HKSAR v. Hesham Tharwat, Abo El F Abo El M

HCMA672/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 672 OF 2013

(ON APPEAL FROM ESCC 1028 OF 2013)

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J U D G M E N T

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1.On 30 September 2013, the appellant was convicted after trial of ‘Inflicting Grievous Bodily Harm’[1] (the first count) and ‘Criminal Damage’[2] (the second count). Dr Eric Cheung, magistrate, sentenced him to 6 weeks’ imprisonment for the first count. He was fined $2,000 for the second count and ordered to pay a fine of $3,000 for breach of a bind over order.[3] He appealed against the convictions.

Background

2.The prosecution alleged that at about 2 am on 28 February 2013, the appellant was on board a taxi driven by PW1.  The taxi went from Lan Kwai Fong and eventually stopped next to the Sinopec Petrol Station at MacDonnell Road[4]. The appellant paid the taxi fare with a $100 note.  On giving change to the appellant, PW1 said it was ‘damned troublesome’[5]. An argument ensued.  The appellant then alighted the taxi.  He kicked the left rear door of the taxi causing a dent.  PW1 alighted and grabbed the appellant’s collar to stop him from leaving.  The appellant attacked PW1 with blows causing a fracture to the latter’s left 9^th rib.[6]  The police was summoned and the appellant was arrested.

3.The appellant denied kicking the taxi but only slammed the door after alighting.  It was PW1 who started the scuffle and grabbed his collar.  He tried to push PW1 away acting in self defence.  He did not cause the fracture.

The magistrate’s decision

4.During the trial, Mr Edwin Choy, counsel for the appellant pointed out that according to PW1’s evidence he scolded the appellant after the latter had alighted.  Whereas in his witness statement, PW1 said they scolded each other on the taxi.  Mr Choy argued that PW1 was dishonest as the version in his witness statement was more consistent with the appellant’s reaction.  The magistrate accepted PW1’s explanation that the inconsistency was due to the lapse of time.  He did not find that there was anything illogical in the reaction of the appellant even according to PW1’s evidence.

5.The magistrate also accepted that PW1 meant his ‘left rib cage’ when he said that the appellant punched his ‘left waist’ in his witness statement.  It was just a simplified description.

6.The magistrate accepted the evidence of PW3 who was a security guard observing the incident about 20 feet away.  His evidence supported PW1’s version in two material aspects: (a) the cause of the dent on the taxi; and (b) the appellant punched the left waist of PW1 several times.

7.Having considered the above main points, the magistrate found that PW1 was a reliable witness.

8.The magistrate rejected that the appellant was acting in self-defence.  According to the CCTV footage[7], the appellant continued to step forward when separated from PW1.  This was inconsistent with what the appellant said that he tried to push PW1 away.

9.Also in the medical report[8], Dr Tracy Leung recorded that the appellant alleged that the taxi driver (PW1) used his fists to hit and grab his chest during an argument.  However, in court, the appellant never mentioned that PW1 punched his chest.

10.The magistrate was sure that the appellant had caused injury to PW1 and convicted him of the first count.  He also found that the appellant damaged the taxi and convicted him of the second count accordingly.

Grounds of appeal

11.Counsel for the appellant, Mr Duncan, SC, indicated that he would mainly rely on the following grounds:

a. The appellant was not cross-examined about the discrepancy between his evidence in court and what he told the doctor in the medical report.  This breached the principle in Browne v Dunn.[9]

b. The magistrate erred in rejecting the possibility of self-defence.

c. The magistrate failed to resolve the substantial inconsistency in PW1’s evidence.

Paragraph 11(a)—the appellant was not asked about the discrepancy

12.From the evidence of PW1 and PW3, it was clear that the prosecution alleged that the appellant assaulted PW1 during the scuffle.  PW1 was only grabbing the appellant’s collar to stop him from leaving.

13.In fact, the appellant denied attacking PW1 or causing the rib fracture.  He told the magistrate that he was trying to push PW1 away.  He threatened but did not actually punch PW1.[10]

14.Mr David Leung, counsel for the respondent, pointed out that it was clearly put to the appellant that he was aggressive and punched PW1 causing the injury.  He wanted to avoid the liability for causing a dent on the taxi.[11]

15.As the magistrate rightly pointed out in the reasons for verdict[12], this case turned on the credibility of PW1.  Whether PW1 attacked the appellant or vice versa.  The appellant must have understood that the prosecution did not accept it was PW1 who attacked.

16.The appellant produced the medical report by agreement.  He must be aware of its content and the consequence of giving evidence in conflict with it.

17.Mr Duncan, SC, argued that the inconsistency was not traversed in cross-examination and the appellant had no chance to explain.  He relied on the principle discussed in Browne v Dunn.

18.In that case, Lord Herschell, L.C., commented that a witness should be given an opportunity to explain if his credibility was to be impeached.  His Lordship further qualified the principle later in the judgment:[13]

“… Of course I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”

19.In my view, the principle in Browne v Dunn required that questions should be put to a witness on issues of dispute so that the witness could explain.  In case the issue was so obvious that the witness must be aware of it, questions would not be necessary.

