R. v. Vlau Yuet Ming and Others

HCMA000079/1997

1997, No. MA 79

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

________________

________________

Coram: Hon Gall, J. in Court

Date of hearing: 25 April 1997

Date of delivery of judgment: 7 May 1997

________________

J U D G M E N T

________________

1. The three appellants were convicted on 21st November 1996 - as to the 1st appellant, in respect of one charge of common assault and one of false imprisonment; as to the 2^nd appellant, one charge of common assault and one charge of false imprisonment and as to the 3^rd appellant, one charge of common assault, one charge of false imprisonment and one charge of criminal intimidation. Each of them appealed those convictions.

2. The principal prosecution witness in respect of this matter was one Leung Che-hin who was a business associate of the 1^st and 2^nd appellants. They had been together in business in China investing in real estate and a factory. It is quite clear from the evidence that disputes arose between the witness for the prosecution and his associates. As the magistrate set out there were two major areas of dispute between PW1 on the one hand and the 1^st and 2nd appellants on the other. The first concerned a loan of $400,000 in early 1994 and the second concerned the alleged failure by PW1 to account to the 1st and 2nd appellants for his financial dealings in China on their behalf. The matter was further complicated by the facts that PW1 gave evidence that at about 10:00 p.m. on 4th June 1996 whilst in the Yuen Long area he was seized by some persons unknown to him, a hood was put over his head and he was pulled into a vehicle and assaulted. It was accepted that the appellants were not connected with that assault. The next afternoon he was treated for injuries received in that attack at Princess Margaret Hospital. PW1 told the Hospital Authorities that he had sustained a head injury in that attack by having wooden blocks fall on his head, this was a lie. Subsequently an arrangement was made between PW1 and the 1st and 3rd appellants to meet at the Stanford Hotel in Mongkok on 6^th June at 7:30 pm. PW1 said that he went to that hotel on 6^th June in the evening accompanied by a friend. There was no one there when he arrived, he paged the others and 10 minutes later, the 1st, 2nd and 3rd appellants arrived. There was a conversation which became heated and they left the premises and went to the President Karaoke Lounge nearby where they went to a karaoke room on the 2nd floor. The friend of PW1 remained waiting on the 1^st floor. In that room, a dispute arose. PW1 said that he was prevented from leaving by the 3rd appellant and when he tried to open the door and leave, the 3rd appellant pushed away his hand and there was an argument. At this stage four to five Chinese males came into the room and words were exchanged. Those men left. Threats were allegedly made to PW1. He tried again to leave but was prevented by the 3rd appellant. Finally, the 3rd appellant punched him once on the chest and he fell to the ground near the sofa. The Chinese men that he had previously referred to then returned and he was accused of beating up somebody's wife. He was then hit and punched over his body. They then stepped back and let him leave. He rushed outside and asked someone to make a report to the police. A report to the police was made and some time later the police arrived and the 3rd appellant was found to be a police officer.

3. The grounds of appeal were firstly that the prosecution witness, PW1, misled the court by lies; secondly, that he misled persons outside the court; thirdly, that the evidence of PW1 was inherently unlikely and inconsistent both with his police witness statement and the evidence of other witnesses and finally that the conviction was unsafe and unsatisfactory.

4. What these grounds of appeal amount to is that PW1 who was the mainstay of the case for the prosecution was an obvious liar and that the magistrate was wrong to have believed those parts of his evidence which constituted the elements of the offences against the appellants.

5. The magistrate was fully aware of the fact that lies had been told in court by PW1. He said :

"I considered his evidence very carefully and certain aspects of it gave me cause for concern. I accepted that PW1 may have been less than frank as regards his financial dealings with D1 and D2. I considered the various matters which were covered extensively by defence counsel in his cross-examination of PW1. In my view PW1 probably exaggerated the degree of the assault inflicted upon him. However, at the time of the assault there was no doubt that he was suffering from injuries sustained by him 2 days earlier and he must have been in some pain and discomfort because of them."

The magistrate in his very comprehensive and detailed findings also considered the discrepancies between what PW1 told the police and what was contained in his statements to the police.

6. I need not go into all the details set out in the very well prepared and argued perfected grounds of appeal. Suffice it to say that all the matters complained of by the appellants were before the magistrate and the defects in credibility the lies, the exaggerations and the inconsistencies between the evidence of PW1 and his statements and the inconsistencies between his evidence and that of the defence witnesses were considered by the magistrate and, nonetheless, he decided that on those matters which related to the elements of the charges before him, he was able to accept so that he was sure of the evidence of PW1.

7. I am asked to hold that he could not have done so. However, where a magistrate has fully and properly considered those matters which affect the credibility of a witness but nonetheless having given them full consideration goes on to accept parts of the evidence as being true and when he gives proper reasons for doing so, I cannot say either that he has acted in an improper manner nor that the conviction is unsafe and unsatisfactory. An appellate court must be slow to discard a magistrate's careful detailed and well reasoned decisions for findings of fact or for a decision as to the credit of a witness in respect of a part or the whole of his evidence and to replace it with an evaluation made by that court from the transcript. The appeals against conviction are dismissed.

Representation:

Mr Joseph To, S.C.C., for Crown

Mr G. Plowman, Q.C. leading Mr Richard Wong, inst'd by M/s S.K. Wong & Lee, for 1^st, 2^nd and 3^rd Appellants