HKSAR v. Rose, David Richard Charles

HCMA673/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 673 OF 2008

(ON APPEAL FROM KTCC2124 OF 2008)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 28 October 2008

Date of Judgment : 5 November 2008

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J U D G M E N T

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1.The unrepresented appellant was convicted after a trial before Mr Anthony Yuen at Kwun Tong Magistracy of an offence of assault occasioning actual bodily harm, contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance, Cap. 212.  He was fined $2,000 and sentenced to three months’ imprisonment suspended for 12 months.  He now appeals his conviction.

2.The prosecution case was that the appellant had been riding his motorcycle along Lung Cheung Road and into Kwun Tong Road in the direction of the Eastern Harbour Tunnel at about 7 p.m. on 1 March 2008.  At about the same time a private motor car was being driven along the same route by the victim of the assault who became PW1 at trial.

3.For one reason or another the appellant and PW1had a traffic incident prior to arriving at the intersection of Kwun Tong Road and Hong Ling Road.  At that intersection, while the traffic lights were red, PW1 alighted from his car to inspect the rear of it, as he had earlier heard some noise coming from that region of the vehicle during the earlier incident with the appellant’s motorcycle.

4.The prosecution case was that the appellant stopped his motorcycle in the vicinity of PW1’s motor car and approached PW1 who he then proceeded to head-butt a number of times.  The appellant wore a helmet.  PW1 was then punched by the appellant on the head and face and the appellant then rode off on his motorcycle.  PW1 suffered a swollen nose and some abrasions to his face and left hand.

5.The appellant gave evidence at trial.  His case was that he and PW1 had, prior to stopping their vehicles at the Kwun Tong Road and Hong Ling Road intersection, been involved in what could best be described as a road racing incident arising out of PW1’s attempt to overtake the appellant’s motorbike as both were proceeding along Lung Cheung Road prior to entering Kwun Tong Road.  At one stage, according to the appellant, PW1 had driven his motor vehicle so as to press up against the appellant’s motorcycle and force it against other traffic, and later, a road divider. 

6.The appellant’s case was, further, that when PW1’s vehicle arrived at the traffic lights at the intersection of Kwun Tong Road and Hong Ling Road he had stopped his motorcycle next to the front passenger window of PW1’s vehicle and had told PW1 that he was considering calling the police.  PW1 then alighted from his vehicle and the appellant also alighted from his motorcycle and, fearing PW1 might assault him, the appellant decided to deliver the first blow to pre-empt PW1’s anticipated attack and, for that reason, punched him.  They then struggled. 

7.The appellant’s case was that he had suffered from a condition called lipomatosis for some years which caused painful lumps to grow on his arms and body and when he and PW1 struggled he felt great pain.  He then head-butted PW1 and pushed him against the central road divider in an attempt to force PW1 to release his grip.  Other vehicles had by now stopped at the intersection and someone from one of those vehicles shouted “enough”, so the appellant then decided to return to his motorcycle and leave.

8.The appellant advanced a number of complaints as his grounds of appeal.  Perhaps the primary complaint was that the magistrate ignored or failed to give proper consideration to the inconsistencies in the evidence of the prosecution witnesses PW1 and PW3.

9.Regarding PW1 there were two matters.  In his witness statement PW1 said he had been head-butted by the appellant four to five times, whereas in his evidence he had said he had been head-butted twice.  Additionally it is said PW1was uncertain in describing the colour of the appellant’s helmet.

10.In that latter regard when asked if he had noticed the colour of the appellant’s helmet PW1 replied :

“I cannot tell the colour of it but it was not of one single colour, may be orange and white or red and white or blue.”

As to this inconsistency, perhaps better described as an uncertainty, the colour of the appellant’s helmet was plainly of no importance to any issue arising during the trial.  There was no issue as to identification of the appellant or as to whether he was wearing a helmet.  It was common ground that the appellant had head-butted PW1, though according to the appellant there had been only one such instance, and that the appellant had been wearing a helmet at the time.  Any uncertainty in the evidence of PW1 as to the colour of the helmet had no material bearing on any live issue at trial. 

11.As to the inconsistency between PW1’s evidence of the number of times he was head-butted by the appellant and the greater number of head-butts referred to by him in his witness statement, though the magistrate does not refer to this inconsistency in his Statement of Findings there is a good reason for that; it was quite simply not put to PW1 at trial by the appellant’s solicitor during the cross-examination of PW1.  No doubt the appellant’s solicitor, for good reason, saw no point in bringing to the attention of PW1 what he had said in this regard in his witness statement and risk PW1 adopting the contents of that statement as his evidence.  The fact that neither PW2 nor PW3, the two eye witnesses to the assault upon PW1, did not see any head-butts is wholly explicable by the sudden circumstances and short duration of the attack and by the simple observation that witnesses see such an event from different perspectives and at different stages during the course of events.

12.The inconsistencies in the evidence of PW3 relied upon by the appellant before me are as innocuous.  PW3 was an off duty police constable walking along the pavement at the intersection of Kwun Tong Road and Hong Ling Road at the time of the appellant’s attack upon PW1.  He said initially in his evidence-in-chief that he saw the appellant “drag the driver of the private car off from his own vehicle”.  By the following question he was asked what he meant by that and in his subsequent answers he said he was mistaken in saying the appellant dragged PW1 from his vehicle and that PW1 had simply “got off from his vehicle”.

