HKSAR v. Cheung Nin Chun

HCMA 195/2018

[2019] HKCFI 952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 195 OF 2018

(ON APPEAL FROM FLCC NO 815 OF 2018)

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J U D G M E N T

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1.The appellant was charged with 1 offence of “Counselling an assault occasioning actual bodily harm” (Charge 1) and 1 offence of “Claiming to be a member of a triad society” (Charge 2). He was convicted of Charge 1 by Deputy Magistrate Minnie Wat (“the magistrate”) after trial; and was sentenced to 4 months’ imprisonment.

2.He appeals against his conviction.  The appellant was represented by Mr David Boyton in the court below.

THE PROSECUTION CASE

3.The magistrate summarized the prosecution case as follows[1] :-

“ 2. In gist, the prosecution alleges that the first prosecution witness, Mr Wan Cho-wai, and Mr Cheung knew each other since they were young and for more than 30 years. The material location is the entrance of Mr Wan’s home. Prior to the incident, Mr Wan’s brother and Mr Cheung had land disputes which led to Mr Cheung’s visit at Mr Wan’s home at the material time. At around 5 pm on 25 May 2017, Mr Cheung went to Mr Wan’s home with a large group of people travelling by 3vehicles. The vehicles stopped outside Mr Wan’s home while he was fixing things there.

3. Mr Cheung and his group of people alighted the vehicles and Mr Cheung went up to Mr Wan, pointing at Mr Wan and said, “Splash paint at me? Hit him.” Then 3 people from the group rushed towards Mr Wan and hit him all over his body, mostly at his head, his back and his hand or arm, with punches and weapons. The weapons were rattan chair, wooden ladder and mopstick. Mr Wan lied on the floor as a result of the attack. Those people continued to hit him until his family reported the case to the police.

4. Mr Wan was then sent to the hospital for treatment. His medical report is admitted as prosecution exhibit P2, which reveals that he suffered from abrasion, tenderness and redness at different parts of his body.

5. When the people stopped hitting Mr Wan and before they left, Mr Cheung went up to Mr Wan and said, ‘I’m Shing Wo Dai Pei Pak Tao Fook’s person. When your family goes up to the street, be careful.’

6. It is agreed that Shing Wo is an active triad society in Hong Kong.  It is also agreed that the CCTV system installed at Mr Wan’s home entrance captured the whole incident.”

THE DEFENCE CASE

4.The appellant elected not to give evidence or to call any witness.  The magistrate summarized the defence case as follows[2] :-

“ 7. … In gist, the defence case is that, at the material time, Mr Cheung went to Mr Wan’s home because of the land disputes between Mr Cheung and Mr Wan’s brother. Mr Cheung went there to tell Mr Wan not to bother Mr Cheung’s family. Mr Cheung denied saying ‘Splash paint at me? Hit him.’ and the threatening words regarding triad society. Mr Cheung only said, ‘Don’t hit. Stop. Don’t hit.’ at the material time.”

THE MAGISTRATE’S FINDINGS

5.The magistrate has properly reminded herself of the burden and standard of proof.  She has also directed herself on the appellant’s good character[3]. In her Statement of Findings, the magistrate gave her reasons as follows[4]  :-

“ 9. Mr Wan is the sole witness in this case. The prosecution also relies on the agreed prosecution exhibit P1, the CCTV footage, as the key evidence.

10. The court has considered Mr Wan’s evidence and finds that his evidence is clear, direct and unshaken under cross‑examination. His evidence matches with the CCTV footage.

11. The court accepts, as the defence submits in the closing submissions, that the essence of the 1^st charge is whether or not Mr Cheung has said ‘Hit him’ at the material time. The defence doubts that Mr Wan failed to mention these words in his first witness statement taken on 25 May 2017. In re‑examination, Mr Wan explained the reason is that he was nervous at that time. After reviewing the CCTV footage and talked to his lawyer, Mr Wan was able to provide the details of the incident.

