HKSAR v. Katyal Karan

HCMA220/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 220 OF 2009

(ON APPEAL FROM ESCC 4112 OF 2008)

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BETWEEN

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Before : Hon Lunn J in Court

Date of Hearing : 1 September 2009

Date of Judgment : 1 September 2009

Date of Handing Down Reasons for Judgment : 3 September 2009

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REASONS   FOR   JUDGMENT

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1.The appellant’s appeal against conviction was dismissed at the hearing of that appeal. The court indicated that it would give its reasons for so doing in due course. This I do now.

2.The appellant, Mr Katyal Karan, appealed against his conviction after trial in the Magistracy by Mr Douglas Yau on 8 January 2009 of the single charge of wounding, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212. It was alleged in the Particulars of Offence that on 5 July 2008 inside “Club No. 9”, on the third floor of the Galleria, 9 Queens Road, Central the appellant had “unlawfully and maliciously wounded” Mr Christopher Tsao Jin Wei.

THE TRIAL

3.There was no dispute at the trial that the serious injuries to the face of Mr Tsao had been caused by a glass held by the appellant. Mr Tsao suffered a 4 cm deep bleeding laceration wound to his right upper eyelid and a 4 cm deep laceration to the right side of his nose, which injuries required suturing. At issue, was whether or not those injuries were caused accidentally or “unlawfully and maliciously” as alleged in the charge.

THE PROSECUTION CASE

4.The prosecution led oral evidence from Mr Tsao and his friend Mr Yeung Chun Yu, who was present at and witnessed the events. Both of them are undergraduate students at universities in the United Kingdom, Mr Tsao studying at the London School of Economics. At some time after midnight on 5 July 2008 they arrived together and with others at Club No. 9. Mr Yeung was accompanied by a lady friend by the name of Karen.

5.At about 01:45 a.m., the three of them were on the balcony of the club premises. Karen was lying on a bench. Mr Tsao said that an altercation had developed with the appellant after he had asked him twice to leave the vicinity of the appellant. He had made that request after Mr Yeung had pointed out that the appellant, who was unknown to them, was seated at the foot of the bench upon which Karen was reclining. In cross-examination Mr Tsao said that he did not recall the exact words he had used, but accepted that he may have said, “Down your drink”. However, he denied that he had made the request in a hostile manner, explaining that he had engaged the appellant in a brief conversation before making the first of those requests.

6.Mr Tsao said that in response to the second request the appellant had told him, “Hey, you should back off” and pushed him lightly on his chest. In cross-examination, Mr Tsao agreed that he had told the appellant and Mr Shah, whom he took to be supporting the appellant, that they were “thin”. He did so in response to being told to back off, by way of an observation that they were not “physically imposing”. In his turn, Mr Tsao accepted that he had pushed the appellant, causing him to step back one or two steps. Then, he said that he had seen the appellant hit him in the face with a glass that he held in his hand. The glass was held in the appellant’s right-hand and he had swung it up into the right side of his face. He did so very quickly and the glass “exploded on me”.

7.In response to the suggestion made in cross-examination that after he had been pushed by Mr Tsao the appellant and come into contact with a person standing behind him and had been bounced/thrown back from him into a collision with him, Mr Tsao said :

“I disagree with what you are trying to suggest, what I am..what I saw was that we were both standing very still, there was about one or two second lapse in between the time I pushed him and, at which point, maybe one or two seconds, went by very quickly, in a very short time, at which point, I clearly … saw him holding the glass with his right hand, holding the glass, come up in a swing, onto my face.”

The magistrate described Mr Tsao’s demonstration as being “a sweeping motion from waist level to head level”.

8.In cross-examination, Mr Tsao denied that the appellant had placed his arm on his shoulder, rather the appellant had pushed him. He did not remember the appellant telling him, “Hi Man, chill. There is no need to get so angry.” He agreed that after the appellant had pushed him he could have said to him, “Get your hands off me.” He did not remember using foul language in enforcing that demand, although again he said that he could have done so. He denied saying to the appellant, “My friends will kill you”.

9.For his part, Mr Yeung said that he was seated at the time when he had noticed a commotion between the appellant and Mr Tsao, which resulted in the appellant using a glass that he was holding in his hand to hit Mr Tsao’s face.

10.In addition to the oral evidence, the prosecution adduced into evidence a CCTV film in DVD format which depicted the events. By admissions made by the parties, pursuant to section 65 C of the Criminal Procedure Ordinance, it was admitted that a “Chronology of Events”, was “an accurate summary of the images recorded” in that CCTV film.

