HKSAR v CHAN SIU PING(陳小平)

HCMA 176/2011

HEADNOTE

1.  Paying attention to the inherent probabilities is one aspect of fact-finding. Taking proper advantage of seeing and hearing the witnesses is another. The relative importance of these two aspects of fact-finding in any given case will depend on the circumstances of the case. A witness’s demeanour can be of considerable assistance when deciding whether he is doing his honest best to give accurate testimony. But even when making findings of primary facts, i.e. findings of fact based on what witnesses say they saw with their own eyes or heard with their own ears, a court will consider whether what the witnesses relate is inherently probable. The inherent probabilities are generally at their most important when inferences are being drawn. In criminal cases, all of this is of course subject to the criminal burden and standard of proof and an inference having to be the only reasonable one before it can be drawn against an accused.

2.  In the present case, the Appellant was convicted of assault occasioning actual bodily harm.  She was angry over what she believed her domestic helper had done wrong with a piece of tin foil.  She was duly found to have thrust the tin foil, in a crumpled state, at the domestic helper, striking her neck and causing three linear scratches to it.  Was that deliberate or accidental?  At the time, the Appellant was carrying her newborn baby.  It was held, quashing the conviction, that the Magistrate had failed to take sufficient account of the inherent improbability that a woman carrying her newborn baby would launch a deliberate attack that could provoke retaliation.

HCMA 176/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 176 OF 2011

(ON APPEAL FROM TWCC 133 OF 2011)

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BETWEEN

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Before:  The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing:  15 September 2011

Date of Judgment:  20 September 2011

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J U D G M E N T

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1.  Paying attention to the inherent probabilities is one aspect of fact-finding.  Taking proper advantage of seeing and hearing the witnesses is another. The relative importance of these two aspects of fact-finding in any given case will depend on the circumstances of the case.  A witness’s demeanour can be of considerable assistance when deciding whether he is doing his honest best to give accurate testimony.  But even when making findings of primary facts, i.e. findings of fact based on what witnesses say they saw with their own eyes or heard with their own ears, a court will consider whether what the witnesses relate is inherently probable.  The inherent probabilities are generally at their most important when inferences are being drawn.  In criminal cases, all of this is of course subject to the criminal burden and standard of proof and an inference having to be the only reasonable one before it can be drawn against an accused.

2.  The Appellant, a woman of previous good character in her early 40s, appeals against her conviction, following a trial before Ms Merinda Chow in the Magistrates’ Court, on a charge of assault occasioning actual bodily harm.

3.  The charge arose out of an incident between the Appellant and her domestic helper, Ms Arnaiz.  The incident occurred in the kitchen of the Appellant’s home.  The prosecution’s case, which the Magistrate found proved beyond reasonable doubt, was that the Appellant assaulted Ms Arnaiz by thrusting a crumpled piece of tin foil at her, striking her neck and causing three linear scratches to it.  That the Appellant thrust the tin foil at Ms Arnaiz and that it struck her neck causing these scratches was duly found proved beyond reasonable doubt.  But what about the finding that that was done deliberately, in other words, as an assault rather than by accident?

4.  It appears that the Appellant was confronting Ms Arnaiz with what she was saying that Ms Arnaiz had wrongly done with the tin foil.  Might she have thrust it at Ms Arnaiz so as to say, by gesture rather than words: “Look what you have done!”?  Some people do that sort of thing when they are angry, and the Appellant plainly was angry.  Whether the Appellant had meant to strike Ms Arnaiz was a question not of primary fact but of inferential fact.  It could not be made out simply on the Magistrate’s view, however much it may be justified, that Ms Arnaiz was honest and reliable.  That Ms Arnaiz believed that the Appellant meant to strike her is one thing.  Whether that belief represents the reality is another.

5.  At the time of the incident the Appellant was carrying her newborn baby.  It is inherently unlikely that a woman would launch an assault, which could after all provoke physical retaliation, while carrying a newborn baby. As it seems to me, the Magistrate went too much by her view of Ms Arnaiz’ credibility and took insufficient account of the inherent probabilities or improbabilities.

6.  I am unable to regard this conviction as safe. I allow the appeal to quash it and set aside the fine imposed on the Appellant.

Mr Robert Tibbo and Mr Chan Hei-ching, instructed by Messrs Tam, Pun and Yipp, for the Appellant

Ms Rosa Lo, of the Department of Justice, for the Respondent