The Queen v. Au Hing-lun

HCMA001137/1986

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1137 OF 1986

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BETWEEN

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Coram: Hon. Barnes, J.

Date of hearing: 9th December, 1986

Date of delivery of judgment: 19th December, 1986

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JUDGMENT

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1. The Appellant pleaded not guilty in the Magistrates Court to the following charges :-

(A)	Criminal Damage;
(B)	Claiming to be a Member of a Triad Society;
(C) & (D)	Wounding;
(E)	Assault Occasioning Actual Bodily Harm.

2. He was convicted after trial and now appeals against each conviction.

3. The incident which gave rise to the charges occurred at about 1.30 a.m. on 15th June 1986 in the main lobby of the Island Shopping Centre.

4. The principal witness for the Prosecution was LAW Chi-kin (PW5). He said that he was a security guard on duty in the lobby at that time when a man, accompanied by a girl, emerged from a lift which gave access to a disco on an upper floor. This man approached a table in the lobby which the security guards used as a desk and, without saying anything, kicked at the table until he smashed it. PW5 remonstrated with him and asked him to accompany him to a police station. The man then claimed that he was named "Bin Tai" and that he belonged to a triad society. There was a short struggle lasting about three minutes between PW5 and the man as PW5 tried to prevent him from leaving the scene. The girl left during the struggle and the man also broke free and fled. PW5 then contacted two of his colleagues and called the police. Whilst he and his colleagues were waiting in the lobby for the arrival of the police, the man, accompanied by a group of about 30 men, returned, pointed to PW5 and said : "It's him - this fat boy". The group then began attacking PW5 and his colleagues with sticks and bottles. PW5 and one colleague suffered head wounds and another bruises during the course of the attack which lasted about thirty seconds according to one estimate or about a minute according to another. As the group fled PW5 picked up a piece of wood, followed the attackers, and saw them flee to the street.

5. A police party arrived and took the three injured security guards for medical treatment. They were the only injured people present when the police party arrived.

6. From uncontradicted and unchallenged evidence given by a police officer and medical practitioners there could be no doubt that a table had been demolished in the lobby and that PW5 and his colleagues had suffered injuries in the course of an altercation in which wooden sticks and glass bottles had been used as weapons.

7. Cross-examination of PW5 elicited evidence that (a) in his first statement to the police after the incident he said that the name of the man who smashed the table and returned with the attacking group was Bin Tai, that he was aged 22-23, five feet nine inches tall, of slim build, with a common hair style and "square faced", and (b) on 11 July 1986 he had had a meeting with the Appellant at which compensation for PW5 and the identification of the Appellant was discussed. It was also put to, but denied by, PW5 that he was mistaken in his identification, that the Appellant had emerged from the lift with about 5 or 6 other persons and that it was one of them and not the Appellant who had kicked the table.

8. The two injured colleagues of PW5 also gave evidence, confirming that the table had been smashed before the call to the police was made and that a group arrived in the lobby whilst they were awaiting the arrival of the police and that that group attacked and injured the three of them after one of the group had pointed out PW5 saying, "It's him". One of the two said in cross-examination that that man was aged about 24 and that he himself was aged 22. Leading counsel for the Appellant - it was not Mr. Eddis - put the following question to the witness :-

"Q.	Suggest that after desk demolished a group of guards rushed out of room and started attacking with sticks a group of people who had come out of the lift?"

The witness replied, "Disagree".

9. The Appellant said in evidence that he, unaccompanied, left the disco on the upper floor of the building at about 1.10 a.m. taking the lift doom to the lobby. Five other people of both sexes but who were unknown to him descended in the same lift. As the group emerged from the lift at the lobby a security guard approached them, alleged that someone had kicked the lift and then asked : "Who has moved the table?" A quarrel then ensued with some pushing for two or three minutes whereupon a group of ten odd people holding wooden rods rushed out from a room accusing the people who had emerged from the lift of coming to cause trouble. He ran from the building, caught a taxi and returned home. He denied each of the allegations made against him by PW5 in respect of the incident in the lobby. He denied saying that he was Bin Tai. He was not asked whether or not he was known as Bin Tai. He said he was 17 years of age, five feet eleven and a half inches tall and weighed 136 lbs.

10. One of the two witnesses called by the Appellant said that on the night in question he met the Appellant at the disco where they talked for about an hour. At about 1 a.m. the Appellant left with a girl. He said he did not know what happened after they left but that he "chased down to find out what was happening on the ground floor". On arrival he saw a group of about ten odd people fighting and he saw the Appellant being chased by some of the people. Following several references in his evidence to "Bin Tai" the learned magistrate asked :-

11. It was conclusively proved by way of formal admission pursuant to section 65C of the Criminal Procedure Ordinance that at an identification parade held on 18 July 1986 the Appellant was identified by PW5 and that his colleagues failed to identify anyone on that parade. In evidence PW5 said that the person he identified was the man who claimed to be Bin Tai, who had smashed the table and later returned with the attacking group. In court, he identified, the Appellant as that same man.

