HKSAR v. Tse Ki Chung

[English Translation – 英譯本]

HCMA 233/2022

[2023] HKCFI 1756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 233 OF 2022

(ON APPEAL FROM TMCC 532/2021)

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JUDGMENT

A.  Introduction

1.The appellant was charged with an offence of “common assault” (Charge 1) [1] and an offence of “possession of offensive weapons in a public place” (Charge 2) [2].  The appellant pleaded not guilty and was convicted after trial by Mr Jeffrey Sze, a magistrate sitting at Tuen Mun Magistrates’ Court (the magistrate) and sentenced to a total term of imprisonment of four months.  The appellant appealed against conviction.

B.  Facts

2.Miss Mok Wan Yin Winnie, Senior Public Prosecutor, representing the respondent, has helpfully provided a summary of the prosecution and defence cases in her written submissions, which I basically adopt here.

B.1.  Prosecution case

3.At about 12:30 am on 15 September 2019, when an off-duty police officer (PW1) was walking his dog near Wo Tin Road Light Transit Stop in Tuen Mun, he saw a man writing on a wall by spraying paint.  Thinking that the man was breaking the law, PW1 made a video record of that man with his mobile phone and dialled 999 to report it to the police.  Having realised of being filmed and that the police had been called, the said man walked along a staircase to the open area outside the MTR station.  PW1 followed that man from behind to the open area, where ten to twenty people were there at the time, and one of them was the appellant.  The said man walked up to the appellant’s side and said that PW1 had filmed him and called the police when he was spraying the wall.  An outcry instantly arose at the scene.  PW1 again used his mobile phone to make a video record of it.  At this juncture, the appellant approached PW1 and shone light at PW1’s face and mobile phone with a torch-like laser emission device in a shaking way about 2 m away.  PW1 felt burning heat on his face and pain on his left eye, and so his closed his eye(s).  When he opened his eye(s) again, he felt dizzy.

4.Afterwards, the appellant stopped the act of shining for a while.  PW1 found that the video-taking function of his phone had stopped.  When he started it afresh to film, he found that the screen got black and white stripes and became a blur.  PW1 blamed the appellant for damaging his mobile phone by shining light.  The appellant shone the laser emission device at PW1’s face again.  Since PW1 felt his face hurt, he tried to block the beam shone at him with his phone.  During the act of shining on this occasion, the appellant was walking away from PW1.  PW1 followed the appellant and made a report to the police at the same time, and reached Ho Pong Street.  PW1 walked along Ho Pong Street and turned into Tuen Mun Heung Sze Wui Road, following the appellant at a distance of 10 to 20 m behind.

5.According to PW1’s description, at the material time, the appellant was wearing a cap in dark colour and spectacles and covering his nose and mouth with a piece of dark-coloured face covering with the eyes and brows exposed.  He was wearing a blue short-sleeved Japanese jersey, dark-coloured shorts (length down to the knees), and black trainers and having a green bag on the right side of his waist.

6.The appellant boarded a taxi outside Eldo Court Shopping Centre on Tuen Mun Heung Sze Wui Raod.  PW1 went to the front of the taxi, revealed his police identity and then went to the door next to the nearside rear passenger seat, but the appellant just left through the door next to the offside passenger seat and ran in the direction of Choy Yee Bridge.  PW1 continued to chase and the two persons were about 10 m apart.  When the appellant reached Choy Yee Bridge, he ran along the riverside towards Siu Hong.  PW1 followed him all the way.  Subsequently, PW1 moved onto the pavement beside the bushes and followed the appellant at a distance of 10 to 20 m behind.

7.Where it was near Affluence Garden, the base structure of a bridge divided the pavement (Photo P3(7)) and obstructed PW1’s sight of the appellant.  PW1 swiftly went through a subway and turned right but lost sight of the appellant.  He believed that the appellant was hiding.

8.Around 12:36 am, PW1 began to search and move along the bushes in the direction of Siu Hong.  About one to two minutes afterwards, when PW1 was behind the railings shown at the bottom of Photo P3(9), he saw that in a short distance in front of where he had just passed the subway, from a position slightly ahead of the subway entrance, on the left side (behind the railings in the middle of Photo P3(9)), a man was approaching him.

9.PW1’s description of this man’s height and build were similar to those of the appellant.  This man’s face was not covered by any face covering or mask. He was wearing dark-coloured knee-length shorts and black trainers but was topless, and he was holding some dark-coloured clothing.  PW1 walked closer to that man and saw that the man had short hair, was topless, wore spectacles, black knee-length shorts and black trainers, held some blue clothing, a dark-coloured cap and a dark-coloured scarf and had a green bag on his waist.  They were both at the entrance to the subway.  PW1 suspected that this man was the appellant and so took out his mobile phone to watch the footage previously taken and confirmed that the man was the appellant with reference to his features and clothing.

10.PW1 said, “Hey,” and the appellant immediately turned and ran into the subway to escape.  PW1 chased after him.  On reaching the entrance to the indoor carpark of Affluence Garden (Photo P3(10)), the appellant seemed to be unable to run anymore.  PW1 revealed his identity to the appellant at a distance of one metre away (where the other party was within touching distance) and said, “Police, don’t run.”  The appellant asked PW1 not to chase anymore and to let him sit down and rest, saying that he would not run away anymore after running for such a long time.  PW1 then let the appellant sit down (next to the rubbish bin in Photo P3(11)).

11.Police officers (including PW2) arrived at the scene.  PW2 saw that the appellant was seated on the ground.  He was topless and panting.  There were a green bag and a blue top beside the appellant on the ground.

