HKSAR v. Leung Ting

HCMA978/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 978 OF 2009

(ON APPEAL FROM KCCC 4578 OF 2009)

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Before : Hon Saw J in Court

Date of Hearing : 29 April 2010

Date of Judgment : 29 April 2010

Date of Handing Down Reasons for Judgment : 19 May 2010

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REASONS  FOR  JUDGMENT

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1.On 19 November 2009 the appellant was convicted after trial of one charge of assault occasioning actual bodily harm, contrary to common law and punishable under section 39 of the Offences Against Person Ordinance, Cap. 212.  He was on that day sentenced to be imprisonment for a period of two months.

2.On 29 April 2010 I allowed the appellant’s appeal against conviction.  I quashed the conviction and set aside the sentence.  I indicated that I would hand down my reasons in due course.  These are my reasons.

3.The appellant was originally charged with one count of inflicting grievous bodily harm, contrary to section 19 of the Offences Against Person Ordinance, Cap. 212 and one count of unlawful wounding, contrary to section 17 of the same Ordinance. 

4.At the close of the prosecution case the magistrate upheld a submission of no case to answer in respect of each of the original charges.  Pursuant to section 27(4) of the Magistrates Ordinance, Cap.227, he substituted the charge of assault occasioning actual bodily harm.

5.The particulars of the substituted charge alleged that on 30 March 2009, at Flat C, 4/F, Chak Fung House, 440-442A Nathan Road, Yau Ma Tei, the appellant assaulted a female, Lip Sik Ying, Rita (Madam Lip) occasioning to her actual bodily harm. 

6.Madam Lip was PW1 in the trial.  It was her evidence that she had known the appellant for some four to five years and that they were lovers.  On 30 March 2009 at about 11 p.m. she met the appellant at his premises.  They had a heated dispute.  As a consequence, she said to the appellant that they should cease their relationship.  This, she said, further inflamed matters. 

7.She said that when she approached and opened a window in the sitting room to obtain some fresh air the appellant for no apparent reason attacked her from behind.  He pushed her onto a bed and they struggled, he then pressed her to the floor.  He took hold of her hair and banged her forehead onto the floor several times.  As a consequence she was bleeding and dizzy.  She tried to shout for assistance but her mouth was covered by the appellant’s hand.  She said she went to the door to escape but was dragged back to the middle of the room by the appellant and again thrown to the floor.  He then kicked her in the stomach three to four times. 

8.She attempted to make a telephone call to the police but the appellant seized her telephone and threw it onto the ground where it was broken.  After this her head was again banged on the floor several times. 

9.PW1 said that she was covered in blood.  On the appellant’s instructions she took a shower to wash her face.  The appellant by this time had calmed down.  He obtained medicine and bandages to assist her to treat her injuries and told her to go to sleep.  She said she was not permitted to leave that evening.

10.The following morning the appellant gave her $500 and left the premises at about 8 a.m. as he needed to take a flight to Xian, China.  At around 10:30 a.m. PW1 called her mother and they met at Yau Ma Tei MTR Station.  They then had a meal, after which they went to seek treatment from an Ophthalmologist and later at the Pamela Youde Eastern Hospital.  At about 5 p.m. that day she reported the matter to the police.

11.This was one version of the events of that evening.  In a cautioned statement given to the police on 26 April 2009, the appellant gave to the police his account of what had happened that night.  This was adopted as part of his evidence-in-chief.  The substance of his account was that on the evening of 30 March, PW1 had demanded $50,000 from him because she was pregnant and wanted to have an abortion in Singapore.  His initial response to this was that he could not afford to give her such an amount as he needed what money he had to purchase a flat. 

12.This, he said, enraged PW1 and an argument ensued.  Eventually he wrote her a cheque for $30,000 only.  PW1 was incensed by his apparently insensitive handling of her situation.  The intensity of their dispute was thus further fuelled.  Without warning she rushed to the window of the 6^th floor apartment, drew back the blinds and opened what were large windows.  She said at that juncture :

“If you don’t give me the money I will jump down from the window and die in front of you.”

This, she said, would ruin his reputation.

13.Fearing that she might jump from the open windows, he rushed towards her, closed the windows and pulled her away from them.  He did this with such force that they both fell onto the floor.  PW1 struck her head on the floor and her forehead began to bleed (it emerged in the course of the trial that this bleeding was caused by a finger ring she was wearing striking her forehead at the time that her head struck the floor).

14.Upon seeing that she was bleeding, PW1 became hysterical.  She began to scream out words to the effect “Leung Ting hit me” and began to bang her head onto the carpeted floor.

