HKSAR v. Jiang Jiaxi
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HCMA 318/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 318 OF 2013 (ON APPEAL FROM TWCC 3374 OF 2012) _____________________
_____________________ Before: Hon Barnes J in Court Dates of Hearing: 6 March and 12 August 2014 Date of Judgment: 27 August 2014 ________________________ J U D G M E N T ________________________ 1.The appellant faced three charges of Common Assault, contrary to Common Law and Section 40 of the Offences Against the Person Ordinance, Cap 212. The particulars of each charge was that on 26 December 2012, at Gate 523, South Apron Passenger Vehicle Lounge, Level 4, Passenger Terminal Building, Hong Kong International Airport (Gate 523), the appellant assaulted a female. Each female was then a member of the staff of Hong Kong Airlines (the Airlines). 2.The appellant pleaded not guilty and was convicted by Mr Raymond Wong (the magistrate) after trial. He was given an absolute discharge. 3.The appellant appealed against the conviction on all three charges. 4.It should be noted that the trial was conducted in Chinese (when the appellant was represented by Mr Joseph Tse, Senior Counsel) but the appeal was conducted in English at the request of the appellant who is acting in person. Prosecution case 5.On the day in question, the appellant travelled with his wife and three daughters from Beijing to Hong Kong with the Airlines in order to catch a connecting flight to Bali. They presented their Canadian Passports and Boarding Passes to the staff members of the Airlines at Gate 523 when they were about to board the plane. A staff member Sarah Chan (Sarah) noted that the passport of the appellant’s 9-year-old daughter Angela (Angela’s passport) would expire in less than 6 months’ time. Sarah informed another ground staff of the Airlines Kylie Chan (Kylie) about this. 6.Kylie then explained to the appellant and his wife, in Putonghua, that travellers holding a passport with less than 6 months validity would not be allowed to board the plane as they would be denied entry by the Indonesian authority (the 6-month validity rule). The appellant told Kylie that a visa was not required by Canadian passport holders to visit Bali and Kylie explained the 6-month validity rule again. 7.The appellant’s wife then claimed that Kylie and her colleagues had no right to check their travel documents and demanded to have Angela’s passport returned to her – Kylie was holding Angela’s passport at the time. The appellant suddenly hit the back of Kylie’s left hand when he snatched Angela’s passport from her. Kylie felt pain on her left hand (Charge 3). 8.The appellant then rushed towards the gate with his family but they were intercepted by the security personnel and did not manage to get out of the gate. 9.Kylie’s supervisor Celina Tang (Celina) led the appellant and his wife to a counter nearby. The appellant was emotional and asked why they were not allowed to board the plane. Celina asked the appellant to calm down and pass over their passports so that she could check with the Indonesian authority to see if the authority could exercise discretion to allow the appellant’s daughter entry. 10.After Celina obtained the passports from the appellant and his family, she then asked another staff member Giselle Sham (Giselle) to explain the position to the appellant, having passed over Angela’s passport to Giselle. 11.When Giselle explained to the appellant, in Putonghua, the 6-month validity rule, the appellant became very emotional and wanted to take Angela’s passport back. Giselle did not give Angela’s passport back to the appellant as she wanted to explain to him clearly why no entry would be allowed in Bali. Giselle was also afraid that the appellant might dash out of the gate (which is a restricted area) if he succeeded in getting the passport back. Giselle held the passport behind her back. The appellant walked closer and closer to Giselle, causing her to fear that the appellant might use force on her. Giselle asked the appellant to calm down. As the appellant was stepping closer and closer to her, she was forced to step backwards until she was about 1-2 feet from the wall. The appellant used his right hand to push the left shoulder of Giselle with force, as a result of which Giselle’s back hit the wall behind her. Giselle was very frightened. She was afraid that the appellant would continue to assault her and she cried. Other people came and separated the appellant from Giselle (Charge 2). 12.Upon seeing Giselle being pushed by the appellant, Celina immediately put the passports of the appellant and his family on the counter and went over to stop the appellant. Celina also comforted Giselle. She then went back to the counter to use the computer. The appellant and his wife came over to stand behind her. They tried to get all the passports and boarding passes back and repeatedly asked why they were not allowed to board the plane. Celina asked them to wait as she was then handling another case. Celina also explained to the appellant the 6-month validity rule. The appellant was emotional and kept saying he had to board the plane. He also asked whether Celina would reimburse him for the air fare and hotel charges. 