Mr Justice Stock NPJ : Introduction 1. The question in this appeal was whether the magistrate erred in ruling as inadmissible certain records of smartphone text messages and, if so, the impact of that error upon the appellant’s conviction for common assault. 2. In May 2014, the appellant was tried before a magistrate[1] upon a charge of assault occasioning actual bodily harm. He was acquitted of that charge but convicted of common assault. He was fined $5,000. 3. His appeal against conviction to the Court of First Instance was dismissed.[2] 4. On 6 June 2014, the Appeal Committee[3] granted leave to appeal on the ground that it was reasonably arguable that substantial and grave injustice had been done[4] because of errors regarding the admissibility, treatment and evaluation of the evidence. 5. On 7 January 2015, this Court allowed the appeal and quashed the conviction. These are the Court’s reasons for doing so. Background 6. The appellant was all material times a Senior Inspector of the Hong Kong Police Force. In 2011, he formed a relationship with a Ms Yau. Shortly after midnight on 5 January 2012, he visited her at her dwelling place in Tai Po. It is common ground that in the course of that visit he slapped her face and shook her body. 7. At issue in the trial were the circumstances in which he came to do so, most particularly whether he may honestly have believed that Ms Yau consented to the use of force. The prosecution evidence 8. Ms Yau did not testify. The prosecution relied on the testimony of a friend of the appellant, Ms Yuen. She had known the appellant for about 10 years. She had first contacted Ms Yau through the appellant’s introduction. Ms Yuen was aware that the appellant nurtured an interest in spiritualism and when she, Ms Yuen, said that she wanted to know about matters spiritualist, he provided Ms Yau’s telephone number, saying that Ms Yau knew more about it. So she made telephone contact with Ms Yau but met her for the first time on the evening of 4 January 2012, at Ms Yau’s apartment in Tai Po. 9. While Ms Yuen was at that apartment, the appellant arrived. Ms Yuen went to the kitchen. Ms Yau and the appellant were in the living room. Ms Yuen heard nothing unusual. Then she saw the appellant pulling Ms Yau towards the bedroom. He was holding her by her bathrobe. Ms Yuen followed them into the bedroom. The appellant slapped Ms Yau’s right cheek. Then he lifted her off the bed and pushed her back and lifted her up again and pushed her back yet again. This happened several times. Ms Yuen asked him to stop and he answered : “She is possessed. Got to hit her to wake her up.” Ms Yau appeared to have fainted. The appellant left the flat, taking with him Ms Yau’s mobile telephone. 10. The magistrate found that upon Ms Yau’s request, Ms Yuen called the police. Before the police arrived, the appellant returned to the apartment, bringing with him Ms Yau’s telephone. He again pushed Ms Yau onto the bed and when Ms Yuen tried to stop him, she slipped and fell. The telephone rang and it was the police calling. The appellant left the flat. 11. In the course of cross-examination, she told the court that before the appellant had struck Ms Yau, Ms Yau had struck the appellant; and, further, that Ms Yau had previously told her that she, Ms Yau, had been seeing ghosts. Ms Yuen also said that she had told the police of the appellant’s explanation to her whilst using violence upon Ms Yau, that Ms Yau was possessed and that he had to hit Ms Yau to wake her up. 12. The police evidence was that upon arrival, they saw swelling and redness on Ms Yau’s face and scratches on her chest. These marks were also observed by a doctor who examined her shortly after at the North District Hospital. 13. At about 4pm that day, the appellant reported to Tai Po Police Station. He was interviewed. He told the police that since he was now married, his relationship with Ms Yau had to end and that in consequence of that knowledge Ms Yau had, in general, become irascible and threatening. On the day of the visit in January 2012, he was worried because she did not respond to his telephone calls. So he went to see her at her apartment. There they discussed the breakup of the relationship and she hit him but he did not hit her. He declined to answer further questions but when asked if he wanted to add anything, he told the police that Ms Yau was often possessed by a ghost or ghosts and would, on such occasions, speak to him as if she were another person and that he had previously sought help to exorcise the ghost. When she was thus possessed, he had to treat her with a mixed soft and hard approach, by which means he could help her regain consciousness. The defence evidence 14. By his testimony, the appellant admitted that on the night in question, he had struck Ms Yau and had shaken her. He did so, he said, because she acted as if possessed. The clear thrust of his evidence was that, as a result of previous experiences when he had used limited violence to bring her round and in attempts to exorcise the ghost, he believed her to consent to the use of violence upon her for that purpose. Incidents of that kind had occurred three or four times previously and she had told him that he could use force as long as he did not injure her. 15. In support of his case, he sought to adduce in evidence records of smartphone messages in 2011 between himself and Ms Yau, transmitted through the messaging application known as WhatsApp. He had obtained the records of these messages from a computer belonging to Ms Yau and from a website. 