Lam Wun Yin v. The Queen

CACC001508/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

CRIMINAL APPEAL NO.1508 OF 1983

__________

BETWEEN

___________

Coram: Hooper, J.

Date: 30 March 1984

_________________________

REASONS FOR JUDGMENT

_________________________

1. This appeal was heard by me on the 30th of March 1984 when I allowed the appeal against conviction and set aside the conviction. I indicated at the time that I would ,give reasons for judgment at a later stage. I now do so.

2. The appellant was charged in the Magistrate's Court at South Kowloon Magistracy with three Charges of assault occasioning actual bodily harm contrary to Section 39 of the Offences against the Person Ordinance, Cap.212, the Laws of Hong Kong and one charge of common assault contrary to Section 40 of the same ordinance.

3. In his Statement of Findings the learned Magistrate sets out the brief outline of the evidence in the following terms:-

"     The charges arose from an incident on Lamma Island during a Tin Hau Festival on 5th May 1983, in which there is an event of Fa P'aau scrambling. This involves the firing into the air of lucky tokens later exchanged for prizes. Teams for this gather in a fenced-off space which is surrounded by spectators. The team select what they consider to be likely areas where the tokens will land, and join hands in circles as their areas. If the tokens land within one such circle only that circle or group is involved, whereas if the tokens land between groups or circles, only those groups nearby scramble for the tokens. In other words the scrambling is guided by a form of rules and the total number of participants do not engage in unrestricted bedlam, as the tokens are fired into the air in fairly rapid succession.

On this particular day, the evidence revealed that the scramblers were estimated to range between 200 and 400 and the spectators between. 1,000 and 1,500. The photos produced (Exhibits P.1(a) and (b)) tend to suggest the scramblers were probably closer to 200, and they do give a general idea of the event but not of the particular incidents relating to the charges. They do show however that scramblers can be described or divided into two types - "passive" scramblers and "active" scramblers.

A large Police party was in attendance and generally were positioned on the outer perimeter of the scramblers, ready to intervene if and when any of the participants got too rough, or if quarrels or fights erupted. It seems agreed by all that physical contact was certainly anticipated and tolerated providing it stayed within reasonable bounds, and the participants were generally young men many stripped to the waist for action, engaged in a measure of group rivalry."

4. The learned Magistrate then set out in brief form the evidence relating to the respective charges.

"     P.W.1 (complainant in Charge A) said he was a scrambler. He spoke to the Defendant prior to the event, when Defendant said "Ah Gai, you also come for the Fa P'aau? I won't care who you are, I will hit you too.'' Near the end of the token firing P.W.1 was standing at the back of a group watching the stand from which the tokens were fired, when he was struck on the head-he indicated spot towards the right back of his head - he felt dizzy and found blood on his head and was taken to a clinic for treatment. He did not see who struck him.

P.W.2 (complainant in Charge B) said he was a scrambler; He said he was at the back of a group when a token landed among others about 10 feet from him and as he was about to go forward he was struck a hard blow on the right-hand side top of forehead. He found blood but didn't know how he was hit. He saw a Policeman in uniform nearby hitting people but could not identify him. He said he was not doing anything to warrant the blow. This was near the end of the token firing.

P.W.3 (complainant in Charge C) said he was scrambling for a token towards the end of the firing when someone hit his head from behind, landing on the right hand side at the back of his head. He nearly fainted. He saw several Policemen nearby. He denied there was any fighting or that his head could have been bumped in the scramble.

P.W.4 (complainant in Charge D) said he was not part of the group which included P.W.1, P.W.2 and P.W. 3. He was in the act of scrambling for a token when someone attacked him from behind with a hard object on the head. He turned and saw the Defendant nearby holding a baton which Defendant was pointing to his forehead. He was afraid so ran off home. He did not require medical treatment. He said there was no fighting going on, just people dashing forward for tokens. He admitted that he, had a conviction for assault and theft prior to the incident. He denied any fighting or that he had been bumped on the head in the scramble."

5. So none of the alleged victims were able to identify their alleged attacker. The learned Magistrate then went on to summarize the evidence. of the other witnesses in the following way:-

"     P.W.5 an elected District Board member of the community at Lama Island said he was associated with and helped to organise the Tin Hau Festival and associated Fa P'aau scramble. He said approximately 60 Police attended. Towards the end of the firing of the tokens he saw the Defendant strike the four complainants with a baton when they were scrambling, with others around either scrambling or watching. He went up and remonstrated with Defendant who went to strike him too. He said "You can kill them by hitting them in this way." Defendant left. Witness knew the four victims but only knew P.W.4 well. He said there was no fighting at the time.

P.W.6 said he was a scrambler and at the later stages of the scramble he saw the Defendant. He heard the sound of someone being struck. The victim turned and Defendant gave a second blow to the forehead with a baton. He thought that P.W.2 was the victim but was not sure. Later at the clinic Defendant asked him if he could recognise the assailant. P.W.6 said he could, and Defendant said, "It's not me, I have no baton."

P.W.7 said he was a scrambler. He knew P.W.1 and said a uniformed sergeant near to P.W.1. He could not recognise the Defendant but saw his number was A6714. He didn't see P.W.1 strike.

