HKSAR v. Tsang Chun Kit

HCMA000511/1999

HCMA511/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 511 OF 1999

(ON APPEAL FROM SKCC 564 OF 1999)

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Coram : Hon Nguyen J in Court

Date of Hearing : 18 November 1999

Date of Judgment : 18 November 1999

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J U D G M E N T

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1. The Appellant was convicted by Ms Adriana Ching of the offence of common assault on 10 May 1999 and fined $1,000. The particulars of the charge were that on 7 February 1999, at a barber shop in Kowloon, he assaulted PW1.

2. The prosecution called PW1, the victim, and PW2, who was an employee of the barber shop and who was present at the scene at the material time. PW3 was the arresting officer and did not add to the prosecution's case.

3. The allegation of the assault was that whilst the Appellant was having a dispute and an argument with the owner of the barber shop over some rental matter, PW1, who was the brother-in-law of the owner, stood between the Appellant and the owner of the barber shop. Whilst he was standing there he was pushed by the Appellant and as a result of which he fell to the ground. A simpler case than that is difficult to find.

4. Mr Andy Hung, who appeared for the Appellant, has made a gallant attempt in attacking the conviction, and in the result has produced a presentable and arguable case on appeal. Legal Aid was properly granted for the presentation of this appeal.

5. The evidence by PW1 was that at the time he was pushed, he had his back to the Appellant and, therefore, was unable to see who in fact pushed him. When PW2 gave evidence, he initially said that he saw the Appellant push PW1. Subsequently, in the course of his evidence-in-chief, he changed that evidence somewhat by saying that he in fact did not see the pushing but saw the Appellant withdraw his hands after PW1 had fallen. It was because of that apparent discrepancy in PW2's evidence which prompted Defence Counsel at the trial, who was not Mr Hung, to come to the decision that he need not cross-examine PW2. In the event, even though the prosecution had not closed its case, Defence Counsel made a submission of no case, which was properly rejected by the Magistrate.

6. Mr Hung has attacked the conviction on the basis that there was a discrepancy between PW1's evidence and that of PW2. The alleged discrepancies between those two witnesses had been set out very helpfully by Mr Hung in table form as part of his skeleton submission. I have gone through those alleged discrepancies and I do not see that they can in any way affect the reliability of the evidence of those two witnesses.

7. The other matter that Mr Hung relied upon was the alleged discrepancy within PW2's evidence as I mentioned above. In my view, this was not a discrepancy as such. What PW2 did in the course of his evidence-in-chief was to amplify on what he had said initially by saying that in fact his view of the Appellant was half blocked by PW1, and therefore he did not actually see the push, but only after PW1 had fallen did he see the Appellant's hands withdraw from the front of his own body to the side.

8. The other alleged discrepancy between PW1 and PW2 was that PW1 had said that he had his back to the Appellant, whereas PW2 said that PW1 was facing the Appellant when the assault occurred. Mr Hung complained that the Magistrate had not tried to resolve that discrepancy and had not applied her mind to that discrepancy. In fact, she did, because in her oral reasons for verdict, she said that PW1 was not standing absolutely motionless but was moving his head and his upper body around and, therefore, as Mr Albert Wong for the prosecution has submitted, this could have been the reason why PW2 said that he thought that PW1 was face to face with the Appellant.

9. Mr Hung also complained about three comments that the Magistrate made when she was giving her oral reasons, the first of which was when she said : "It only appears that PW1's evidence was in dispute." That comment was true to the extent that PW2 was not in fact cross-examined. But I am sure that the Magistrate was not proceeding on the basis that PW2's evidence was admitted by the Appellant. The other comment was when the Magistrate said that when Defence Counsel made his half-time submission, he apparently had said both PW1 and PW2 appeared to be honest and credible witnesses. That might have been taking what Counsel was saying a bit out of context, and I am sure that the Magistrate was not assessing the evidence on the basis that it was accepted by the Defence that those two witnesses were honest and credible witnesses. The third comment was after the Magistrate had convicted the Appellant, when she was dealing with the question of sentence, she said : "You were in fact given a chance to be bound over and you refused." The complaint was that she might have been prejudiced by that when she was assessing the evidence. It did not appear from the record that she was or she might have been prejudiced by that fact, and when she made that remark, that was in the context of the assessment of sentence.

10. Mr Hung also relied on the Hong Kong case of R. v. Ng Wing Ming [1995] 1 HKCLR 64 to support the proposition that where there were inherent probabilities in the versions put forward by the prosecution's witness that was a more valuable test than the demeanour of the witnesses. It was held in that case that when such an event occurred, the trial judge had to weigh the inherent probabilities and should not just rely upon the demeanour of the witnesses. In that case the complaint was much more justified than the present appeal. The inherent improbabilities of the prosecution witnesses' evidence in that case were serious and extensive and were set out in detail by the Court of Appeal.

11. In the present case, there were no inherent improbabilities in PW1's evidence. The fact that he was the brother-in-law of one of the protagonists of the dispute was mentioned by the Magistrate and must have been very much in her thought and in her mind. It is not inherently improbable that the Appellant in the heat of the moment could have pushed PW1.

12. As was said in the English Court of Appeal case of the R. v. Cooper [1969] 1 QB 267 :

"... the court must ask itself the subjective question whether they are content to let the matter stand as it is or whether there is not some lurking doubt in their minds making them wonder whether an injustice has been done. The reaction may not be based strictly on the evidence and can be produced by the general feel of the case as the court experiences it."

13. I have considered the evidence in this case. The Magistrate was entitled to find, as she did, that PW1 and PW2 were honest and credible witnesses. She was entitled to disbelieve the Appellant. I do not find, having considered the evidence, that I have any lurking doubts about the safety of this conviction. The appeal is dismissed.

Representation:

Mr Albert Wong, SGC of the Department of Justice, for HKSAR

Mr Andy Hung assigned by the Legal Aid Department, for the Appellant