THE DEFENCE CASE

11.The appellant and a friend, Mr Shah, gave evidence in the defence case of the circumstances leading to the injuries caused to Mr Tsao. The appellant and Mr Shah are 19-year-old undergraduate students, the former at Emory University in Georgia and the latter at the University of Pennsylvania.

12.The appellant said that he and Mr Shah had arrived at the club together at about 11:30 p.m. At about 01:30 a.m., the two of them went out onto the balcony of the club where they sat on a bench, on which a girl was lying. He engaged her in conversation. He said that, a little while later, he was confronted by Mr Tsao, who stood in front of him demanding that he “Down” his drink. Mr Tsao appeared angry. In face of his negative response, Mr Tsao repeated his request, appearing even angrier than before. The appellant said that Mr Shah stood up and engaged Mr Tsao in conversation, during which they were joined by Mr Yeung. Then, the appellant stood up and engaged Mr Tsao in conversation. The latter asserted that he had attended West Island School, which he claimed was a better school than whichever school the appellant had attended. The appellant informed him that he had attended Island school.

13.The appellant said that there came a time in their conversation when Mr Tsao gestured at him and said that he and Mr Shah were the thinnest boys in the club. Having noticed that Mr Tsao was becoming angry, the appellant said that he put his arm around Mr Tsao’s shoulder and told him that there was no need to get angry, suggesting that he should “Chill”. Then, Mr Tsao pushed him lightly, causing him to step backwards. Mr Tsao moved forward in front of him and, having threatened him that if he so wanted his friends would kill the appellant, Mr Tsao pushed him with both hands. He fell backwards hitting into someone :

“And as soon as I hit them, I felt someone push me from behind. And I cannoned back, and Chris were still moving towards me, so, I crashed into Chris.”

They collided with one another “quite hard”. The appellant said that he continued to step forward in order to avoid falling down. He became aware subsequently that his hand was bleeding and that apparently the glass that he had been holding had been broken. On the intervention of a club “bouncer” he and Mr Shah were required to leave the club.

14.Mr Aditya Shah confirmed that he had been together with the appellant on the balcony of Club No. 9 at 01:45 and had heard Mr Tsao asking the appellant twice to down his drink. He saw the appellant :

“... putting his hand around Chris and ask him to calm down and relax. I remember Chris pushing Karan, and then pushing him again, and I saw a crowd behind him who he fell into.”

Mr Shah said that next he heard the sound of breaking glass and saw Mr Tsao holding his face.

THE MAGISTRATE’S STATEMENT OF FINDINGS

The issue

15.In his Statement of Findings the magistrate identified as being the only issue in the case that of, “whether the contact between the glass that the defendant was holding with PW1’s face was accidental or not.” In resolving the issue, the magistrate stated (paragraph 28) :

“For the purpose of deciding whether the attack was deliberate or just an accidental contact as a result of a push from behind, I do not have to go into a detailed analysis of the evidence given by the various witnesses given in court, the reason being that all the actions of the defendant and PW 1 fully caught on the CCTV recording.”

16.Nevertheless, the magistrate went on to find that Mr Tsao and Mr Young were “honest and reliable witnesses” (paragraph 29). Having acknowledged that there were discrepancies in Mr Tsao’s evidence in relation to the number of times that he had pushed the appellant, once or twice, and exactly what was said between the two of them and having noted the difference between his evidence and that of Mr Yeung in respect of the issue of whether or not the latter had complained about the presence of the appellant on the bench on which Karen lay, the magistrate said that he did not find those discrepancies significant and that they did not detract from the credibility he ascribed to Mr Tsao’s testimony. In so finding, he noted that that Mr Tsao had suffered traumatic head injuries, in consequence of which he found it to be understandable that he might not recall the exact details of what had happened slightly before those injuries had occurred.

17.Of the defendant’s evidence, the magistrate determined that (paragraph 31) :

“A careful watching of the CCTV footage reveals that what the defendant alleges is not supported by the images caught on tape.”

In particular, he noted :

“… At counter 1:53:30, PW 1 pushed the defendant quite forcefully with both hands and the defendant did move back. When the defendant moved back, we do see a pair of hands raised behind the defendant. But I find that those hands position and manner of them being held up shows that the person holding up the hands was merely trying to prevent the defendant from running into him or her. There was no push as the defendant alleged in his evidence. Even if there was a push, what follows at counter 1:53:32 then clearly dispels any allegation that it was that push from the hands behind the defendant which caused the defendant to lose balance and fell forward thus causing his glass to come into contact with PW 1’s face accidentally.

32. What one can see at counter 1:53:32 is the defendant bringing up the glass to PW 1’s face at a ferocious speed and in a violent manner. There is simply no other way to interpret his action but that he deliberately used glass in his hand to attack PW 1.”