16. The conversations evidenced by these records show Ms Yau referring to a female spirit or ghost possessing her and to the habits of that ghost and include the following, addressed to the appellant on 11 May 2011: “When you push her, pay attention to me. … neck’s very painful”; with the appellant responding by referring to his having pushed the spirit down on to a bed. He testified that this exchange referred to an incident the previous day when, with her consent, he had pushed Ms Yau and tied her up. 17. One witness was called by the appellant, a Mr Ho, whom the appellant had consulted in May 2011 to see if an exorcisim ritual could be arranged to assist Ms Yau. The relevance of consent 18. Assault is “an act by which the defendant, intentionally or recklessly, applies unlawful force to the complainant. There are circumstances in which force may be applied to another lawfully”; so, for example, “where the victim consents, as in lawful sports, the application of force to another will, generally speaking, not be unlawful” : R v Williams.[5] Therefore, in order to prove an offence of assault and battery, the prosecutor must prove absence of effective consent.[6] However, save in certain recognised exceptional circumstances (for example, in the case of certain sports) consent is not a defence where a person who has used violence causes actual bodily harm with intent to do so: R v Brown.[7] In the present case the magistrate held that the prosecution had failed to establish a connection between the violence used and the injuries found. Therefore, consent was a live issue. 19. The mental element to be proved is an intent to apply unlawful force. It follows, in cases where the absence of consent is in issue, that if a defendant honestly believes that the person whom he assaults is consenting, the mental element is not proved, even if the belief is a mistaken belief: R v Williams.[8] 20. It was the appellant’s case at trial that he had honestly believed that Ms Yau consented to the use of force by him upon her when she appeared to be possessed. The WhatsApp records were tendered in support of that case. Admissibility of the records 21. The magistrate took the view, and so ruled, that whereas the appellant was entitled to describe events referred to in the messages – for example, the events of 10 May 2011 and how he came to use violence that day – and refer to the messages to refresh his memory, he could not produce the records of the messages themselves as evidence since, he said, they constituted hearsay evidence and were not produced in conformity with section 22A of the Evidence Ordinance, Cap 8. “I won’t look at the relevant content,” he said. 22. Section 22A applies to documents produced by computers. In so far as is relevant to this case, it provides that: “(1) Subject to this section … a statement contained in a document produced by a computer shall be admitted in any criminal proceedings as prima facie evidence of any facts stated therein if – (a) direct oral evidence of the effect would be admissible in those proceedings; and (b) it is shown that the conditions in subsection (2) are satisfied in relation to the statement in question. … (11) Nothing in this section affects the admissibility of a document produced by a computer where the document is tendered otherwise than for the purpose of proving a fact stated in it.” The conditions referred to in subsection (2) include proof that appropriate measures were in force to prevent unauthorised interference with the computer and that the computer was operating properly. 23. Section 22A provides an exception to the common law rule against the admission of hearsay evidence. The common law rule renders evidence of an out-of-court assertion inadmissible where the evidence is tendered to prove the truth of the assertion; but where a statement contained in a document produced by a computer is tendered as evidence of the truth of facts stated in the document, it is admissible for that purpose provided that the conditions stipulated by section 22A(2) are met. Fulfilment of the conditions is not required in the case of a computer-produced document tendered otherwise than as evidence that a statement in it was true. That this is so is evident from the phrase “as prima facie evidence of any facts stated therein” in subsection (1) and from the terms of subsection (11). This analysis of the effect of section 22A and of the circumstances in which it is operative accords with the analysis of sections 22 and 22A of the Evidence Ordinance in Secretary for Justice v Lui Kin Hong.