The Queen v. Wong Ping-nam and Others

HCMA000077/1984

IN THE HIGH COURT

BETWEEN

Coram: Deputy Judge Wong in Court.

Date: 6th July, 1984

Date of hearing: 29th June 1984

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JUDGMENT

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1. The appellants are and were at the material time employees of the New Territories Urban Services Department. They were charged before a magistrate with assault occasioning actual bodily harm but were convicted of common assault. They now appeal on  the ground that the convictions were unsafe and unsatisfactory.

2. The facts briefly were that at about  5 p.m. on the 22nd September 1983 the appellants were among a team of members of the Hawker Control Unit who arrived in a truck at the Pak Kok Temporary Housing Estate in Tuen Mun to carry out hawker clearance duties. Hawkers fled, and goods were seized. The learned magistrate made the following  findings of fact:

3. Firstly it was argued by Mr. CHENG Huan on behalf of the appellants that there is no or insufficient evidence of identification that the three were among the attacking team.

4. The evidence indicates that the complainant PW1 and his wife CHU Siu-ying PW5 identified all three appellants. PW2 TAM Yat-on identified the second and third appellants as two of the men who assaulted the complainant. PW3 KEUNG Yee-kin testified that the three appellants took part in the fight. Although PW6 LEUNG Yee-tai did not identify any appellants he gave clear evidence which was not challenged in cross-examination that a team of Urban Services Department officers assaulted the complainant. In addition there is the evidence of the first appellant who admitted that he and the other two appellants were present when the complainant struck him first.

5. The learned magistrate had the opportunity to observe the demeanor of the witnesses and the first appellant, he is in a much better position to decide who were truthful and reliable witnesses and who were not. He believed the evidence of the prosecution witnesses and it is quite clear from the statement of findings that he evaluated their evidence very carefully.  At page 25 of the record, the learned magistrate said:

"Even if I was to discount the evidence of PW1, PW2 and PW5, there still remain 2 prosecution witnesses PW3 and PW6 both independent witnesses who were moved to attempt to restrain the Urban Services Department team from attacking PW1.  Their evidence I entirely accept."

6. When the magistrate said this he must clearly have had the credibility of these witnesses in mind. I do not agree that this paragraph can be construed to mean that the learned magistrate completely disregarded the evidence of PW1, PW2 and PW5. He was only trying to emphasize that even without the evidence of these witnesses there was still sufficient evidence to prove the charge. He was perfectly entitled to act on the evidence of these three witnesses if it was corroborated by other evidence. It is obvious this was what he did.

7. From the totality of evidence, I come to the conclusion that there is evidence, if believed, to support the learned magistrate's finding that the three appellants were among the group of people who participated in attacking the complainant.

8. The next argument advanced by Mr. CHENG Huan was that it was wrong for the learned magistrate to approach the issue of guilt or innocence on the basis that there was a common intention on the part of the Urban Services Department team to assault the complainant and later modified his finding that the common intention was either to over-power, subdue or arrest the complainant.

9. At page 24 of the record, it is true that the learned magistrate mentioned the common intention to assault the complainant but he did so only by way of reference to the prosecution allegation. This is what he actually said:

"and indeed it is implicit in the prosecution allegations that the whole Urban Services Department Team of 10 or more by way of common intention took part in the assault of PW1."

There is no inconsistency with his very clear and positive finding at the bottom of page 24:

"Even if PW1 did punch or attempt to punch D1 (and once more I must give the defendants the benefit of doubt) then the force used by the 3 defendants as part of that group was excessive."

and at the top of page 25:

"That the common intention of the 3 defendants as part of the group of 7-8 Urban Services Department Team members that took part in the attack on PWl was either to overpower, subdue or arrest the PW1 but in common each defendant must share in the use of excessive force."

10. The learned magistrate was in no doubt that the complainant was attacked by a group of the Urban Services Department Team and the three appellants were among those who took part. It is open to him to say on the evidence of the prosecution witnesses and the medical report that the force used was excessive. Once he came to this conclusion it matters not whether a common intention existed or not. What was going on at the scene must be so obvious to all the members of the Urban Services Department Team and it was plain that they were pursuing a common object and everyone of them was ready and prepared to assist each other if and when necessary. It is enough if the common intention existed at the time, it did not have to exist well in advance.

11. Lastly Mr. CHENG Huan complained that the learned magistrate failed to apply the proper standard of proof and the passage he had in mind is at page 25 when the learned magistrate said:

"In comparing the various explanations given by the one defence witness and the various prosecution witnesses I accept without any doubt at all that PW1's injuries were caused by the Urban Services Department Team's attack on PW1.  The 3 defendants being 3 members of the part of the team involved in the attack."

12. Mr. CHENG Huan relied on the decision of McMullin, J. (as he then was) in CHAN Wing-yuen v. The Queen (1977) H.K.L.R. 186. It is not necessary for me to go into the details, it suffices to say that the learned magistrate in that case employed the word "prefer" or "preferable" on numerous occasions in his statement of findings when he referred to the evidence of the prosecution witnesses and the defendant.  The passage which read as whole clearly conveyed the impression that he was applying the standard of proof of balance of probabilities as required in a civil case.

13. In my view, the present case is quite different. What the learned magistrate did here was that he examined and considered the evidence of the first appellant and the prosecution witnesses and the evidence of the prosecution witnesses was not contradicted after he compared it with the evidence of the first appellant and he made it perfectly clear that he was left in no doubt that the complainant's injuries were caused by the Urban Services Department Team. I do not think that the learned magistrate was in any way attempting to balance the defence and prosecution stories against each other. The prosecution evidence in this case is quite capable to stand on its own without having to pray in aid the evidence of the defence. In the circumstances, although I take the view that it would be more desirable if the learned magistrate had used words such as "considered" or "examined" instead of "compared" I am however satisfied that there is no material irregularity.

14. The appeal is dismissed.

Representation:

Mr. McCelland, S.C.C. for Crown

Mr. CHENG Huan (Chung, Kwan, Chan & Evans) for Appellants.