HKSAR v. Neill Casey Edward

HCMA000700/2000

HCMA 700/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 700 OF 2000

(ON APPEAL FROM ESCC 628 OF 2000)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 29 November 2001

Date of Judgment: 4 December 2001

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J U D G M E N T

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1.This is an appeal against both conviction and sentence.

2.The appellant was convicted of an offence of wounding contrary to s.19 of the Offences Against the Person Ordinance Cap. 212 after trial, and sentenced to 2½ months imprisonment.

3.I will deal with the appellant's appeal against conviction firstly.

4.The facts found by the magistrate were to the effect that PW1, the victim of the offence, had been walking home in the vicinity of Luard Road and Lockhart Road in the early hours of the morning of the charged date when the defendant and another person whom the defendant was fighting or struggling with came out of a nearby restaurant onto the footpath ahead of PW1. The magistrate found that PW1 initially, in some degree attempted to separate or mediate between the two but then continued on, crossing to the other side of the roadway.

5.The defendant followed him and then challenged him to a fight. The defendant had found a beer bottle somewhere and a struggle between PW1 and the defendant then ensued during which the defendant hit PW1 over the head on a number of occasions with the beer bottle causing 3 wounds, two of 4 c.m. and one of 3 c.m. in length which were sutured and glued subsequently at Tang Shiu Kin Hospital.

6.Eventually the police had arrived at the scene of the fight and the defendant was arrested.

7.The substantive ground of appeal is that the magistrate erred in law in that his findings were against the evidence. If I may globalise Mr Kwong's arguments the finding generally complained of is that the learned magistrate accepted the evidence of PW1 to the effect that the defendant had challenged him to a fight and had attacked him with a beer bottle without provokation. Mr Kwong for the appellant argues that the magistrate was wrong to accept PW1 as a witness of truth as there were substantive unresolved discrepancies in his evidence.

8.Perhaps Mr Kwong's strongest point on this regard is that PW1, in his evidence said when the defendant and the other person he was at that time fighting fell out onto the street he, PW1, was walking along, he did nothing. His evidence was in these terms:-

"All I saw was the guy get dragged out, land on the floor, the defendant pursue the guy again, and then I was in the middle of it for a very short second and then I walked off, walked away."

9.Throughout his evidence he had consistently asserted that he had not become involved in any altercation with the defendant at that time but had more or less continued to walk past the struggle between the defendant and the other person.

10.But as Mr Kwong points out PW3 and DW1, two eye witnesses to the incident, both said that PW1 had in fact become involved.

11.PW3 said that the westerner whom the defendant eventually hit on the head with a beer bottle had earlier been one of two westerners who had gone to the scene and tried to mediate in the original fight the defendant had with another westerner. The defendant had told one of the two intervening westerners to follow him. That person did so, they crossed Luard Road and the defendant hit him on the head with a beer bottle.

12.DW1 was another eye witness at the scene who said the defendant had been involved in a fight with another man and that the victim had then intervened by "grabbing the defendant away" from the person he was assaulting. The defendant then challenged the intervening westerner to a fight. They abused one another. They crossed the road and a fight began. DW1 did not see any beer bottle being used but saw the intervening man was bleeding profusely after their fight.

13.Accordingly at least two witnesses, PW3 and DW1, gave evidence to the effect that PW1, the victim, had become involved with the defendant in some way during or as a result of the original fight between the defendant and the other man.

14.That, says Mr Kwong for the appellant, is in complete contradiction to the evidence of PW1.

15.Regarding the discrepancies between the evidence of PW1 and PW3 and DW1 the learned magistrate said this:-

"Ms Rattigan has pointed out a number of discrepancies in the evidence of PWs 1 to 4. I have carefully considered them. None is a material inconsistency, in my judgment, given that it was late at night, with a good number of lookers-on, and events were happening very fast; it is only to be expected that witnesses witnessing different stages of the incident would described it in somewhat dissimilar terms. I noted in particular that PW3 and Mr Griffiths (DW1) both said PW1 had acted to stop the defendant from further attacking the man on the ground, but PW1 himself denied he had, and PW2 said PW1 casually walked by. PW2 had been inside a sandwich shop and did not see a man being attacked on the ground. I accepted PW3 and Mr Griffiths' evidence in this regard, but do not find PW1's denial in this particular aspect had affected his veracity and honesty as a witness. He might have honestly forgotten the intervention."