15.The appellant’s case was that he attempted to calm PW1 but to no avail.  He tried to stop her screaming but she bit his finger.  Eventually he took her into the bathroom to try to calm her by spraying water onto her face.  This did not have the desired effect.  Whilst she appeared to calm down for a moment she again struck her head, this time on the side of the bath tub.

16.Finally, he was able to reason with her.  He applied medication to her forehead and face, gave her some tablets to reduce the swelling.  They both retired for the night, sleeping in the same bed. 

17.Before this, he had gone downstairs and withdrawn an amount of $20,000 from another bank account which he had given to PW1.

18.The following morning he had left to go to Xian on a business trip. 

19.It was his case that the injuries sustained by PW1 were in part the consequences of the fall when he had pulled her away from the open window and in part self-inflicted when she became hysterical after they had fallen to the floor.

20.The injuries sustained by PW1 were evidentially neutral.  Both PW1 and the appellant’s accounts of the events of 30 March 2009 were consistent with those injuries.  Thus it was that the success or failure of the prosecution case fell to be determined on the credibility of PW1.

21.The accounts given by PW1 and the appellant were diametrically opposed.  Nevertheless there were aspects of the two accounts which were consistent one with the other, for example, in both accounts it was accepted that PW1 had opened the blinds and windows of the appellant’s apartment on the 6^th floor.  She said to obtain fresh air.  The appellant said as part of her threatened suicide.

22.That night, the appellant paid to PW1 a cheque in the sum of $30,000.  This emerged not in the evidence-in-chief of PW1 but in cross-examination.

23.The appellant claimed that PW1 wanted funds for an abortion.  PW1 denied this but agreed she had sent text messages to the appellant’s telephone after the events of the evening of 30 March which, on the face of it, were unequivocal indications to the appellant that she was pregnant to him.  It emerged in cross-examination that certainly as at 30 March PW1’s menstruation had not commenced on time and she thought it possible she was pregnant.

24.The account given by PW1 contained unusual aspects.  For example, PW1’s evidence was that having been savagely attacked by the appellant and having had her mobile phone broken by him when she was attempting to obtain assistance, she nevertheless remained overnight in the appellant’s premises, in the same bed with him.  This, she said, she did because he had threatened that were she to complain to anyone he would kill her, her mother and her daughter.  A complaint which did not appear in her statement to the police, she said, because the police officer omitted to write it down.  She was asked why she did not immediately report the matter to the police the next morning when he left for Xian.  She initially said she could not because her telephone was broken.  However when asked how it was that she contacted her mother, she said that the appellant had as he left to go to Xian given her his spare mobile telephone into which he had placed her SIM card.

25.Notwithstanding that she had been savagely beaten and threatened by the appellant she did not report the matter to the police until after :

(a)  she had paid his cheque for $30,000 into her bank account;

(b) she had arranged to have breakfast with her mother; and

(c)  she had discussed the various options with members of her family.

26.Of the cheque for $30,000 PW1 said that she had gone to the appellant’s premises by prior arrangement to collect a cheque for $30,000 for another purpose.  Neither the prosecution nor defence counsel sought clarification from her as to what this other matter was or could have been. 

27.It was in those circumstances incumbent upon the magistrate to approach the issue of the credibility of PW1 and the possibility that the appellant’s account was or may have been the truth with the utmost care.

28.On behalf of the appellant, Mr Egan argues, with some force, that integral to the magistrate’s finding that the PW1 was a witness of truth was his conclusion that the appellant had on a critical issue lied to the court when giving evidence.

29.The magistrate’s conclusion and reasoning was as follows :

“42.  Defendant said that initially he told PW1 that he would give $50,000 to PW1, but he did not have enough cash in his personal account and thus he promised PW1 that he would give her a personal cheque of $30,000 first.  The remaining sum of $20,000 would be given to PW1 when he returned from China.  But then after PW1 behaved hysterically, Defendant surrendered and agreed to pay her that $20,000 on the next day.  The next morning, Defendant withdrew a total sum of $20,000 cash from his bank account through the ATM machine and gave that sum to PW1 before he left Hong Kong.  The situation thus is, on the one hand Defendant told PW1 that he did not have enough cash to pay for her demand of $50,000, on the other hand he was able to issue a personal cheque of $30,000 and further withdrew $20,000 from his bank account (…) on the very early next morning.  I further noted that the $30,000 cheque (which was tendered by Defence as exhibit D1) is a cash cheque instead of a crossed cheque.  The bearer of a cash cheque is able to obtain cash immediately upon presentation of cheque, provided that there is sufficient cash in the clearing bank account, in the present case, Defendant’s bank of East Asia account.  It is not suggested by the Defendant that the cheque was bound upon presentation by PW1 on 31/3/2009.  PW1 was not cross-examined on this aspect.  The only inference that could be drawn is that there is sufficient cash in the Defendant’s account to honour the cheque he gave to PW1.  Thus what Defendant told the court that he could only give PW1 $30,000 to satisfy her demand on that night, i.e. 30^th March 2009, is untrue.” (I assume the expression “bound” is corrupt and should be “bounced”.)  (Emphasis applied.)