13.The appellant stepped closer and closer to Celina. Celina placed her hand in front of her chest to block the appellant and asked the appellant to calm down. The appellant suddenly grabbed hold of Celina’s left forearm, saying “I had to touch you”. Celina asked the appellant and his wife to calm down and they walked away. 14.Celina turned back to work on the computer. The appellant’s wife snatched away all the passports and boarding passes which had been placed on the counter. At that time the appellant stood behind his wife and did not do anything. Celina told the appellant’s wife that she needed the passports and the boarding passes but the appellant’s wife refused to return them to her. 15.Celina then tore off the stubs of the boarding passes placed inside the passports held in the hand of the appellant’s wife. Celina continued to use the computer and the appellant repeatedly requested to be allowed to board the plane. When Celina turned round to speak to the appellant, the appellant showed a passport with the luggage tag indicating the flight number and destination to her and asked her, “Isn’t this the flight of your company? Why did you not allow me to board?” Celina again explained to the appellant the 6-month validity rule. 16.The appellant was still emotional and stepped closer and closer to Celina. He held a passport in his hand and kept poking or hitting it towards Celina’s face. Celina used her left hand to protect herself and blocked the passport. Her left hand was hit, causing her slight pain (Charge 1). 17.Celina also testified that the Airlines would be fined if a passenger was denied entry and she had explained that to the appellant, though she wasn’t sure if the appellant had heard that as he was too emotional. 18.Celina denied that she had assaulted the appellant’s wife, causing the latter to fall. She admitted that she was arrested by the police as a result of a complaint by the appellant’s wife but she was not charged in the end. 19.Apart from the evidence of witnesses, the magistrate also viewed footage of the whole incident captured by the closed-circuit television. Defence case 20.The appellant elected to give evidence but call no witnesses. 21.The appellant is a lawyer in the Mainland and he had no previous criminal conviction. He travelled from Beijing to Hong Kong with his family to catch a connecting flight to Bali on holiday. Their passports were checked by staff of the Airlines and boarding passes were issued. 22.When they were queuing up for boarding, a female staff (Kylie) checked their passports and boarding passes and said his daughter’s passport would expire in less than 6 months. The appellant explained that would not be a problem as his daughter is only a child and they were only staying for a week in Bali. He also said he would bear the consequences if there was a problem. 23.Kylie insisted that they could not board the plane and the appellant told her she had no right to withhold her daughter’s passport. Kylie ignored him so he took the passport back from her. The appellant said he did not hit Kylie and his hand did not touch her. 24.Another staff (Giselle) subsequently explained the 6-month validity rule to him and his family. The appellant told Giselle there should be no problem as they were staying for a week and the passport would remain valid for 3 months. Giselle still refused and the appellant then made the point that all the checking had been done by the Airlines in Beijing and their luggage had been sent to Bali. Giselle told the appellant what the Mainlanders had done was of no relevance. Upon hearing that, the appellant became angry. He explained to Giselle that she had no right to withhold his daughter’s passport and asked for the passport back. Giselle refused and walked away with the passport. When Giselle was stepping back with her right hand (which was holding the passport) behind her, the appellant followed her. When Giselle’s back hit the wall behind her, the appellant pushed Giselle’s left shoulder lightly in order to get to her right hand to get the passport back. 25.The appellant then approached another staff (Celina) at the counter with his wife, asking for the return of all the passports. Celina refused. His wife then took away the passports on the counter. Celina placed her hands on his wife’s shoulder and his wife fell down. The appellant then asked Celina why she assaulted his wife. The appellant denied having grabbed Celina’s hand or holding a passport to poke or hit at her face. 26.The appellant claimed that he had made repeated demand for the return of his daughter’s passport, which the staff had no right to withhold. 