12.PW2 seized some articles at the scene, including a green waist bag containing a black laser pointer, a silver-coloured laser pointer, a transparent plastic bag, a grey hood and a wallet with the appellant’s identity card inside.  A blue cap slung outside the waist bag.

13.PW2 successfully tested the black laser pointer at the scene, which emitted a blue colour beam. The other one which was silver in colour did not work.  It was opened and found to have no battery inside.  Inside the waist bag, there was a transparent plastic bag containing five pointer heads fit for the silver-coloured laser pointer and two cylindrical batteries.  At the scene, PW2 managed to fix these pointer heads onto the silver-coloured laser pointer.

14.After searching the articles, the appellant indicated to PW2 that he felt cold and wanted to put some clothing on (undisputed statement produced to the court), and PW2 gave the said blue top to the appellant so that he could put on it.

15.PW2 arrested the appellant.  Under caution, the appellant said nothing.

16.Subsequently, the appellant said that he felt unwell. PW2 took the appellant to Tuen Mun Hospital with the exhibits.  PW2 left Tuen Mun Hospital at around 3:40 am and went back to Tuen Mun Police Station, and he had all along kept the exhibits in his custody in the course of it.  Being back in Tuen Mun Station, PW2 packed and labelled all exhibits properly and signed on the labels.  Afterwards, PW2 handed the exhibits over to the duty officer who signed to acknowledge receipt of them.

17.On 15 September 2019, PW3, who was then attached to the district investigation team, retrieved the exhibits, including the two laser pointers in question and so on, from the duty officer at around 8:30 pm for the purpose of taking photos of the exhibits and showing them to the appellant when having a recorded interview with him.  After completing the above tasks, he returned the exhibits to the duty officer.

18.On 13 January 2020, PW3 retrieved the two laser pointers from the exhibits room of Tuen Mun Police Station and handed them to the prosecution expert of the Technical Services Division of the headquarters in Wanchai, who signed to acknowledge receipt of them.  Subsequently, the prosecution expert, Chan Kiu Chui, Police Superintendent (“the prosecution expert”) examined the two laser pointers and compiled an expert report[3].

19.The prosecution expert examined the black laser pointer (Q1).  Q1 had one silver-coloured Li-ion rechargeable battery (Q2) of which the voltage was 3.99V.  The expert put the battery inside Q1 and pressed the power switch, and then Q1 emitted a blue colour laser ray.  No sign of damage was found on Q1.  One fully charged 18650-type Li-ion rechargeable battery was used to test the power of the laser emitted from Q1.  After examination, it was concluded that Q1 was a functioning laser pointer that could emit a blue colour laser ray, and its maximum laser power measured at a distance of 10 cm was 271.94 mW.  Q1 was classified as a Class 3B laser device according to International Electrotechnical Commission Standard (IEC) 60825 Part 1.  The maximum laser power measured at a distance of 20 m from Q1 exceeded the maximum permissible exposure (MPE), and therefore its nominal ocular hazard distance was at least 20 m.  According to IEC 60825 Part 1, direct exposure to the laser emitted from Q1 at any point within a range of 20 m can cause ocular damage.

20.The prosecution expert also examined the silver-coloured laser pointer (Q3).  Q3 had two blue Li-ion rechargeable batteries (Q4 & Q5) and their voltages were both 3.90V.  The expert put the batteries inside Q3 and pressed the switch, Q3 then emitted a blue colour laser ray.  No sign of damage was found on Q3.  Two fully charged 16340-type Li-ion rechargeable batteries were used to measure the power of the laser emitted from Q3.  After examination, the expert concluded that Q3 was a functioning laser pointer that could emit a blue colour laser ray, and the maximum laser power measured at a distance of 10 cm from Q3 was 135.98 mW.  It was classified as a Class 3B laser device according to IEC 60825 Part 1.  The maximum laser power measured at a distance of 40 m from Q3 exceeded the MPE, and therefore the nominal ocular hazard distance of Q3 was at least 40 m.  According to IEC 60825 Part 1, direct exposure to the laser from Q3 at any point within a range of 40 m can cause ocular damage.

Dispute over the admissibility of the prosecution expert’s report on the two laser pointers[4]

21.At trial, the defence contended that since the appellant was told that he would not be prosecuted, the two laser pointers were discarded after retrieval.  Subsequently, the appellant was prosecuted and charged.  Since the two laser pointers had already been discarded, he was unable to provide the exhibits for expert examination. Therefore, the defence objected to the production by the prosecution of the expert report on the two laser pointers, contending that it would make the trial unfair.

22.The defence also called their expert witness who criticised the report of the prosecution expert for being less than comprehensive, but since the defence was unable to examine the exhibits, they were in no position to evaluate the accuracy of the prosecution expert’s examination.

23.After consideration, the magistrate came to the view that the defence’s criticism on the expert report did not stand and ruled that no unfairness would be done to the appellant by the admission of the expert report.

B.2.  Defence case

24.The appellant elected to give evidence.  His expert witness adopted the evidence he had given on the special issue.

25.The appellant said that at the night in question, he was jogging downstairs in Affluence Garden.  At that time, he was topless, wearing blue shorts and bringing along his mobile phone and wallet.  When he was taking a rest at the subway of Affluence Garden, PW1 who was leading a dog suddenly shouted at him fiercely and leading the dog to rush towards him.  Out of fear of PW1’s dog, he ran away in the direction of Affluence Garden.  After running for ten to twenty seconds, he heard PW1 shout loudly, “Police, don’t run,” he then stopped.  He saw that the police searched a green bag beside him and found two laser pointers inside, but that bag and the laser pointers did not belong to him.  As to the blue short- sleeved top, it was given to him by the police when he told them he was not feeling well.  He said that the blue top was not his.  He also said that PW1 did not retrieve his identity card from the green bag, rather the identity card was retrieved from his wallet after it had been taken out from the pocket of his shorts.

