HKSAR v. Leung Chun Choi

HCMA000751/1999

HCMA751/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.751 OF 1999

(ON APPEAL FROM ESCC NO.3890 OF 1998)

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Coram: Hon Gall J in Court

Date of Hearing: 16 May 2000 and 1 June 2000

Date of Judgment: 1 June 2000

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J U D G M E N T

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1. The appellant was convicted by Mr C.R. Mackintosh of Eastern Magistracy on 2 July 1999 of one charge of assault occasioning actual bodily harm. He was sentenced to three months' imprisonment. He now appeals both the conviction and the sentence.

2. The prosecution case was that on 17 October 1998, the appellant, a serving police officer and who was off-duty, was present at a dinner in the Paradise Restaurant in Tang Lung Street. The group consisted of six police officers and a woman called Kwok Ping Wa ("PW1") who was the complainant in this matter. She was not a police officer but had earlier joined some of the group at a bar in Wanchai and had gone on with them to the restaurant. The events complained of took place in the early hours of the morning.

3. At some stage in the restaurant, an argument broke out between the complainant and one of the police officers - not the appellant, which involved an exchange of bad language. The complainant was taken out into the street, where there were a total of three police officers and the complainant and where, it is agreed, she was assaulted, pushed to the ground and kicked in the abdomen. It was alleged by the prosecution that the appellant was one of the men who took her outside and that it was he who grabbed her by the throat from behind, bent her forward and participated, or was solely responsible, for the assault.

4. From the outset, Mr Chandler concedes that an assault took place upon Miss Kwok and that the assault was by one or more of the party of off-duty policemen. It was common to both parties that the attack took place in the street outside the restaurant, some six metres from the door to the restaurant, and that it was observed by the night watchman of the building opposite where the incident occurred. That night watchman said in evidence that he heard noise coming from the street and after it had continued for a period of time, he went out to have a look. His evidence is, to some degree, at odds with that of the evidence of PW1.

5. The magistrate was fully alive to the issues for him to determine, he said this :

"... The sole issue for me to determine was whether the prosecution had proved that this appellant was the attacker or one of them. And, as I made clear in those reasons, it was a question which depended wholly on the correctness of the identification of the appellant by one witness, PW1. If her identification was in doubt, then the case was unproved; if I could rely on it so as to be sure, the allegation was proved."

The magistrate was also fully aware that this was the type of situation where the complainant had a limited opportunity to view her attacker in the street - he having been behind her - and that any recognition of him was dependent upon her opportunity to view him over a relatively short period in the restaurant prior to leaving it and that this was a matter which required the full strictures of the R v Turnbull 1997 QB 224 guidelines. The magistrate said this :

"Thus the full strictures of the Turnbull guidelines came into play and it was necessary for me to warn myself of the special need for caution before relying on the identification of PW1, the risks of honest but mistaken witnesses being convincing (no-one suggested that PW1 was lying) and the need to apply the guidelines equally to recognition cases. Although such recognition may, as Turnbull says, be more reliable than identification of a stranger, mistakes of recognition of even close friends or relatives are sometimes made. There was a need to look at the circumstances of the identification to determine its quality. Those circumstances, in this case, included the degree of recognition, the timing, lighting and the proximity of the parties at the time of the incident, the time lapse to the subsequent identification of the appellant, any supporting evidence and, in this particular case, the question of alcohol consumption and its effect on reliability."

Mr Chandler concedes that this is a proper direction, but in his various grounds of objection argues that the magistrate, having warned himself of the proper approach, proceeded not to apply that approach properly if at all. Mr Chandler relies upon the judgment of Lord Widgery CJ in Turnbull at page 229, where he said :

"When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification."

6. Mr Chandler further argues that here the case against the appellant depended upon a single identification by Miss Kwok made in difficult circumstances and by a witness who was so affected by consumption of alcohol as to be unreliable. He argues that the identification evidence was in the circumstances of poor quality and should not have been considered by the magistrate with or without support. The Magistrate found some limited support evidence from PW7 SIP Chan but Mr Chandler argues that PW7's evidence does not amount to supporting evidence.

7. In his oral reasons, the magistrate said this :

"... It is, therefore, necessary for me to pay full regard to the principles laid down in the Turnbull case and, first of all, to warn myself in the clearest terms of the special need for caution before relying on identification evidence, to bear in mind that not only can mistakes be made but mistaken witnesses, even in recognition cases, can be all the more convincing if they are basically honest in trying to do their best.