27.Basically the defence case was that the appellant was doing no more than using reasonable force to get back his daughter’s passport, which belonged to him (in his position as the holder’s father) and which the Airlines staff had no right to retain. Reasons for verdict 28.The magistrate directed himself on the burden and standard of proof. He reminded himself that the appellant was a man of previous good character and he evaluated the evidence in detail, including the closed-circuit television footage. He also bore in mind the fact that Celina was arrested by the police on an allegation of having assaulted the appellant’s wife. While Celina was never formally charged with the offence, the magistrate warned himself of the possibility of falsehood on her part. 29.The magistrate found Sarah, Kylie, Giselle and Celina honest and reliable witnesses. He was fully aware that he could not see clearly from the closed-circuit television footage all the acts allegedly done by the appellant. He was satisfied that the appellant did hit Kylie’s hand when he forcibly took the passport from her hand. He found the appellant’s explanation of why he had to push Giselle’s shoulder unreasonable. Despite the fact that he could not see from the closed-circuit television footage the grabbing of the forearm and the poking or hitting action with a passport, he accepted Celina’s evidence. 30.The magistrate was of the view that the staff members of the Airlines were simply carrying out their duties. There was a need to check the passports before allowing passengers to board. The Airlines would be fined if a passenger was denied entry and have to be repatriated back to the port of origin. 31.The magistrate was aware that the appellant was anxious to board the flight and to have Angela’s passport back. However, the magistrate found that the appellant should have discussed with the staff in a reasonable manner, and not to unreasonably use force to snatch back the passport. 32.As to the evidence of the appellant that he could get the passport very easily from Kylie’s hand and there was no bodily contact between him and Kylie, the magistrate noted that the appellant’s evidence was different from what was captured on the closed-circuit television footage as he noted two extra moves by the appellant at the time. 33.The magistrate found that the appellant intentionally attacked the three ladies while he was in anger and found him guilty of all three charges. Grounds of appeal 34.The appellant adduced a bundle consisted of some 75 pages entitled “Preliminary Grounds of Appeal for the appellant” for the original hearing on 6 March 2014. The actual grounds of appeal were set out from pages 8 to 29. The rest included some introduction about the case, some portions of transcript of the hearing, statements of some witnesses and some media clippings. 35.The appellant advanced many grounds of appeal. In gist, he submitted that the prosecution failed to prove the three charges beyond a reasonable doubt, in particular, failed to prove mens rea. The magistrate did not carry out his duty in dealing with his case. The magistrate (1) wrongly rejected the defence version of the incident; (2) erred in deciding the Airlines staff had the right to withhold the passport; and (3) wrongly convicted the appellant against the weight of the evidence. 36.The appellant made a serious allegation against the magistrate, saying that the magistrate was incompetent, biased, partial and discriminatory against him. He accused the magistrate of paying lip service to the Berrada rule. In accepting an “impeached witness”, ie Celina and rejecting the evidence of the appellant, who was a man of clear record, the magistrate was biased and discriminatory against the appellant. 37.The appellant complained about the magistrate interposing a case on the second day of the trial without first informing the defence, thus causing a loss of about one hour. Further, the magistrate adjourned the case after the final speech when he could have completed the trial in another hour, thus causing the appellant to pay huge legal costs. Such unduly delays infringes upon his human rights and the basic law. As the appellant later found out that the interposed case involved a defendant who had allegedly thrown something onto President Hu Jintao’s motorcade, and who was later acquitted, the applicant was of the view that it shows the bias on the part of the magistrate against Mainlander like himself. 38.The appellant also complained about material irregularities, misconduct and other violations of human rights in the way he was handled. Briefly, the appellant complained that he was readily charged by the police when Celina was not charged at the end; he was only allowed bail at $50,000 which resulted him having to stay in custody while waiting for his wife to raise the sum; the prosecution failed to offer him the chance to be bound over after his counsel made the request; and the prosecution failed to agree to have a statement of one witness (A security officer surnamed Ku who would have given evidence beneficial to the defence but who had refused to give evidence) admitted into evidence by consent. Hearing on 6 March 2014 39.During the hearing on 6 March 2014, the closed-circuit television footage was played before me repeatedly. The appellant pointed to the footage and submitted that Celina had clearly pushed his wife to the ground. Though she was not charged, Celina admitted having torn off the stubs of the boarding passes, which amounted to force being used on his wife, Celina’s credibility was therefore doubtful. The appellant submitted that the defence had raised a serious doubt in the prosecution case. 40.The appellant submitted that he and his wife demanded for the return of their daughter’s passport and Giselle wrongfully withheld it from them. He had only pushed Giselle’s shoulder to make her turn her right hand to the front so that he could get the passport back. The appellant claimed that Giselle’s account was contradicted by the closed-circuit television footage (ie Giselle’s back had already touched the wall behind her before the appellant pushed her shoulder, and not the other way round as testified by Giselle). He submitted the magistrate should have accepted his version. 