HKSAR v. Yip Yat Ming

HCMA000128/1998

HCMA128/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO. 128 OF 1998

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Coram : Hon Nguyen, J. in Court

Date of hearing : 26 June 1998

Date of judgment : 26 June 1998

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J U D G M E N T

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1. The Appellant was convicted of common assault by Mr Andrew Chan, sitting in Tsuen Wan Magistracy. He now appeals against that conviction.

2. The Appellant had been tried by Mr Chan and had been acquitted of the 1st count of criminal intimidation. The basis of the acquittal was not that the learned Magistrate did not believe the prosecution witnesses, but was simply because the Magistrate found that the words in question might have been uttered in the heat of the moment without any intent on the part of the Appellant to carry them out.

3. I should mention from the outset that this appeal was pursued quite properly and quite correctly by Mr Wong and the grant of legal aid, in the circumstances of this case, was a correct decision for the department to have made.

4. In relation to the assault charge, Mr Wong has appeared and has made use, as the basis of his appeal, of the fact that there were three important discrepancies which were not dealt with, or sufficiently dealt with, by the learned Magistrate. The three discrepancies that Mr Wong mentioned are important discrepancies. The first is whether two persons or four persons accompanied the Appellant back to the restaurant; the second is whether one of the two persons who came into the restaurant to assault PW2 ever tried to hit PW2 with a pot or a thermo-flask; the third discrepancy is did the Appellant, after the assault, leave the restaurant together with the assailants.

5. I would not endeavour to try and resolve these discrepancies because it is not my function to try and do that. In relation to the first discrepancy, I think Mr Law, appearing for the prosecution, has validly made the point that in terms of observation of events, people may have different observations and people may observe things from different angles, and people may have different recollections of actual events. The important thing to remember is that this was a fairly simple matter that the learnt Magistrate was trying. The trial commenced at about 10 a.m. and concluded shortly after lunch, at about 2:30 p.m. Even though Defence Counsel in his final address did not enumerate the discrepancies, to my mind it must be clear that those discrepancies must have been very much in the forefront of the Magistrate's mind when he arrived at his verdict. I should mention that Defence Counsel at the trial was not Mr Wong.

6. It would be a counsel of perfection to expect busy magistrates, when writing out their Statements of Findings, to enumerate each and every discrepancy which has arisen in the course of a trial. The important thing is whether those discrepancies were considered by the magistrate before he arrived at his verdict. Mr Law has quoted to me the case of The Queen v. Chung Chu Choi, CA85 of 1986 where the Court of Appeal said that a judge in giving his reasons for verdict is not obliged to set out discrepancies and evaluate each of them. The case that Mr Wong relied upon Lam Kam Ming & Anr. v. R., CA607 of 1979 says no more than that the reasons given by a judge or magistrate should illustrate that the salient points in the case were evaluated. It is said in that judgment that significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved, and that the judge or magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at.

7. In the present case, basically, it must have been apparent to the Appellant and his lawyers that the basis of the conviction was that the learned Magistrate accepted the evidence of PW2, the victim of the assault. One reason which must have enabled the Magistrate to accept PW2's evidence was the fact that on controversial matters, PW2 was corroborated by PW4.

8. Insofar as the assault was concerned, the controversial matter was : was the Appellant present when PW2 was assaulted? The controversial matter was not how PW2 was assaulted, and how many persons had accompanied the Appellant to return to the restaurant.

9. Insofar as Mr Wong's Ground 2 is concerned, namely, the discrepancy between PW2's evidence and what appeared in the medical report, that was mentioned and dealt with by the learned Magistrate.

10. In the event, I come to the conclusion that having reviewed the evidence, I do not feel that there is a lurking doubt about the correctness of this conviction. Accordingly, the appeal has to be dismissed.

Representation:

Mr Thomas Law, S.G.C., for Director of Public Prosecutions

Mr H.Y Wong, assigned by D.L.A., for Appellant