[9] 24. Since section 22A applies as an exception to the common law rule against the admission of hearsay evidence, the question which first arises is whether the common law rule was engaged in this case. We are satisfied that it was not. The applicant did not seek to rely upon the messages as evidence of the truth of any facts stated in them. Instead he relied on the messages to show that the statements in them were made and, thereby, the effect on his state of mind when he used violence on the occasion of the alleged offence. 25. If we take as an example the message which read: “When you push her, pay attention to me”, the appellant wished to adduce that in evidence to show that the statement had been made by Ms Yau and that, in reliance upon it and other matters, he, rightly or wrongly, but nonetheless honestly, believed that he had Ms Yau’s consent to use limited violence upon her whenever she appeared to him to be “possessed”. On his view of it, the statement amounted to a request as to the future and there was no assertion of fact in it upon the truth of which he sought to rely. 26. It follows that in finding that the records were inadmissible as infringing the common law rule against hearsay and that their admissibility depended upon compliance with the conditions stipulated by section 22A(2) of the Evidence Ordinance, the magistrate erred. 27. The error illustrates an occasional misapprehension as to the ambit of the rule against hearsay testimony. The misapprehension is that the rule always forbids evidence of what somebody has declared, orally or in writing, out of court. That is not the rule.[10] The rule is that, subject to certain common law and statutory exceptions: “… an oral or written assertion, express or implied, other than one made by a person in giving evidence in court proceedings is inadmissible as evidence of any fact or opinion so asserted.”[11] (emphasis added) 28. The reach of the rule may more readily be understood if the rationale for it were better appreciated. The rationale is a concern for the probative value of out-of-court statements. Sometimes the circumstances in which an out-of-court declaration is made are deemed to confer sufficient inherent reliability as to render the declaration admissible to prove the truth of what is declared[12] and it is upon that reasoning that the common law and statutory exceptions are based. In other circumstances, however, the probative value of evidence of a fact in issue is said to be materially undermined where it cannot not tested by cross-examination and it is the inability to cross-examine the declarant to test the accuracy of his out-of-court statement that lies at the heart of the general rule. 29. The reason for the rule was stated by Lord Normand in Teper v The Queen: “It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination and the light, which his demeanour would throw on his testimony, is lost.”[13] 30. From that rationale flows the principle against proving facts asserted by someone other than a person who testifies. But where a witness merely asserts that a statement has been made by another and thereby seeks to prove no more than that the statement was made, the witness is testifying as to a fact of which he can directly speak and about which he can be tested, in precisely the same way as he can speak and be tested as to something which he says that he himself has observed. 31. Therefore, as McHugh NPJ explained in Oei Hengky Wiryo v HKSAR:[14] “To determine whether the hearsay rule has been breached, it is necessary to determine the purpose for which evidence of an out-of-court statement is tendered. An out-of-court statement made in the absence of a party is not necessarily inadmissible. As long as its contents are not relied on to prove a fact recited or asserted, it will be admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue.” 32. The same principles apply to the production of a document in so far as the document expressly or impliedly makes a statement or statements. “The hearsay rule never makes a document as such inadmissible. It is only inadmissible for a particular purpose, namely, as evidence that a statement which [it] contains is true. If it is relevant to an issue in some other way, it is admissible for that purpose”: per Lord Hoffman NPJ in Secretary for Justice v Lui Kin Hong.[15] 33. In this case, had the question been addressed, namely, for what purpose or to prove what fact were the records tendered, the error as to their admissibility would, we suggest, have been avoided. The effect of the error 34. Mr Leung, for the respondent, conceded that the magistrate had erred in refusing to admit the records as evidence but contended that the error did not affect the safety of the conviction because, first, despite the error as to admissibility, the magistrate in fact took the contents of the messages into account and, second, the remainder of the evidence was such that a conviction was inevitable. 35. We did not agree, although it is fair to say that Mr Leung recognised the difficulties in the path of these arguments. 36. It is correct that the magistrate appears to have taken the content of the messages into account but all he said about them were that they were “rather direct and simple”. That they were direct and simple is, with respect, not the point; the point is that they were allegedly relied upon by the appellant as causing him to believe that he had Ms Yau’s consent to use limited violence upon her in certain circumstances. 