41.In relation to Kylie, the appellant accepted that from the closed-circuit television footage, it can be seen that he had snatched the passport from Kylie’s hand. He said Kylie did not react in a way indicating she was hit – such as raising her hand, which throws doubt on Kylie’s version. 42.The appellant also complained about the magistrate’s findings that from the closed-circuit television footage he could see “two more moves” from the appellant which contradicted the appellant’s version of not having contact with Kylie. The appellant submitted that the magistrate should have alerted the defence about those two moves so that the defence could put forward an explanation. The magistrate was biased against him and denied him of that opportunity. 43.He complained that the magistrate was not impartial and had stepped into the prosecution role. 44.The appellant submitted that the prosecution failed to prove the mens rea for the assaults. He claimed that he had no intention to hit Kylie’s hand, or to assault Giselle. The most that could be said was recklessness on his part when he snatched the passport from Kylie, and that he was merely defending his property when he forced Giselle to return the passport. He submitted that the prosecution failed to prove recklessness on his part beyond a reasonable doubt. 45.As for Celina, the appellant submitted that the prosecution had not even proved the actus reus as her evidence was not supported by the closed-circuit television footage. 46.The appellant referred to articles describing “anti-Mainlander” attitude exhibited by the Hong Kong people and the poor attitude of the staff of the Airlines which resulted in the staff fighting with customers. He claimed that this matter should have been settled as a civil dispute. The criminalization of such a civil dispute was unjustified. Case brief 47.The hearing on 6 March 2014 was adjourned to 12 August 2014 to enable the appellant to provide further transcript to support his arguments. The appellant submitted a 26-page “Case Brief for the appellant” dated 28 July 2014 to supplement his grounds of appeal already filed. 48.Basically the appellant repeats what was already said in the original grounds of appeal. Hearing on 12 August 2014 49.The appellant repeated many of his argument already submitted before. In addition, he pointed to various parts of the transcript in order to show discrepancies between the evidence of the prosecution witnesses: such as, who had taken away the passport from whom and at what stage? Did the appellant succeed in actually getting out of the gate? Why was it that some members of the staff did not witness the alleged assault on Celina? He also pointed to portions of the transcript to show that the magistrate, in asking questions of the witnesses, demonstrated that he was biased against the appellant. 50.The appellant reiterated the “two more moves” point. He submitted that even if his hand had touched Kylie’s hand when he grabbed the passport back, he had used no more than reasonable force to get back his property. 51.As to Giselle, the appellant made the same point that his pushing of Giselle’s shoulder was no more than necessary to retrieve the passport. 52.The appellant particularly pointed to the closed-circuit television footage showing three sections of time he could have interaction with Celina as pointed out by the magistrate (para 48 of the Statement of Findings). He submitted that the closed-circuit television footage does not support Celina’s version of him having contact with her twice – first grabbing her forearm, and later poking or hitting a passport towards her face. He also submitted even if there was contact between Celina’s hand and the passport in his hand, it was Celina who brought herself to touch the passport and therefore he did not assault Celina. The appellant complained that it was Celina who had used unreasonable force to snatch back the stubs of the boarding passes from the passports held in his wife’s hand, thus amounting to an assault on his wife. 53.The appellant stressed that by prosecuting him, setting up bail at a large amount, interposing the trial with another case, adjourning the hearing to a later date, etc. amounted to a breach of human rights and basic law. 54.The appellant relied on the authority of Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 and submitted that on appeal by way of a rehearing, he should be allowed to adduce the statement of the security officer Ku as new evidence. Further, despite the fact-findings made by the magistrate, the judge on appeal should nevertheless have wide discretion and allowed the appeal when it is unjust or unfair to uphold the convictions. 