It is important not to be swayed simply by the honesty of the witness, nor by the fact the witness is convinced about the accuracy of the identification made. I should say that I do find PW1 to have been an honest witness. I am sure she was not concocting or distorting her evidence and was not motivated by malice."

The magistrate went on to consider the opportunity that the witness had had to view the appellant. He said this :

" Although there is no evidence of direct communication between PW1 and the defendant, she has given an unchallenged account of toasting between her and all the others at the table, including the defendant, so there was some direct contact. On the unchallenged evidence, she was sitting at a round table with one person between her and him, not therefore directly opposite him, but plainly in a position where he was in her line of sight during the course of the time that she was there.

Thus PW1's identification of her attacker is not an identification of someone who was a complete stranger. It is an identification of someone with whom she had just spent a period of time though, plainly, he was not well known to her. It is also relevant to the general circumstances of the identification that her attackers came from a group of six police officers with whom she had been sitting at the table. She actually picked the defendant out in a properly conducted identification parade on 23 October, about a week later. This was not a case of a witness picking out someone whom she had only ever seen during the course of the attack upon her.

The real question is whether it has been proved that she had picked the correct person out of the six at the table or whether she might be mistaken. Identifying that as a question does not mean, however, that the circumstances under which she had the opportunity to view her attacker during the attack itself are irrelevant - far from it. The timing, the lighting, the opportunities to view the attacker, initial descriptions given, delay before formal identification are all important. So is the question of drink, because it is that issue which, it is suggested, strikes at the quality and reliability of PW1 as an identifying witness."

In dealing with the lighting, he said this :

".... there was evidence as to the state of the lighting outside the Paradise Restaurant where the attack took place. PW1 gave an account of adequate lighting coming from nearby shop premises, even though it was late and they were closed. She was not contradicted by evidence. The photographs do not provide any sort of guide to the ambient light. ...."

That having been said, the photographs are now before me as part of the exhibits in the case, and it is quite clear as to the amount of lighting present in the vicinity, and taking that together with the sketch plan of the area showing where the attack took place - some six metres from the door of the restaurant - it is obvious from the photographs that the lighting must have been reasonably bright.

8. He analyzed the time of the attack :

" As to the time of attack, PW1 says at one stage that the attack outside the restaurant lasted about 10 minutes. PW4 [the watchman] suggested that the noise had been going on for 15 to 20 minutes before he actually looked. These time-frames have to be treated with some caution. People are notoriously inaccurate about duration of events."

He then went on to deal with the differences in the initial description given by the complainant. He said this :

" As to initial descriptions, I find nothing in the point about the height of the attacker being given as 5 foot 9 when the defendant is in fact 5 foot 11. The difference is not significant, particularly bearing in mind that for most of the time she had been with him they had been sitting down in the restaurant."

He further considered the question of the alcohol consumed by Miss Kwok. He said this :

".... it is clear that PW1 had been drinking during the course of the evening leading up to the assault upon her. She had consumed beer at the Horse & Groom Bar from about 10 pm on the 16th when she had met up with some of the group who were ultimately with her at the restaurant ... Her evidence was that she thought she had drunk about four bottles of beer, some of it during dice games (when the loser had to drink half a glass). She had played these games for a time with the others and agreed that she had lost quite a lot."

" At about that time an argument broke out when one or more of the police officers took offence at PW1's reluctance to continue drinking, and it is that which, on any view, led to the assault. The real question is not exactly how much PW1 had had to drink - nobody kept a log and all figures are bound to be imprecise - but what effect it had on her, and here there is a variety of conflicting evidence. PW1 maintained that she was not drunk. What she meant by that was that she was not so affected by her consumption of alcohol that her faculties were significantly affected.

PW2, the police officer with whom she first had contact after the incident, said in-chief that he could smell alcohol from her and that she was a bit agitated, and that she sometimes failed to answer questions appropriately - that is, did not always give the answer to the question asked - therefore, he concluded, she was 'a bit drunk'. In cross examination he agreed that she appeared to be drunk, that she was incoherent in her answers, that she 'smelled strongly' of alcohol and that he judged her to be drunk. When he had asked her to describe her attackers, she had entirely failed to respond. In re-examination he said that in fact she had said 'Don't know' to that question. He also said that her failure to answer questions properly related to about one-third of those he asked. The others, therefore, were adequately answered. He said that as an experienced police officer he was used to judging whether people were drunk or not."

