The Queen v. Chang Kwong Wing

HCMA000830/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL N0. 830 OF 1988

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BETWEEN

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Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 29th September 1988

Date of Delivery of Judgnent: 29th September 1988

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J U D G M E N T

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1. The Applicant pleaded not guilty to a number of charges and was eventually found guilty of claiming to be a member of a Triad Society, blackmail arid two counts of assault occasioning actual bodily harm.

2. He faced the first charge, the charge of claiming too be a member of a Triad Society, alone but was jointly charged with another on the other charges. The other person is not before the Court but he has been referred to in Mr. Wu's submission on behalf of the Appellant as the 2nd Defendant (t:2), and I will refer to him in that way as well.

3. The charges arose out of an incident on a Kowloon street on the evening of the 1st April. The prosecution version of the incident was that three young boys, two of whom were brothers, one aged 14 and the other 15, and the third boy also aged 15 were walking in Ma Tau Wai Road at about 10.50 p.m. The Appellant who was then in the company of D2 accused one of the boys; the14 year old of using foul languige against the Appellant's mother. The boy denied the allegation and the group apparently stopped at this point on the street, D2 left them, but returned shortly afterwards with four other men all aged about 20 and carrying three knives. During this part of the confrontation, the Appellant claimed to be a member of the Sun Yee On and demanderd $540 from the three boys, threatening them with a beating if they did not pay D2 then picked up a bamboo stick and hit one of the boys about the head with it causing him to fall to the ground where lie was then kicked by the Appellant. D2 then attacked another of the boys with the stick, knocked him to the ground where he was subjected to further blows and kicks by a number of the group including the Appellant.

4. Two police officers who happened to be in the vicinity had their attention attracted to the incident and on first becoming aware of it, saw a group of about 10 people, two of whom were on the ground with one being struck by a person identified as D2. He in fact, was so busy striking the boy on the ground that he was unaware of the approach of the police officers and was apprehended in the act. The other members of the group apparently were aware of the approach and made good their escape.

5. This Appellant later returned to the scene to make enquiries about his friend, D2. The boys, on seeing, his return, recognised him as one of their attackers, pointed him out to the police and he was arrested.

6. Two of the boys suffered bodily injury during the attack.

7. A triad expert gave evidence that the sun Yee On was a triad society.

8. The Appellant was the only witness for the defence. He said hat he had been at a restaurant and that as he left the restaurant he was abused by a group of 7 - 8 youths who then crossed the road. He beckoned to them to come back and was then joined by D2 for a few moments, after which, D2 returned to the restaurant. The group he beckoned did not respond so he went across the road, joined them and asked who it was who had sworn at him. There was a denial that anybody had sworn whereupon he was joined by D2 and four other friends. He sensed that there was going to be a fight, heard one of. the boys claim to be a member of the Sun Yee On whereupon the two groups then walked along the street together, talking to one another but he, the Appellant, took no part in the conversation.

9. He denied that he claimed to be a member of the Sun Yee On, denied asking for $540 and said that no one had carried knives. He said that shortly after they began walking along the street, the two groups began to fight. He did not know which group first used violence but he himself did not participate. He said he stood aside, crossed his arms and watched what was going on There was much confusion and the police then arrived. D2 was caught and his other friends ran away. he himself walked slowly from the scene to look for his friends. He did not find them so he walked back to the scene and he was then arrested.

10. The learned magistrate gave very detailed and substantial reasons explaining why he accepted the evidence of the three boys and rejected that of the Appellant where there was conflict between the two versions of the central incident.He also accepted the evidence of the two police officers and convicted the Appellant on the four charges to which I refer.

11. There are six, grounds of appea,l four dealing with specific allegations of failing adequately to evaluate certain parts of the evidence, one alleging an error of law in finding the Appellant guilty as a participant in a joint enterprise and the other the general "unsafe, and unsatisfactory" ground.

12. Some of the matters to which Mr. Wu has drawn my attention were the subject of submissions made at the trial and have been dealt with by the magistrate in his Statement of Findings.

13. Mr Wu, in addition, submits that the evidence of the boys about the group being armed with knives is inconsistent with the evidence of the police officers. They did not see anyone holding any knife when they arrived at the scene. This was not a point made by either of the two counsel who appeared at the trial and so it is understandable that the learned magistrate has made no reference to it.

14. It is a matter which could not have affected the magistrate's decision in finding the Appellant guilty on the assault charges because the police officers witnessed an assault by D2 using a bamboo stick, and although they did not witness the Appellant actually assault any of the boys, their evidence was consistent with the evidence which the boys gave about the nature of the assault.

15. There was also evidence by one of the boys that a knife had been placed at the neck of one of his friends, and evidence by another boy that two knives were shown at some stage and the evidence of another boy which did not mention any threatening with knives.

16. The magistrate said he expected discrepancies in evidence given by a number of witnesses describing a fast moving and confusing incident. One witness at the scene will not see exactly the same as another Discrepancies in descriptions of who did what to whom, when and how, in such circumstances, will always arise. If the tribunal which sees and hears the witnesses comes to the conclusion that those witnesses were telling the truth then such discrepancies do not by themselves undermine that finding. The discrepancies to which the Appellant draws my attention are discrepancies of that kind and are reconcilable on that basis.

17. The learned magistrate gave detailed consideration to all the discrepancies to which my attention has been drawn. The way in which he dealt with them has not been the subject of criticism on this appeal nor could it be.

18. One matter which was not mentioned by either counsel in their submissions at the trial arose in the cross-examination of one of the boys. It was put to one boy on behalf of the Appellant that he was sworn at by one of the other boys because the Appe1lant looked at a female. After the counsel pointed to the Appellant the boy replied "Roughly". There was no further reference during the course of the trial to that question and answer. There was no attempt by anyone at the trial to pursue the matter in order to discover what exactly the answer meant.

19. I am unable to interpret that the answer means and it seems to me that no further reference was made to it because everyone at the_. trial regarded the question and the answer as meaningless.

20. It is alleged that the magistrate erred in law and in fact in finding that the Appellant was guilty of the offence of assault occasioning actual bodily harm on the basis of joint enterprise.

21. In his Statment of Findings, the magistrate after giving reasons as to why he was satisfied that the Appellant was guilty as a direct participant in the attack, went on to say this: "even if I were in error in this finding, there was ample evidence to justify conviction of this assault on the basis of a joint attack and joint enterprise by his participation in and indeed instigation of, a common design to assault those whom he collectively threatened with a beating immediately prior to the beatings taking place".

22. It is clear that that was an alternative basis on which the magistrate was finding the Appellant guilty. There is no meritin the submission but even if he were purporting to find the Appellant guilty on the basis of joint enterprise, I can see nothing wrong with the finding because there was ample evidence to support it. I see no merit in that ground.

23. All the matters which have been put forward on behalf of the Appellant by Mr. Wu have no merit. The appeal must therefore be dismissed.

Representation:

Mr. Bessell, C.C. for the Crown.

Mr. Paul K.N. Wu (Poon & Cheung) for the Appellant.