26.In short, the appellant said that the police had framed him up.

C.  Grounds of appeal

27.Ms Catherine KK Wong and Mr Stephen KT Siu, acting for the appellant, basically advanced four grounds of appeal, suggesting that the convictions be unsafe and unsatisfactory:

Ground of appeal (1):   The magistrate erred in finding that the admission of the prosecution expert’s report (P8 & P8A) would not be unfair to the appellant and further erred in admitting the said report as evidence.

Ground of appeal (2):    The magistrate did not give sufficient consideration on the contradictions between the evidence of PW1 and PW2 in material aspects and the defects of their evidence, and further erred in accepting their evidence.

Ground of appeal (3):    The magistrate erred in accepting PW1’s evidence on identification.

Ground of appeal (4):    The magistrate erred in ruling that the two laser pointers seized by PW2 were the two examined by PW5 and further erred in accepting the chain of evidence of the two laser pointers as unbroken.

D.  Submissions for the appellant

D.1. Ground of appeal (1)

28.It was submitted that in respect of the special issue, the magistrate had said in his Reasons for Verdict that the appellant “might well find laser pointers of the same models but of different quality for the expert examination”[5], and also suggested that the appellant “might just choose not to take away any laser pointer not belonging to him”[6].  In addition, [it was said that] the Department of Justice’s “changing their initial position of not bringing prosecution was not common”[7].  Therefore, according to the magistrate, even though the appellant (1) did not know that the police had already prepared an expert report on the laser pointers, and (2) discarded the laser pointers after being told by the police that he would not be prosecuted in relation to the matter, under such circumstances, no unfairness would be caused to the appellant by admitting the prosecution expert’s report as evidence at trial[8].

29.It was submitted that as such, the two laser pointers in question were material exhibits in the present case.  The magistrate had failed to give sufficient consideration that the appellant was unable to discredit the prosecution expert’s accusations without the actual exhibits. Nor was he able to inspect the nature and conditions of the laser pointers.  Under such circumstances, admitting the prosecution expert’s report into evidence was unfair to the appellant.

30.The defence cited what Yam J had said in R v Chu Kam To and Anor[9] about an application for stay due to the missing of the material exhibit.  Yam J had this to say[10]:

“In other words, the question to be asked is this: Have the defendants established that there is a reasonable possibility that the destruction or loss of the exhibit impaired their ability to make full answer and defence?”

31.In the case, Yam J said that since (1) the jury had been deprived of the opportunity to examine the drugs in question; (2) the defence could not discredit the prosecution case with the actual exhibits; and (3) the prosecution could not prove that the drugs examined by the Government Chemist were those seized from the defendants, it was held that the failure of producing the material exhibits impaired the defendant’s ability to give full answer and defence against the prosecution’s case, and eventually the application for stay of the proceedings was allowed.

32.It was submitted that the magistrate had failed to give sufficient consideration to the following unfairness caused to the appellant:

(1)  PW3 in his evidence confirmed that in May 2020, he indicated to the appellant that the Department of Justice had decided not to prosecute him in respect of the incident (Note: this was different from the stance of the prosecution in the application for stay of proceedings in the present case). PW3 also confirmed that it was not revealed to the appellant that the police had already prepared an expert report on the laser pointers;

(2)  The defence expert specifically pointed out the unreasonable parts in the report of the prosecution expert, and since the laser pointers in question were not available for his examination, he was in no position to further challenge the prosecution expert;

(3)  The prosecution expert gave no response to the challenges raised in the defence expert report although he had already received them before the trial. He waited until he testified in court, which was the first time he admitted the mistakes in the prosecution expert’s report.  This further demonstrated that the challenges raised by the defence expert were reasonable, and there was significant unfairness caused by not having the opportunity to examine the laser pointers in question; and

(4)  In his evidence on the special issue, the appellant stated explicitly that on his part, since the police had said that “I would not be prosecuted anymore, and these things were not mine, I just threw them away”.  In cross-examination, the prosecution did not challenge the appellant’s allegation that he had thrown away the laser pointers because [“]the police had made it clear that [I] would not be prosecuted anymore”.

33.In addition, the appellant argued that “having expert examination on laser pointers of the same models but different quality” would not have any evidential value to whether the laser pointers in question were offensive weapons.  As the prosecution expert has said, laser pointers were different from each other.  Having examination on “another laser pointer” simply did not help in telling the condition of the laser pointers in question.

34.In view of the above points, it was submitted for the appellant that the magistrate had not sufficiently considered the unfairness done to the appellant by admitting the prosecution expert’s report.

D.2.  Response from the respondent

35.The respondent submitted that the defence’s criticisms of the prosecution expert’s report appeared to be self-contradictory.  On the one hand, the defence expert criticised that the police report did not mention if any control or measure was applied in the tests to maintain the maximum power of the laser pointers as required by the IEC 60825 because any decrease of the voltage of the batteries might affect the result of the tests.  On the other hand, the defence expert also complained that any decrease of voltage of the batteries might have a great impact on the power of the laser pointers. As such, the hazard of the laser pointers in question at the scene might have been overestimated by the police since fully charged batteries were used in the tests.  Under such circumstances, were the defence saying that the police should have taken measures to maintain the maximum power of the laser pointers in the tests, or that batteries fully charged should not have been used so that the circumstances would be more similar to the actual ones during the offence?

