HKSAR v. Lam Po Kwai

HCMA000331/1999

HCMA331/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.331 OF 1999

(On Appeal from WSCC 14995 of 1998)

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Coram: Hon Nguyen J. in Court

Date of hearing: 23 November 1999

Date of judgment: 23 November 1999

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J U D G M E N T

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1. The Appellant was originally charged with the offence of wounding. It was alleged that on 22 October 1998, outside No.128, Caine Road, he did unlawfully and maliciously inflicted grievous bodily harm on one Jamie Taylor. He was tried before Mr K.A. Browne and on 5 March 1999, he was convicted of the lesser offence of common assault. He now appeals against conviction.

2. On his behalf, Mr David Wong has put forward a number of grounds to try to satisfy me that the conviction was unsafe and unsatisfactory.

3. The matter had arisen in this way. The victim had been drinking in the Mandarin Hotel for some three odd hours before he took a taxi to go home. As the taxi was proceeding up Cotton Tree Drive on its way to Caine Road, there was an incident involving the taxi and the private car driven by the Appellant. There was no accident but the incident resulted in the taxi driver sounding his horn and flashing his lights at the Appellant, whose vehicle was at that time in front of the taxi. In the event, the taxi overtook the Appellant's car and proceeded on its way to Caine Road. The taxi was followed by the Appellant because the Appellant was apparently travelling on the same route. When the taxi arrived outside the victim's house at No.128 Caine Road, the taxi stopped and the victim alighted.

4. The victim was not cross-examined by Defence Counsel at the trial regarding whether after the incident in Cotton Tree Drive, the victim, sitting in the taxi, had done anything or had made any gestures towards the Appellant. But when the victim alighted at Caine Road and was walking towards a gap in the railing to get onto the pavement to get into his own block, he was able to see the Appellant seated in his own car which was at that time stopped just behind the taxi. According to the victim, the Appellant was making some sort of gesture at the victim from inside his car which, as Mr Wong submitted, was rather surprising because the original incident had not involved the victim and was an incident between the taxi driver and the Appellant. In answer to what the Appellant was doing, the victim made some sort of rude gesture with his hands which then prompted the Appellant to alight from his own vehicle.

5. It seems to me that the victim, whilst in the taxi, must have started to make some gestures with his hands towards the Appellant which is why when the victim alighted from the taxi, the Appellant in turn made some gesture back at him. In any case, the victim said that as he was on the concrete block, which was about 18 inches high, and was in fact the gap that he was trying to go through, the Appellant approached him and the victim then turned around to face the Appellant. The victim then said that the Appellant grabbed hold of either his tie or his jacket and then swung him to the ground which caused him to break his left ankle. When he saw the doctor in Matilda Hospital later on that evening, he had said to the doctor, inter alia, that he had fallen off that concrete ledge which, of course, was entirely different from what he had said in Court that it was the Appellant who had swung him to the ground. He had also said to the doctor at one stage that he was attacked by more than one person.

6. After he was swung, according to him, to the ground and his ankle was broken, it appeared that he was able to remember very little more of what happened. He was able to remember at one stage that after the Appellant left the scene and boarded his own vehicle, that he, the victim, was crawling on the ground to try and retrieve his glasses which had fallen off from his face.

7. It seems to me that because of the state of intoxication (even if he was not intoxicated, he must have at least been under the influence of drinks) which would account for his, if it is true, gesticulating from inside the taxi towards the Appellant which apparently caused the Appellant to alight from his own vehicle, the state that the victim was in would also account for the varying versions that he gave to the doctor which were different from the version that he gave in Court. It would also, to my mind, account for why the victim was unable to furnish the Court with more precise details of what happened at the scene.

8. In the event, the learned Magistrate was unable in effect to accept the evidence of the victim because the Magistrate said that he could not be sure as to the circumstances in which the victim moved from the concrete ledge to the road.

9. However, that was not the end of the incident because as the altercation was going on between the victim and the Appellant, the third prosecution witness, who was a stranger to the victim, was walking along Caine Road ahead of where the altercation was happening together with her boyfriend. When she heard the noise of people arguing, she turned around and she said that from a distance of about 10 metres away, she saw a Chinese male kicking and punching the victim and that this went on for about 20 to 30 seconds. She then ran towards these people and as she approached them, she was able to see that as a result of the kicking and punching, the victim fell onto the ground after which the Chinese male continued to kick and punch the victim as he lay on the ground.

10. This evidence by this witness in effect spawned the grounds of appeal that Mr Wong relied upon and it is not necessary, for the purpose of this appeal, to go through each of them individually save to mention two, which Mr Wong laid the most emphasis on. One of the things that Mr Wong relied upon was that according to him it was clear that when PW3 and her boyfriend began to run towards the scene, the Appellant was on the verge of leaving the scene. So he submitted that PW3 could not possibly have seen the Appellant kick and punch the victim as the victim lay on the ground. He also attacked that evidence to the extent that the victim himself said that after he broke his ankle, he could not remember very much more about what happened. But he was able to remember pushing himself up and crawling on the ground to try and retrieve his glasses. The victim himself never said that he ever fell to the ground and said that throughout the whole incident, after his ankle was broken, he sat on the floor. So according to the victim, the only time he was on the ground was when he was crawling on the ground to try and retrieve his glasses.

