was evidence from the police that when on 12 February 2007, Choi was shown the guarantee note by them, and asked whether he had written it, he replied: “No, these characters were not written down by me.  They were absolutely not in my handwriting.”

(5)  By dramatic contrast, when he testified, Choi admitted that the note was in his handwriting.

(6)  He said that a person known to him as Ah Shing, whose details he could not provide, had asked him, the complainant, to write out this document for him.  It was somebody else’s guarantee, not the complainant’s.  The telephone number written on the document had never been his.

(7)  When asked why, then, he had told the police that the characters had not been written by him, he asserted that he made that statement to the police at a time when he had not been shown the slip of paper.  By significant contrast, the evidence of a police officer who was tendered in cross-examination said that before that statement was made by Choi to the police, Choi had indeed been shown the guarantee note, albeit a photocopy of it.  The sense of the statement itself makes it clear that Choi was shown the note when he was asked the question and when he denied it was in his hand.

(8)  After Choi had told the police that the writing on the guarantee note was not his, the police asked for a handwriting sample from him, but he declined to provide one.

(9)  The applicant testified that he had been assaulted by the complainant and had received medical attention.  It was put to him, from a doctor’s report to hand, that he had told the doctor that the assault had been occasioned by the police.  (It is contended by Mr Beel today that that entry may have been misread, but for present purposes that matters not because everyone at trial proceeded on the basis that that was the entry.)  The applicant said that this must have been a misunderstanding and that he had never told the doctor that he had been assaulted by the police and the applicant added that no such assault by the police had in fact taken place.  He agreed that he had made a complaint against the police to CAPO, but that was not in relation to any assault but in relation to their handling of the case once he had produced the note in support of his version of events.  The report that he made to CAPO was produced.  It contained no complaint of assault by the police.

Reasons for Verdict

9.The trial judge said that she had not the slightest doubt that the main substance of the complainant’s allegations was true and reliable.  She said:

“9.        … I am sure he did not know the defendant nor his witness.  I am sure he is not known by the name of Choi Sai.  I expect he was rightly indignant therefore at being asked to give a handwriting sample and had refused….

10.       I am sure he had not meant to lie to the policeman taking his statement.  I do not think he meant to lie about it in court either.  I believe he had written this note, without thinking, when Ah Shing asked him to do so many years ago, and when shown two pages of photocopies out of the blue, had not recognized or remembered it.

11.       As for the defendant, I disbelieve him.  I also disbelieve his witness.  I do not believe the defendant produced the note (PD1) to the police at 5.30 on 9 February, otherwise the defendant would certainly have mentioned it in his cautioned interview made at 8.30 pm on 9 February 2007.

12.       … I do not believe the examining doctor had misunderstood what the defendant had claimed to him at the time of examination, which was that he was hit by the police.  That was what the examining doctor noted on the medical report.  The medical examination may have been made, to support his complaint to CAPO.” 

Analysis

10.We have difficulty in accepting the judge’s reasoning.  Despite his adamant denial to the police, it is perfectly clear that the guarantee note was written by the complainant, and proof of the prosecution case depended upon the credibility of the complainant.  The judge said that she was sure that the complainant had not meant to lie to the police or to the court.  Yet, in so saying, she appears to have overlooked the fact that in court he said that the reason he had told the police that he had not written the note was because he had never been shown it by the police, a suggestion directly contradicted by police testimony.  That is something that had to be dealt with by the judge; but it was not.

11.It is difficult to believe that once shown the note at the police station, the complainant did not recognize it at once as in his hand.  That being so, some explanation could reasonably be expected for his denial.  Yet no credible explanation was given by the witness for it.  Merely to say: “I’m sure he had not meant to lie to the policeman taking his statement” is a statement supported by no rationale.

12.The judge suggested that the complainant was – contrary to his own evidence in court – indeed shown a copy of the document by the police but had forgotten that he had written it because he had originally written it without thinking many years ago and it was produced “out of the blue”.  But that was not the complainant’s explanation, and there was, in our opinion, no basis for that rationalization.

13.The refusal by the complainant to provide a handwriting sample when the police had, as the complainant must well have known, requested it to test the veracity of the applicant’s defence, was a matter of considerable importance.  The judge explained that refusal on the footing that it had been an understandable show of indignance.  We do not see an adequate basis for that conclusion.

14.The judge said that she was sure that the complainant was known neither to the applicant nor to his witness and that the complainant was not known as “Choi Sai”.  Leaving aside the fact that accurate details of the complainant’s past was provided to the court by the complainant, the judge does not explain on what basis she dismissed the evidence of the applicant’s witness when that witness’s evidence went completely unchallenged.

15.Then the judge concluded that the applicant did not produce the note to the police at 5:30 pm on 9 February 2007.  But a challenge to this effect was half-hearted and not clear.  The judge said that she rejected it because he, the applicant, would have mentioned it in his interview later that day.  But if one examines the record of interview, his comments to the police were brief in the extreme.  In any event, the note was clearly that of Choi’s and it mattes not when it was produced.

16.The judge said that she did not believe that the examining doctor had misunderstood the applicant and that the complaint to the doctor of injury might have been made to support the applicant’s complaints to CAPO.  But the doctor was never called to counter the applicant’s suggestion of a misunderstanding, and, more particularly, it is perfectly clear from the CAPO report itself that no complaint was made by the applicant about any assault by the police.  The CAPO complaint was read out in evidence and precisely supported the account of it given by the applicant.

Conclusion

17.We do not think that the judge’s reasoning is satisfactory and we are of the opinion that this conviction is unsafe.

18.Accordingly, we grant the applicant leave to appeal against conviction and, treating the hearing of the application as the appeal, we allow the appeal and quash the conviction and sentence.

On conviction

Mr Trevor Beel instructed by M/s Alan Ho & Co, assigned by DLA for the applicant

On sentence

Mr Trevor Beel instructed by M/s Alan Ho & Co on pro bono basis for the applicant
Ms Mary Sin, SADPP of Department of Justice for the Respondent