HKSAR v. Lee Shun Tak

HCMA000123/1999

1999, No. MA123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 123 OF 1999

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Coram: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 25 May 1999

Date of Delivery of Judgment: 25 May 1999

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J U D G M E N T

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1. On 24th December 1998 before Stephen Smout Esquire in the San Po Kong Magistracy, this Appellant was convicted of Common Assault. He now appeals against conviction.

2. The charge arose out of an incident involving the Appellant who is a taxi-driver and a passenger. The passenger was a seventeen-year old girl who testified as PW2 and said that the Appellant had pushed her to the ground and had slapped her face. He, on the other hand, gave evidence denying that he had assaulted her saying that there had only been angry words between them arising out of her rudeness. Another taxi-driver gave evidence in support of the Appellant's account. The Magistrate was satisfied beyond reasonable doubt that the truth came from PW2 and not from either taxi-driver. He summarised the fact which he found as follows: -

"(a) the appellant pushed PW2, causing her to fall to the ground.

(b) upon her standing up, he slapped her once across the left side of her face.

(c) in doing so, he was not acting in self-defence nor had he any other lawful excuse.

(d) the appellant's actions amounted to an assault on the person of PW2."

3. I turn to the grounds of appeal. Five matters are listed out as making the conviction unsafe and unsatisfactory. The first reads: -

"The learned magistrate erred in fact in finding there was evidence or inference that PW1, the police officer, was concentrating on the violent aspect of the events and there was no need to write down every detail."

4. What this referred to is the following observations in the Magistrate's Statement of Findings: -

"Her witness statement had not included a striking comment made to her by the appellant. I was not surprised that her evidence contained more detail than an earlier witness statement but in any event I accepted her explanation that she had told the statement taker of the remark. I was not surprised, no did I think it incredible, that the officer, who no doubt was concentrating on the violent aspect of the events should take the view that there was no need to write down every detail."

That is an acceptable approach for a Magistrate who saw and heard all the witnesses.

5. The second and third matters relied upon as making the conviction unsafe and unsatisfactory may be taken together. They read as follows: -

"The learned magistrate erred in fact in finding that PW2's initial reluctance at first in her testimony to admit using vulgar language in the quarrel but she subsequently so admitted was not due to a desire not to tell the whole truth.

The learned magistrate erred in fact in finding that her reluctance in admitting using foul language was not a good ground for rejecting her evidence."

6. That relates to the following observations in the Statement of Findings: -

"PW2 demonstrated some reluctance at first in her testimony to admit to using vulgar language in the quarrel. She subsequently so admitted. I was satisfied that her initial reluctance was not due to a desire not to tell the whole truth. PW2 was a girl of 17; I was satisfied that she was embarrassed about admitting she used foul language. This reluctance on her part was not in my view a good ground for rejecting her evidence. I believed that she was telling the truth about what had occurred."

Again, one has to remember that the Magistrate saw and heard all the witnesses. He was entitled to take the approach set out in the passage which I have just quoted.

7. The fourth and fifth matters relied upon as making the conviction unsafe and unsatisfactory may also be taken together. They read as follows: -

"The learned magistrate erred in law and in fact in finding that DW2's testimony was so similar to the appellant's testimony that they had concocted DW2's testimony.

The learned magistrate erred in law and in fact in finding that as both the appellant and DW2 testified that PW2 threatened "to play with" the appellant, such remark was concocted to bolster the appellant's case that he had been framed up."

8. As to this, I quote the following passage from the Statement of Findings: -

"I also rejected the evidence of DW2, a fellow taxi driver and acquaintance who testified that he saw the events. I did not believe him. I did not believe he was even there. In my view it was incredible that he could recollect the incident in such great detail, viz., phrases spoken, position of the parties. At no stage had he made a written record of the events. He only became aware that this incident had any significance when he overheard the appellant discussing it about one week later. Moreover his testimony was so similar to the appellant's as to leave me in no doubt that they had put their heads together to concoct this witness' testimony. Both could remember that the female went away in the direction of the railway station, which was an insignificant detail. Both testified that PW2 threatened "to play with" the appellant. I had no doubt that this alleged remark was concocted to bolster the appellant's case that he had been framed up."

Having seen and heard all the witnesses, the Magistrate was entitled to take the view set out in the passage quoted above.

9. In my judgment, the conviction is neither unsafe nor unsatisfactory, and I dismiss the appeal.

Representation:

Mr S.Y. Fung (Solicitor of M/s S.Y. Fung) for the Appellant

Miss Vivien Chan (of the Department of Justice) for the Respondent