9. The magistrate found this witness to be unimpressive. He was markedly inconsistent, he said, in his description of the complainant, and found that he had not taken into account the fact that she had been subjected to an assault. He placed little weight upon what that witness said.

10. A further witness to the state of sobriety of the complainant was the manager of the restaurant who gave evidence-in-chief that the complainant was, when she entered the restaurant, already very drunk and that she was yelling. The magistrate found that his evidence was in contradiction to that of the complainant as to who ordered red wine, and clashed with his statement to the police as to the amount of her incapacity. Having considered the evidence of the restaurant manager, he found him to be unreliable and placed no weight upon his evidence.

11. The magistrate concluded as to the reliability of the complainant as a witness that :

".... I am sure whilst PW1 had consumed a number of beers and a glass of red wine over a period of two to three hours and that she must, therefore, have been affected by drink to some extent, the degree of that affectation was not such as to impair her powers of observation and reasoning to an extent that it undermines her identification of the defendant as her attacker. She was able to give a detailed and largely unchallenged account of the course of the events at the restaurant prior to the assault, including the verbal elements of the argument. She gave an account of her removal from the restaurant which was consistent with the evidence on the matter by PW7. She was able to identify where the attack had taken place outside, consistent with the evidence of PW4. She was able to describe the throwing of her handbag and the kick to her abdomen, consistent with PW4. She was able to tell PW2 where the attack had taken place, having first called her friend and then the police, despite her obvious and understandable distress at the assault upon her.

Approaching her evidence with a particular need for caution which is required, I am sure that her identification of the defendant as her principal attacker is accurate and reliable ...."

12. As Mr Chandler argues, the magistrate had to determine the quality of the identification evidence as opposed to the reliability of the identifying witness, although issues of reliability or lack of it went to the quality of the evidence.

13. I have not quoted exhaustively from the very detailed reasons, both oral and written, given by the magistrate but those passages to which I have referred demonstrate firstly, that the magistrate had a full grasp of the approach he was required to follow by virtue of R. v. Turnbull; and secondly, that the magistrate had, notwithstanding the able arguments of Mr Chandler, before the Magistrate and before me, properly followed those guidelines when assessing the quality of the evidence of Miss Kwok. He found, on a detailed examination of the evidence, that she had given evidence of a sufficient quality and that it could be relied upon in respect of the identification. The first ground of appeal must fail.

14. The second and third grounds of the appeal were that it was essential, in the circumstances of the appellant's case, for the magistrate to carefully analyze the specific weaknesses in the evidence as the identification of the appellant as being the person who dragged PW1, the complainant, from the Paradise Restaurant and who was central to the assault upon her, this he failed to. Ground three was that there were specific weaknesses in the prosecution case as to identification against the appellant such as if the magistrate had identified those weaknesses, whether together or in isolation, he should have acquitted the appellant.

15. Mr Chandler argues that whilst the magistrate did identify weaknesses in the case of the prosecution but when he reached an overall assessment as to the quality of the evidence, he has : "effectively discounted or given insufficient weight to those weaknesses where they tended to impact upon the quality of the evidence of identification".

16. The first matter Mr Chandler raises under these grounds of appeal is that the complainant was at the worst drunk and at the best seriously affected by the consumption of alcohol at the time of the incident and that his finding that he could accept her sole identification of the appellant in difficult circumstances, as being capable of establishing guilt to the criminal standard was wholly unjustified and flew in the face of the evidence.

17. I have already set out the magistrate's findings in respect of the consumption by the complainant of alcohol. I have not set them out in full and have picked appropriate passages. The effect of those passages is that the magistrate had firmly, in the forefront of his mind, the fact that the sobriety of the complainant was a crucial matter for him to consider when evaluating her evidence, both as to its quality and as to her reliability.

18. An Appellate Court is not a re-hearing of the evidence. If I am satisfied that the magistrate has properly considered the law and the facts, then it is not for me to re-evaluate his decision to see if I would have come to the same decision. I am satisfied here that the learned magistrate has properly considered all of the evidence concerning the consumption of alcohol by the complainant, the description of her by other witnesses such as the restaurant manager, the constable who questioned her after the event and Senior Inspector Chan, the officer who was present and gave evidence. On this evidence and his evaluation of those witnesses, he was entitled to come to the conclusion as to the capacity of the witness to identify the appellant.

