HKSAR v. Cheng Kam Piu

HCMA000356/1999

HCMA 356/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 356 OF 1999

(On appeal from ESCC 4250 of 1998)

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Coram: The Hon. Mr. Justice Yeung in Court

Date of Hearing: 18 August 1999

Date of Judgment: 18 August 1999

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J U D G M E N T

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1. The appellant, Cheng Kam Piu was convicted after trial on a charge of assault occasioning actual bodily harm. The victim of the case was Li Ka-chun. There can be no dispute that the victim had been assaulted. The only issue was whether the Appellant was the attacker.

2. The incident took place at the exit of a karaoke bar. It is fair to say that at the time of the incident, the situation was somewhat chaotic and it was very noisy as well.

3. At the time of the attack, Li Ka-chun was leaving the karaoke bar. He said he was attacked from behind on his head with a hard object. The victim, after the attack was able to walk forward for about five paces, before he turned around and he then saw three persons including the Appellant whom he knew. He said at that time, none of these 3 persons carried a hard object in their hands.

4. According to the victim, the Appellant did not do anything. But the others attacked the victim's friends, Lee Chi-ho and Kei Siu-man.

5. Lee Chi-ho's account of the incident was slightly different. He said he and Kei Siu-man were walking ahead of the victim, he then heard a noise and he turned around. He said he saw the victim had been injured and at that time the Appellant was holding a dice-shaker and was standing at a short distance, about 1 metre from the victim.

6. He said, at some stage, that there was a fight between the Appellant and the victim and he tried to drag them away. On another occasion, he seemed to suggest that he pushed the Appellant away because the Appellant was nearest to the victim.

7. Kei Siu-man also said when they were leaving the karaoke bar, the victim was 3 metres behind him and Lee Chi-ho. He said he heard a noise and he turned around, and he saw the victim injured. He had no idea who had assaulted him. He then approached the group whom he thought was the attacker to stop them. He dragged one of them away but was himself struck on the head by someone which resulted in his having a bleeding nose and he then began to pass out.

8. One of the police officers who arrived at the scene saw the Appellant pushing the victim and there was a struggle. He separated them and the victim alleged that the Appellant had attacked him with a hard object causing him to bleed. According to the police officer, the victim's companions also suggested that the Appellant attacked them because of an earlier quarrel. The officer then searched the area but could not find anything. By that time the other two companions of the Appellant had left.

9. The Appellant was subsequently interviewed, he is alleged to have admitted that he had assaulted the victim with fist because of an earlier dispute and that he was drunk at that time.

10. The Appellant's case at the trial was that it was his friends, Jackie and Ricky who argued with the victim's group. He just tried to mediate and tried to separate them. One of his friends supported the allegation of the Appellant. The manager of this karaoke bar also claimed to have witnessed the whole incident. They supported the Appellant's case to the extent that he did not assault the victim.

11. The learned Magistrate clearly borne in mind that the situation was chaotic and that the evidence of the witnesses was not all entirely consistent. He commended that the incident took place at the exit of a karaoke bar at about 2:00 a.m. and that the people involved in the incident seemed to have been in the bar enjoying themselves and no doubt had been drinking. He also said he had to comb the evidence to find out what in fact happened.

12. The task of the learned Magistrate was probably made more difficult because the victim and his friends might not have been completely truthful and forthcoming. They all disagreed that there had been dispute before the assault took place, a fact, contradicted by the police officer. In the light of such confusing, conflicting and sometimes contradictory evidence, it is, in my view, important that the learned Magistrate must carefully analyse and evaluate the evidence.

13. In his oral reason for verdict, the learned Magistrate said the following:-

"One has to comb the evidence to find out what in fact happened. What is apparent from the evidence of the three civilians is that no one actually saw the blow land. All we have is the evidence of PW1 that it was a blow caused by a hard object. The defendant was in the vicinity and in a position to land such a hard blow. The defendant was seen by at least one witness in possession of a dice shaker. Is a fist a hard object? In the circumstances of this case, I believe it can be. Can a fist cause a laceration? Of course it can. The three civilian witnesses made no attempt to embroider their evidence. They could quite easily have said, 'Yes, we saw the defendant hit PW1.' They did not."

14. On such finding, it is clear that the learned Magistrate concluded that no one actually saw the Appellant striking the victim and he could not be sure of it was a fist or other hard object that caused the injury to the victim.

15. Then in his written statement of finding, the learned Magistrate when referring to the evidence of PW2 Lee Chi-ho said the following:-

"He heard a noise and saw the defendant attack PW1 with a dice shaker. He insisted that the Appellant had been involved in the attack."

16. The learned Magistrate continued, when referring to the evidence of the other witness, Kei Siu-man, the following was said:-

"At same point PW3 heard a noise from behind and turned to find PW1 being attacked by an unknown group."

17. The learned Magistrate's finding in his written statement of finding was different from what he said in his oral reason for verdict. The finding that the Appellant was seen attacking the victim with a dice-shaker was also inconsistent with the evidence of the prosecution witnesses. PW2, Lee Chi-ho never said he saw the Appellant attacked the victim with a dice-shaker. In fact, because of his failure to give evidence on this aspect, in the course of evidence, there was an attempt by the prosecution to turn him hostile. The application was rejected by the Magistrate.

18. Whilst PW3, Kei Siu-man might have said that he thought that the Appellant's group was involved in the attack, he did not see who actually attacked the victim. There is no evidence to support the Magistrate's finding that "PW2 saw the Defendant attack PW1 with a dice-shaker" or that "PW3 turned to find PW1 being attacked by an unknown group".

19. A magistrate, of course, is entitled to give brief oral reasons for decision to be followed by written statement of findings in which, the oral reasons are expanded, elaborated or supplemented. But a magistrate must ensure that there is no contradiction or inconsistency between one and other. Otherwise, a convicted accused might have a justifiable sense of grievance and justice cannot be said to have been seen to be done.

20. In this particular case, there is, in my view, confusion as to what in fact happened during the attack on the victim, in particular, whether he was attacked by fist, or whether he was attacked and injured by a dice-shaker, or whether the Appellant was actually seen inflicting the blows.

21. Though the Appellant appeared to have admitted assaulting the Appellant in the record of interview, by reason of the matters I earlier mentioned and also taking into consideration the entire background of this case, I cannot conscientiously say that the conviction in the circumstances can be described as safe and satisfactory.

22. That being the case, the Appellant must be given the benefit of the doubt. The appeal is allowed, the conviction is quashed and the sentence is also set aside.

Representation:

Mr. Selwyn Yu instructed by DLA for the Appellant

Mr. Joseph To, S.G.C. for Respondent