Ong Nelson D v. HKSAR

CACC 76/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 76 OF 2010

(ON APPEAL FROM DCCC813/2009)

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BETWEEN

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Before: Hon Yeung JA, Lunn and Wright JJ

Date of Hearing and Judgment: 25 November 2010

Date of handing down Reasons for Judgment: 15 December 2010

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REASONS FOR JUDGMENT

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Hon Wright J (giving the judgment of the Court):

1.The applicant sought leave to appeal his conviction, after trial, by HH Judge Stanley Chan in the District Court of one charge of causing grievous bodily harm with intent contrary to s. 17(a) of the Ordinance and one charge of theft of a mobile telephone contrary to s. 9 of the Theft Ordinance, Cap. 210. He also sought leave to appeal the sentences imposed on him.

2.At the conclusion of the hearing of the applicant's applications we granted leave to appeal the conviction and sentence on Charge 1 and, treating the hearing as the appeal proper, allowed the appeal and substituted a conviction for Assault Occasioning Actual Bodily Harm contrary to s. 39 of the Offences Against the Person Ordinance, Cap. 212 and further substituted a sentence of 21 months imprisonment in place of the sentence imposed by the judge. We dismissed the application application in respect of Charge 2. We indicated that we would furnish our reasons later. These are they.

THE TRIAL

3.In order to properly appreciate the various grounds of appeal it is necessary to briefly traverse certain facets of the evidence. Both charges arose on the same occasion, 30 May 2009, in the home of the person injured and owner of the property concerned, a female, Erlita C Galura: she resided in those premises with her brother, a friend of the applicant.

4.It was not in dispute that the applicant had arrived at the premises late on the night of 30 May; he had previously been drinking elsewhere with the complainant's brother; the complainant, who had met the applicant on some three previous occasions, allowed him entry to the premises upon his request to use the toilet; after he had apparently done so, he declined to leave the premises when she requested him to do so; he then closed the wooden front door of the premises and switched off the interior light.

5.The prosecution case was that the complainant was alarmed by the applicant’s refusal to leave the premises: she picked up a screwdriver. The applicant then attempted to make physical contact with her: her testimony was that she believed him to be intent on molesting her sexually. He smelt of alcohol. At this very early stage of the applicant attempting to take hold of her she attempted to hit the applicant with the screwdriver in order to show him that that she would defend herself. She was unsuccessful. The applicant disarmed her and took possession of the screwdriver. There was then a fight between them during which she was knocked to the ground, dragged into the kitchen, and punched in the face as well as otherwise assaulted. She was shouting loudly. As a result of the punches to the face, she suffered damage to her teeth. At one stage the applicant had his hand over her mouth to muffle her cries: she bit his finger. Whilst in the kitchen, she grew tired and told the applicant that she would do whatever he wanted her to do but when he dropped his guard she once more started shouting for help.

6.The fight returned to the living room of the house. During the fight in the lounge she got hold of her mobile telephone and randomly pressed the keys: the applicant snatched the phone from her. The applicant took up the screwdriver which he had earlier taken from the complainant and stabbed her twice or three times with it in the neck. She then saw an opportunity to escape, opened the wooden front door of the premises and ran outside where she was met by people who had been alerted by the sounds of her shouting for help during the fight. The applicant then ran out of the house and made off. She was taken to hospital where she remained until the following day.

7.The complainant identified a photograph of a T-shirt that she had been wearing at the time of the fight and confirmed that the large patches of blood visible on it had come from the neck wounds which the applicant had inflicted upon her. She was also able to point to her watch which could be seen in a photograph lying on the floor and testified that this had come off her wrist during the fight.

8.The complainant's brother was called to testify: he was unable to give evidence as to what had occurred in the premises. A neighbour of the complainant was also called to testify: the judge correctly found that her testimony supported that of the complainant in material respects.

9.The applicant testified. He accepted that he had earlier been drinking alcohol with the complainant's brother and testified that the brother had borrowed a bicycle from him. He, the applicant, later used another bicycle to cycle to the premises in order to retrieve the first bicycle. He accepted that he had asked the complainant if he could use the toilet: when he had done so he asked the complainant if he could wait for her brother but she had said that he could not stay inside the house. He had then closed the front door and switched off the lights. He saw that the complainant appeared to be afraid of him but thought that he could make jokes: he intended to turn the light on again. The complainant started to scream. His reaction was to get close to her and to cover her mouth. He told her not to shout and that he would leave immediately. She scratched him. He told her that he had been joking, but he used his right hand to cover her mouth. The complainant lost her balance and fell to the floor pulling him down with her as his right hand was still covering her mouth. He used his left hand to hold her head. She was using force to push away his hands. He told her not to shout and he would release his hands. She nodded. They stood up and walked towards the kitchen.