36.The respondent cited the case of 香港特別行政區訴鍾日祺[11], in which the defence raised similar complaints, i.e. had the prosecution expert used the original batteries in the test, the effect of the injury possibly caused to other people would not have fallen into Class 4, and the subsequent conclusion on its hazard would not stand.  The defence in that case appeared to complain that the expert witness for the prosecution should not have used fully charged batteries in testing the laser pointer.  However, Alex Lee J, the judge hearing the appeal, said that the submission was not only short of evidential support, but also ignored the evidence before the magistrate, i.e. using fully charged batteries in examinations was an international standard practice as stated by the expert witness for the prosecution[12].

37.In the present case, it was complained that when the police told the appellant that the Department of Justice was not going to prosecute him, they did not tell him that the prosecution had already prepared an expert report on the laser pointers.  In this regard, the respondent submitted that by then the appellant had yet appeared in court, and the prosecution’s decision at that time was not to bring prosecution against him.  Under such circumstances, the police were indeed not required to tell the appellant that the prosecution had an expert report prepared already.

38.The appellant also complained that the prosecution expert did not respond to the challenges raised by the defence expert after receiving the defence expert report until he gave evidence in court, when he admitted and explained the mistakes in his own report, and therefore the defence’s challenges were reasonable.  The respondent submitted that such criticism from the appellant was illogical.  The prosecution might choose to respond to the defence report by way of a written supplemental report or by giving evidence under oath in court.  Both were common practices.  More often than not, even if the prosecution expert had provided a supplemental report in response to the defence’s challenges, when the prosecution expert gave evidence in court, in his examination-in-chief and cross-examination, he would say more to rebut the defence report and explain his own reports more comprehensively.  In the present case, the prosecution expert frankly admitted and explained the mistakes in his report with reasonable explanations, and that was why the magistrate accepted his explanations to be true[13].  There was nothing improper.  In any event, the time at which the prosecution expert responded to the challenges raised in the defence report had not even the slightest connection with the reasonableness of the challenges put forward in the defence report.

39.It was also a defence complaint that their own expert had doubts as to the measurement and conclusion in the prosecution expert’s report but since no examination could be carried out on the laser pointers in question, he was not in the position to challenge further, and this was unfair to the appellant.

40.The respondent submitted that the prosecution expert’s report was produced for the purpose of proving the function and power of the two laser pointers in question, and that the two laser pointers by their own nature could be used to injure others in order to strengthen the prosecution evidence in support of the two charges in the present case.

41.It was also submitted that the laser pointers in question were not offensive weapon per se, and therefore in respect of the charge of “possession of an offensive weapon in public place”, the prosecution had to prove that the appellant had with him the two laser pointers in question, “intended for causing injury to other person by him or by some other person”.  The magistrate was also clearly aware of this point[14].

42.The respondent cited香港特別行政區訴袁國強 [15] in which DHCJ Pang [(as he then was)] stated explicitly, “At the moment that the defendant regarded the article in his hand as a device to cause injury to others, he was regarded as being ‘in possession of an offensive weapon’ at that very moment, which has always been the judicial approach taken in Hong Kong and has never been challenged.”

43.The respondent also cited 鍾日祺, in which the defence complained that the magistrate failed to consider that the slingshot in question broke after the police test, which was a factor favourable to the defendant.  Alex Lee J dismissed this ground of appeal, saying that the breaking of the slingshot did not necessarily affect the appellant’s intention of possessing it, and therefore it was not crucial.  He further referred to 袁國強 and confirmed that “at the very moment that the defendant regarded the article in his possession as a device to cause injury to others, the said article was then an offensive weapon, and the prosecution was not required to prove that he could definitely succeed in injuring others with the article in question.”[16]

44.Similarly, in the present case, the prosecution was not required to prove that the appellant could definitely succeed in causing injury to others by the laser pointers in question.  As M Poon J [(as she then was)]pointed in HKSAR v SHY[17], in the absence of direct evidence, it should be for the magistrate to infer the appellant’s intention of possessing the laser pointers. Therefore, irrespective of the result of the prosecution expert’s report, once the prosecution could prove that the appellant’s intention of possessing the two laser pointers was causing injury to other persons, the appellant was proved to have committed the offence of possession of offensive weapons in a public place.  The conclusion in the prosecution expert’s report had no bearing on the appellant’s intention of possessing the laser pointers.

45.The respondent submitted that there was indeed direct evidence to prove the appellant intended to cause injury to others by possessing the two laser pointers.  According to PW1’s evidence, the appellant approached PW1, shining a torch-like laser device shakily at PW1’s face and mobile phone, which caused PW1 to feel burning heat on his face and pain in his left eye.  The appellant then stopped the act of shining.  After being blamed by PW1 for damaging his mobile phone by shining laser, the appellant again shone the laser pointer at PW1’s face, causing pain to PW1’s face.  Basically, according to PW1’s evidence, it could not be clearer that the appellant’s intention of possessing the laser pointers was causing injury to others.  The appellant’s shining the laser pointer at PW1’s face and eye was obviously a common assault.

46.The respondent cited HKSAR v Yan Chun Nam[18], in which the defendant was found to be in possession of a laser pointer near the scene of a protest.  Barnes J stated, “The case took place on 11 November 2019.  By that time, substantial social events had occurred in Hong Kong, incidents which seriously disrupted public order, such as unlawful assembly, road blocking and provocation against the police, happened nonstop.  In the protest that happened in the present case, there were not only people throwing petrol bombs, but also some provoked the police officers in the way frequently seen in protests, i.e. shining a laser pointer at the police officers.”