16.In effect the learned magistrate accepted that these discrepancies existed, but that all witnesses, including PW1, had tried to tell the truth, but because of the events occurring quickly and the confusion at the scene and each witness seeing part of these events from a different perspective, their evidence had contradictions.

17.The important thing perhaps is, that no witness supported the defendant's case that he struck PW1over the head with the beer bottle in self defence. Even DW1 asserted in his evidence that the defendant had challenged the person who was PW1 to a fight. All prosecution witnesses, i.e. PW1, PW2 and PW3 gave evidence to the effect that the defendant had, without being placed under any apparent threat by PW1struck PW1with the beer bottle.

18.Indeed it is worth mentioning PW2's evidence in this regard. He was another independent eye witness and was himself in the immediate vicinity of the original fight. He said he saw PW1walking past this fight and heard the defendant ask PW1what he was looking at, or some question to that effect, and then saw PW1walk away by crossing the road. He said the defendant followed PW1, picked up a battle and hit PW1. In other words PW2's evidence agreed in all respects with that of PW1 except that PW2 said the defendant spoke to PW1.

19.No doubt the magistrate had a difficult task in resolving the discrepancies in the evidence before him. In the evidence of PW3 and DW1 he had versions of events which contradicted PW1's assertion that he had not become involved in the original fight. In the evidence of PW2 he had a version of events which supported PW1's evidence in large part in that regard.

20.But in putting all of this together, and bearing in mind the sole issue was whether the defendant may have been acting in self defence, the magistrate was entitled to resolve those inconsistencies in the terms that he did. That is because regardless of whether PW1 may have become involved in the original fight as a mediator or not, it was common ground amongst all independent witnesses except DW1 that the defendant had, without provokation and as the aggressor, struck PW1 with the beer bottle. DW1's evidence in this regard could be regarded as "neutral" in the sense he did not see the start of the fight between the defendant and PW1.

21.The magistrate additionally, had specifically considered DW1's evidence in this regard. He further said this in his Statement of Findings:-

".........I found Mr Griffth's evidence pertaining to the fight between the defendant and PW1 related to the later episodes of the incident when PW1 was trying to subdue the defendant after he had been hit by the defendant with a beer bottle."

22.In my view, the sole question being one of self defence, the magistrate was entitled to arrive at his findings of fact on the basis of the evidence as a whole before him. A tribunal of fact is very often in the position of making findings which require the consideration and resolution of conflicting evidence.

23.Where a finding of fact or facts in those circumstances is arrived at on a reasoned basis with a full appreciation of the discrepancies or inconsistencies in the evidence and the relevance of those matters to the issues involved, then that finding of fact can rarely be criticised.

24.That is the position in this case. The learned magistrate was aware of the issues in the case and of the discrepancies in the evidence relating to those issues. And he gave a reasoned statement of his findings of fact.

25.The other remaining discrepancies, complained of by Mr Kwong before me, or alleged discrepancies between PW1's evidence and that of the other witnesses, were dealt with by the learned magistrate in the same terms. He apparently dismissed those various other discrepancies as of no weight. He was entitled to do so.

26.In short there was sufficient evidence to support the magistrate's findings in so far as the elements of the offence having been proven by the prosecution are concerned, and the prosecution having disproven the possibility of the wounding having been done by the appellant in self defence, which was the sole real issue in this trial. Accordingly, the appeal against conviction is dismissed.

27.So far as the appeal against sentence is concerned the attack upon PW1 with a glass bottle was fortunate not to have caused him more injuries than it did. Attacks with glasses or bottles very frequently cause serious and permanent injuries. Such offences very often attract sentences of a year or more imprisonment. The appellant was extremely fortunate to have received a sentence of 2½months imprisonment. To suggest the above sentence is too severe in the circumstances of this case is a suggestion completely devoid of merit. The appeal against sentence is dismissed.

Representation:

Mr W.S. Cheung, SADPP of the Department of Justice, for the Respondent

Mr Jimmy Kwong instructed by Messrs William Sin & Co. for the Appellant