20.In HKSAR v Z[14], Mr Justice Ribeiro PJ, explained this scenario further as follows:

“The magistrate is said to have violated the rule in Browne v Dunn[15]or to have breached the rules of natural justice by convicting on the basis of certain inconsistencies and weaknesses in the applicant’s evidence when some of those points had not been put to him. We do not think there is anything in this ground. The magistrate was not bound to accept any particular item of evidence because there had not been cross-examination on it. He made his findings on the basis of the evidence as a whole deciding to accept the prosecution version and rejecting the contrary evidence adduced for the defence. There was no unfairness and everyone was fully able to deal with the single issue of credibility.”

21.In my judgment, the appellant must be fully aware of the prosecution case and the issues in dispute.  There was no unfairness to him even if the discrepancy in the medical report was not put to him during cross-examination.  The magistrate was entitled to consider all the evidence and come to his conclusion.

22.Further, I disagree with Mr Duncan, SC, that the discrepancy was not pronounced.  The wording in the medical report was clear. Dr Leung wrote, ‘…Taxi driver used his fists to hit and grab the patient’s chest…’.[16]  It was so clear that allows little misunderstanding.

23.Mr Duncan, SC, also criticized the magistrate for accepting PW1’s explanation that he actually meant his ‘left rib cage’ when he wrote his ‘left waist’ in his statement.  On the other hand, he held against the appellant for the discrepancy between the medical report and his evidence on whether his chest was hit.

24.The magistrate explained that it was difficult to describe a body part.  He pointed out that parties had similar difficulty too during the trial.  I agree that this is often the case especially for laymen.

25.The nature of the discrepancy in relation to the appellant was different.  It was whether or not his chest was hit.  There was no room for uncertainty.  The two discrepancies cannot be compared directly.  In my judgment, there was no unfairness that the magistrate accepted PW1’s explanation but found against the appellant on the respective discrepancies.

26.Given the above, I reject this ground of appeal.

Paragraph 11(b)—wrong to reject self-defence

27.In paragraph 65 of the reasons for verdict, the magistrate rejected the argument of self-defence.  Had it been the case, the appellant would not have step forward when they are separated.  The magistrate relied on the CCTV footage from 022419—022442.[17]

28.Mr Duncan, SC, criticized the magistrate for failing to consider the entirety of evidence prior to the appellant’s stepping forward.  According to the evidence, there was pushing and grabbing all along.  Just before the stepping forward, the two were kicking at each other.  The actions of the appellant advancing towards PW1 could not undermine that he was acting in self-defence.

29.Before the appeal hearing, I had drawn counsel’s attention to other parts of the CCTV footage.  Both parties had watched the relevant part of the CCTV footage before making submission.  The following is the gist of what was captured in the footage:

a. At about 022001, the footage showed that PW1 used his right arm to grab the appellant by his collar while the appellant used his left arm to grab PW1’s right arm by his clothing.  The appellant raised his right arm pretending to hit.

b. At about 022023, the two continued to grab each other.  The appellant tried to release himself.  PW1 hailed other taxis passing by to assist.

c. At about 022110, the appellant punched the left waist area of PW1.  The direction of the punch was from below upwards.  They continued to grab each other as before.

d. At about 022354, the two were separated.  The appellant stepped forward spitting at PW1’s face.

e. At about 022425—022437, the two were exchanging blows and kicks aimlessly.  It appeared that none of the blows and kicks actually landed on their bodies.

30.Mr Duncan, SC, accepted that the CCTV footage[18] showed that the appellant had punched PW1 at the middle part of his body.  However, it was not clear what sort of injury might have caused.  Both the appellant and PW1 were not asked about that punch.  In fact, PW1 said the footage shown in court did not show the punch on his rib.[19]

31.During the evidence of PW1, he actually confirmed that the appellant hit him as set out in paragraph 29(c) above.  However, it was not certain as the counter time was not mentioned in court.  I can only deduce from the transcript that it was after 022017.  At the trial, Mr Choy, argued that the blow did not land on PW1[20].

32.The magistrate did not mention the above evidence in the reasons for verdict.  He only relied on the situation at 022419 to 022442 to reject the issue of self-defence.

33.From the reasons for verdict, I am sure that the magistrate was well aware of the principle and burden of proof on the issue of self-defence.  He cited the relevant paragraph from Archbold.[21]

34.It was however not certain whether the magistrate found that there was no prima facie evidence of self-defence or that self-defence was disproved beyond a reasonable doubt.  He just held that the conduct of stepping forward was inconsistent with self-defence.

35.The CCTV footage is a piece of physical evidence.  I am entitled to watch its content and come to my own conclusion during an appeal.  In my view, the CCTV footage showed that the appellant was all along the aggressive party.  Apart from punching PW1, he threatened to punch from time to time, spit on PW1’s face and exchange blows and kicks with PW1.  PW1 only grabbed the appellant’s collar most of the time.