11. Mr Wong therefore submitted that if that was the case, when the victim was crawling on the ground to try and retrieve his glasses, that would have been after the incident was over and the Appellant had left the scene, and was either on the verge of boarding his own car or had boarded his own car. Therefore, Mr Wong submitted, it would have been impossible for PW3 to have seen the Appellant punch and kick the victim as the victim lay on the ground.

12. Under our criminal justice system, the prosecution brings a charge and then the prosecution has to prove the charge beyond reasonable doubt by evidence which is adduced at the trial. The evidence must satisfy the tribunal of fact beyond a reasonable doubt that the person is guilty of the offence as charged. An Appellate Court is not in the same position as the trial Court inasmuch as the Appellate Court does not have the benefit of seeing and hearing the witnesses. This is what judges and lawyers mean when they talk about a tribunal of fact having to take into account the demeanour of the witness or the witnesses who give evidence.

13. The fact that the Appellant and his witness who was called to give evidence on his behalf was disbelieved by the Magistrate does not assist the prosecution's case because, at the end of the day, the prosecution still has to satisfy the Magistrate so that he is sure. Insofar as the Appellate Court is concerned, the Appellate Court should only interfere if in the view of the Appellate Court, there is insufficient credible evidence to support the charge, or having looked at the whole transcript of the trial, the Appellate Court is left with a lurking doubt as regards the safety of the conviction.

14. In this particular case, the Magistrate in effect did not accept the evidence of the victim. However, he accepted the evidence of PW3 in so far as she said that as she approached the scene, after having begun to run from where she and her boyfriend were towards the complainant, she was able to see what was happening and she described what she saw was happening, namely, that the victim was on the ground and the Appellant was punching and kicking him.

15. The apparent contradiction between that evidence and the victim's own evidence that the only time he was on the ground was when he was crawling after the Appellant had left the scene, was a matter which the learned Magistrate had very much at the forefront of his mind when he delivered his verdict. It is not my function to try and reconcile these apparent discrepancies in the prosecution's case. But it does seem to me that the victim, being in the state that he was in, quite clearly was not in a position to remember everything that happened at that place. It is common knowledge that when people are under the influence of drinks, if they are able to remember any matter at all, it may well be that they can only remember some matters and not others. So it is not beyond the realms of possibility that the victim was not able to remember being on the ground being assaulted by the Appellant other than when he was crawling to try and retrieve his glasses.

16. I am not in a position to say that PW3, when she gave evidence, was unreliable. She was clearly a person who has no axe to grind. She did not know the victim, she saw what was happening and as a good citizen she tried to assist by running towards where the incident was taking place together with her boyfriend. She tried, to the best of her ability, to describe what was happening. It is also common knowledge that different people may have different powers of perception or observation of a particular incident. And it is quite common to hear a few different versions from different witnesses of a short incident lasting a matter of seconds. So different people have different powers of perception. What she was doing was trying, to the best of her ability, to describe what she saw which was why when she was asked on which part of the victim's body was he punched and kicked by the Appellant, she, in my view, quite truthfully and honestly, said she was unable to identify the parts of his body which were being assaulted. But she insisted that she did see the Appellant punch and kick the victim as he lay on the ground. Insofar as she described what she saw when she first began to run towards the complainant, the Magistrate thought that, even though she was an honest witness, she was mistaken about her initial observations. But he relied upon her later observation when she was closer to the scene and when no doubt the lighting proved to be better for her to observe what was going on.

17. Mr Wong, inter alia, submitted that if the victim was on the ground, being punched and kicked by the Appellant, he must have sustained more injuries than he actually did, and there must have been more damage done to his clothings. What the doctor found when he examined the victim was the broken left ankle and a bruising of the right side of the mid-back which he subsequently, in his evidence, amplified on by saying that it was a spine back tenderness without any bruising. The lump on the victim's head which he claimed he had and the bruises on the back of his hand which he said he sustained were, according to him, mentioned by him to the doctor. But the doctor in his own evidence did not mention these alleged injuries.

18. At the end of the day, the Magistrate accepted, as I say, PW3's evidence and based upon that evidence, convicted the Appellant of the lesser charge. As I have indicated earlier, I am not in a position to say that the Magistrate was wrong to have accepted that evidence, nor am I in a position to say that PW3, when she gave that evidence which was accepted, was an unreliable witness and I am unable to say, having read the transcript of the trial and having been presented with very full and meticulous and persuasive arguments by Mr Wong about the strengths and weaknesses of the prosecution case that I find myself with a lurking doubt about the safety of his conviction.

19. So, in the event, the appeal is dismissed.

Representation:

Mr G DiFazio, SGC of the Department of Justice, for HKSAR

Mr P.H. Wong, David, instructed by Messrs Wong, Hui & Co., for the Appellant