HKSAR v. Chu Kin Leung and Another

HCMA000920/1999

HCMA 920/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. HCMA 920 OF 1999

(ON APPEAL FROM STCC 778/1999)

-------------------------

--------------

Coram: Hon Nguyen J in Court

Date of Hearing: 15 December 1999

Date of Judgment: 15 December 1999

----------------------

J U D G M E N T

----------------------

1. The two Appellants were convicted of common assault, the 1st Appellant of two charges and the 2nd Appellant of one charge. They were convicted by Mr Josiah Lam, sitting in Shatin Magistracy. They now appeal against their convictions.

2. The allegation by the prosecution is that the two Appellants had assaulted PW1 and PW2. PW1 and PW2 are husband and wife. Prior to this alleged assault, PW1 had had a dispute with the wife of the 1st Appellant. As a result of that dispute, PW2, the husband of PW1, had assaulted the wife of the 1st Appellant. The alleged assault by the two appellants then followed very shortly on the alleged assault by PW2 on the wife of the 1st Appellant.

3. Mr Lee, appearing for the Appellants, has advanced two grounds of appeal. The first ground is that the Magistrate failed to warn himself, before accepting the evidence of PW1 and PW2, that these two witnesses might have had improper motives to give evidence. He relies on R. v. Beck [1982] 1 WLR 461 where the Court of Appeal in England referred to the obligation upon a judge to advise a jury to proceed with caution where there is material to suggest that a witness's evidence may be tainted by an improper motive. This was quoted with apparent approval by the House of Lords in R. v. Spencer [1987] 1 AC 128, and the case was followed in R. v. Witts & Witts [1991] Crim. LR 562 where the appeal was allowed on the basis that the judge had failed to advise the jury to treat the evidence of two witnesses with caution.

4. The only Hong Kong case that Mr Lee was able to find was R. v. Kwan Yam Tong [1993] 1 HKC 276 where the Court of Appeal allowed the appeal because the trial judge, sitting by himself, had found that the alleged victims of a gambling fraud were truthful witnesses. The trial judge had also found that these victims had no motive to lie. The Court of Appeal was of the view that the latter finding was not based on reasonable grounds and the Court held that had the trial judge indicated that he had considered the possibility that the alleged victims might have had an ulterior motive, but was satisfied that they had nonetheless told the truth, then his finding that the witnesses were truthful witnesses would have been unassailable.

5. Ms Ko for the Respondent, in reply, relied on R. v. Sheik Abdul Rahman Bux and Others [1989] 1 HKLR 1, where the Court of Appeal quoted from Blair-Kerr J in R. v. R.E. Low [1961] HKLR 13 :

"... The District judge's only statutory duty is to record a short statement of the reasons for the verdict. There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence. Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a judge misdirects a jury on a matter of law. ..."

6. Mr Lee responded to that in the following way : that in sexual cases, if a Magistrate fails to warn himself of the dangers of convicting on the uncorroborated evidence of the complainant, the conviction would be quashed even though the Magistrate is a professional Magistrate and is presumed to know the law.

7. In the present case, it must have been very much in the forefront of the Magistrate's mind that PW1 and PW2 had been involved in an earlier dispute with the wife of the 1st Appellant. It must also have been very much in the forefront of the Magistrate's mind that the prosecution were alleging that PW2 had assaulted the wife of the 1st Appellant, and that PW2 was awaiting trial for that matter. This was brought to the attention of the Magistrate before PW2 was called, and the Magistrate quite properly warned PW2 of his rights against self-incrimination. In the event, PW2 did exercise his right against self-incrimination and refused to answer questions about his and his wife's dispute with the wife of the 1st Appellant. However, questions were asked of PW1, the wife of PW2, about that dispute, and PW1 did admit in cross-examination that during the dispute with the wife of the 1st Appellant, PW2 did use a ceramic tile to hit the wife of the 1st Appellant.

8. These matters were very much in the forefront of the Magistrate's mind when he assessed the evidence of PW1 and PW2. Indeed, in his Statement of Findings, he mentioned that PW2 had assaulted the wife of the 1st Appellant, and that he had been arrested by the police and was awaiting trial, and that he, the Magistrate, had earlier warned PW2 against self-incrimination.

9. Mr Lee suggested that the Magistrate was bound to state all the possible motives PW1 and PW2 might have had to give false evidence against the Appellants, and Mr Lee submitted that the failure of the Magistrate to warn himself about these possible ulterior motives rendered the conviction unsafe and unsatisfactory. I do not agree.

10. In Kwan Yam Tong, the situation was quite different. There, the witnesses were in a more sinister position than the witnesses in the instant case. Those witnesses were victims of what is called the "Heavenly Swindle" which is where the victim is initially asked by the defendants to play a part in defrauding somebody else. The reality is that these victims were themselves to be made victims by the defendants, but the victims themselves did not realize this at the time and thought that they were taking part in a fraud to try and deceive other people. That, by itself, would make the witnesses suspect witnesses. In addition, the trial judge there had found that the victims had no motives to lie when quite clearly that was not so.

11. In the present case, Mr Lee suggested that PW1 and PW2 would have had motives to lie because they would have wanted to exonerate themselves from the pending charge against PW2; or they might have had the motives to wish to lessen the pending charge against PW2. These matters would have been obvious to the trial Magistrate. It would have been more desirable if the Magistrate had made reference to these matters in his Statement of Findings, but we are all very conscious of the pressure that Magistrates in Hong Kong have to work under, and we are all conscious of how time consuming writing out detailed Statements of Findings can be. It will be a counsel of perfection to expect every conceivable point of law to be mentioned by any trial Magistrate.

12. In the instant appeal, I am satisfied that the trial Magistrate was aware of the positions that PW1 and PW2 were in. I am satisfied that the trial Magistrate would have been alert to any improper motives they might have had to wish to lie against the Appellants. The two incidents were, after all, quite separate and distinct. The dispute involving PW1 and PW2 and the wife of the 1st Appellant was quite distinct and separate from the assault by the two Appellants on PW1 and PW2.

13. The second ground that Mr Lee advanced is the lurking doubt argument because of the discrepancies between the evidence of PW1 and PW2, particularly when PW1 had said that PW2 was assaulted for two to three minutes whereas PW2 himself said he was assaulted for 15 minutes. This was a matter which the Magistrate did refer to in his Statement of Findings and which he tried to resolve by saying that most people would not be able to estimate time lapses very accurately, especially when conditions are chaotic and the witnesses might have reasons to worry for their own safety.

14. The other matter that Mr Lee relied upon was the part of PW2's body which he claimed was injured. In Court he had said it was his abdomen, whereas in his statement to the police he had said it was his heart. Again, this was a matter which the Magistrate referred to in his Statement of Findings and which the Magistrate resolved in the way that he did.

15. There were other discrepancies that Mr Lee relied upon, but all these matters must have been considered by the Magistrate before he returned his verdict. This was so because the Appellants were legally represented at trial and all these matters would have been referred to the Magistrate by the lawyer representing them.

16. Having considered all the evidence, I am not left with any lurking doubt about the safety of the convictions. In the end, despite Mr Lee's persuasive arguments, the appeals must be dismissed.

Representation:

Ms Catherine Ko, SGC of the Department of Justice, for HKSAR

Mr Lee Yee Hung, instructed by Messrs Raymond Cheung & Chan, for the Appellants