19. The next matter relied upon by Mr Chandler is that there is a discrepancy between the account given by the complainant of the assault outside the Paradise Restaurant and that of PW4, the watchman who emerged from the premises opposite and watched part of the assault. Mr Chandler argues that the magistrate attempted to explain away what was material discrepancy upon the basis that the watchman had witnessed the end of the assault and not the whole assault and further that the discrepancy was not specifically addressed by the magistrate.

20. The magistrate dealt with great care and in great detail with this aspect of the evidence and I do not consider his failure to address this one point to have any significant bearing on the validity of his reasoning or the soundness of his decision.

21. Mr Chandler argues that the failure by the complainant to adequately describe her assailants to PW2, the constable who interviewed her at 3:50 a.m. on 17 October 1998, and the discrepancy between the height she gave of her assailant and that of the appellant was significant. The magistrate dealt at some length with both these matters and he found PW2 to be a witness that he was not prepared to rely upon. Mr Chandler argues that by doing so, he is favouring the complainant as a witness, but I see no evidence of that partiality.

22. Further, any argument that he was comparing the evidence of the complainant with the evidence of PW2 or other witnesses to whom he did not give full credence, fails upon a careful reading and analysis of his reasons, both written and oral. It is clear from his approach that the magistrate considered all of the evidence from all sources and determined from that evidence what he could and could not be sure was the truth.

23. Later in his grounds of appeal, Mr Chandler argues that the magistrate did not give sufficient reasons for giving less than full credit to a number of witnesses including PW2, the interviewing officer; PW6, the manager of the restaurant and PW7, Senior Inspector of Police who was present at the table. The magistrate does in fact give reasons, albeit not lengthy, for his decision to give these witnesses less than full credit. The reasons he gives involves contradictions and inconsistencies in respect of the first two witnesses and the level of intoxication of the third.

24. I find nothing sinister in the magistrate's approach to these witnesses and he is entitled to reach the conclusion that he did, being a professional magistrate in the position of having to evaluate the witnesses who came before him. I have dealt with the passages in the magistrate's reasons in respect of his description to the officer, PW2, in particular that the officer's evidence failed to take into account that she had just been assaulted by a police officer.

25. The next complaint is that the medical and photographic evidence of injuries were wholly inconsistent with the assault as described in evidence. The basis of this complaint is that the assault as described by the complainant would, on the argument, have been expected to give rise to a greater number of injuries than were found by the doctor and are to be seen in the photographs. In argument to the magistrate's finding that "the attack did not involve unrestrained violence and that the kick was probably in the nature of push with the foot rather than a forceful booting at her abdomen", Mr Chandler then said this :

" The overall effect of this aspect of the magistrate's finding cast doubt upon the reliability of PW1, is inconsistent to reach a finding that she was reliable than effectively reach findings of facts which were inconsistent with her account of the assault. The appellant submits this approach permeates throughout the magistrate's verdict and findings. Rather than stand back and clinically examine the evidence, taking into account the specific weaknesses that were apparent in the prosecution case, the magistrate has as a first step found that PW1 was reliable and as a result as found himself in the position where he has to either discount or get round those aspects of the evidence and impact adversely upon that conclusion."

This suggests very clearly a bias on the part of the magistrate. The magistrate in making his findings that unrestrained violence was not used, was entitled to do so by considering the fact that the attack was made by a police officer whom, it can be presumed, was reasonably fit and trained to deal with physical violence and the lack of serious injury upon the complainant. It is acknowledged that an assault took place. It is clear from the physical evidence of the photographs and the medical reports that the assault did not involve sufficient violence to result in severe injury or in injury to some parts of the body of the complainant where she testified she was assaulted.

26. I can find, in all the magistrate had said in the course of this matter, no indication of bias. It seems to me that on all occasions he has carefully considered the law and approached his evaluation of the facts in a detailed and meticulous manner.

27. Mr Chandler argues that there is a manifest discrepancy between the account the complainant gave to the police as to the involvement in the assault of the man wearing a cap and the evidence she gave to the court. The statement referred to is one given by the complainant after the identification parade and the cross-examination relating to the role played by the man in a cap. That suggested discrepancy arose in cross-examination out of a mistranslation of the witness statement. That matter was dealt with by the learned magistrate.