47.The respondent said that the present case happened on 15 September 2019, when serious commotions had taken place in Hong Kong due to the objection to the Fugitive Offenders Ordinance amendments.  Although the present case did not appear to involve serious disruption of public order, such as unlawful assembly and road blocking, it originated from graffiti on public facilities.  Such behaviour of making graffiti on public facilities to express political views was indeed very common in the social events in 2019.  Those who objected to such behaviour of damaging the public facilities very often had conflicts with the offenders, as it was what happened in the present case.  Although there was no evidence to prove that the appellant had taken part in making graffiti, upon the man making graffiti complained to him of being filmed by PW1, he shone a laser pointer at PW1, which were obviously acts of provocation and assault.

48.Following the above discussion, the respondent submitted that the magistrate had discussed the evidence of the respective experts of the prosecution and the defence in detail and given careful consideration before deciding to accept the admissibility of the report and evidence of the prosecution expert and accepting them as evidence.  What he did could not be validly criticised.  There was also other evidence sufficient to prove the appellant’s intention of committing the charges in the present case, including “possession of offensive weapon in a public place”.  Therefore, even though the two laser pointers in question were not available to the defence for their examination, no unfairness was caused to the defence.  The appellant failed in establishing all his complaints under this ground of appeal.

D.3.  The appellant’s supplemental submissions

49.The appellant supplemented the following in reply.

50.The Court of Appeal discussed (or criticised) Chu Kam To in HKSAR v Cheung Wai[19] on the basis that there was an overwhelming inference to be drawn that the absence of the exhibit was due to someone’s intent of helping the alleged perpetrator of the crime in that case. It is noteworthy that the Court of Appeal did not say that the legal principle set out in Chu Kam To was wrong, but only raised doubts about its conclusion.

51.The appellant said that at the trial in the present case, it was not disputed that PW3 had informed the appellant in May 2020 of the decision of the Department of Justice that he would not be prosecuted.  The appellant testified that since the police were not going to prosecute him and some exhibits returned were not his, he just threw away those articles not belonging to him.  At trial, the prosecution did not challenge the appellant the reason for which he threw away those articles, nor cross-examined him on the reason for throwing them away.

52.In respect of the magistrate’s remark, namely “having been informed by the police that he might take back his belongings, he could have simply chosen not to take the laser pointers which were not his”[20], it was contended that while the appellant was testifying on the special issues, the prosecution never put to him in cross-examination whether he could have chosen not to take away some of the articles, nor asked him why he had not taken the things not belonging to him.  PW4 Tang Yun King, who was a staff member of the exhibit room, testified that she returned the exhibits to the appellant as instructed and did not mention if the appellant might just take only some of them.  Under such circumstances, the magistrate’s remark that the appellant “could have chosen not to take the laser pointers which were not his” was unfair to the appellant.

53.The appellant said that according to the respondent, the expert report was produced to the court to strengthen the prosecution case.  In saying that the conclusion in the expert report had no bearing on the appellant’s intention, the respondent appeared to suggest that whether the laser pointers were offensive had no bearing on the convictions in the present case.

54.Paragraph 38 of the Reasons for Verdict was quoted to point out that whether the laser pointers in question were offensive was one of the issues in dispute in the present case.  While the laser pointers were not available to the appellant for examination to see if they were offensive, it was unfair to admit the expert report as evidence.

D.4. My consideration

55.Having considered the submissions from both sides, I accept the respondent’s arguments.  I do not think that the unavailability of the laser pointers to the defence’s expert for examination was unfair to the appellant in any way.

56.The evidence in the present case shows that the male alleged to be the appellant shone a torch-like laser pointer at PW1 for more than once.  PW1 felt burning heat and pain on his face and his left eye was also hurt, which clearly demonstrated that the said laser pointer could be used as an offensive weapon. Hence, the crux in the present case is whether PW1 was correct in identifying the appellant as the person who had shone the laser pointer at him.  If the evidence of identification given by PW1 is reliable and credible, then, according to the following series of evidence, namely the appellant shone a laser pointer at PW1 for more than once and was intercepted by PW1. PW2 later arrived and seized two laser pointers at the scene, and PW2’s test on the spot successfully revealed that the black torch-like laser pointer emitted a blue beam. The appellant was shown to be in possession of the laser pointer(s) with the intention to injure others.

57.Although in my view, the magistrate appeared to be relatively harsh to say that the appellant should not have taken the laser pointers which did not belong to him after being informed that he was not going to be prosecuted, I think that the laser pointers having been thrown away by the appellant and hence became not available to his expert for examination did not amount to unfairness.

58.As I have pointed out, the crux of the present case is whether PW1’s evidence of identification is reliable and credible, which falls under the ambit of the ground of appeal (3).  I will deal with it later.

E.  Ground of appeal (2)

59.The appellant argued that the magistrate’s failure to analyse properly the conflicts in the material evidence rendered the convictions unsafe and unsatisfactory.  They cited HKSAR v Lo Kin Sun[21] and HKSAR v Okafor[22] to support their argument.

60.The appellant suggested that the crux of the present case was the credibility and reliability of the evidence of PW1 and PW2.  The discrepancies between the evidence given by these two witnesses were blatant and fell under the type that the magistrate must deal with.  However, he erred in not dealing with or analysing the inconsistencies in PW1’s evidence properly and even accepting it.  Therefore, the convictions were neither safe nor satisfactory.

61.The appellant submitted that there were inconsistencies in various material aspects in PW1’s evidence.  In respect of one of the most decisive exhibits in the present case, namely the “green waist-bag” containing the laser pointers, PW1 never mentioned it at all in the written record dated 15 September 2019, and it was only mentioned for the first time in his supplemental statement, which was made upon the police request on 17 March 2021, i.e. eighteen months afterwards. This crucial matter was not any “further information” in general, but an utmost vital point in PW1’s evidence of identification.  The magistrate still accepted PW1’s evidence in full under such circumstances, which was unsafe and unsatisfactory.

