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Hksar v Oh Eugene Jae-hoon

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date16 May 2003
Year2003
Judgement NumberHCMA369/2002
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000369/2002 HKSAR v. OH EUGENE JAE-HOON

HCMA000369/2002

HCMA369/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.369 OF 2002

(On appeal from KTCC No.1057 of 2001)

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BETWEEN
HKSAR Respondent
AND
OH EUGENE JAE-HOON Appellant

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Coram : Deputy High Court Judge McMahon in Court

Dates of Hearing : 1 and 28 April 2003

Date of Delivery of Judgment : 16 May 2003

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J U D G M E N T

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1. This is an appeal against the appellant's convictions before a magistrate for offences of common assault, contrary to common law and section 40 of the Offences against the Person Ordinance, Cap.212 and criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap.200.

2. The offences related to an incident in which the appellant threw rocks in the direction of two large dogs owned by a couple who eventually gave evidence in the case as PW3 and PW4. The dogs at the time of the incident were being walked on leashes by PW1 (the victim of the assault offence) who was employed by PW3 and PW4 as their domestic helper at that time.

3. The assault offence arose out of the throwing of rocks in the direction of the dogs by the appellant while they were being walked by PW1 having being found to have constituted an assault on PW1 in the sense that she, although not struck, was thereby put in fear of imminent violence. The criminal damage offence arose as a result of one of the thrown rocks having been found to have struck the nearby parked vehicle of PW2, who otherwise had no involvement in the case.

4. These events came out of a background of acrimony between the appellant and PW3 and PW4, the owners of the two dogs, which had arisen as a result of those dogs having some three months earlier killed one of the appellant's own dogs.

5. The appellant had also been charged before the magistrate with an assault on PW3 during a confrontation with her and her husband and friends which arose shortly after his assault on PW1. The magistrate found, at the end of the prosecution evidence, that he had no case to answer in respect of that charge.

6. The grounds of appeal advanced by Mr Macrae counsel for the appellant are numerous and involved, but I think for present purposes, can be summarized as follows :

(1) the magistrate did not make satisfactory findings as to the appellant's intent so far as the 1st charged offence of assault and the 2nd charged offence of criminal damage were concerned;

(2) there was no sufficient evidence that any stone thrown by the appellant caused damage to the car of PW2;

(3) the magistrate did not properly evaluate whether the appellant may have acted in self-defence;

(4) that the magistrate was wrong to have accepted the evidence of PW6 and PW7, the two independent eyewitnesses to the events charged;

(5) the evidence of the police interfering with a tape recording made by the appellant was unfairly rejected; and

(6) that there was material non-disclosure of documents relevant to the appellant's case whereby his defence was prejudiced.

7. I will deal with those grounds in order.

8. So far as the 1st ground of the appeal is concerned, Mr Macrae complains that the magistrate did not, in her findings, satisfactorily address the question of the appellant's intent so far as each offence was concerned. He says that the magistrate misapplied the law relating to intent in respect of both offences.

9. It should be remembered in this regard that the prosecution case in respect of both offences was based on recklessness so far as the mental element of each offence was concerned.

10. In respect of the offence of assault, Mr Macrae suggests that the magistrate wrongly applied the Caldwell test (R. v. Caldwell [1981] 2 WLR 509) for recklessness rather than the appropriate Cunningham test (R. v. Cunningham [1957] 2 QB 396), and because of that the conviction, as a matter of law, is fatally flawed.

11. For present purposes, the Cunningham test for recklessness can be expressed as follows :

".... Either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm would occur or not (i,e, , the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). ..."

And Lord Diplock's test in Caldwell for recklessness is as follows :

".... if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act and he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to do it. ...."

12. It is true that whatever was the intention of Lord Diplock when he formulated the test for recklessness in Caldwell as to its general applicability, that test has been over the years restricted in its application. In R. v. Spratt [1990] 1 WLR 1073, the Court of Appeal confirmed that so far as the offence of assault is concerned (and indeed for all offences against the person), the test of recklessness is that in Cunningham.

13. It is recognized that the substantial difference between the two tests is that under Caldwell, an individual is still reckless even if he has not given any thought to an obvious risk and proceeds in any event, whereas Cunningham requires an actual awareness that such a risk exists.

14. Mr Macrae complains that Cunningham was the appropriate test for recklessness in respect of the assault offence of which the appellant was convicted, and that the magistrate applied in error the test in Caldwell and so was wrong in principle. Mr Macrae's assertion that the magistrate applied the test in Caldwell when considering the assault offence is based upon a statement made to the magistrate by the prosecutor during arguments on a no case submission at the end of the prosecution case.

15. The prosecutor said on that occasion : (p.1297) (24)

" I shall then move on to the law. For the offence of common assault, a person is liable if he did an act by which he intentionally or recklessly cause another to apprehend immediate unlawful allowance. In respect of the 1st charge, even if defendant intended to throw rocks at the dogs, he did recklessly cause PW1 to apprehend immediate unlawful violence. The elements of assault are present here.

In respect of the 2nd charge, the issue is whether the defendant was reckless as to whether the property would be damaged. I submit that the test is set out in the case of Caldwell as referred to in Archbold 2001 edition, paragraph 23 and 9. The test is two-fold:

'(a) he does an act which, in fact, creates an obvious risk that property would be destroyed or damaged; and

(b) when he does the act, he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to do it.'

Given the circumstances of this case, the act of throwing rocks at someone in an open place has obviously created a risk that someone might get hurt or that some property might be damaged. The defendant either gave no thought to that or ignored the risk, probably due to his hatred for the dogs. In the premises, it is the prosecution case that the defendant was reckless in damaging the red car."

16. Mr Macrae argues that by these comments the prosecutor may have been suggesting to the magistrate that the Caldwell test applied to both the criminal damage and the assault offences. I must say that I do think that there was some confusion in what the prosecutor was saying. It seems to me that the prosecutor may have intended to mention Caldwell's case in the context of the 2nd charged offence of criminal damage only, to which that case does in law apply, but seems then to have gone on and referred to it in a way which suggested it applied generally to both charged offences. But even if the prosecution intended to and did suggest to the magistrate that the Caldwell test applied to both the 1st and 2nd charges of assault and criminal damage and was therefore in error, that is not the end of the matter.

17. On occasions, counsel in court refer to a principle of law in error, or refer to a particular case as authority for an assertion of law which is perhaps incorrect. That does not mean the court accepts that assertion. Further, there is no general duty upon the court to correct every misstatement of the law made before it. The real question is whether the court accepted the wrong statement of law as being correct and so itself then acted in error.

18. In the present case, it seems plain to me that the magistrate did not apply the Caldwell test to the charged offence of assault as suggested by the appellant but, instead, applied correctly the Cunningham test of recklessness. In her statement of findings, the magistrate said a number of things which showed this to be so. Her initial finding was expressed in these words :

".... The Appellant alighted from his vehicle, and he picked up and threw two stones at PW1 and the dogs, causing PW1 to apprehend immediate unlawful violence. He exhibited hostile intent towards her, swearing at her with foul language."

19. This finding was based in part on the appellant's own evidence to the effect that he had shouted at PW1, the maid, to move away "because he was very cautious and she would have been safer if she moved away in case a stone bounced in her direction". From that, the magistrate concluded that the appellant was aware of a possible risk to the maid, as she said in her statement of findings :

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