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R v Chow [2020] SBHC 101; HCSI-CRC 21 of 2020 (31 August 2020)

HIGH COURT OF SOLOMON ISLANDS

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No.21 of 2020

REGINA

V

FRANCIS CHOW

Date of Sentence: 31 August 2020

Counsel
C Hapa for the Appellant
Olivia Ratu the Regina/Respondent

RULING ON AN APPEAL

Maina PJ:
Introduction

The Appellant Francis Chow appealed against his conviction by the Magistrate on November 1^st, 2019 and sentence of one year and 6 months imprisonment delivered on 6^th December 2019.

Grounds of Appeal

Magistrate had erred in assessing the evidence from the trial of the appellant. The punched by the First Defendant on the victim’s right side face of the complainant would not have the effect of dropping the complainant’s head towards appellant and the magistrate held that the appellant applied at metallic and injured the complainant.

And the sentence of one year and 6 months imprisonment is excessive.

Brief Facts

These facts transpire or become apparent from the magistrate’s judgment.

On 13^th January 2018 a ship came and complainant signal the ship LC Nusatupe not to berth at the right side of Munda wharf as it was not completed. But the ship came opened its ramp and berth at the right side of the incomplete wharf.

As the ramp was down on the wharf the complainant stepped in the ship, went to talk to the person operating of the ramp. While he was talking, the owner of the ship Mr Francis Chow (appellant) arrived. He came and enquired about the problem. Complainant told the appellant that the women usually sell their produce at the market and it was their ramp that broke the wharf.

The first defendant Lionel Chow punched the complainant on his right-side face

Fact not in issue

Complainant confronted or argued with the ship owner or appellant on the berthing of the ship at Munda wharf when he was punched by the First defendant on his right-side face (being alternative verdict for the First defendant).

The Issues

There are two issues and the first one, though as preliminary matter it relate to the conduct of the trial on the charge against the appellant.

1. Whether there is an offence of grievous harm under section 225 of the Penal Code?
2. Whether the Appellant had unlawful cause grievous bodily harm to the victim?

Issue 1

This issue may be a preliminary but it is legal matter as it concern or relate to the fundamental principles of rights under the Constitution.

In his introduction of the judgment in Paragraph 1, the magistrate states:

“The trial for both defendant – Lionel Chow and Mr Francis Chow ensued after they entered not guilty pleas to a count each on charges of Grievous harm contrary to section 225 of the Penal Code (Cap 26).”
The charge arise out of an injury on a person namely; Ronnie Kidoe who was a complainant in this matter. I find that on 13^th January 2018, there was vicious and sustained injury on Ronnie Kidoe left side face or lower left jaw at Munda wharf inside MV Nusatupe, Western Province. He suffered a lower left jaw mandibular fracture, as a result, his wisdom teeth on that particular area”

As clearly stated above in the introduction, the trial was conducted for the offence of grievous harm under section 225 of the Penal Code (Cap 26).

Frankly, I say that there is an ambiguity in the trial of this case and its judgment. It is so as:

1. There is no offence of grievous harm under section 225 of the Penal Code (Cap 26). Section 225 of the Penal Code provide for an offence on wrecks or preventing escape from wrecks. In the Penal Code, the offence of grievous harm is provided under section 226.
2. And further the magistrate stated that he found as he describes: “...... was vicious and sustained injury on Ronnie Kidoe left side face or lower left jaw..........” This introduction is revealing that the magistrate made the finding before analysing the evidence in the case.

The magistrate has erred in law in conducting a trial and convicted the appellant on an offence that do not exist in law. It is so as a crime is an indictable offence for which the offender can be prosecuted and convicted if the court find guilty only for the offending under provisions in the Penal Code.

Whether this may be a typing mistake or an error by the magistrate in his judgment, it is also an uncivilized error in the judgment because he used the proper provision under section 226 of the Penal Code (Cap 26) to capture the elements of the offence.

Surprisingly too, if such is a typing error why or there is nothing put forward in the submissions for this court to take note of, to amend or rectify the error or mistake in the judgment.

It is also interesting to note that either counsels did not realised this ambiguity /vagueness in the magistrate’s judgment however I would say that reflect the counsels’ attitude with what they usually bring to the court.