62.Furthermore, in respect of what happened at the time when PW1 intercepted the appellant and PW2 arrived at the scene, there was no evidence of any change of the positions of where the articles were placed.  In dealing with the discrepancies between the evidence given by PW1 and PW2, with no evidence in support, the magistrate just said that the positions of the articles had changed. This was unsafe and unsatisfactory.

E.2.  Response from the respondent

63.In relation to this ground, the respondent said that it concerned with the witnesses’ credibility and reliability.  The respondent cited Chou Shih Bin v HKSAR[23], in which the Court of Final Appeal said that magistracy appeals were conducted by way of “rehearing” the evidence before the trial court.  Where the findings of facts were concerned, the appellate tribunal should recognise that the magistrate did enjoy the advantage of listening to and watching the witnesses’ testimonies whereas the appellate tribunal conducted the hearing according to the written transcripts. The findings on the credibility and reliability of the testimonies of witnesses were purely within the scope of the magistrate’s determination.  As to the finding of fact, unless the magistrate’s finding was extremely self-opinionated or arbitrary, or it was illogical or inherently improbable, or there was misquote, omission, or failure to consider or analyse any significant aspect in dealing with evidence; or there was any procedural error during the trial, which rendered the conviction unsafe, the appellate tribunal would not intervene.

64.The respondent also referred to HKSAR v Ip Chin Kei [24] where McWalters J (as he then was) laid down three principles which should be followed in dealing with appeals from the magistrates’ courts:

(i)    The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if being satisfied that it is plainly wrong;

(ii)   The test in determining whether an error by the magistrate should lead to the appeal being allowed is whether it is just for such an order to be made; and

(iii)  Absent the appellate court identifying any error by the magistrate, the appellate court must still perform its statutory duty of conducting a rehearing.  Therefore, the appellate court is required to examine the evidence adduced in the case to see if the charge has been proved beyond reasonable doubt, failing which the appeal must be allowed.

65.At the trial, the appellant has already raised challenges on various aspects against the credibility of the evidence given by PW1 and PW2, and the magistrate properly discussed and dealt with each challenge[25].  The magistrate’s analysis was reasonable and sensible with nothing improper.

66.The appellant persistently complained that PW1 mentioned the appellant was carrying a green waist bag only in the supplemental witness statement made by him eighteen months after the incident, and hence his evidence was not credible.

67.The magistrate correctly pointed out:

“In fact when PW1 made the second written statement, as the statement taker asked him to recall if the defendant had any other feature, at that stage, PW1 already mentioned that the defendant was carrying a waist bag. It is common and normal that a witness gives further information of the incident in subsequent statements. I do not think there is anything wrong with this.”[26]

68.It was submitted that when witnesses testified in court, upon detailed examination-in-chief and cross-examination, they would very often raise matters that had not been mentioned in their statements.  This did not mean that such witnesses were not trustworthy or not reliable.

69.Moreover, in the present case, when PW1 testified in court, he could clearly recount that when he was chasing after the appellant, he saw the appellant had a green bag on the right side of his waist.  Afterwards, he lost sight of the appellant, and when he saw the appellant again, the appellant was topless and still had a green waist bag on his waist.  PW2 said that when he arrived at the scene, he found a green bag beside and within the appellant’s reach.  The evidence of PW1 sand PW2 had no contradiction in this regard.

70.The magistrate was the tribunal of facts and he was entitled to accept the evidence of PW1 and PW2 as the truth after receiving PW1’s evidence in first-hand.  The appellate court is not a place for the appellant to argue on the findings of facts endlessly.

E.3.  The appellant’s supplemental submissions

71.The appellant stressed that the evidence of PW1 and PW2 had the following significant discrepancies and deficiencies:

(1)       One of the crucial issues in the present case was whether the “green waist bag” belonged to the appellant, or it had been lying on the ground before the appellant sat down and did not belong to him. In this regard: —

a.  PW1 confirmed in his testimony that the “green waist bag” was one of the important features for his identification, however, no green bag or waist bag was ever mentioned in his written record made on 15 September 2019;

b. PW1 testified that after the appellant had sat down on the ground, he put the stuff in his hand(s), including one cap and one dark coloured scarf, on the ground.  PW1 kept guarding the appellant until other police officers arrived. When other police officers arrived, there were still one cap, one scarf and one top near the appellant, and “the waist [bag] was still on the waist”;

c. In PW2’s testimony, when he arrived, he saw that the appellant was seated on the ground, “beside him on the ground”, “there were on the ground” one green waist bag and one blue top, [one] grey hood inside the waist bag, and also “one blue cap slung outside the waist bag”;

(2)  Another important issue in the present case was whether the appellant had shone a laser pointer at PW1 and was the person whom PW1 had been chasing after (at trial, “Man B” was referred to as the person who had shone a laser pointer at PW1 and PW1 had been chasing after all the way, and “Man C” was referred to as the appellant whom PW1 saw after losing sight of him for one to two minutes).  In this regard, PW1 was self-contradictory in respect of the position where he first saw Man C (i.e. the appellant):

a. In examination-in-chief, PW1 said that when he first saw the appellant, he himself was searching among the bushes while the appellant was “by the side, slightly ahead” of the subway, and they were both “outside the subway”, and the appellant was “walking” towards PW1 at that time;

b. PW1 marked on exhibit P3 the respective positions of the two of them, and they were both outside the subway;

c. Under cross-examination, PW1 admitted that the written record taken on the day of the offence, i.e. 15 September 2019, stated that he saw the appellant inside the subway, and the written record made by him on 17 March 2021, even purported that “at Affluence Garden, near the subway, I saw a man walking towards me”.