30.As Mr Egan points out, the conclusion that the appellant’s evidence in court was untrue appears to be based on the erroneous assumption by the magistrate that the appellant had only one bank account, namely that upon which the cheque in the sum of $30,000 had been drawn.  However, it is apparent from the appellant’s record of interview and his evidence in the trial that the appellant was referring to two bank accounts, one being the account on which the cheque was drawn and the other being the account from which he drew $20,000 cash on the morning of 31 March, i.e. a current account and a savings account.  His evidence was to the effect that the $50,000 could not come only from one account.

31.The failure on the part of the magistrate to appreciate this fact and the use to which he put his erroneous conclusion, namely to determine that the appellant was an untruthful witness is a significant error.  It is a material irregularity.  The magistrate’s reasons for convicting the appellant cannot be sustained.

32.What then must be my approach to this conviction in the light of my conclusion that the magistrate had misdirected himself as to the evidence and, in so doing, drawn an inference that the appellant was not a truthful witness?  In HKSAR v Chou Shih Bin [2005] 8 HCFAR 70, 78, the Court of Final Appeal said this :

“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.  I have gratefully taken that way of putting it from the decisions of the High Court of Australia in Builders Licensing Board v. Sperway Construction (Syd.) Pty Ltd (1976) 135 CLR 616 at pp 619-622 and Fox v. Percy (2003) 214 CLR 118 at p.124.  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.  Even so, it will not fail to quash a conviction that it considers unsafe. …”

33.This is the course I adopted.  As I have earlier stated the integrity of the conviction is dependent upon the acceptance of the evidence of PW1 and the consequential rejection of the evidence of the appellant.

34.There are in my opinion a number of matters which give me sufficient cause for concern, such as I would be unable to rely upon the account given by PW1.  If I cannot rely upon the evidence of PW1 the appeal must be allowed.

35.PW1 accepted that whilst she and the appellant had been in a relationship for some four to five years and had in the past argued, there had never been incidences of violence before.  PW1 said that she made no mention of the fact that she suspected she was pregnant to the appellant on the night of the 30^th.  She denied any suggestion that the trigger for their dispute had been his apparently insensitive response to her possibly being pregnant.  Nevertheless it is clear that she suspected that she was pregnant to him and this is reflected in the messages sent to him later.  She made no mention in her evidence-in-chief to the fact that she had obtained a cheque for $30,000 from the appellant that evening until confronted with the cheque in cross-examination.  She told the magistrate that she did not immediately seek the assistance of the police when the appellant left for Xian the following morning because the appellant had broken her mobile telephone and locked away the handset for the land line.  When confronted with her earlier evidence that she had telephoned her mother she then volunteered the fact that the appellant before leaving had placed the SIM card for her mobile telephone into a spare handset of his and had given it to her as he left.

36.PW1 had described a sustained and brutal assault upon her by the appellant.  He had threatened to kill her, her mother and her daughter if she told anyone about it, and yet the police officer who took her statement failed to include this critical threat in her witness statement.

37.PW1 did not immediately seek treatment.  She arranged to meet her mother, had breakfast with her, saw an Ophalmologist and finally late in the afternoon sought medical treatment.  In the meantime she had paid the appellant’s cheque for $30,000 into her own account.

38.The appellant’s description of PW1’s behaviour on that evening was not so far fetched as to be discounted.  PW1 had been for some time treated for depression.  She and the appellant had been arguing regularly.  It was clear that she did suspect that she was pregnant and her assumption that the appellant was attempting to “negotiate” with her the cost of an abortion could readily be understood to have led to a rapid escalation in the nature and intensity of their dispute and the possibility that she had threatened to throw herself from the open window.

39.This is to my mind one of those rare situations where it is not possible to determine where the truth lies.

40.I was unable to say that the account given by PW1 satisfied me so that I was sure of the events of that evening. 

41.Given the above, the conviction could not be permitted to stand.

42.I allowed the appeal, quashed the conviction and set aside the sentence.

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

Mr Kevin B. Egan, instructed by Messrs Robertson, for the Appellant