HKSAR v. Ho Sin Hoi

HCMA000662/2001

HCMA662/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.662 OF 2001

(ON APPEAL FROM TMCC 3959 OF 2000)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 17 May 2002

Date of Judgment: 30 May 2002

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J U D G M E N T

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1.This is an appeal against conviction and sentence.

2.The appellant was convicted after trial of an offence of assault occasioning actual bodily harm. He was sentenced to a fine of $10,000 and to one months' imprisonment suspended for two years.

3.The facts of the case as found by the magistrate were that the appellant had arrived back at his home village in the New Territories at about 11:30 p.m. on the charged date with his wife. It was common ground that the victim who also lived in the village approached the appellant and his wife about a money dispute between them. An argument had developed which had then turned into a physical struggle during which the appellant had hit the victim on her head two or three times and knocked her to the ground and kicked her in the stomach as she tried to get up. Two independent eyewitness villagers, PW2 and PW4 observed these events. Subsequently the police were called to the scene and the appellant was arrested. The victim had sustained bruising and abrasions to her head and stomach area.

4.The appellant's defence as rejected by the magistrate was that he had been attacked by the victim and any violence he had used against her, which was minimal, had been used in the defence of himself.

5.The grounds of appeal as advanced on behalf of the appellant can be summarised as follows :

(1) The magistrate's approach to the evidence was wrong in that he attempted to reconcile inconsistencies in the prosecution evidence but not in the defence evidence.

(2) The magistrate was wrong to rely on the evidence of a single prosecution witness PW2 to convict the appellant.

(3) The magistrate made inconsistent findings of fact.

6.As to the first ground of appeal, the appellant's complaint centres around a portion of the magistrate's reasons for convicting the appellant at the time he delivered his verdict.

7.At that time, the magistrate said this :

" When considering the prosecution evidence, I looked for inconsistencies within each witness' evidence and between the witnesses' evidence and, when I found an inconsistency, I tried to reconcile it. And, if I could not, I considered whether I could accept the witness' evidence and the prosecution as a whole, with the individual inconsistency or with all the inconsistencies together." (Emphasis added)

8.Perhaps the reference to trying to reconcile the inconsistencies in the prosecution case was not the most preferred form of expression. But in my view all the magistrate meant by this was that before he proceeded on the basis that there was an inconsistency in respect of a particular area of evidence, he examined other aspects of evidence in the case to see if in fact there was any inconsistency or contradiction. It was only after that process, if he still regarded the evidence as inconsistent or contradictory, that he then decided what weight to attach to that inconsistency.

9.His concern, as he said, was with the inconsistencies amongst the prosecution's own witnesses. That was an important issue as the prosecution case, in addition to the victim, included two other eyewitnesses to these events but who saw the events from different perspectives, being by-standers, and gave somewhat conflicting evidence as to the acts of the participants in the incident.

10.For that reason, the magistrate was particularly concerned with the inconsistencies the evidence threw up amongst the prosecutions witnesses and considered those inconsistencies in the careful way he described. That was because after he rejected the appellant's evidence he had to be sure, before he could convict, that the prosecution eyewitnesses were reliable.

11.In doing that he was proceeding in a perfectly sensible and permissible manner.

12.So far as the magistrate's approach to the appellant's evidence was concerned he did not deal with the question of his approach to potential inconsistencies in the appellant's evidence in the same detail. In my judgment that was not because he took a different or less favourable approach to any inconsistencies in the appellant's evidence but simply because, so far as any defence case was concerned, the magistrate did not have to satisfy himself to the same high degree of the appellant's credibility as he had to do in respect of the prosecution witnesses' credibility.

13.Accordingly in his reasons for verdict the magistrate, quite fairly, had described his approach particularly in respect of the prosecution case, to the inconsistencies in that case.

14.It is true to say also that the appellant was far from prejudiced by the magistrate's approach in this regard, because as a result of his dealings with the inconsistencies in the prosecution's case, in a meticulous analysis and in the way he described, the magistrate concluded that he could only rely upon one witness, PW2, and did not rely on PW1 (the victim) and PW4 (the other eyewitness) or PW3 (a police officer) in convicting the appellant.

15.This was a perfectly proper approach. In short there is nothing in the appellant's first ground of appeal.

16.So far as the second ground of appeal is concerned the complaint of the appellant is that after, as I had said, he had rejected the evidence of PW1, PW3 and PW4 the magistrate proceeded to convict the appellant on the evidence of PW2 only. It is true the magistrate accepted solely the eyewitness evidence of PW2. He rejected the evidence of the other eyewitnesses, i.e. PW1 and PW4. The magistrate did that with great fairness in respect of PW4's evidence, the other independent eyewitness, as he had found PW4 to be an honest witness also, but because of his concern with inconsistencies in PW4's evidence placed little weight on his reliability.

