The Queen v. Chan Hon Wai
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IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 340 OF 1993 -------------------- BETWEEN
-------------------- Coram : Hon Bewley, J. In Court Date of hearing : 11th June 1993 Date of handing down of judgment : 28th June 1993 ------------------------ J U D G M E N T ------------------------ 1. The appellant was convicted of assault occasioning actual bodily harm by Mr Saunders in Kwun Tong Magistrate’s Court and was sentenced to three months’ imprisonment. On 11th June I allowed his appeal against conviction and now give my reasons. 2. At 8.30 pm on 20th December 1991 in Lam Tin Estate, Kwun Tong, Mr Tam Chi-kuen, a 31 year old garment merchant, was stopped for questioning by the appellant, an Auxiliary Police Sergeant, and two woman police constables. They considered he resembled a man reported for indecent exposure in the area and the appellant began by asking him for his identity card. According to Mr Tam he complained about the delay as the appellant was relaying his particulars over his beat radio. He said that the appellant then swore at him and attacked him. The appellant admits that they quarrelled and that he also used bad language, but says he was only attempting to arrest him for refusing to produce his identity card. 3. Mr Tam alleged that the appellant grabbed his shirt front and swung him a round so that he was crouching down with his face against a wooden hoarding. He was pressing down Mr Tam’s left shoulder with great force. The appellant continued to scold him and then hit him with his revolver on both his head and his back. He estimates he was struck about ten hard blows on the head above his right ear and four or five hard blows in the middle of his back. He shouted for help but the appellant then placed the barrel of the revolver against his right temple and, when he pushed it away, hit him again in the same manner as before. Under cross-examination Mr Tam said he was unable to defend himself because the appellant was pressing his left shoulder. He could not explain why he did not try to ward off the blows with his right hand, except that he was scared and could not think clearly. 4. By this time, according to Mr Tam, the two WPCs had left the scene, but two male police constables had arrived and were reassured by the appellant that he could handle the situation. Mr Tam did not notice whether they stayed or left. 5. Mr Tam said that the appellant asked him what he wanted to do and he replied that he wanted to see a doctor. Not surprisingly, on his evidence, his head was bleeding. Several other police officers had by now arrived. Mr Tam was then taken to hospital. He said he was told by the doctor that stitches were necessary but refused to have them because he was frightened to have an anaesthetic injection. 6. According to the medical report of the doctor who treated Mr Tam, he found a laceration over the vertex of the head and superficial abrasions over the upper chest wall. He sutured the laceration under local anaesthetic : a remarkable contradiction concerning an uncontroversial piece of evidence. Mr Tam also suffered superficial abrasions on his upper chest. The appellant was examined by the same doctor that evening. He had superficial abrasions on his chest and right hand. 7. The incident was witnessed by a civilian passer-by, Mr Lo Kam-fong. This witness’ evidence was so confused and contradictory that the magistrate was unable to place any weight on what he said, other than that he had seen an incident that concerned him and had caused him to dial 999. This witness testified that two other police officers had arrived on the scene, assaulted the victim with torches and then left. He saw the appellant threaten Mr Tam with a gun, he saw him punch Mr Tam, but he did not see him strike any blows with the gun. 8. (A)PC 6707 told the court that he was summoned to the scene by a message from the appellant on his beat radio. The appellant reported that Mr Tam, who was bleeding from the head and in handcuffs, had tried to snatch his gun. Mr Tam alleged that the appellant had assaulted him. There were two woman police officers present, a sergeant and WPC. 9. Woman Inspector Chiu Chi-ping also came to the scene following a radio report. She testified that the appellant had told her that Mr Tam had punched him on the chest and a struggle had ensued, during which Mr Tam had tried to snatch his gun. In the course of a confused struggle Mr Tam had been struck on the head by the butt of the revolver. She confirmed that his head was now bleeding. 10. Mr Tam was arrested and charged with assaulting the appellant but later made a complaint to CAPO. 11. The appellant made an entry in his note book describing the event. He also made a detailed statement to the police the following day. On 16th June 1992 he gave a supplementary statement. Apart from some discrepancies these three accounts tell essentially the same story, which is what he also told the court. 12. The appellant said that, when he put his hand on Mr Tam’s shoulder to stop him moving away, Mr Tam punched him in the chest. The appellant moved back two steps and then jumped forward and locked the other man’s neck from behind. As they stood face to face, Mr Tam attempted to draw the appellant’s revolver from its holster. They struggled for the gun, the appellant holding the butt and Mr Tam the body and barrel. The appellant swung the revolver up and down diagonally across his body four or five times until, on one of the downward swings, it struck Mr Tam a blow on the head. He squatted down, covered his head and shouted that he had been assaulted by the police. 