The Queen v. Wong Sau Wan

HCMA000871/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 871 OF 1995

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Coram : Hon Duffy, J. in Court

Date of hearing : 4 January 1996

Date of delivery of judgment : 11 January 1996

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J U D G M E N T

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1. This was an appeal against conviction for assault occasioning actual bodily harm and for obstructing a police officer in the execution of his duty.

2. The evidence was that the appellant lived at No.7, Wah Mei Sun Chuen, Fanling in January 1995. On 30th January 1995, sometime after 1:00 am, she had a dispute with one of her neighbours, Tsui Yat-chiu, who complained of her walking about in the middle of the night on her wooden floor which kept him awake. An 80 year old neighbour, Wong Lin, also got involved in the dispute and it was alleged that the appellant struck her on the nose causing her injury, and caused her to fall which also injured her leg. The police were called and the appellant, by this stage, was in a highly emotional state. The police tried to arrest her but she refused to co-operate with them or return to the police station with them, and picked up a chopper saying that she wanted to commit suicide. One of the officers took it from her and in the course of that, injured his hand.

3. Mr Grossman Q.C., who appeared on the appeal, though not in the Court below, advanced five principal grounds of appeal. It was his submission in relation to the charge of Assault Occasioning Actual Bodily Harm that the learned Magistrate had failed to give sufficient weight to, or properly consider, the discrepancies which existed between the evidence of the two civilian Crown witnesses, that is the evidence of Tsui Yat-chiu and the evidence of Wong Lin. In his verdict, the learned Magistrate said this :-

"I appreciate and take into account that PW1 described Defendant as punching PW2 whereas PW2 described it as a slap. I do not consider that this inconsistency material in determining whether or not there was assault."

4. Mr Grossman argued that the discrepancy went further than that in that PW1 appeared at some stages in his evidence to be saying that the injury to the nose of Wong Lin was caused at a time prior to the police being summoned, and the injury to her leg caused at a time subsequent to the police being summoned, whereas PW2 describes it as one incident. It is true that the evidence of PW1 in this regard is not entirely consistent with that of PW2. The learned Magistrate dealt with it in this way.

"Both PW1 and PW2 described an assault to PW2's face which resulted in bleeding and P2 (medical report) supports an injury to PW2's nose. In addition I accept that PW2 was pushed by the Defendant which caused her to fall and sustain further (albeit from the report) fairly minor injuries."

I was satisfied that the learned Magistrate had considered the evidence and taken into account the discrepancies which existed.

5. So far as the charge of obstruction was concerned, which had originally been a charge of assaulting a police officer in the execution of his duty, Mr Grossman submitted that the Magistrate ought not to have amended the charge because, he submitted, there was no evidence to support a charge of obstruction. I do not agree. There was clear evidence that in their attempts to investigate this matter, when they arrived at the scene, the police were hampered and obstructed by the appellant who refused in any way to co-operate. Indeed, at one stage, she picked up a chopper, was threatening to commit suicide, and had to be disarmed by the police officer who was injured in the process. Simply because she was in a highly emotional state does not excuse her. There was evidence that she did indeed impede the officers who were trying to do their duty in investigating the alleged assault on Wong Lin.

6. Mr Grossman submitted that the Magistrate had failed in accordance to s.25(2)(b) to allow defence Counsel to recall and further examine witnesses or call other witnesses in the face of his amendment of the charge at the end of the Crown case. It is clear from the record that the learned Magistrate failed to do this. Mr Grossman conceded that it was not in every case that such an omission was fatal to the conviction, but argued that in the circumstances of this case, as all the cross-examination of the police officer had been directed towards the matter of the assault with the chopper, and the alleged biting of one of the officers by the appellant, that it was necessary to allow defence Counsel an opportunity to re-cross-examine the witnesses on the basis of the amended charge. I tended to agree with this submission, and found that as the learned Magistrate had not acted in accordance with the terms of s.27(2)(b) that the appeal against conviction in relation to the charge of obstruction of the police officer had to be allowed on that ground.

7. Mr Grossman's final submission was that the learned Magistrate had not been told that the appellant had a clear record and was hitherto of impeccable character. He argued that the learned Magistrate was therefore deprived of the opportunity to assess the credibility of the appellant in light of that knowledge. This was certainly a case in which credibility, and the character of the appellant, were very much in issue, and it might well have been important for the learned Magistrate to know that this lady was of good character. I gave this matter long and careful thought, and it seemed to me that in the circumstances of this case, having regard to all the evidence, that knowledge of the appellant's previous good character might well have influenced the learned Magistrate in relation to his findings. The failure of defence Counsel to put this into evidence led to an unfairness to the appellant. I therefore allowed the appeal against conviction on both charges on that ground.

Representation:

Miss Y. Mahomed C.C., for Crown

Mr C. Grossman, Q.C., leading Mr Albert Poon (So & Company), for the Appellant