P.W.8 said he saw Defendant rush forward and strike P.W.2 with a baton. He said there was no fighting but the situation was confused. He said P.W.2 was standing watching and it was towards the end of the event."

6. The learned Magistrate then summarized the evidence of the defence witnesses in the following terms:-

"Defendant said he was an Auxilliary Police Sergeant, Number A 6714. He said on duty at the event. He said there were about 200 scramblers in the area. The mood was calm but when firing began the scramblers became excited and shouted like spectators at a soccer match. After about 15 minutes some tokens landed close to Inspector Tarrant and another Police Officer, and a crowd of about 60 to 70 rushed them. Some people fell down. The inspector had his back to a wall and was trying to push the crowd back. The situation was chaotic and people were being trampled on. He shouted to them to stop and then borrowed a constable's baton which he held at each end, and with his arms outstretched and holding the baton tried to push the crowd away. Once the people were under control he gave the baton back to the P.C. He said all along he was at the side of the inspector. He was told some were injured. He denied striking anyone as the witnesses described.

Senior Superintendent Pelly (D.W.1) gave a brief description of such festivals - he had attended some 30 at various locations in the Colony. He had seen fighting at Lamma before. It was the Police duty to guard against disorder at them.

D.W.2, Inspector Tarrant (who was also charged but acquitted by another court) said that after the second or third token firing a fight developed which went beyond "rough and tumble" so he went in to break it up. As he did so a number of tokens landed on his head. He was surrounded and received many blows and punches which he chose to think were accidental. He was punched and kicked. He was helped out of the crowd by another officer. The Defendant was part of his team and didn't have a baton. He said the situation was such that someone was going to get hurt and he had tapped someone on the head with his walking stick.

D.W.3 Auxilliary P.C. 5423, said Defendant had borrowed his baton. In cross-examination he said that Defendant said when borrowing the baton that he was going to disperse the crowd. Later he said that. the defendant "must be using it to warn the people"."

7. Having summarized the evidence of the witnesses in the above way the learned Magistrate then set out his findings of fact as follows:-

8. The learned Magistrate then set out the reasons for his decision in the following terms:-

9. Mr. Lunn who appeared for the appellant criticised the Magistrate for dealing with the four charges "globally" being as they were four separate assaults in a crowded scene where the evidence varied from case to case.  He submitted that the Magistrate should have dealt with each charge quite separately. He argued that it was not clear from ground one of the reasons for decision what evidence the learned Magistrate had accepted as proving the particular charges. Neither was it clear, he argued, why the learned Magistrate did not find the defendant or Inspector Parrant credible witnesses. He also took issue with the learned Magistrate's remarks concerning the possible cause of the injuries. In this connection he drew the court's attention to the medical evidence of the injuries. These were, in the case of the lst victim "a 2.5 laceration over forehead with no fracture", in the case of the 2nd victim "laceration wound over forehead", and in the case of the 3rd victim "2 cm diameter swelling and ½ cm laceration of right side of head". Mr. Lunn argued that having regard to the reality of the situation, natural competition of young men in teams in a situation where physical contact was highly likely the injuries sustained on the forehead and side of head were perfectly consistent with such a vigorous activity, in much the same way as one could expect injuries on a rugby field. He drew the court's attention to the fact that the injuries were comparatively minor and argued that they were inconsistent with the way in which one of the key prosecution witnesses, namely CHAN Choi kwai (P.W. 5) had said that they were cansed. He drew the court's attention "to the fact that P.W 5 had said that all four victims were subjected to an-attack from an assailant coming up from behind them.

10. Mr. Lunn was also critical of the way in which the Magistrate had reviewed the inconsistencies in the prosecution evidence in ground two of his reasons for decision. Mr. Lunn referred to an inconsistency  in respect of the second charge to which he said the . Magistrate had not averted at all. He drew the court's attention to the fact that LAW Tai-fook (the victim on the 2nd charge) described the assault in the following way:-

"The scramble was not violent, not chaotic. I was hit on right hand side top forehead (points) - only felt it once. It was quite hard and it bled after blow. I saw blood. I don't know how I was hit Immediately after I was hit I used hand to stop blood flow. I saw a policeman in uniform nearby - can't recognise him. I saw Police hitting people - this about 10 feet from me - don't know how many involved. I know nothing after I was hit and didn't pay attention to the others'."

11. So the victim was describing one blow to the forehead. PW8 also gave evidence of this assault in the following way:-

"I was not scrambling myself, but standing watching on one side. Towards end of scrambling I saw incident with sergeant. I saw him run to right hand side of my friend LAW Tai-fook and gave him a blow with his baton. Law was watching scrambling and he getting ready to go forward. I can recognise the sergeant (defendant identified). No fighting was taking place, it was confused, but no fighting."