10.The complainant started shouting again and throwing cutlery around the kitchen. He approached her again to stop her from making a noise and saw that she was holding a knife in her right hand. He pulled her left arm: she dropped the knife and started to shout for help. Again he covered her mouth. He released his hand when the complainant indicated she would not shout: she then said that she would do whatever he wanted to do but, instead, again started shouting. He did not want neighbours to hear the noise. Whilst he was checking to see whether there were people outside he saw the complainant coming towards him, pick up something from the top of the refrigerator which he realised was a screwdriver and then stab him "many times". He managed to catch her hand and again covered her mouth although she started to kick him. He pressed her down and held her legs to stop her from doing so but he was off balance and fell to the floor. His middle finger was in the complainant's mouth and she bit it forcefully. He pulled hard to free his finger and then saw the complainant dashing out of the house. He also ran out and made off. He did not take the complainant's telephone with him. Whilst he was running away he made a telephone call to his wife telling her what had happened. However, he did not return home that night but, rather, went to a friend in Wanchai.

11.The applicant was subsequently arrested and was interviewed under caution by the police. The record of interview was admitted, the applicant acknowledging that it had been made freely and voluntarily. It was a mixed statement.

12.Three medical practitioners were called to testify by the prosecution and one by the applicant: aspects of their evidence form the basis of discrete grounds of appeal and we will return to that in due course. Suffice it to say at this stage that the medical evidence called by the prosecution largely was supportive of the complainant’s case. In addition, two police officers were called by the prosecution and the applicant called a character witness.

13.Consequently, the judge was faced with two starkly contrasting versions of what happened in the premises once the applicant had closed the front door and switched off the lights. He plainly appreciated this. He found the applicant to be "... not a credible witness. His version of events is not believable and not reasonable". He furnished a number of illustrations of aspects of the applicant’s evidence which drove him to this conclusion. In our view, he was fully justified in reaching this decision: areas of the applicant’s evidence verged on the absurd. The judge then considered the testimony of the complainant and assessed "... her credibility carefully and accept[ed] that she is a reliable and truthful witness. [He accepted] her evidence without reservation.". He was justified in reaching that conclusion.

THE APPEAL AGAINST CONVICTION

The grounds of appeal on Charge 1

14.There are seven amended perfected grounds of appeal plus the usual catchall ground. Grounds 2 and 3 may conveniently be dealt with together.

15.Ground 1: the judge erred in ruling that the medical witness intended to be called by the applicant as an expert witness was not possessed of the requisite expertise.

16.It is necessary only to look at the record to dispose of this ground. After the witness had indicated that he was attached to the New Territories Division of the Forensic Pathology Department he said that he had joined it in 2009 but that prior to that he had been a forensic pathologist in Singapore for two years. He had never given expert evidence either in Hong Kong or in Singapore. The judge enquired whether there was a challenge to the witness’s expertise. The prosecutor said that she had been unaware that the witness had not previously been tested in court. The judge sought clarification as to the basis upon which the witness was being called: whether he was being called simply to testify about the results of his examination of the applicant or to tender his opinion as an expert. Defence counsel indicated that he was being called as both. The judge properly indicated that, in that case, it appeared that his expert status had not been established: defence counsel said she wished to continue with qualifying him. When she did so it emerged that the witness had only dealt with cadavers when in Singapore and that he was presently employed as a trainee in the pathology department in Hong Kong.

17.The following then occurred:

Defence counsel: Do you need to take a special kind of studies in order to be part of the forensic pathology department?

Witness: Yes. We need to take examinations.

Defence counsel: And have you passed these examinations, Dr.?

Witness: I haven't take the examination yet.

Court: Madam Lai, at this stage, unless you have any other applications or any justifications I don't think you can define Dr. Mok as an expert. You may call him as a defence witness as to the doctor who actually examined the defendant. Apart from that I don't think you are entitled to seek his opinion, apart from the examination of this particular defendant.

Defence counsel: Yes, I understand, your honour, and I would like to make that application then. He's just a medical doctor who made physical examination and some findings and made remarks.

Court: And that's it.

Defence counsel: Yes.