28. There was a discrepancy in her evidence in that the complainant mentioned that the other two men hit her, but taking all her evidence as a whole, the sum total was that these men assisted by pressing her shoulders. This was not a material discrepancy which called for an express analysis of the learned magistrate of this aspect of her evidence.

29. There was a discrepancy between the evidence of the complainant and that of the watchman as to when the assault took place. The watchman, having looked at his clock at around 1:10 a.m. said it was then he saw the assault take place, and PW2, the investigating constable, was called through the beat radio at 1:35 a.m. The complainant said in evidence the assault took place shortly after midnight and could not have taken place closer to 1.00 a.m. Mr Chandler argues that this discrepancy was not taken into account by the magistrate and should have reflected upon the unreliability of the complainant. There was no issue as to time in this matter and it is notorious that witnesses who are not looking at the clock do make mistakes as to time. This is not a matter which, in my view, had the importance which warranted a close analysis by the magistrate. There is nothing in this point.

30. Mr Chandler argues that the magistrate was wrong in finding that the complainant in identifying the appellant was performing an act of recognition. The magistrate accepted that the appellant and the complainant had not met before the evening of 16 October 1998 and the early morning of 17 October 1998. I have set out above the evidence indicating that the appellant and the complainant were face to face when she was introduced to each members of the party and toasted each of them and that she sat at a position one person away from the appellant during the course of the time that she was in the Paradise Restaurant when his profile would have been in her view. Mr Chandler argues that the magistrate proceeded upon the foundation that PW1 was a reliable witness and that in his finding that the complainant was at the table with the appellant for at least 30 minutes was erroneous, it was but 15 to 20 minutes. That there was no evidence that PW1 had the appellant within her direct line of sight and further, the length of time that the complainant had to view her attacker outside the restaurant. Her evidence was that at that time she turned around and faced the attacker and he kicked at her abdomen, threw her handbag at her, spoke a short sentence and walked off. Mr Chandler places this period at no more than one to two seconds in difficult circumstances.

31. All Mr Chandler argues is true. However, he does so in the face of the magistrate's meticulously setting out and having in his mind the approach that he must follow from R. v. Turbull and further, a meticulous consideration of the details of the events inside and outside the restaurant and the discrepancies therein. It was only after a full consideration of these matters and all the evidence that the magistrate came to the view that the complainant was a reliable witness and that the quality of her evidence was sufficient to convict. Minor differences in time such as a 10-minute difference in the length of time in the restaurant do not affect the magistrate's decision. I am satisfied that his consideration of the events outside the Paradise Restaurant as to the identification of the appellant by the complainant was proper.

32. A further matter arising under these two grounds of appeal was that the magistrate did not consider the risk that the complainant in identifying the appellant at the identification parade was identifying a person who was at the Paradise Restaurant but had not taken part in the assault. This would have been a speculation and not a matter for the magistrate to consider.

33. He also raises under Grounds 2 and 3 several other matters : the failure of the prosecution to tender in cross-examination the police officers present at the Paradise Restaurant other than PW7, Chan Chi Wai. It is open to the prosecution to call whom they wish, and the magistrate is not entitled to speculate upon what a witness might have said if he had been called. The misidentification by some witnesses at the identification parades and other minor matters which do not assist me in determining this appeal.

34. The fourth ground of appeal is that there was no evidence in the prosecution case capable of supporting the evidence of the complainant that the appellant had dragged her from the Paradise Restaurant and played a central role in the assault.

35. The magistrate had found support to a limited extent in the evidence of PW7, Senior Inspector Chan Chi Wai, and I have set out his passage referring to that support above. That evidence is limited to a contention that after the argument started, it was the appellant with two others who approached the complainant. Inspector Chan said the complainant stood up and went out of the restaurant with the appellant. The magistrate found that Inspector Chan maintained that he had not turned to look at them but he had heard them as they walked out of the restaurant.

36. The magistrate was fully aware that this evidence amounted to no more than an approach to the complainant by the appellant just before the appellant left the restaurant, and it was only to that extent that he found it support of the evidence of the complainant. He had fully in mind that the Inspector did not see the complainant leave the restaurant nor the appellant leave with her, at best he heard them do so. He was fully sensible to the fact that the witness, Senior Inspector Chan, had taken a considerable amount of alcohol and that he was to a great degree affected by it. Nonetheless, to that very limited degree he was entitled to find some support in that evidence, albeit of a minimal nature. The Turnbull situation of there being no supporting evidence does not apply. There was some supporting evidence, albeit of a limited nature.