E.4.  My consideration

72.As to the alleged contradictions in the material aspects in the evidence given by PW1 and PW2, after considering the magistrate’s findings and the submissions from both sides, I agree with the respondent’s arguments in their submissions.

73.In my view, PW1 had explained the inconsistencies between his written [record] and testimony.  As the magistrate enjoyed the advantage of receiving PW1’s evidence in first-hand, there was nothing wrong that he was satisfied with PW1’s evidence.

74.Although PW2’s evidence appeared to be different from what PW1 said in respect of the location of the green bag, PW1 testified that the green bag was still on the appellant’s waist when he sat down to rest.  However, when PW2 arrived, he saw that the said green bag was on the ground, next to the appellant.  There was no direct evidence to illustrate how the said green bag had moved from the appellant’s waist to the ground, nevertheless, it was most important that the appellant’s identity card was inside the green bag, revealing its obvious connection with the appellant.

75.As what Stock J [(as he then was)] pointed out in R v Kwong Wing On & Another, at page 4[27]:

“[T]hat microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

76.This ground of appeal fails.

F.1.    Ground of appeal (3)

77.It was submitted that the magistrate had indicated at paragraphs 101 to 103 of the Reasons of Verdict that he had borne in mind the directions in R v Turnbull, reminded himself that an honest witness might also be unsatisfactory and mistaken, and also kept in mind the potential danger of relying on the identification evidence given by a witness.

78.It was submitted that according to PW1, he had never seen the appellant prior to the occurrence of the offence, and that throughout his observation of Man B (the person being chased), Man B was all along wearing a scarf, covering his mouth and nose.  PW1 had never watched Man B directly face to face without any obstruction or influence of strong light.  In other words, PW1 has never clearly seen Man B’s whole face, and he also confirmed that he had lost sight of Man B for durations of up to several minutes on more than one occasion.

79.It was submitted that having regard to the above circumstances, the reliability of PW1’s identification evidence was doubtful.  It was unsafe and unsatisfactory that the magistrate accepted his evidence in full.

F.2.    Response from the respondent

80.The respondent contended that the appellant had raised this doubt at trial.  The magistrate has dealt with this doubt in great detail pursuant to the directions in R v Turnbull [28].  The analysis and conclusion made by the magistrate were correct.

81.The respondent suggested that the evidence below could show that PW1’s identification was not mistaken:

(i)    As a matter of fact, PW1 had observed and chased after the appellant for quite some time.  Although PW1 had lost sight of the appellant for short periods in the course of chasing, when he saw the appellant again who was then topless, he checked his video recording and could identify the male as the appellant.  It could be said that his identification evidence was very clear and reliable.

(ii)   More importantly, PW1 in close proximity captured the male offender who was shining a laser pointer at him.  That male offender was then wearing a blue jersey that had three white strips on the shoulder with the Japanese national flag and emblem on the left chest, grey knee-length shorts and black trainers with white soles.  From the appellant’s photographs taken at the police station, it can be seen that the appellant’s clothing was identical to that of the male offender: he was wearing the same blue Japanese jersey, same grey knee-length shorts and same black trainers with white soles.  The design of the said blue Japanese jersey was not common.

(iii)  PW1 testified that before he intercepted the appellant, the appellant was topless and holding the blue jersey in his hand.  According to PW2, the appellant was topless when he saw him, and there was a blue top beside him on the ground.  In view of the above evidence as a whole, it was an irresistible inference that the blue Japanese jersey belonged to the appellant.  When he committed the crime, he was wearing this jersey.  In order to get away from PW1’s chase and avoid being identified by PW1, he took off the blue jersey in the course of his escape.  After being intercepted, he put the jersey by his side and asked PW2 to let him put it on because of feeling cold.

(iv)  Inside the green waist bag brought along by the appellant, there were the appellant’s wallet with his identity card inside and two laser pointers.

82.The respondent said that the evidence in the present case sufficiently showed that the appellant was the man who had shone a laser pointer at PW1.  The magistrate had made detailed and comprehensive analysis and discussion on PW1’s identification evidence, which were both correct and could not be validly criticised.

F.3.    My consideration

83.I totally agree with the respondent’s submissions and arguments.  The magistrate accepted PW1’s evidence that he identified the appellant as the person who had shone a laser pointer at him.  There was nothing improper.

84.This ground of appeal fails.

G.1.  Ground of appeal (4)

85.It was submitted that the magistrate said at paragraph 125 of the Reasons for Verdict that it was simply impossible that anyone would have unlawfully or improperly tampered with the two laser pointers, and he did not believe there would be any motive or need to make unlawful or improper interference.

86.The appellant contended that the magistrate’s remark above had erred in putting the burden of proof onto the defence.  Undoubtedly, the onus to prove the chain of exhibits rested on the prosecution who had to prove that the two laser pointers seized by PW2 were the two examined by PW5, and there was no tampering in the course of it.

87.As such, PW3’s evidence was crucial.  The magistrate said that PW3 testified sensibly and he was an honest and reliable witness.  In this regard, it was submitted for the appellant as follows:

(1)  Under cross-examination, PW3 specifically indicated that on 15 September 2019, he handed the exhibits of the present case, including two laser pointers, to the duty officer of the police station where the defendant had a recorded interview.  He also retrieved the exhibits, including two laser pointers, from the exhibits room of Tuen Mun Police Station on 13 January 2020 and handed them to PW5 for examination;

(2)  Under cross-examination, PW3 also confirmed that he had interviewed the defendant at Castle Peak Police Station on 15 September 2019.  In other words, after the recorded interview, PW3 handed the two laser pointers in question to the duty officer of Castle Peak Police Station for his action[.]