In the result, the magistrate found the appellant guilty of unlawfully and maliciously wounding Mr Tsao.

GROUNDS OF APPEAL AGAINST CONVICTION

18.In the Grounds of Appeal against Conviction, advanced on the appellant’s behalf by Mr Chang Huan SC leading Mr Francis Cheng, it is contended that in reaching his finding of fact that, “There was no push as the defendant alleged in his evidence”, the magistrate did so in conflict with the conclusive admission of facts contained in the “Chronology of Events”, admitted under section 65C of the Criminal Procedure Ordinance, Cap. 221, namely that the actions depicted in the CCTV film show that at :

“1:53:31 Defendant moved backwards. The person who stood behind the Defendant raised his both arms to waist level and pushed the Defendant back towards PW1.”

In addition, it is contended that the magistrate erred in failing to allow and/or invite further submissions on that issue from the defence before proceeding to making that finding.

THE SUBMISSIONS ON BEHALF OF THE RESPONDENT

19.In his primary submission on behalf of the respondent, Mr William Tam submitted that there is no conflict between the admitted facts and the magistrate's “Statement of Findings”, in particular “There was no push as the defendant alleged in his evidence.” He suggested that the magistrate was doing no more than stating that he rejected the appellant’s evidence that this push had caused him to move forward and collide with Mr Tsao, so that the injuries caused thereby were accidental. He said as much in the next sentence of his “Statement of Findings”.

20.In his secondary submission, Mr Tam reminds the court that the nature of this appeal is by way of rehearing, citing in support of that assertion the decision of the Court of Final Appeal in Chou Shih Bin v HKSAR [2005] 1 HKLRD 838. Mr Tam submitted that this court should view the CCTV footage and have regard to the transcript of the evidence of witnesses at the trial. Of the former evidence, he suggested that it was inherently improbable that the injuries were caused by accident, noting that the glass held by the appellant had been raised up to the height of Mr Tsao’s face at the point of impact.

A CONSIDERATION OF THE SUBMISSIONS

The nature of these proceedings

21.As was pointed out in the judgment of Bokhary PJ in the Court of Final Appeal in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 at 78 (paragraph 19) :

“An appeal under s. 113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so.”

The judge went on to note :

“Where the facts are concerned, the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first hand which the magistrate enjoyed.”

22.Prior to the hearing of the appeal the court ordered that a transcript be made available to the court and the parties of the evidence of the oral witnesses, namely Mr Tsao, Mr Yeung, the appellant and Mr Shah.

LAW

23.There is no doubt that an admission of fact made pursuant to section 65C of the Criminal Procedure Ordinance is conclusive of the fact admitted. Section 65C(1) states as much :

“... the admission by any party of any such fact under this section shall is against that party be conclusive evidence in those proceedings of the fact admitted.”

24.The effect of that section was considered in the judgment of the Court of Appeal delivered by Robert CJ in R v Chan Chun Man [1986] HKC 261 at 266 :

“Section 65C provides that any admission tendered under that section in the proper manner shall be ‘conclusive evidence’ of that evidence.

We think that the section must be strictly construed. If it is not, its value will be lost. It is likely to happen, from time to time, that evidence which contradicts, or is inconsistent with, the contents of an admission, is given during a trial. If this occurs, the admission must prevail since it is conclusive.”

25.That passage from the judgment of Robert CJ was cited with approval in the judgment of the Court of Appeal delivered by Stuart-Moore VP in HKSAR v Au Koon Yip (unreported) CACC168/2003 at paragraph 28.

CONCLUSION

26.It follows from the above analysis that the magistrate was wrong to relegate to the category of the equivocal the issue of a push being applied to the back of the appellant immediately before the glass he was holding was broken into the face of Mr Tsao by stating, “Even if there was a push”. The admission, “The person who stood behind the defendant raised his both arms to waist level and pushed the defendant back towards PW1” was conclusive evidence of that fact. The magistrate was, and this court in examining the evidence in this rehearing of the evidence is, required to proceed on the basis that the person standing behind the appellant “pushed the defendant back towards PW1”.

27.The magistrate’s determination, “There was no push as the defendant alleged in his evidence” [emphasis added] is to be viewed in the context of the appellant's evidence. It was the appellant’s evidence that having stepped backwards in response to the push applied to him by Mr Tsao :

“I collided with someone who was standing behind me… And as soon as I hit them, I felt someone push me from behind … And I ‘cannoned back’ and since Chris was still moving towards me, so I crashed into Chris ...”