36.It is true that the CCTV footage did not cover the initial stage of the incident, however, PW3’s evidence was of particular relevance in this aspect as he was observing the incident from the beginning.  PW3 said that the appellant hit the left waist of PW1 five to six times shortly after PW1 alighted the taxi.[22]  He drew Exhibit P7 to show that the blows landed on PW1’s left waist.

37.The magistrate accepted the evidence of PW3 which was consistent with what PW1 said.

38.Taking all this evidence into account, even assuming that there was prima facie evidence of self-defence, I am sure that the prosecution had disproved this issue beyond a reasonable doubt.  Having said so, I tend to agree with the submission of Mr Leung that there was no sufficient evidence to raise the issue of self-defence.

39.I agree with the magistrate that the appellant was not acting in self-defence.  I reject this ground.

Paragraph 11(c)—failure to resolve inconsistencies of PW1’s evidence

40.Mr Duncan, SC, drew my attention to several areas in the evidence of PW1.  He argued that those inconsistencies compounded the errors in the other grounds of appeal.

41.I discuss each aspect of inconsistency as follows:

a. During the cross-examination of PW1, he reiterated that he did not use foul language to scold the appellant on the taxi.  This was inconsistent with the content of his witness statement in which he said they exchanged foul language on the taxi.[23]  The magistrate discussed this discrepancy in paragraphs 33-42 of the reasons for verdict.  He accepted PW1’s explanation that it was due to the lapse of time.[24]  In my judgment, this discrepancy was minor.  PW1’s manner might be a predisposing factor to the subsequent saga.  In any event, there was no reason for the appellant to react as the evidence demonstrated.  I disagree that this discrepancy suggested that PW1 was the initial aggressor.

b. It was pointed out to PW1 that he did not complain of any injury to his head whereas he told the magistrate some of the blows hit his head.[25]  The magistrate discussed this in paragraph 47 of the reasons for verdict.  PW1 actually told the court that some blows landed on his head and neck. [26]  According to the medical report[27], there was a 1 cm bruise at the left lateral aspect of PW1’s neck.  This supported that some of the blows landed on his neck.  I do not find this discrepancy significant.

c. PW1 maintained that shortly after they got off the taxi, the attendant (PW2) from the petrol station came and said he would call the police for PW1.[28]  Whereas, PW2 gave evidence that he saw the two grabbing and pushing each other.  He worried about the situation and reported to the police.[29]  The reason why PW2 called the police was not important.  There is nothing significant in this discrepancy.

d. PW1 said when he alighted and found a dent on the taxi, the appellant rushed forward and attacked him.  He fended off the attack. Then the appellant tried to leave.  He grabbed the appellant’s T-shirt.[30]  In PW3’s evidence[31], there was no mention of the appellant rushing forward to attack PW1 before the latter grabbed the former’s collar.[32]  The above sequence of events as described by PW1 and PW3 was different.  However, both witnesses went on to describe that the appellant hit PW1 near the left waist after PW1 grabbed the appellant’s collar.  This latter part was significant.  PW1’s evidence was supported by PW3, an independent witness.  The medical finding was also consistent with the assault.  It showed that PW1 was not exaggerating.  In my view, the earlier discrepancy should have little bearing on PW1’s credibility.

e. Mr Duncan, SC, pointed out that PW1 deliberately concealed the presence of a fellow taxi driver, Mr So.  It was an attempt to disguise the true involvement of Mr So in the incident.  The CCTV footage showed that Mr So appeared at a later stage when PW1 and the appellant scuffled inside the petrol station.  Mr So appeared to be a mediator rather than assisting PW1.  His role was minimal.  There was no basis to suggest otherwise.  I agree with the magistrate.[33]  I reject this criticism.

42.Mr Duncan, SC, criticized the magistrate for failure to consider that the evidence of PW2 and PW3 was also consistent with the evidence of the appellant.

43.It is true that PW2 only saw the grabbing and pushing inside the petrol station.  He did not witness the whole incident.  He went in his office twice to call the police.  His evidence was of little significance for both prosecution and defence.

44.As for PW3, his evidence was significant.  The magistrate had succinctly summarized it in paragraphs 55—56 of the reasons for verdict.  PW3 saw the appellant hit PW1 five to six times at the left waist.  He also heard two bang sounds.  One of which occurred just after the taxi door was closed and the taxi started to move.  His evidence was material to prove that it was the appellant who assaulted PW1 causing the fracture.  It also provided strong circumstantial evidence that the appellant caused the dent on the taxi.

45.The magistrate had correctly analyzed the evidence of both witnesses.  I agree with Mr Leung that neither witness supported the appellant’s evidence.  I reject this criticism.

Conclusion

46.Having considered the analysis above, I dismiss the appeal against conviction on both counts.

Mr David Leung, Ag. DDPP, of the Department of Justice, for the respondent

Mr Peter Duncan, SC, leading Mr Edwin Choy, instructed by Fairbairn Catley Low & Kong, for the appellant