13. The appellant said that this was the first time in over eight years service that he had ever drawn his revolver. He handcuffed and arrested Mr Tam. He then searched him and found his identity card. A minute later (A)PC 6401 and (A)PC 6337 arrived and asked if he needed help. The appellant said that he had already called from assistance for two other colleagues and these two officers left. 14. (A)PC 6709 and (A)PC 8758 then appeared. The appellant told them that Mr Tam had assaulted him and tried to snatch his gun. He noticed blood on Mr Tam’s face. He then reported the incident on his beat radio. The appellant said he also went for medical treatment because he felt pain in his chest from the punch and his hand had been hurt doing the struggle for the gun. 15. The defence called (A) W/Sgt 7431, who was one of the two WPCs with the appellant when he met Mr Tam. She had married the appellant in October 1992. She confirmed the appellant’s account of the initial confrontation except for one matter. She said that, after Mr Tam punched the appellant “he continued to jump to defendant”. This was not the appellant’s evidence. She then considered the situation to be out of control and, getting no response from the beat radio, she ran for help. 16. She returned two or three minutes later with PC 6401, PC 6337 and her earlier companion WPC 4454. Mr Tam had already been handcuffed by the appellant. No one else was present. The appellant said he was alright and two other officers were on their way. Shortly afterwards she saw PC 8758 and PC 6709 approaching, so she and her party left the scene. 17. The only other witness was Dr Shum Shui-fung, a clinical forensic pathologist, whose advice apparently played a large part in the decision to prosecute the appellant. He was allowed to testify, as an expert, that the top of the head is unlikely to be injured during a struggle for a gun between two men in standing positions since they would be pulling against each other. He said that blows to the victim’s head from the revolver - he had seen neither the gun nor the injuries when he gave his opinion before trial - might not have left any marks if they were not severe and if the victim had a full head of hair. He said that, when a victim described the force of a blow, he was in fact describing the pain he felt and not the actual force used. He agreed, however, that it would be instinctive for the victim to raise his arms to protect his head if he were free to do so and that defensive injuries would then be likely. Finally, Mr Shum said that the appellant’s chest abrasion was not consistent with a punch, which was more likely to produce redness or bruising. 18. The magistrate believed Mr Tam and disbelieved the appellant. He accepted Mr Shum’s evidence as to a victim’s description of the force of a blow. The number of blows could only be an estimate. He concluded that Mr Tam was not exaggerating the situation. 19. On the other hand, the magistrate found the appellant’s evidence inconsistent, illogical and unbelievable. He pointed out that, when he made his notebook entry, he said nothing about swearing at Mr Tam. He also pointed out that in his CAPO statement he said he had declared an arrest before seizing Mr Tam. The appellant said he forgot. The magistrate did not understand why the appellant, having called for assistance, should have sent away the first two officers who arrived. But it was his wife’s evidence that she saw the help approaching. He noted the discrepancy between her evidence and that of the appellant as to how the incident began. He found it incredible that she apparently considered the situation to be out of control, yet did not see the two men grappling with each other. He also criticised the appellant for not explaining in his earlier statements how the butt of the revolver came into contact with Mr Tam’s head. 20. The magistrate attached great weight to Dr Shum’s evidence that, if the two men had been pulling against each other to gain control of the gun, when one eventually succeeded, they would fell back away from each other. This, however, was one of the issues of fact that he had to decide. I agree with Mr Marash, who represented the appellant on appeal, that Dr Shum should not have been allowed to theorise about how the head injury occurred. 21. In R. v Turner (1975)1 QB 834 Lawton LJ said at p.841 :-
22. In R. v Yim Chor-man and Others (1975) HKLR 546 the Full Court held that a police officer should not have been called as an expert witness in a Tien Sin Kuk swindle case. Huggins I (as he then was) said at p.555 :
23. Notwithstanding Dr Shum’s evidence, the magistrate has, with respect, failed to appreciate that Mr Tam’s head injury was completely inconsistent with his evidence. He can have been under no misapprehension that the appellant was angry. He said the appellant struck him several blows on the head with the revolver on two separate occasions. Even if not more than say four blows landed on his head, one has only to heft the heavy gun and observe the metal ring at the base of the butt, to realise that severe bruising, at the least, must have resulted from such an attack from an angry man armed with such a weapon. Mr Tam cannot possibly have been telling the truth. 24. The magistrate has glossed over Mr Lo Kam-fong’s failure to notice an attack with the gun. No matter how unsatisfactory and unreliable he was as a witness, such an omission in a description of the incident from a close observer should have carried some weight in the magistrate’s assessment of Mr Tam’s credibility. 25. On the other hand the magistrate failed to give the appellant credit on a number of counts. There was no apparent reason for the appellant to draw his gun - something he had never done before. He twice complained to the officers who came to the scene that his gun had been snatched. A glancing blow in the course of a struggle for the gun was the most inherently likely cause of the injury. No facial injury was suffered by the victim, such as might have been expected had his face been pressed against the wooden hoarding during the attack. Finally 15 months had passed when the case came to trial; it is not surprising that contradictory evidence emerged. 26. It was not enough to rely upon the unlikelihood of the appellant’s story and the contradictions in his evidence. Even if the appellant’s account was not entirely true, even if he lost his temper in the course of a struggle with Tam, nevertheless the burden of proof was on the prosecution to prove that he deliberately struck Mr Tam on the head with the gun. This burden was not discharged. 27. For these reasons I found that the conviction was unsafe and unsatisfactory, allowed the appeal and quashed the conviction.
Miss Yasmin Mohomed, Crown Counsel, for Crown Mr Daniel Marash, instructed by M/s John Massie & Co., for Appellant |