18.It is crystal clear that the judge fairly warned defence counsel that unless she had any other applications or unless she had any further justification for the witness being qualified as an expert he had reservations that she would be able to call him as such. He was not making a ruling at that stage but was simply inviting the attention of defence counsel to the difficulties he perceived, and understandably so. Defence counsel then specifically abandoned her application to qualify the doctor as an expert witness and elected to rely solely upon his evidence of the physical examination of the applicant.

19.That said, however, the witness testified very substantially in accordance with a report which he had prepared, the effect of which was to lay before the judge the applicant’s contentions that the injuries observed by the witness were supportive of his version of events. This was of relevance when considering Ground 4 below.

20.There was no merit in this ground.

21.Ground 2: the judge erred in failing to fully consider the issue of self defence given PW1's own admitted utilisation of the screwdriver against the unarmed applicant.

Ground 3: the judge erred in placing a burden on the defence to lead evidence of self defence.

22.What these grounds overlook is the fact that the judge rejected the applicant’s evidence in its entirety but accepted the whole of the complainant's evidence. It was her evidence that she was alone, late at night, in the house; the applicant refused to leave the premises when she asked him to do so; she took possession of the screwdriver; he closed the front door and switched off the lights; he made physical moves towards her; she attempted to use the screwdriver on him but was unable to do so, he immediately disarming her. Only subsequent to that did he set about assaulting her and injuring her in an incident which the complainant described as lasting 10 minutes and which the applicant described as lasting between 5 and 10 minutes. As may be seen from the summary of the evidence which we have set out above the issue of self defence simply did not arise from the complainant's evidence. Ground 2 consequently failed.

23.It followed, logically, that Ground 3 also failed. For the sake of completeness, we noted that the judge recognised that, because he had relied on the complainant’s evidence, the issue of self defence did not arise although he expressed himself in the terms "... I do not find self defence, even if it could be or was raised, substantiated at all...". It was this unfortunate phraseology which gave rise to Ground 3. It should be noted, however, that the judge went on to make reference to the appropriate passages of Archbold Hong Kong which clearly set out the fact that it was for the prosecution to negative self defence once it had been raised. Plainly the judge was aware of this as, after this inapt phrase, he went on immediately to say "It is well established that it is the duty of the prosecution to prove the elements of the offence beyond reasonable doubt. The defendant has no duty to prove anything."

24.Ground 4: the judge erred in rejecting the defence case.

25.Only in the most exceptional circumstances will an appellate court interfere with findings which depend on the credibility of a witness: none such exists here.

26.We have already indicated that, in our view, aspects of the applicant’s testimony at trial defied belief. Apart from the matters identified by the judge the evidence was that the applicant himself realised that he had alarmed, at the very least, the complainant by his conduct by refusing to leave the house when asked and in then closing the front door and switching off the light. He accepted that the obvious way of ameliorating that alarm would have been to have switched back on the light, opened the door and departed. He chose not to pursue the course but, even on his own version, set about covering the complainant's mouth in an attempt to stop her cries for help being heard - which, it eventuated, they were.

27.We considered the detailed submissions made by Mr. McGowan, who appeared on behalf of the applicant before us but not in the court below, all those matters which he suggested were supportive of the applicant’s case at trial, but with particular reference to the injuries observed on the applicant and the lack of obvious external bruising to the complainant. Each of those matters was squarely before the trial judge. Whilst we accepted that the trial judge did not deal with each of these items in detail in the course of his Reasons for Verdict, it was evident that he was aware of the contentions. None of the matters invited to our attention, individually or collectively, persuaded us that the judge was incorrect in rejecting the applicant’s version.

28.Ground 5: the judge failed to reconcile the very different versions of the complainant’s injuries between those who examined her on 30 May (PW 7 and 8) and PW9 who saw her on 5 June.

29.Such differences as superficially may have existed in the evidence of these three witnesses are largely reconciled when viewed in context. Dr YAN Yuk-yu was the first person to examine her at Tuen Mun Hospital on 30 May. When he was asked what parts of the body he examined he indicated the lower chin and the mouth including the oral cavity. He noted, amongst other things a half-centimetre diameter stab wound exposing underlying muscle over the lower chin and also noted that the lower first incisors were loose. He reiterated that he did the examination based on the complaints of the patient. He was asked whether he made any findings about injury on the inner lip to which his response was "Probably there's no injury over the other part of the oral cavity so what I did find is loosened lower incisors only." The judge asked whether he found "... the front teeth of the victim lost on examination..." at that time to which the witness’s response was "No, not lost, only loose." It is obvious that he was talking about the lower incisors. Of course, the two teeth subsequently found to be missing completely were in the upper jaw and, according to the evidence of Dr POON Wai-ming, were an old detachment. It has to be said, moreover, that Dr YAN’s powers of observation do not appear to have been particularly acute, or his recording accurate, given the very obvious presence of lacerations on the lips visible in the photographs taken the following day whilst the complainant was still in hospital.