55.The appellant reiterated that he is a lawyer in Mainland China and these convictions are devastating for him and his reputation. Further written submission 56.When the hearing concluded on 12 August 2014, I informed both parties that judgment would be reserved as there was a need for me to review the relevant closed-circuit television footage and re-read the transcript. Without any prior notice or leave from this Court, the appellant adduced another 45 pages “Supplemental submissions” in support of his appeal which reaches me on 19 August 2014. Even though what the appellant had done was irregular, I nevertheless read what he has to say. 57.In my view, there is no need to set out what the appellant has said in his latest written submission. Suffice it to say that the appellant basically repeated what he had already submitted orally to me on 12 August 2014. He stressed again the role of the judge on appeal with reference to the authority of Chou Shih Bin v HKSAR. He went through the evidence of various prosecution witnesses with a fine-tooth comb to show inconsistencies and alleged unreliability. He submitted that Celina’s evidence in court about him having uttered “I had to touch you” was not mentioned in her witness statement, thus her evidence was not credible. He accused the magistrate of being biased and made wrong findings against him. He submitted that the magistrate had found him guilty on the basis of intentional acts and had not considered the issue of recklessness (thus the respondent cannot rely on recklessness on appeal). Further, there was no analysis of the possibility that the appellant might have used what he had genuinely (but mistakenly) believed to be reasonable force to retrieve the passport. He reiterated that the prosecution had not proved all the charges against him beyond a reasonable doubt. Consideration of the submission 58.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. Where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed as the hearing is on papers. (See Chou Shih Bin v HKSAR (cited above) and Raymond Chen v HKSAR (2010) 13 HKCFAR 728) 59.If the magistrate is shown to have made mistakes, or have misunderstood the case, or have made unreasonable or illogical findings, the conviction will then be unsafe and will be quashed by the appellate court. 60.Despite what the appellant believes to be the case, there is no basis to admit the statement of the security officer Ku as fresh evidence before me. Ku was not called as a prosecution witness. The appellant was represented by Senior Counsel and the defence did not call Ku. The prosecution cannot be accused of failing to “consent” to have Ku’s statement adduced into evidence. This submission has no merit. 61.In order to fully understand the submission, I repeatedly viewed the closed-circuit television footage and read the full transcript of the trial. Although the appellant tends to put his own gloss or interpretation on the evidence and the closed-circuit television footage, I can only consider what the evidence was before the magistrate by referring to the transcript and my own viewing of the closed-circuit television footage. 62.Whilst I appreciate the feeling of the appellant, I cannot agree with him that the magistrate was biased against him or that the magistrate had not made his findings properly. The parts pointed out by the appellant merely demonstrated that the magistrate was clarifying with the witness in order to better understand the evidence. There is absolutely no basis to suggest that the magistrate was biased against the appellant. 63.As to the allegation against the magistrate in relation to the interposition of another case, I can only say that in a busy court, in particular a magistrate’s court, it is not an unusual feature that the magistrate needs to interpose another matter while hearing a trial. Further, as the appellant admitted, all the evidence finished around 4 pm, it is therefore not unreasonable for the magistrate to adjourn the matter so as to consider all the evidence and the submission (particularly when the hearing lasted more than one day and involving a number of witnesses). It is inevitable that more legal costs were incurred under such circumstances. 64.The magistrate had the benefit of watching the witnesses (including the appellant) giving evidence and observing their demeanour. He was, to a certain extent, assisted by the closed-circuit television footage. Although he did not specifically refer to the “two more moves” during the hearing of the trial, that part of the footage was repeatedly played in court when witnesses, including the appellant, gave evidence. The magistrate is entitled to take into account the movements made by the appellant when considering whether the appellant’s claim of “no contact” between him and Kylie was borne out. 65.When witnesses give evidence in court, there are bound to be discrepancies among them and also as against the closed-circuit television footage. No one has infallible memory. An important point is whether the discrepancies are material. I have carefully considered the transcripts and the closed-circuit television footage and I must say I do not find any glaring discrepancies. 