I noted the provision in the Criminal Procedure Code in sections 201 and 202 but these provisions provide for the process of conducting or considering evidences in the trial than with the issue arise in the judgment of the court.

As it appears from the record, the judgment of the magistrate’s court for this case is ambiguous.

Issue 2

Counsel for the appellant submitted that the magistrate erred in his analysis of the evidences in this case.

The counsel submitted that it would be impossible to satisfy the required standard to proof beyond reasonable doubt in this case when the presiding magistrate made two conflicting findings on the same evidences in his judgment when held in paragraph 39 that:

His worship stated:

“On this basis, it is evidenced and undisputed that the second defendant (appellant) punched “PW1” (Prosecution witness 1) on his right-side face”.

And further in Paragraph 65 in the judgment the magistrate held as follows:

Having placed weight on the evidence of “PW1” I find the when the complainant “PW1” was punched by first defendant [Lionel Chow] on his right-side face, he partly dropped towards the second defendant [appellant] whereupon the second defendant applied the led metallic torch on to the lower he was holding on the lower left jaw of the complainant “PW1”.

Counsel for the appellant further submitted the Prosecution witness gave differing version as to where the punched landed. Counsel referred to paragraph 35 in the judgment when the magistrate held that PW 1, PW 2, PW 3 and PW 5 all gave evidence that the First Defendant punched the complainant PW1 on his face. And the magistrate further stated that it is evidence of where the punch landed but is different among the crown witnesses.

In paragraph 36 the magistrate acknowledged or ascertained that difference when he stated that PW 1’s evidence that the punch landed on his right side face below his ear. PW 2 said that he was standing far from them and he could not see where the punch landed. PW 3 said the punch landed on PW 1’s chin and PW 5 gave evidence that he saw the second defendant’s right hand punched PW1’s left face.

In criminal case the required proof is or the court must satisfied as to the defendant’s guilt “beyond reasonable doubt”.

It is quite interesting to note from the magistrate’s judgment when he held that appellant punched the complainant on his right-side face but later in his judgment also held that the appellant had applied the led metallic torch on the lower left jaw of the complainant. And what did he mean when he said “applied” as there is no act of the appellant in the judgment.

In brief, I would say that it is not possible to satisfy the required standard of proof “beyond reasonable doubt” on the two different findings or conclusions to the injury on the complainant with the same evidences.

Further at para 76 of the judgment, the magistrate said:

“For the second defendant – Francis Chow I have exhaustively and thoroughly considered the evidences against him on the charge of Grievous Harm and I found the Crown to have proven their case on the required criminal standard “Beyond Reasonable Doubt” that the second defendant on the date of the offence, ........................ which caused him grievous harm, .....................”.

The above statement on the required criminal standard raises doubt on part of the magistrate when he stated that he found the Crown “to have proven” their case on the required criminal standard. To my view that statement do not reflect the full magistrate’s confidence in determining the Crown have proof its case on the required criminal of standard of beyond reasonable doubt on the charge against the appellant.

To sustain a charge of unlawfully grievous bodily harm contrary to section 226 of the Penal Code the Crown has to prove that the act of Appellant causing grievous bodily harm was unlawful either because it amounted to an act of criminal negligence because though not itself a criminally negligent act, its result, the infliction of grievous bodily harm, was not an event which occurred by accident. It may be with the two different findings or conclusions to the injury on the complainant as noted earlier, in all respect the evidences did not establish either form of unlawfulness.

I am satisfied that the magistrate had erred in his analysis of the evidences in the case in his findings that the second defendant (appellant) punched “PW1” (Prosecution witness 1) on his right-side face and again on the same evidence the magistrate held that injury was when the appellant applied act not disclosed in evidence to the complainant.

I am satisfied that magistrate erred in his judgment and therefore the grounds of appeal is upheld.

Orders of the Court

1. The grounds of appeal is upheld,
2. The conviction of the appellant on November 1^st, 2019 is quashed,
3. The sentence of one year and 6 months imprisonment delivered on 6^th December 2019 is quashed and;
4. The Appellant is acquitted.

THE COURT
Justice Leonard R Maina
Puisne Judge