12. Later under cross-examination the same witness in response to question had this to say:

13. Mr. Lunn argued that whereas the victim described only one blow to his forehead, P.W.8 described two blows. Clearly the respective versions of P.W.2 and P.W.8 cannot be both correct. He also argued that the witness P.W.8 referred to all the complainants or victims as being scattered, whereas P.W.5 didn't have them in scattered form at all. Although Mr. Jenkyn-Jones for the Crown - respondent pointed out that P.W.5 also said that the victims were scattered at the back of the crowd in his evidence, nevertheless the discrepancy between the evidence of P.W.2 and P.W.8 is one which must be of particular concern, in view of the fact that the learned Magistrate found the evidence of the prosecution overwhelming and had no hesitation in accepting it. Both these witnesses gave evidence for the prosecution. Also it was open on the evidence of P.W.2 to hold that the police were hitting people, and that this could mean that another policeman other than the defendant could have caused the injuries. Unfortunately in this case the Magistrate hasn't accepted individual parts of the evidence of witnesses, he has accepted the evidence as a whole for the prosecution.

14. Under cross-examination P.W.7 had this to say:-

15. It seems clear from this evidence, if it is accepted, that LAI Tai was a scrambler who had rushed forward but who was standing still looking as the platform when he was struck. The evidence of these two witnesses would appear so be inconsistent with she evidence of P.W.5 who in his evidence under cross-examination said that the four victims were not actually scrambling just standing at the back of the crowd watching. They were not standing together, two were at one place and two were at another. The four did not scramble for Fa Poa. They were about five feet behind the crowd scrambling and they were all alone.

16. So far as the 2nd charge is concerned the alleged victim on this charge was LAW Tai-fook (P.W.2). He was unable to identify the policeman who struck him. The Crown obviously relied upon the evidence of P.W.5, P.W.6 and P.W.8 to prove the identity of the accused as being the attacker. However although P.W.6 testified that he recognised the defendant in Court, he was unable to say that the victim was P.W.2. All he could say was " I had seen victim before but don't, know his name. I saw him in Court today - he looks like one, but not sure (P.W.2 indicated)."

17. Mr. Lunn submitted that it was not possible from the Magistrate's reasons for decision to ascertain what weight he placed upon this tentative identification. So far as P.W.5 was concerned Mr. Lunn said it is significant that the Magistrate recognised the importance of Mr. Chan's evidence because in paragraph two of his reasons for decision three of the four inconsistencies set out there related to inconsistencies in the evidence of Mr. Chan and the other evidence in the case. I will come back to these inconsistencies in a moment. The only other witness who identified the defendant in respect of the 2nd charge was of course P.W.8 and as has been pointed out already his evidence was contradictory to that of the victim P.W.2.

18. Mr. Lunn then directed his attack to ground two of the reasons for decision in which the inconsistencies in the prosecution evidencewere set out.

19. The first inconsistency referred to is in paragraph 2(a) concerning the site of the injury of the first victim. Mr. Lunn took exception to the Magistrate's contention that "this inconsistency was not a material one in that both descriptions of the site of the blow/injury were somewhat vague and not exactly defined." He submitted that this was a finding which wasn't open on the facts. Mr. Lunn submitted that. there must also be a lurking doubt that some of the injuries might have been caused by the clashing of heads.

20. The remaining inconsistencies in paragraph 2(b), (c) and (d) all related to evidence of P.W.5. Mr. Lunn did not take issue with the Magistrate in respect of 2(d). So far as 2(c) is concerned Mr. Lunn did not agree with the Magistrate's reasoning. I must say I found it very difficult myself to understand how the Magistrate could accept that P. W. 5. saw no fighting and had never seen any fighting on any previous occasions, despite the uncontradicted unchallenged evidence of Superintendent Pelly that he had seen fighting on previous occasions at Lantao. The very need for a police presence is indicative of the obvious likelihood of fights breaking out.

21. Mr. Lunn took issue with the Magistrate in drawing the distinction between active and passive scrambling. In paragraph 2(b), he submitted that there was no such distinction in the evidence, which was on the contrary a distinction between scramblers and spectators. I must say looking at the evidence I also share Mr. Lunn's doubts that this distinction could solve the problem of the inconsistencies between P.W.5 and the other witnesses. The evidence of P.W.5 was so contradictory in itself and so contradictory when compared with the other evidence in the case that I found it impossible to accept that anybody having the advantage of seeing his demeanour while giving evidence could still safely accept his evidence as being truthful and reliable.

22. Whilst Mr. Jenkyn-Jones for the Crown argued in support of the conviction on the basis that there was evidence before the Court upon which a conviction could be based in respect of all four charges, he did acknowledge that there were many inconsistencies in the evidence.

23. The fact that the Magistrate globally accepted the evidence for the prosecution, despite all the contradictions and inconsistencies, and rejected the evidence for the defence despite the fact that much of it was supported by uncontradicted testimony, and because of the failure of the Magistrate to satisfy me that he had properly evaluated the evidence and directed his mind to the particular evidence relevant to a part cular charge, I had a lurking doubt about the accuracy of the convictione in this case and I therefore felt that the convictions were unsafe and unsatisfactory and I allowed this appeal.

Representation:

Mr. Michael Lunn (Robert W.H. Wang & Co.) assigned by D.L.A. for the Appellant.

Mr. J. Jenkyn-Jones, Crown Counsel for Crown.