30.Dr WONG Pok-hei, who also examined the complainant on 30 May, testified that the complainant had complained of chest pain and had reported being assaulted by being punched in the face and abdomen and being stabbed in the chin with a screwdriver. Once again, his attention was directed towards the lower teeth, which he confirmed to be loose. He also testified in cross-examination that, contrary to the photographs, there was no trauma inside the lips or to the gums.

31.Whilst it is correct that the witness said he did not observe any swelling to the complainant's face and that "most of the time... swelling will occur at once after..." being punched in the face, he was clear that he could not conclude from a short-term assessment that no "very hard" force had been applied to the complainant's mouth. He explained that "If... it's very severe... that will cause some bleeding and the bleeding will cause bruises soon after... Otherwise [it] may have some delayed effect that when I examine the patient it looks normal. So it depends. I cannot say for this case whether it is (sic) occur or not".

32.Dr POON Wai-ming, a senior forensic pathologist who has given expert evidence in excess of 100 times in Hong Kong and whose expertise was not challenged by the applicant, examined the complainant on 5 June. His instructions emanated from the police who had informed him of the allegation of assault and stabbing with a screwdriver. Of particular note in the report he prepared and his testimony was the fact that he had observed the abrasions to the inner surface of the upper lip of the complainant which are visible in the photographs to which we have referred. He also noted that the crowns of all four upper incisors were absent, broken ends of roots of both lateral upper incisors still being visible inside their sockets whilst the sockets of the central upper incisors were completely healed indicating "an old detachment" of the teeth. He expressed the opinion that blunt impact, such as a punch, to the centre of the upper jaw was capable of having caused the abrasions and broken incisors. He noted three wounds, each of which which he described as a "...healing deep abrasion”, to the front of the neck each of which had been caused by a hard object with a narrow-edged blunt tip such as a screwdriver. He noted a number of other injuries all relatively minor in nature.

33.He indicated, in cross-examination, that the injuries were already in the healing stage but described the scenario put to him on behalf of the applicant that the upper incisors could have been broken in the course of a finger being pulled out of the mouth when it was being bitten as "very unusual", that he had "... never heard of any such kind of case report...", maintaining that it was "... very doubtful whether this kind of action would be of sufficient force to break teeth... it's very difficult to visualise how a single finger pulling out could break two lateral incisor teeth at the same time, symmetrically... even with a denture in place...". He also categorised a number of the other injuries which he had observed as having been caused by "... more a poking or a stabbing action rather than a sideways moving action..." when defence counsel suggested that they may have been caused when a screwdriver was being "... swung left, right, all over the place..." in the course of a struggle.

34.Although we have dealt with the evidence perhaps in more detail than normally would be required, we have done so simply because of the emphasis placed on this aspect of the matter by counsel in this appeal. In our view, the second and third examinations were supplementary of the first and of one another with not only the emphasis of the area of examination changing but even, in the case of the third examination, the source of information and the issues to which that witness’s attention was specifically directed, differing from one medical examiner to the next. Insofar as it is suggested that the judge should have performed this exercise, we simply repeat the well-settled approach of this court that a judge is not expected to review the whole of the evidence. Ground 5 failed.

35.Ground 6: the injuries suffered by the complainant do not amount to grievous bodily harm.

36.The prosecution relied upon of the loosening of the complainant's lower incisors and fractures of the two upper lateral incisors as well as the three puncture wounds to her throat to show that grievous bodily harm had been occasion to her. We gave anxious consideration as to whether those injuries were of sufficient severity as to properly be categorised as "grievous" giving that word its ordinary meaning.

37.We concluded that, as unpleasant and uncomfortable as they must have been for the complainant, they properly could not be so regarded. Although the prosecution had proven that the applicant had inflicted actual bodily harm on the complainant, it had failed to establish this essential element of the offence charged. As a consequence, we made the order reflected above.

38.Ground 7: there was insufficient evidence of intent to cause grievous bodily harm to justify conviction.

