HKSAR v. Wong Chi Man

HCMA000290/1998

HCMA290/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 290 OF 1998

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Coram : Hon Nguyen, J. in Court

Date of hearing : 25 August 1998

Date of delivery of judgment : 25 August 1998

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J U D G M E N T

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1. The Appellant was convicted by Mr Henry Ma, sitting at South Kowloon Magistracy, on 12th February 1998 of two charges, one of common assault and one of claiming to be a member of a triad society. The sentence was passed on 26th February 1998 when the learned Magistrate sentenced the Appellant to 80 hours of community service.

2. Basically, what had happened was that there had been an altercation in a bar on 22nd August 1997 involving the Appellant and one other person on the one hand, and PW1 to PW3 on the other. The altercation had finished up with PW1 being wounded in that he had been slashed over the head with a bottle and PW2 was assaulted by, according to the prosecution, the Appellant and another male person. The prosecution also adduced evidence that just before the wounding and the assault, the Appellant had claimed himself to be a member of the "Wo Shing Wo" Triad Society.

3. When the initial altercation took place, there had been some shouting involving the Appellant seated at one table and the prosecution witnesses seated at another table at a distance of about 10 feet away. The Appellant left the bar at about 12 midnight with a female and returned about an hour later with an unidentified male, and it was upon his return that the wounding is said to have taken place.

4. Mr Lam, who appears for the Appellant this morning, has advanced two grounds of appeal in the Appellant's appeal against conviction. The first ground is that the learned Magistrate erred in his assessment of the credibility of the prosecution witnesses. Mr Lam has properly started off his appeal by saying that this is always a very difficult ground to argue successfully to enable a conviction to be quashed. That is, of course, entirely true because the criminal justice system of Hong Kong is such that the prosecution has to try to prove the guilt of the accused person before a magistrate or a judge or a jury in the High Court. The magistrate or the district judge or the jury hears the witnesses for the prosecution and are in a position to observe the demeanor of the witnesses when they give evidence. An Appellate Court does not have that advantage. If the trial magistrate or the trial judge returns a verdict of guilty based upon their acceptance of the evidence of the prosecution witnesses, and based upon certain findings of fact made by them, it is normally difficult for an Appellate Court to reverse that verdict of guilty and to reverse the findings of fact. The Appellate Court should only interfere if there has been a material irregularity during the trial, or the evidence adduced at the trial was such that the Appellate Court, looking at the record of the trial, concludes that it has a lurking doubt about the guilt of the Appellant.

5. In arguing the first ground Mr Lam relies upon the fact that there were inconsistencies in the evidence of the prosecution witnesses, and also that the prosecution witnesses had agreed that they had discussed the event and one or two of them had looked at the statements given to the police by the others. Mr Lam uses the word "collusion", but I think that is too strong a word to describe what happened here. If the witnesses had colluded to concoct a story against the Appellant, it would be difficult to imagine that they would have been prepared to admit in the witness box that they had discussed the event and they had looked at one another's statements.

6. No doubt there had been some incident inside that bar on that particular early morning. PW1 was indeed wounded and there was a medical report to substantiate that allegation. PW2 was indeed assaulted and there was a medical report to substantiate that allegation. So, it is not as if the prosecution witnesses have concocted an event out of nothing. It is simply a question of whether they had concocted the allegation against the Appellant or whether they had been mistaken in the identification of the Appellant as the assailant. In so far as the inconsistencies are concerned, I quote what the Court of Appeal said in R. v. Sheik Abdul Rahaman Bux, Cr App 756 of 1981 :

"In our view, it is sufficient if the judge shows that he is aware that these inconsistencies exist and that nevertheless having taken them into account, he is prepared to believe the various witnesses involved save to such an extent as he may specify."

In the same appeal, the Court of Appeal quotes Blair-Karr J. in R. v. R.E. Lo [1961] HKLR 13.

"But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence or the argument of Counsel on the evidence or the whole of the workings of his mind in arriving at his conclusion.

But an Appellate Court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness and when the District judge draws inferences of fact, then I think an Appellate Court should act with the greatest caution before interfering with the District Judge's findings if, having regard to the whole of the evidence, such findings appear reasonable."

7. One of the matters relied upon by Mr Lam was the fact that the prosecution witnesses must have been under the influence of alcohol during the incident. The learned Magistrate did deal with that aspect in his Statement of Findings when he found as a fact that the amount of alcohol consumed by the prosecution witnesses did not render their state of mind unclear, nor did it influence their ability to recongnise people.

8. Another matter which Mr Lam relies upon is the fact that in none of the three statements given by the three prosecution witnesses did they mention the alleged assault by the Appellant upon PW2 when the Appellant allegedly grabbed the neck of PW2. That is, on the face of it, a fairly important matter. However, at the trial the Appellant was represented by Counsel. This point, together with other points in favour of the Defence, were made with each of the prosecution witnesses. And this point, together with other favourable points, were also mentioned by Counsel in his final address. The learned Magistrate must have been aware of these points which, on the face of them, were in favour of the Defence. Nevertheless, the learned Magistrate found that the four prosecution witnesses were honest and reliable witnesses, and he accepted their evidence.

9. In relation to ground two which is that the learned Magistrate erred in his evaluation of the identification evidence, Miss Lily Ho, appearing for the Respondent, has pointed out correctly that the learned Magistrate did deal with the matters which might have affected the witnesses' ability to identify the Appellant. PW4, who was the bar manager, in fact knew the Appellant because the Appellant was a regular customer. She placed him at the scene but did not say that he was one of the assailants. She also said that he was the person who had the earlier altercation with the three prosecution witnesses. She also said that when the second incident happened, she heard somebody shouting that he belonged to the "Wo Shing Wo" Triad Society. Shortly after that second incident concluded, she saw the Appellant standing near to the table where the second incident had occurred. Insofar as PW1 and PW2 were concerned, they had picked out the Appellant at an identification parade.

10. The learned Magistrate, in his Statement of Findings, referred to the fact that the bar was lit at the time; the fact that the distance between the two tables when the first altercation happened was only 10 feet; the fact that there was a television set which was switched on at the time; the fact that PW1 and PW2 had in fact the opportunity to see the Appellant that evening on two different occasions; and also the fact that when the second incident happened, the Appellant was at very close proximity to PW2.

11. In all the circumstances of this case, I cannot say that the learned Magistrate was erroneous in his finding of guilt of the Appellant, nor can I say that the convictions are unsafe or unsatisfactory. In the circumstances, the appeal against conviction is dismissed.

Representation:

Miss Lily Ho, S.G.C., for Director of Public Prosecutions

Mr Osmond Lam, inst'd by M/s Miller Peart De Witt, for the Appellant