28.What the magistrate was there rejecting was the appellant’s evidence that it was the push from behind that caused him to come into contact with Mr Tsao with the consequent injuries to his face. The magistrate made that perfectly clear, in stating (paragraph 31) :

“What follows at counter 1:53:32 then clearly dispels any allegation that it was that push from the hands behind the defendant which caused the defendant to lose balance and fell forwards causing his glass to come into contact with PW 1’s face accidentally.”

29.Having rejected the appellant's account of those events, the magistrate went on to state (paragraph 32) :

“What one can see at counter 1:53:32 is the defendant bringing up the glass to PW 1’s face at a ferocious speed and in a violent manner. There is simply no other possible way to interpret his action but that he deliberately used the glass in his hand to attack PW 1.”

THIS COURT’S REVIEW OF THE EVIDENCE

30.Having ordered the production of the transcripts of the evidence of the oral witnesses this court has all the evidence that was before the magistrate. Nevertheless, as Bokhary PJ observed in Chou Shih Bin an appellate court in this situation does not have the advantage of having received the first hand as did the magistrate.

31.Given the evidence that the appellant was good character, not only because of the fact that he had no previous criminal convictions but also in consequence of his positive contribution as a volunteer worker in assisting the less fortunate in life, the magistrate was correct in stating that he took that into account in assessing the appellant’s credibility as a witness and in respect of his propensity to commit the offence charged.

32.Counsel for the respondent having intimated that he wished the court to review the CCTV film of the events the subject of the charge the court viewed that material both in advance of and at the hearing itself. As the magistrate determined, a viewing of the CCTV film contradicts the appellant’s evidence that the injuries caused to Mr Tsao were as a result of the appellant having been pushed forward by a person standing behind him into a collision with Mr Tsao. I agree with his analysis of the CCTV film as depicting the appellant “bringing up the glass to PW1’s face at a ferocious speed and in a violent manner”.

33.Of relevance in this context, is the fact that at the time that he sustained the injuries to his face Mr Tsao was in a standing position. In his evidence, the appellant described him as “bigger than me”. How then did the glass come into contact with his face? The evidence of Mr Tsao, whom the magistrate found to be an “honest and reliable witness” notwithstanding some inconsistencies with his evidence and the CCTV film and the evidence of Mr Yeung, in this respect is telling and entirely consistent with the CCTV film.

34.It is to be noted that it was Mr Tsao’s evidence that he had never seen that film. In the course of cross-examination, Mr Cheng SC had explained to the magistrate at some length the case that he was putting to the appellant, namely that having been pushed by Mr Tsao and having stepped back someone from behind pushed the appellant so that he was “bounced towards the front” and “thrown forwards”. Initially, Mr Tsao was not asked in terms to deal with those suggestions. For his part, he said that he understood, “...the scenario that he is putting to me”. However, later he responded to those suggestions in the manner described earlier in paragraph 7. He denied that is how events unfolded. After he had pushed the appellant so that he moved backwards, Mr Tsao said that there was a time when the two of them were standing still. He gave various estimates of the time of this lull in the action. The one that corresponds most accurately to the CCTV film is “a very short time”. Then, the appellant said that he “saw him holding the glass with his right hand, holding the glass, coming up in a swing, onto my face”.

35.This court has considered the various discrepancies in the evidence of Mr Tsao in his description of events. Also, it has reviewed his cross-examination in detail. Those discrepancies are not material and do not affect his credibility on the material issue. The court accepts Mr Tam’s submission that he was a witness who was prepared to concede points in cross-examination when pressed. For example, although he accepted immediately that he could have said to the appellant, “Get your hands off me”, his initial reluctance to accept that he had said “Get your fucking hands off me” gave way to an acceptance that he could have used that language. Similarly, although initially he said that he did not remember telling the appellant at the outset, “Down your drink!”, he conceded that he may have done so.

36.This court is satisfied that the magistrate’s reference to the fact that Mr Tsao was the subject of serious facial injuries immediately after the events that he was asked to recall in his evidence is relevant and puts in context the fact of the discrepancies in his account of events as compared with the CCTV film. Also, it is to be noted that he never had the advantage of watching the CCTV film.

37.In the result, the court is satisfied that the magistrate correctly described Mr Tsao as an honest and reliable witness.

38.In light of what is depicted on the CCTV film and accepting the evidence of Mr Tsao, the court is satisfied that that the appellant deliberately caused the injuries to Mr Tsao, so that the magistrate was correct in finding him guilty of unlawful and malicious wounding, contrary to section 19 of the Offences Against the Person Ordinance. For all these reasons, the appellant’s appeal against conviction was dismissed.

Mr William Tam, SADPP of the Department of Justice, for the Respondent

Mr Cheng Huan, SC and Mr Cheng M.B. Francis, instructed by Messrs W.K. To & Co., for the Appellant