39.The effect of the evidence of the complainant as well as, at least, Dr WONG and Dr POON, is that she was punched twice in the mouth causing dental and other damage and then, whilst lying on the floor, stabbed in the throat two or three times. We have no hesitation in drawing the inference from those facts that the applicant intended to cause the complainant grievous bodily harm even if, in the event, that intent was not fulfilled. This ground failed.

40.Ground 8: for the above grounds and/or generally, the conviction is unsafe and/or unsatisfactory.

41.The only area in which the judge erred was in his finding that the injuries sustained by the complainant were grievous. In all other respects, there was nothing either unsafe or unsatisfactory in regard to his approach to the evidence or the resulting convictions. This ground also failed.

The ground of appeal against conviction on Charge 2

42.The sole ground of appeal in respect of Charge 2 was that there was insufficient evidence to support the conviction. The evidence of the complainant was that when the applicant first arrived at the premises he had asked to use her mobile telephone, before asking to use the toilet, saying that the battery in his was low. She had allowed him to do so. She had asked him for its return when, apparently, he had finished using it. She placed it on the sofa in the living room of the premises. During the course of the fight she had grabbed it and randomly pressed the keys. At this stage the applicant had snatched it away from her. She did not see it thereafter.

43.It is correct that she could go no further than that and was not able to say that when the applicant had fled the premises he had taken the telephone with him. However, it was the unchallenged evidence that a search of the premises had been made after the applicant’s flight, the result being that the mobile telephone could not be located. The judge concluded "... that the only reasonable and irresistible inference was that the defendant took the mobile phone when he escaped from the scene.". Inherent in that finding in the context of the charge was the finding that he did so, dishonesty, with the intention of permanently depriving the complainant of it. We agreed.

THE APPEAL AGAINST SENTENCE

44.The applicant submitted that the sentence imposed in respect of each charge was either manifestly excessive or wrong in principle.

45.Charge 1 in the form it was before the judge carried a maximum sentence of life imprisonment. The judge took a starting point of 2 ½ years imprisonment which he then discounted by three months to allow for the fact that, belatedly, the applicant had offered to compensate the complainant for the cost of replacing her upper denture. The offence of assault occasioning actual bodily harm carried a maximum sentence of 3 years imprisonment. We judged it appropriate to reduce the sentence, in some measure, to reflect the fact that the applicant's conviction had been substituted with one of a lesser offence.

46.We recognised that the injuries sustained by the complainant were not of an especially serious nature when considered in the light of injuries often encountered in instances of this offence. The complainant was detained in hospital overnight simply as a precautionary measure. None of the wounds required sutures. When she was discharged as she was then given a bottle of mouthwash to aid the healing process of the buccal injuries. There was nothing before us to suggest that her recovery was anything other than uneventful.

47.Despite this, this was a particularly serious example of this offence. The applicant had launched a sustained and violent attack upon the complainant who, fearing for her safety, had armed herself with the screwdriver. The applicant disarmed her and, at the end of the assault after having knocked her to the floor, dragged her from one room to another and used his hands to stifle her cries for help, then gratuitously had used that same screwdriver to stab her several times in the throat. That the injuries she sustained, both to her throat and to her face where she had been punched, were not as serious as they might have been was a result of luck rather than design on the part of the applicant.

48.Moreover, this was an assault on a lone female, late at night, inside her own home.

49.Our attention was invited to several decisions relating to sentences where, it was suggested, more serious injuries had been sustained by the person assaulted. As Mr. McGowan realistically accepted, such decisions are of very limited assistance where offences are as fact sensitive as is this.

50.In our judgment, the appropriate sentence on Charge 1 was one of 21 months imprisonment. The sentence of 9 months imprisonment in respect of the Charge 2, theft, was appropriate given the circumstances in which that offence occurred. The judge was correct in his approach in making a portion of that sentence consecutive to the sentence imposed on Charge 1: we saw no necessity to disturb either the sentence or order.

Comment

51.There were numerous instances in the course of this trial where a witness, particularly the complainant, was asked to demonstrate that which he or she was attempting to explain verbally. In the majority of those instances the record merely refers to the fact that a demonstration occurred. It is not uncommon for a demonstration to be sought because of the difficulty of understanding just what it is a witness is attempting to convey the where the actions of another are critical to the determination of criminal liability. We would take this opportunity of reminding judges of the necessity to ensure that a description of a demonstration performed by a witness does appear in the record. In the context of this case we did not see ourselves to be at any disadvantage due to the lack of description.

Ms Lily Wong, Senior Public Prosecutor, Department of Justice, for Respondent

Mr James McGowan instructed by Messrs. Wong & Co (DLA) for the applicant.