37. As to the appellant’s state of mind, the magistrate said “… in the absence of any direct evidence to show the Defendant’s state of mind at the time, the Court… has to consider whether objectively, or under special circumstances, (the evidence about) the Defendant’s acts may allow the Court to draw the irresistible inference that the Defendant had the intent to assault the victim. The victim did not give evidence. I do not see there is any factual basis for the Court to consider or doubt whether the victim had given her consent. Although the Defendant said that the victim told him not to hurt her too much and she was “possessed”, it is not certain when and where this remark referred to. Moreover, without the victim’s confirmation, this remark simply cannot amount to any doubt or factual basis.” 38. In the final analysis, the question was not whether Ms Yau had in fact given consent but whether the appellant’s contention that he nurtured an honest belief that she had provided consent was one that could fairly be rejected. The evidence of the receipt of the messages tended to support his contention and it seems plain enough to us that her remarks were consistent with the context described by the appellant. The remainder of the analysis 39. There was much else in the evidence which tended to undermine the magistrate’s rejection of the appellant’s testimony. 40. An example is the evidence of the defence witness Ho. This was rejected by the magistrate as of “no use at all to the credibility of the Defendant’s evidence.” In our view, however, that evidence provided an historical setting to the events of January 2012. Without that setting, the appellant’s story about belief in ghosts and about attempts to assist Ms Yau when apparently possessed by them would be considered by many to be inherently incredible. But in that setting, the account gains credence. 41. The magistrate thought it significant and undermining of the appellant’s credibility that when interviewed by the police, the appellant denied the assault and did not tell them that he had struck Ms Lau believing he had her consent. The appellant’s explanation at trial was that he had not volunteered the true story to the police because that story was not likely to be believed by them. The magistrate rejected this explanation saying that “assuming the Defendant eventually found that the victim was ‘possessed’… he would have, regardless of whether other people would believe it or not, offered this as an explanation … .” Fung J upon the appeal endorsed this analysis. However, the appellant’s explanation was not inherently improbable. The implication of the magistrate’s finding is that the account at trial was a recent invention; yet such a finding is contradicted by the testimony of Ms Yuen that at the very time of the violent episode, the appellant told her that he was striking Ms Yau because she was possessed. 42. Upon appeal Fung J took the approach that the questions of fact were for the trial court to decide and that “unless the findings of fact are irrational, the appellate court will not interfere.” With respect, the judge appears not to have appreciated that the appeal was by way of rehearing.[16] But even if it had been an appeal in the strict or narrow sense, an appellate judge is not relieved of an analytical function, to examine whether the reasoning of the court below is flawed and, if so, whether the flaws are material. Conclusion 43. In our judgment, the judge ought to have allowed the appeal on the basis that the refusal to admit the evidence of the messages and the failure of the magistrate to recognise the indicia in support of the appellant’s account, rendered the conviction unsafe, and the failure of the judge to determine the appeal in accordance with accepted norms resulted in a grave and substantial injustice. Accordingly, we allowed the appeal; awarded to the appellant such costs of the appeal and of costs below as were incurred by him; and made an order that there be Legal Aid taxation of the appellant’s costs. Mr Joseph WY Tse, SC and Mr Edward Wong, instructed by Jesse HY Kwok & Co, assigned by DLA, for the Appellant Mr David Leung, DDPP and Ms Lily Yip, PP of the Department of Justice, for the Respondent [1] Mr David Chum, Fanling Magistrates’ Court [2] Fung J, 22 January 2013 [3] Tang Acting CJ, Fok PJ, and Bokhary NPJ [4] Court of Final Appeal Ordinance, Cap 484, section 32(1) and (2) [5] (1983) 78 Cr App R 276 at 279 [6] For examples of ineffective consent, see Criminal Law, Smith and Hogan, 13th ed., 629 – 634 [7] [1994] 1 A.C. 212. Smith and Hogan at 635, fn 141, suggest that this probably applies also in cases where actual bodily harm is caused recklessly [8] (1983) 78 Cr App R 276 at 280 [9] (1999) 2 HKCFAR 510 [10] See Kamleh v The Queen (2005) 79 ALJR 541 at 544 [11] Oei Hengky Wiryo v HKSAR (2007) 10 HKCFAR 98 at para 35 [12] For example, dying declarations or statements against interest [13] [1952] AC 480 at 486 [14] (2007) 10 HKCFAR 98 at para 39 [15] (1999) 2 HKCFAR 510 at 526 [16] Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70