The Queen v. Ma Choi Sio-wai and Another

Case No.HCMA 409/1995

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCMA000409/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.409 OF 1995

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BETWEEN
	THE QUEEN	Respondent
	and
	MA CHOI Sio-wai	1st Appellant
	MA Man-chun	2nd Appellant

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Coram: Hon. Gall, J. in Court

Date of Hearing: 6th September 1995

Date of handing down judgment: 20th September 1995

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JUDGMENT

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1. The Appellants were convicted after trial before a Magistrate on the 28th of February 1995 of assault occasioning actual bodily harm contrary to Section 39 of the Offences against the Person Ord. Cap.212. The Appellants were discharged conditionally upon each of them entering into a recognizance in the sum of $1000 to be of good behaviour and to appear for sentence if called upon within 12 months. The evidence for the Prosecution was that the second witness for the prosecution and the first Appellant conducted businesses each selling similar clothing items in a shopping arcade. On the 5th of October 1994 the husband of the first Appellant entered the shop of PW2 and shouted asking the meaning of the words "Mainland Chicken." It was by the end of the trial common ground that these words are slang meaning mainland prostitute. On the case for the prosecution a fracas broke out involving an attack by the Appellants on PW1 who was forced to the ground and who suffered minor injury. Allegations were also made at the trial that the husband of the first Appellant also assaulted PW2 by pushing her into a chair. This evidence gives rise to the first ground of appeal as the learned Magistrate acquitted the husband, who was D3 in that trial. The Magistrate said in his findings:

	"Notwithstanding my acceptance of the evidence of PW1, PW2 and PW3 I was left feeling in some doubt as to the interpretation to be put on the actions of D3 in the shop.
	I felt there was room for at least the possibility his actions in holding his arm out to keep PW2 from joining PW1 as A1 and A2 assaulted her could have been by way of attempted peace making rather than aiding and abetting assault as alleged in charge B.
	I felt similarly in regard to the action of D3 that led to PW2 losing balance and falling into the chair.
	Accordingly I dismissed the 2 charges against D3."

2. Mr. Egan argues that by disbelieving PW1 and PW2 in respect of the acts of D3 and acquitting him the Magistrate was inconsistent in relying on their evidence to convict the Appellants. He further argues that the evidence given by PW1 and PW2 in respect of D3 is open only to being evidence of his guilt or is lies by PW1 and PW2 sufficient to destroy their credit. I do not accept those arguments. Clearly the Magistrate believed the evidence of PW1 and PW2 as to the actions of D3 but was not able to be sure of the intentions of D3 when performing those actions.

3. The second ground of appeal related to obvious denials by both PW1 and PW2 over the meaning of the words "Mainland chicken". The Magistrate directed his mind to those lies and in respect of PW1 said this:

	"When dealing in her evidence in chief with the "Mainland Chicken" and "Hong Kong Chicken" references of the 3rd of October PW1 foolishly, and obviously dishonestly, made what I judged to be a half-hearted claim that when she had used the term she meant "chicken which can be eaten" and that D3 had, upon hearing this, misunderstood it to be a reference to prostitution against his wife.
	PW2 was later, to a lesser extent, to make the same obviously untrue claim as to reference. Of course I did not believe either as to this and had no doubt the term had been used in its pejorative sense. These foolish claims were later focused on by Defence counseMagistrate I certainly had regard to it when considering the credibility of the evidence of PW1 and PW2 but I was sure this aspect was isolated and did not significantly detract from their reliability as witnesses"

4. The Magistrate was in the best position to assess the credit of these two witnesses. Whilst he is not entitled, as Mr. Egan argued, "to pick out the plums and leave the duff" he is entitled to view the evidence of a witness as a whole, to determine that witness has lied in some respect, and yet be sure that the rest of what the witness has said was, in the main, the truth.

5. The third and fourth grounds of appeal dealt with discrepancies between the statements made to the Police and the evidence given by PW1 and PW2. The omissions related to the pushing of PW2 by D3. The Magistrate categorised these discrepancies as minor. It is open to the Magistrate to take a broad view of the evidence before him. That evidence did not deal with the offences alleged against the Appellants in respect of which he was writing his findings. The Magistrate had these matters in mind when he assessed the credit of the witnesses. Not being evidence against these Appellants he properly took the discrepancies into account when deciding whether PW1 and PW2 were to be relied upon. Given the description of the events that took place I am not surprised that the Magistrate did not place weight on such differences nor that he found they did not destroy the credit of the witnesses.

6. The next ground of appeal relates to a denial by PW1 that animosity existed between her mother, PW2, and the first Appellant when PW3 confirmed it existed. This is not a point of substance. It is clear on the findings that by the time the events of the 5th of October were underway such animosity existed. In his findings the Magistrate holds that "PW1 denied and explained this" In her evidence PW1 said that there was no dispute between her mother and the 1st Appellant. In her evidence PW3 averred that "I could understand earlier on they unhappy with each other over prices of goods". That is the extent of the contradiction.

7. The sixth ground of appeal deals with the evidence of PW3. She was a shopkeeper unrelated to either party. She had a shop opposite that of PW2. When D3 entered the shop of PW2 shouting she took notice. PW1, PW2, the 1st Appellant and the 2nd Appellant were known to her, PW1 was not. She did not see who started the fracas but she did see the 1st and the and Appellant quarrel with PW1 then saw them pushing each other and then saw PW1 assaulted, her hair pulled and then PW1 pushed to the ground by the 1st and 2nd Appellant. This is not a case of identification. The parties were known to the witness and recognised by her. The events she witnessed were not fleeting in character. It is apparent from the record that on lookers partially obscured her view and that she did not clearly see each move by each person which led to PW1 being pushed to the ground however she is clear and unshaken in her testimony that she saw both of the Appellants assault PW1 pull her hair and push her to the ground. In fact she was never challenged in cross-examination on that evidence. The Magistrate was fully entitled to rely on her evidence as he did.

8. Ground seven complains that the Magistrate did not specifically warn himself of the good character of the Appellants. The time has gone when a Magistrate must set out in his findings the fact that he has warned himself of the good character and lessened propensity to commit the offence in an Accused. From its absence I am not prepared to assume the direction was not well known to the Magistrate and in the forefront of his mind.

9. Similarly in respect of the 1st Appellant I am not prepared to hold, in circumstances where the Magistrate has clearly given careful thought and attention to the matter before him, that he has failed to bear in mind the appropriate direction in respect of a finding that an Accused before him had lied. The Magistrate found:

"In response to a question from me A1 said she had not seen PW1 on the floor at any time in the incident. Notwithstanding the confusion this incident must have created in the shop I found this evidence from A1 told against her credibility ..."

10. I am satisfied the Magistrate drew no inference of guilt from that finding as he relates it solely to her credit as a witness.

11. I am satisfied that the Magistrate fully and properly considered the evidence before him, properly reached a decision as to the facts and applied the law as he should.

12. I am satisfied that the Magistrate fully and properly considered the evidence before him, properly reached a decision as to the facts and applied the law as he should.

13. The Appeal of each Appellant against conviction is dismissed.

	(T.M. Gall)
	Judge of the High Court

Representation:

Miss Lily Ho S.C.C. for the Crown.

Mr. Kevin Egan inst'd by M/s Pang Tang Wan and Choi for both Appellants.