37. Ground five argues that the magistrate erred in failing to deal with the possibility that the appellant was one of the three men outside the restaurant with the complainant but that he was not an assailant. The complainant said she was pressed by the two men and struck by the third. The watchman from across street said that one man took part in the assault and one of the other two appeared to be dissenting.

38. The magistrate considered this discrepancy. He said :

"PW4 says that when he looked, two of the males were not hitting her and indeed one tried to push away the main attacker."

39. He further said this about that evidence and the discrepancy between it and the evidence of the complainant.

"In considering the discrepancies between her and PW4, I bear in mind that PW4 said that the incident had been going on for some time before he looked. I am satisfied that what he saw was the end of the incident. He was also looking from across the road, passed parked vehicles which were bound to affect his view to some extent. It is appropriate to bear in mind that when people are describing a moving and violent incident, discrepancies as to the exact course of events are bound to occur. The question is whether they undermine the evidence so that it should be doubted and in particular in this case, whether they undermine the accuracy of their identification. I am sure that they do not do so."

40. The magistrate took that evidence and the discrepancy into account in deciding whether or not he could rely upon the evidence of the complainant that the appellant was the principal assailant. It was, of course, her evidence that when she turned round during the assault, she saw the appellant as the person who was assaulting her, and he continued to assault her. The mediation took place after the kick to the woman and the magistrate dealt with the circumstances under which PW4 had observed the assault. There is no error under this ground.

41. The sixth ground of appeal encompasses other grounds and relies upon the argument that it was incumbent upon the magistrate to assess the low reliability of the complainant objectively having regard to all the evidence in the case before he reached the conclusion that he found her reliable and could afford full weight to her evidence.

42. Mr Chandler argues that the magistrate adopted an approach that having heard her evidence, he assessed her to be reliable and thereafter he either ignored, discounted or waterdown evidence in the prosecution case which mitigated against her reliability. That it was incumbent upon the magistrate to satisfactorily explain the basis upon which he disregarded significant aspects of the evidence of PW2, the interviewing officer, PW6, the restaurant manager and PW7, Senior Inspector Chan as it impacted directly on the state of sobriety of the complainant, this he failed to do.

43. I have dealt with all these matters above. The magistrate carefully considered all of the evidence before coming to the conclusion that the complainant was reliable and that her evidence had a quality which enabled him to give it full weight. I can find no instances of bias on the part of the magistrate. The magistrate gave reasons for disbelieving or giving less than full credit to the various witnesses as I have set out above.

44. Ground seven was that the magistrate erred in that he found matters proved to criminal standard where there had not been express challenge during cross-examination of particular assertion as evidence. An election not to cross-examine does not justify the conclusion that the cross-examiner admits the truth of the facts stated such that an unchallenged statement is proved to the criminal standard.

45. In the course of his findings, the magistrate did refer to various pieces of evidence given by the complainant as being unchallenged. I accept Mr Chandler's argument that this does not necessarily mean that what is unchallenged is proved to the criminal standard of beyond reasonable doubt. However, the magistrate, in assessing the weight to be placed upon that piece of evidence, is entitled to take into account the fact that the defence did not contest that piece of evidence as being inaccurate. One of the purposes of cross-examination is to draw the attention of the tribunal to those parts of the evidence of a witness in respect of which the cross-examiner urges particular scrutiny. If the cross-examiner is prepared to leave a portion of the evidence-in-chief untouched and unexamined, then it is open to the tribunal to take the view that the cross-examiner is saying that the evidence does not warrant his attention and to take that into account in assessing whether he is prepared to believe it to the standard required. It still involves the tribunal making that assessment and not automatically accepting the uncontested evidence as being proved beyond reasonable doubt. I can find no indication here that the magistrate failed to make that evaluation. He is a professional magistrate and he is presumed to have done so.

46. This case was not a matter that involved a great volume of evidence and involved one major issue to be decided by the magistrate - that of the identification of the assailant. Whilst there is some law involved in that the manner in which a magistrate deals with fact is an approach determined by law. However the principal complaints by the Appellant in respect of his conviction are the findings of fact by the magistrate and the credit or lack of it he gave to various witnesses. These are matters within the province of the magistrate and an appellate court will be slow to interfere unless a magistrate can be seen to be in error. The magistrate's approach was to carefully and fully set out the law and carefully and fully set out the evidence and give a meticulous consideration and analysis. He had the benefit of full and very competent argument from Mr Chandler who appeared in the court below on the matters raised before me. I am satisfied that there is nothing in any part of his approach that warrants any criticism on my part. The appeal against conviction is dismissed.