13.He was not cross-examined on the inconsistency and no reason was given in evidence for it.  The magistrate did not refer to this inconsistency in his Statement of Findings and I do not think he was obliged to; it was not mentioned in the submissions made on behalf of the appellant at the end of the evidence and it was common ground that PW1 had not been dragged from his vehicle at the intersection but had alighted of his own volition.  This inconsistency did not go to any live issue in the case and the only relevance it had was restricted to the general reliability of PW3’s evidence.  The magistrate was certainly aware of this aspect of PW3’s evidence and there is nothing to suggest he did not give it consideration.  In the result he accepted PW3’s evidence as to what he saw of the appellant’s attack upon PW1 and in my view he was right to do so, supported as it was by PW1 and PW2. 

14.Other supposed inconsistencies in PW3’s evidence put forward by the appellant were trivial.  It was suggested by the appellant that PW3 had described the incident as occurring when it was bright day although it took place at 7 p.m. on 1 March.  But that evidence was given by PW3 in this context during cross-examination :

“Q. So, this--it was late at night, was it not--no, not late at night.  It’s night time now, wasn’t it, at the scene?

A.   It was still bright.”

It is quite plain PW3 simply meant that the lighting conditions were bright enough for him to see what had happened at the scene. 

15.Finally, in his evidence-in-chief PW3 said that the appellant had hit PW1 “onto the ground” whereas PW1 had said that he had been hit only so that his back was lying on the central road divider.  He said also that the appellant had to crouch down to hit him.  He concluded his evidence by saying that when the appellant had stopped hitting him he, PW1, had then sat on the roadway.  In the context of the whole of PW1’s evidence, if inconsistency there be between PW1 and PW3 in this regard, it was entirely explicable.

16.Another complaint advanced by the appellant concerns the discrepancies in the evidence as to where and in which traffic lane and the exact position in which the appellant had stopped his motorcycle before alighting.  I do not think there was any materiality to this evidence.  The appellant says the prosecution witnesses’ recollections in this regard were at variance with his own evidence.  That may be, but the magistrate was rightly concerned with the general credibility of the witnesses rather than their ability to remember the exact positions of the vehicle of PW1 and the motorcycle of the appellant.

17.Another complaint advanced by the appellant was that the magistrate had “badgered” PW2 into giving evidence compliant with the prosecution case.  All, however, the magistrate had done was to insist, during the evidence-in-chief of PW2, that PW2 describe what he saw of the scuffle between the appellant and PW1.  In the main his questions, which totalled about 25, were of the sort which simply led the witness to continue his evidence.  It was far from a case where the magistrate had intervened unfairly on the side of the prosecution, or had prevented the appellant from putting forward his defence.

18.The final complaint advanced is that the magistrate had not taken into account the medical condition suffered by the appellant.  According to the appellant his lipomatosis, when PW1 had grabbed him after the appellant had initially struck PW1, caused the appellant such pain as a result of PW1’s hold upon him, that he head-butted PW1 and then continued to assault PW1 as a reaction to that pain and in an attempt to force PW1 to let go of him. 

19.The magistrate had said this concerning the appellant’s case :

“15.  The Appellant testified that he suffered from lipomatosis for years and he had lumps all over his body including his arms.  Therefore, when the driver grabbed his arms, he felt great pain.  He pushed the driver to the central divider of the road and he questioned the driver whether he was trying to kill him.  The Appellant admitted that he punched the driver when he pressed him against the central divider.  Then he heard someone shouted : ‘Enough.’  Then he and the driver let go of each other.  He then returned to his motorcycle and left.”

and later :

“28.  The Appellant said he was in great pain when PW1 grabbed his arms.  He started the attack, it’s inevitable for PW1 to grab the Appellant in order to protect himself and stop the Appellant from attacking him. …”

20.Implicit in the magistrate’s conclusions, in the context of his findings as a whole, was that he dismissed any possibility of the appellant having embarked on the sustained assault PW1, PW2 and PW3 described in their evidence in an attempt to prevent PW1 holding onto him in a way which, because of his medical condition, caused him pain.  I agree with that assessment.  It beggars common sense that such an assault would occur in such a sustained manner, and to a degree which caused in large part the injuries PW1 suffered, so as to simply have someone release their grip.  The obvious and natural reaction in those circumstances would be to push the person away.  In my assessment the magistrate was right to reject the appellant as a witness of truth.

21.That disposes of the complaints advanced by the appellant but there is one further matter that I wish to address.  The appellant’s case at trial was that he struck PW1 as he believed that an attack upon him by PW1 was imminent.  There was no reasonable basis for any such belief.  Even if, and the appellant’s evidence in this regard was not accepted by the magistrate, PW1 had approached the appellant as the appellant claimed, that approach was as consistent with PW1 wishing to remonstrate with the appellant, or to argue his own part in the earlier traffic incident, or to expand upon the conversation which the appellant said he had just had through the passenger window of PW1’s vehicle.  In short there was no basis, even on the appellant’s own case, for the defence of self-defence to succeed.  There were clearly insufficient circumstances to support any possibility of a genuine belief by the appellant that a pre-emptive assault upon PW1 was required : see Beckford v. The Queen [1988] AC 130 and R v. Man Wai Keung [1992] 1 HKCLR 89.  

22.The appeal is dismissed. 

Mr Jonathan Tak Ho Man, SPP of the Department of Justice, for HKSAR

The Appellant in person, present