66.I will add here that Celina’s witness statement was not evidence before the magistrate. In any event, her failure to have mentioned the utterance by the appellant in her witness statement does not amount to a discrepancy or inconsistency. 67.I would respectfully adopt what Stock JA (as he then was) had said R v Kwong Wing On and Another, HCMA 574/1996,
68.The magistrate had carefully set out the evidence and his evaluation. He was fair in his assessment of the closed-circuit television footage and considered such evidence against the evidence of the prosecution witnesses. The magistrate is the fact-finder and he has the benefit of watching the witnesses giving evidence and observing their demeanour. I cannot say that his fact-findings are plainly wrong. 69.Clearly, the appellant was upset when the Airlines staff in Beijing allowed them to fly to Hong Kong without alerting them of the problem of the 6-month validity rule. The Hong Kong staff of the Airlines were simply carrying out their duties. While the appellant had the right to demand for the return of his daughter’s passport, he could only do so in a reasonable manner. He snatched the passport from the hand of Kylie, hitting her hand in the process. That was not an act using reasonable force. 70.While it might be argued that at the time, the appellant did not have the “intention” to hit Kylie’s hand when snatching the passport back (an issue not dealt with by the magistrate), as he himself had said before me, he was acting recklessly (though he also claimed that the prosecution had failed to prove recklessness beyond a reasonable doubt). 71.I am satisfied that on the facts found by the magistrate, in my “rehearing” of the case on appeal, the appellant was reckless as he had the foresight of the possibility that Kylie would be subjected to the apprehension of unlawful force and he nevertheless took the risk. 72.The appellant’s explanation of why he had to push Giselle’s shoulder was properly rejected by the magistrate. In my view, it matters not whether the push was before or after Giselle’s back touched the wall behind her. I too found the appellant’s explanation implausible. Such a push was an intentional act and the issue of recklessness does not come into play. Even if it does, again the appellant had the foresight of the possibility that Giselle would be subjected to the apprehension of unlawful force and he nevertheless took the risk. 73.As to Celina, the magistrate warned himself against possible falsehood on her part and the fact that the closed-circuit television footage did not show those acts testified by her, he is nevertheless entitled to accept her evidence after giving due consideration. On the findings of the magistrate, the assault on Celina was intentional and the issue of recklessness does not arise. 74.The fact that Celina was not charged does not make the prosecution of the appellant unfair or unjust. Whether a case will proceed depends on the evidence available. It would appear that the prosecution was of the view that there was not enough evidence to charge Celina. Further, whether Celina’s act of tearing the stubs of the boarding passes inside the passports held by the appellant’s wife amounts to an assault by Celina on the appellant’s wife has no bearing on the issue whether the appellant has assaulted Celina. 75.Whether the conduct of a particular appellant warrants the treatment of having a bind-over order made against him and the criminal charge(s) dropped by reason of the prosecution not offering any evidence is purely a matter for the prosecution. The fact that the prosecution did not agree to the defence’s proposal to have the appellant bound-over is not a ground of appeal. 76.There is no basis to suggest, let alone to conclude, that the appellant had been unfairly treated when he was allowed bail on the higher sum of $50,000 in view of the fact that he was accused of assaulting three persons and he was not a local person with local ties. 77.While there was, unfortunately, some “anti-Mainlander” attitude among some of the people here in Hong Kong, I do not find there was any evidence remotely suggesting that the prosecution of the appellant was as a result of such an attitude, or that the magistrate has held such an attitude to the detriment of the appellant. Conclusion 78.I can understand the impact and ramification of these convictions on the appellant – a man of previous good character and a lawyer working in the Mainland. I have given the appellant every opportunity to argue his case on appeal. I am unable to agree with him that the convictions are unsafe or that there has been unfairness or injustice in the way his case being handled. On the contrary, I am satisfied that all the convictions are safe. 79.For the reasons stated, I dismiss the appellant’s appeal against the convictions on all three charges.
Ms Fan, Irene, SPP of the Department of Justice, for the respondent The appellant appeared in person | ||||||||||||||
Cases cited in this judgment