12. The court has considered Mr Wan’s explanation and finds that his explanation is not unreasonable. The incident happened at around 5 pm on 25 May 2017. He was then immediately sent to the hospital and discharged at 7:48 pm on the same day, according to his medical report. Mr Wan took his first witness statement very soon at 9:07 pm on the same day. It is reasonable to say Mr Wan was still suffering from the aftermath of the attack, he was injured, he could be unsettled and nervous and as a result missed out what Mr Cheung has said in his first statement. This could be understood and I do not find this affects his credibility or reliability.

13. The court has reviewed the CCTV footage. It shows that, at the material time, at the material location, Mr Cheung came to Mr Wan’s home with a large group of people. They alighted the vehicles at the same time and all walked towards Mr Wan. Mr Cheung was the first one to approach Mr Wan and, after that, 3 persons from the group started hitting Mr Wan. The CCTV footage matches with Mr Wan’s description of the events. I find his evidence truthful.

14. The defence case suggests that Mr Cheung went there to discuss the land disputes with Mr Wan only and did not tell the people to hit Mr Wan. Mr Wan disagrees and there is no other evidence raised by the defence except Mr Cheung’s cautioned statement, defence exhibit D1 and its English translation D1A, in this regard. However, that part of Mr Cheung’s evidence is wholly exculpatory. It is not sworn evidence and is not subject to cross-examination in court. I do not attach any weight to it.

15. What shows on the CCTV footage is that Mr Cheung’s actions at the material time is premeditated. He was going with a large group of people, all travelling to Mr Wan’s home by vehicles. All vehicles stopped at the same time outside Mr Wan’s home. Mr Cheung and his people alighted the vehicles and left the scene at the same time. Mr Cheung is obviously the leader of that group of people. He was the first one to walk up to Mr Wan and instructed the people from his group to hit Mr Wan. The court does not see the need to take so many people with Mr Cheung if he was there for a pure discussion of land disputes with Mr Wan only.

16. Further, as opposed to the defence allegation that Mr Cheung told his people ‘Don’t hit’, ‘Stop’ at the material time, nothing on the CCTV footage shows he did try to take any action to stop the people from hitting Mr Wan.

17. Mr Cheung was the leader of this group of people. He was the first one to approach Mr Wan at the material time. Those people went with him simply because of the land disputes between Mr Cheung and Mr Wan’s family member, as admitted by Mr Cheung in his cautioned statement. I do not see Mr Cheung as a person lacking the ability to control or to stop that group of people from hitting Mr Wan, but he chose to take no actions other than what he alleges to have said. This does not make sense. Again, evidence concerning the words ‘Don’t hit’, ‘Stop’ alleged to have been said by Mr Cheung is wholly exculpatory. It is not sworn evidence and is not subject to cross-examination in court. I do not attach any weight to it.

18. After the attack, Mr Cheung simply left with the group of people without assisting Mr Wan. They knew each other for long but Mr Cheung did not care about the life and death of Mr Wan at all. The court is not convinced there is such a possibility that Mr Cheung was there telling his people to stop and not to hit Mr Wan. The defence version of events simply does not match with the CCTV footage.

19. I find that Mr Wan is a credible and reliable witness and I accept his evidence.

20. Based on the above analysis, I accept that the prosecution has proved beyond reasonable all elements of the first count of “Counselling assault occasioning actual bodily harm”, and I convict Mr Cheung of this charge.

21. In relation to the 2^nd count of “Claiming to be a member of a triad society”, I find that there is a reasonable doubt in the prosecution case and the benefit of doubt has to be given to the defence. Therefore, Mr Cheung is acquitted of this charge.”

GROUNDS OF APPEAL

6.Mr Boyton continues to represent the appellant in this appeal.  He raised the following grounds of appeal:

(1)  The magistrate erred in law and/or on the facts by finding that the CCTV footage showed, the appellant “instructed the people [from] his group to hit” PW1 and thereby found PW1 credible and reliable.