88.In dealing with the contradictions in the evidence concerned, the magistrate said that the cross-examination was “tactical”, and PW3 “clarified immediately”.  Therefore, the evidence concerned did not affect the overall quality of PW3’s evidence.

89.It was submitted for the appellant that there were defects in how the magistrate dealt with PW3’s evidence, and he also failed to accord appropriate weight to the inherent improbability.  PW3 testified that his written statement dated 11 May 2021 was made solely from his own memory with no reliance on any document or assistance from any person, and he said that eighteen months after the incident, he had a complete picture of the details in his memory, including the defendant’s address, reference number of the search warrant and the lawyer’s full name and solicitor number.  PW3 was able to remember them all solely from his memory over 18 months afterwards.  However, when PW3 testified in court, his memory on the relevant matters failed him, and he was unable to recall the details which he could recite six months before.

90.Under such circumstances, it was not safe nor satisfactory that the magistrate still accepted PW3’s testimony in full.

G.2.  Response from the respondent

91.The respondent said that the dispute on the chain of exhibits was about a dispute on the findings of facts.  The magistrate was entitled to accept a prosecution witness’ testimony as the truth having received his testimony in first-hand.  The respondent reiterated that the appellate court was not a place for the appellant to argue the findings of facts endlessly.

92.The magistrate has already dealt with the defence’s argument on this issue properly in his Statement of Findings[29]. He has made no mistake.

93.The appellant insisted that PW3’s evidence about to [which] police station the laser pointers were returned after the appellant’s interview was contradictory, and therefore, the laser pointers handed to the prosecution expert for examination were not the laser pointers in question.

94.The respondent said that as it could be seen from the questions and answers in the cross-examination^[30], defence counsel had arranged the put-up job tactically, leading PW3 to depart from the truth in his testimony and to confirm that the laser pointers had been returned to the duty officer of Castle Peak Police Station rather than the one of Tuen Mun Police Station.  Looking at the context of this part of the cross-examination, defence counsel did not make it clear at the outset whether it was Castle Peak Police Station or Tuen Mun Police Station where the statement was made and the laser pointers were collected from.  It was only at some later stage that defence counsel indicated that the statement was taken at Castle Peak Police Station, upon which PW3 immediately clarified that he did not return the laser pointers to Castle Peak Police Station.  In this regard, PW3 was clear, showing it was always his version that the laser pointers were retrieved from Tuen Mun Police Station and returned to Tuen Mun Police Station after the video-recorded interview.  He explained sensibly that he had misunderstood defence counsel’s question, thinking that he was asked if they were returned to the police station from which they had been retrieved.  Under such circumstances, it was not improper that the magistrate found PW3’s explanation reasonable and accepted his evidence.

95.The appellant complained that it was unreasonable that PW3 could recall and tell the appellant’s address, the reference number of the search warrant and the solicitor number of the appellant’s lawyer when he made his own witness statement with no assistance from anyone or any document.  In respect of this doubt, the magistrate listened to the audio recording of the relevant part of the trial all over again and confirmed that PW3’s response to the cross-examination concerned was that he did not have deep impression about what had happened in the course of making the written statement[31].  The magistrate confirmed that PW3 did not say that he had not read any record made by him in respect of the present case between the occurrence of the offence and 11 May 2021, and defence counsel had never cross-examined on whether PW3 had ever tried to refresh his memory of any information in the case by referring to any document or anyone before conducting the recorded interview.  Under such circumstances, defence counsel appeared to be taking things out of context when he insisted that PW3 made the witness statement by solely relying on his own memory.

96.The respondent submitted that whether the witness could possibly remember matters which were not really relevant to the crucial issues of the case was a side issue and did not affect the magistrate’s finding on PW3’s credibility and reliability.

G.3.   The appellant’s supplemental submissions

97.The cross-examination of PW3 about collecting the laser pointers was from pages 371H to 377Q of the Appeal Bundle.

98.PW3’s version under cross-examination that he could remember all details, including the defendant’s address, the reference number of the search warrant and the lawyer’s full name and solicitor number, without relying on any document or any person’s assistance after more than 18 months was at pages 383 to 384 of the Appeal Bundle.

G.4.  My consideration

99.I agree with the arguments in the respondent’s submissions.   PW3 testified that his witness statement was made by solely relying on his memory without any help from any person, but he said he “could not remember” if he had been assisted by any document because of the long lapse of time, and he also said:

“Answer: At work, I may, that is to say, mark down important matters, things that are important, or put it this way, if, perhaps I remember what I marked down at that time, which I believe do not really have any problem, probably.” [32]

100.It was not in PW3’s evidence that he had not made any record of any important matter or read any relevant record (if there was such record) between the incident and 11 May 2021.  In other words, it was not PW3’s evidence that he had made his witness statement on 11 May 2021 on the sole reliance of his memory.  There was nothing wrong that PW3 could no longer remember the details at trial.

101.This ground of appeal fails.

H.      Conclusion

102.After consideration, I find that the evidence in the present case clearly shows that the appellant had shone a laser pointer at PW1 for more than once.  At the material time, the laser pointers were obviously offensive, and the appellant possessed them with the plain intention to injure others.  It was not improper that the magistrate was satisfied with the expert’s testimony.  Even if there were no expert report from the defence on the examination of the laser pointers, in view of the facts of the present case, I would find that the prosecution has proved beyond reasonable doubt that the appellant had committed the two offences in question.

103.In the light of the above reasons, the appeal against conviction is dismissed.

Miss Mok Wan Yin, Winnie, Senior Public Prosecutor of the Department of Justice, for the respondent

Ms Catherine KK Wong and Mr Stephen KT Sin, instructed by Fongs, for the appellant

Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law.