17.After rejecting the evidence of PW1 as unreliable as to the course of the events of the assaults, that left solely the eyewitness evidence of PW2 whom the magistrate described as an honest and reliable witness after a careful examination of his evidence. But it would be wrong to say that was the sole remaining evidence against the appellant as the magistrate placed considerable weight also on the medical report detailing with the victim's injuries as supporting PW2's evidence.

18.That again was a perfectly proper approach and indeed would have been so even if the evidence of PW2 had been unsupported. There is nothing in this ground of appeal.

19.So far as the appellant's third ground of appeal is concerned it arises out of an apparent conflict between what the magistrate said at the time of giving his reasons for convicting the appellant and the contents of his subsequent Statement of Findings.

20.The magistrate's comments involved the tears suffered by the appellant's shirt during, according to the appellant, his struggle with the victim and which evidenced the appellant's case that he had struck the victim in self-defence.

21.In his reasons given at the time of convicting the appellant the magistrate said :

" ... I found the shirt was most likely torn during the part of the incident before PW1 fell to the ground for the first time."

22.In his Statement of Findings he said :

"Whilst considering the appellant's evidence and making my findings on the appellant's evidence I took into account the fact that the torn shirt and chest scratches could support what he was saying in evidence, and I also took into account other medical evidence, which I found could support his evidence. However I found after full consideration of all these factors that they did not change my final findings against the appellant.

I found that I could not in the end make a specific finding in relation to when the appellant's shirt was actually torn, as I had rejected the appellant's evidence regarding this part of the incident and I found the remaining evidence did not support any particular moment that this particular incident had happened." (Emphasis added)

23.This does appear to be an inconsistency between that which the magistrate had in his mind at the time of his giving oral reasons when convicting the appellant and that which he had in mind when providing his Statement of Findings.

24.But in my judgment that inconsistency was immaterial to the magistrate's findings.

25.There was never any doubt and indeed it was common ground that the victim had herself inflicted some injuries upon the appellant. That was apparent from the medical report on the appellant's injuries admitted by consent during the trial. That report described a number of scratches being found on the appellant's chest and his complaint of a tender jaw.

26.Nor was there any issue that the victim had sustained injuries. Those injuries were considerable and were consistent with PW2's evidence of what he had observed. The defence case revolved around the issue of self-defence.

27.The magistrate's conclusions that the appellant was not acting in self-defence were based on the injuries suffered by the victim and PW2's evidence. In that regard he said :

"When considering the self-defence issue, ... I found that the prosecution had proved beyond reasonable doubt that the punches and kick were not done in self-defence, but were deliberate acts of aggression towards PW1. I found at the time they occurred they were far in excess of the reasonably necessary force to stop what I found PW1 was doing at the time and in order to get her away from him. I made this finding after I had taken into account all the prevailing circumstances at the time."

28.In other words the magistrate had accepted that the victim, PW1 had in turn assaulted the appellant, but that the appellant's response was so disproportionate as to negative any defence of self-defence.

29.It seems apparent that the precise moment in those circumstances of the tearing of the appellant's shirt, or more importantly his suffering minor scratches at the hands of the victim, even assuming that had occurred at the same time, would not in anyway have been material to the magistrate's findings in this regard.

30.In my judgment the inconsistency between the magistrate's Statement of Findings and his reasons given at the time of convicting the appellant as to the period of time when the shirt was torn is, in this regard, no reason to interfere with the conviction of the appellant.

31.Accordingly the appeal against conviction is dismissed.

32.I turn now to the appeal against sentence.

33.An assault of this sort by a man upon a woman where the victim is subjected to multiple punches and is kicked in the abdomen whilst she is on the ground would, in the normal course, justify a sentence of immediate imprisonment regardless of the fact the offender had a clear record.

34.In my judgment the sentence of one month's imprisonment cannot be said to be manifestly excessive or wrong in principle.

35.The sentence was suspended no doubt because the magistrate took into account that this was likely a one-off affair and the prospects of the offender being discouraged from further such offences was enhanced by the suspension of the sentence.

36.There was in short nothing wrong in principle with the sentence nor was it manifestly excessive.

37.Indeed, in my view, in the event, it could be described as lenient. The appeal against sentence is dismissed.

Representation:

Mr P.K. Madigan, SGC, of the Department of Justice, for the Respondent

Mr Michael Leung, instructed by Messrs Joseph C.T. Lee & Co., for the Appellant