47. The appellant has been convicted of one count of assault occasioning actual bodily harm and he appeals the sentence of three months' immediate custodial sentence passed upon him by the magistrate.

48. The magistrate was obliged to sentence the appellant upon the view of the facts that were most favourable to him. The magistrate had squarely before him those circumstances. The magistrate found that the appellant, in his assault upon the complainant, had used less than unrestrained violence.

49. In his analysis of the actual bodily harm suffered by the complainant, he found the extent of the injuries was not severe. He accepted the medical report which shows an 8 cm abrasion on the right forearm, a 3 and 5 cm abrasion at the front and back of the neck respectively, a cracked nail of the right index and middle fingers and three 1 cm diameter abrasions on the right leg.

50. Mr Chandler takes no issue with the length of sentence passed. What he urges upon me is to allow this appeal to the extent that the sentence be suspended. In not arguing against the length of the sentence, I think he is right. The normal sentence passed in cases such as this where there is actual bodily harm, a prison sentence normally follows. What he argues is that the magistrate in coming to his conclusion that the sentence should not be suspended, did not fully take into account firstly, the decree of provocation under which the appellant was suffering - not just Mr Chandler argues - from the action of the complainant within the restaurant, but also for the period testified to by the night watchman Mr Tang of some 15-20 minutes outside the restaurant and in the street when the watchman testified two voices having been raised and argument having taken place in the street.

51. Secondly, Mr Chandler says the magistrate should have given greater credit for the exemplary background of the appellant : his 20 years service with the police force and the potential loss of his pension and position, and I think he would adopt the matter I raised with Ms Sin - the particular difficulty that a police officer may suffer in serving a sentence in our prisons.

52. As to the position with regard to pension and loss of his job, the first case which I cite that has bearing on this aspect is R v. Maclennan [1996] 4 HKC 507 where the court, having been advised that the accused stood to lose his employment and position - and the accused in that case was a policeman - responded that 'he brought the matters upon himself'. That must be viewed in the light of an earlier case in Attorney General v. Poon Ping Kwok and Another [1992] 2 HKCLR 231 where Sir Derek Cons, VP (as he then was) said:-

"It is well accepted that losses and hardships of this kind suffered by an offender over and above the sentence imposed by the court may be taken into account as mitigating factors. ... What weight they should be given is a matter for the judge's discretion in the particular circumstances."

Notwithstanding that the case of Maclennan was decided more recently than Poon Ping Kwok, it seems to me that the law still stands that although the appellant brought the matter on himself, it is still open to me to take into account his loss of pension and his loss of position.

53. The second matter that I must be concerned about is the treatment of the appellant should he go to prison. It is a matter which I think I can take into account. However, I must also take into account that special provisions are made in prison for the security of prisoners.

54. Bearing in mind the most beneficial nature of the facts to the appellant, his accepted long service and commendations, exemplary service and his loss of position and pension, I must weigh that against what the public expects from its police force and to what extent those mitigating factors are special circumstances which would warrant suspension.

55. We have here a serving police officer who having gone off duty, chose to embark upon entertainment which resulted in he and members of his party consuming a considerable amount of alcohol. It reached a point where the lone woman, among six police officers, offended them to such a point that the appellant and others saw fit to take her from the restaurant. It was a situation where even if the other two police officers laid no hand upon her, she was faced with three men in the street whom she knew to be police officers. They were wholly unmindful of their position as officers. And notwithstanding any verbal abuse in the street or what had been said in the restaurant, they are expected to keep their temper and to keep control of their emotions such as not to reach a position where one of them, at least, inflicted an assault of this nature -involving the grasping of the neck and at the least a push with the foot to the abdomen of a woman - would have taken place.

56. It has been an anxious decision and I am very sensitive to the suffering which the appellant has already undergone and will undergo. But in all the circumstances I am not prepared to say that the magistrate was wrong in not suspending the sentence. The appeal against sentence is dismissed.

Representation:

Miss Mary Sin, SADPP, for the Respondent/HKSAR

Mr J. Chandler, instructed by Messrs Lau & Leung, for the Appellant