HKSAR v. EJEGI, EDWIN ROBORT

bjbj HCMA 162/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 162 OF 2016 (ON APPEAL FROM KCCC 3903/2015) ______

BETWEEN

HKSAR Respondent EJEGI, EDWIN ROBORT Appellant ______ Before: Deputy High Court Judge V Bokhary in Court Date of Hearing: 2 February 2017 Date of Judgment: 2 February 2017 ___

J U D G M E N T ___ The Appellant was convicted after trial in the Magistrates Court of common assault. He appeals against his conviction. The prosecution s case, which the Magistrate found proved beyond reasonable doubt, was that on 8 November 2015, in the public housing unit allocated to his wife, the Appellant assaulted her by pouring a bucket of mixture containing faeces over her. If the wife s evidence is accurate, then the Appellant did indeed so assault her. The Appellant denied the charge, saying that her evidence against him was fabricated by her. At the time of the incident, the Appellant was living at that unit even though the wife had commenced divorce proceedings against him. The background to this case was somewhat unusual. It was a feature of the trial. The Magistrate dealt with it at some length in his Statement of Findings. I do not propose to recite it. The Perfected Grounds of Appeal are set out in the fourth paragraph of the document in which they are contained. They are numbered 4.1 to 4.4. In them, the Appellant is referred to as and the wife is referred to as Ms Chan . Grounds 4.1 reads: The learned magistrate erred in finding that the lack of stain or smell of faeces on D when the police officer arrived at the scene did not constitute a reasonable doubt. Specifically, the learned Magistrate erred in finding that there was no evidence on where the Defendant was standing, his orientation, the distance from Ms Chan, the direction and degree of force used when the liquid was poured on Ms Chan, and, contrary to his stated intentions not to speculate, in finding that there could be a good number of reasons to explain why the defendant has no stain or smell of faeces on him when the police officer arrived at the scene.

4. In my view, none of those complaints are made out. There was indeed no evidence on those matters. The Magistrate was not speculating on any of them. He was merely saying why the lack of smell of faeces on the Appellant did not preclude finding it proved beyond reasonable doubt on the wife s evidence that the Appellant had assaulted her as she said.

5. Ground 4.2 reads: The learned Magistrate erred in finding Ms Chan to be a credible witness and attached disproportionate weight to her evidence. The learned Magistrate ought to have discounted Ms Chan s evidence in relation to the alleged assault in light of the serious temporal and sequential inconsistencies in her account of events and her refusal or inability to answer questions under cross examination. In addition, the learned Magistrate erred in finding that Exhibit D1 supported Ms Chan s version of events as it was Ms Chan s contention that D had unlawfully entered the Location on 17 October 2015.

6. This appeal is by way of rehearing. But this rehearing is on the written record. I find no basis on which to say that the Magistrate did not make proper use of his advantage or having seen and heard his witnesses in the witness box. All the matters relating to the wife s credibility were gone into at the trial. The Magistrate appears to have been fully aware of the unusual background of the case. In my view, none of the complaints in Ground 4.2 are made out.

7. Ground 4.3 reads: The learned Magistrate erred in finding D to be an unreliable witness. The learned Magistrate found D unreliable as a result of his account of the events of 17 October 2015, yet gave no ground as to why that was.

8. The Magistrate did give such reasons, saying as follows in paragraph 38 of the Statement of Findings: The Defendant also mentioned about an incident on 17 October 2015. He told the Court that he went to Lan Kwai Fong for a drink that night. Upon returning home, he forgot that he had the keys in the pocket of his jacket. He thus knocked on the door, but no one answered. He then found a locksmith from google.com on the internet to open the door for him at $450. When asked during cross-examination on why he did not phone Ms CHAN although he admitted having the cell phone number of Ms CHAN, the Defendant explained that they preferred communicating on emails, which was free of charge, while cellphone calls cost money. Also, the Defendant thought Ms Chan would have gone to Sai Kung to her parents place, so he did not attempt to contact Ms CHAN at all. The defence counsel further pointed out in his closing submission that the Defendant called the locksmith to open the door that day because this was the easiest and the most direct means, while calling or emailing Ms CHAN was relatively troublesome. I find the Defendant s explanation unbelievable.

9. Those are the views which are open to the Magistrate to take. The complaints in Ground 4.3 are not made out.

10. Ground 4.4 reads: In light of the lack of stains or smell on D and Ms Chan, the short time gap between the alleged assault and the arrival of the police, the acrimonious relationship between D and Ms Chan and the fact that the two children remained asleep throughout, the Court ought to harbour a lurking doubt as to whether the assault occurred as alleged.

11. Those matters received the Magistrate s attention. They did not debar him from convicting, and they do not provide a basis for overturning the conviction on the basis of a lurking doubt.

12. All the grounds of appeal fail. The appeal is dismissed. (V Bokhary) Deputy High Court Judge Mr Prakash L Daryanani, SPP of the Department of Justice, for the Respondent Mr Anthony Michael Gormley, instructed by Massie & Clement, for the Appellant

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