(2)  The magistrate erred in law and/or on the facts by accepting PW1’s evidence that his 1^st witness statement to the Police immediately shortly after the incident was because he was nervous at the time.

MY CONSIDERATIONS

7.In his record of interview (Exhibit D1), which was taken 5 months after the assault incident and in the company of a solicitor, the appellant admitted that he has known PW1 since the age of 10 when they attended the same primary school[5]. The appellant claimed that he had some money disputes with PW1’s younger brother (“HP Wan”).  He suspected HP Wan having splashed red paint on his private car[6].

8.Regarding the 12 “friends” who accompanied the appellant to go “reason” with HP Wan, the appellant said “In that afternoon, I was at my own [village] talking to friends about this matter related to HP Wan.  Amongst the friends included Ah B, Ah Sai, Ah Kit and Ah Lik.  They all felt unfair to me that HP Wan and [PW1] speaking ill [of me].  So 4 of them accompanied me to Tam Shui Hang Lower Village.  Then 4 of them found their own friends to accompany [me/them], which was beyond my control.  Later, the friends of my friends drove to Tam Shui Hang Lower Village on their own and they gathered at the entrance of [the village][7].”

9.In my view, what the appellant said about the 12 “friends” is a pack of lies.  It also begs a number of rhetorical questions: Why would friends of Ah B, Ah Sai, Ah Kit and Ah Lik accompany the appellant to go “reason” with HP Wan when they apparently had nothing to do with the money dispute between the appellant and HP Wan?  Did they have nothing better to do on that day?  What was in it for them to tag along in that “reasoning” expedition?  Why would they beat up PW1, who was a stranger to them, for no apparent reason?  The answers to these questions all point to one and only one direction―display of force; retaliation; and teaching PW1 and/or HP Wan a lesson. 

10.“A picture speaks a thousand words; and a video shows a thousand pictures.”  I have viewed Exhibit P1 a number of times.  I am aware that it carries no sound.  I, however, have not a single doubt that Exhibit P1 is an objective and independent piece of evidence which lends support to PW1’s testimony.

11.The magistrate believed PW1’s evidence that the appellant uttered the words “Splash paint at me? Hit him.”  I agree with her finding.  Even the appellant has admitted that he suspected HP Wan having splashed red paint on his car.  I do not believe for one moment that the assailants would attack PW1 without the appellant’s command.  Furthermore, I do not believe that the appellant has made any attempt whatsoever to stop the attack against PW1.  He simply stood there and watched the attack.  The footage does not lie.  Any reasonable person watching the footage would come to the same conclusion as to who the leader of the group was.     

12.I have reminded myself of the principles on “re‑hearing” in magistracy appeals stated in HKSAR v Chou Shih Bin [2005] 1 HKLRD 838 and HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  I find no flaws in the magistrate’s reasoning or findings.  The magistrate has thoroughly evaluatedPW1’s evidence as well as the appellant’s record of interview.  Her analysis is sound and with proper evidential basis.  She gave cogent reasons for the findings of fact she made.  I see no reason to disturb the magistrate’s findings.

13.Grounds 1 and 2 fail.

14.In my view, if you wish to “reason” with someone (even someone who has grudges against you), there is absolutely no need to bring along 12 “friends”.  The appellant’s true intention of visiting PW1’s was utterly clear.  As I have explained in paragraphs 9 to 11 above, those 12 “friends” did not just show up on their own nor were they looking for kicks on a Thursday afternoon.  They went there for an obvious purpose.  They also had a leader, who was the appellant.  I arrived at this conclusion based on PW1’s evidence and Exhibit P1.  The evidence against the appellant is, needless to say, overwhelming.

15.Based on the reasons stated above, I dismiss the appeal.  Since the appellant was granted bail pending appeal, he needs to serve his sentence forthwith.

Ms Mickey Fung, SPP of the Department of Justice, for the respondent

Mr David Boyton, instructed by Jim & Co, for the appellant