12. In cross-examination PW5 agreed that he had a meeting with the Appellant, on 11 July 1986. He said that at that meeting the Appellant proposed paying him a sum of money if PW5 failed to identify the Appellant to the police.                

13. The Appellant said in evidence that the meeting with PW5 was arranged by someone purporting to act on behalf of PW5 and that at the meeting PW5 demanded compensation promising that if it were paid he would not identify the Appellant when he was arrested.

14. The Appellant relies on 12 grounds of appeal but they can be summarized by saying that he contends that each conviction is unsafe and/or unsatisfactory because, in effect, the identification evidence was not reliable enough to support a verdict of guilty coming as it did from a witness whose evidence both as to the incident itself and as to the identification lacked credibility.

15. In her Statement of Findings the learned magistrate said :-

"As PW5 was the linch-pin of the prosecution case his credibility was an important matter. He impressed me as a simple and straightforward person who gave his evidence accurately to the best of his ability and recollection and who stood up well under a lengthy cross-examination.

I accepted his account of events and also his identification of the appellant ...

I had ample opportunity to consider appellant's demeanour whilst giving evidence. He did not impress me as a truthful witness and I did not believe his account of the assault.

DW2's account of the incident at the Island Shopping Centre was not incompatible with PW5's account except that he claimed that a large group of security guards chased the appellant away. But for that point his account was what might have been expected from a person who came down to the lobby at the end of the attack."

16. Ground 6 attacks the finding that PW5 was a credible witness in relation to the lobby incident. It is contended that his version was so "inherently improbable" that it should not have been accepted.

17. It was once the Appellant's own case - not the one he related in the witness box but the one put by his leading counsel at the trial - that the table was kicked and demolished. One of the other prosecution witnesses gave evidence that he saw the smashed table before the attackers arrived. The police party found evidence at the scene which tended to confirm the description of violence and destruction of property given by PW5. The fact that only the security guards needed medical attention and the nature of the injuries they suffered were also matters consistent with his description of the incident. There was therefore no "inherent improbability" in the version he related which could cast doubt on the validity of the assessment of credibility made by "the seeing and hearing judge". On the contrary, evidence which could not be challenged was so consistent with the account given by PW5 that his evidence generally as to the lobby incident could be safely accepted even if his credibility when relating subsequent events was open to doubt.

18. The other submission relate to the reliability of PW5's identification of the Appellant as the man who kicked the table and as the man who returned with the attacking group. The Appellant contends that the variance between the description given to the police by PW5 of the culprit's face, height and age and the Appellant's actual appearance was so great that the learned magistrate could not properly conclude that his identification was reliable.

19. A similar submission was made at the trial. With regard to it the learned magistrate in her Statement of Findings said :-

"In his description to the police PW5 described appellant as being 22-23 years of 5 ft. 9 in. in height and with a square face. Appellant is actually aged 17, 5 ft. 11½ in. in height and has a face that might more accurately be described as triangular.

Having considered the alleged differences I could not accept that appellant's appearance differed so markedly from PW5's initial description as to make his identification unsafe."

20. She then went on to demonstrate how the differences regarding age and height were reconcilable and having done that dealt with the facial description as follows :-

"The last difference, the shape of the face might appear irreconcilable except that, as I noted after careful study of appellant's face was heart-shaped, under in the temple area than the chin BUT the chin was set against a comparatively wide, thick neck which did give appellant's face a block-like appearance, particularly if viewed from a distance."

21. In response to a request during cross-examination PW5 described someone at the bar table as having a square face. The record does not disclose what the actual shape was but the cross-examiner immediately put that the witness had cunningly described the face as square so as to maintain consistency with his statement.

22. There was, however, other evidence which supported the accuracy of the identification. PW5 had said that the man who kicked the table emerged with a girl from the lift which gave access to the disco. The Appellant's friend. who gave evidence on his behalf said that the Appellant left the disco in the company of a girl. PW5 said the man with the girl said he was known as Bin Tai. The Appellant's friend said that the Appellant is known to his friends as Bin Tai. PW5 said that that same person later returned with a group and left with them when they fled after the attack. The Appellant's friend said he saw the Appellant fleeing from the scene after the attack. There was therefore ample evidence that the Appellant was at the scene. The learned magistrate, having accepted PW5's version of the incident, could have been in no doubt that the Appellant was accurately identified as the culprit.

23. There was head-on conflict between the evidence of PW5 on the one hand and that of the Appellant and another of his witnesses on the other regarding the meeting on 11 July 1986. It was, however common ground that no matter how the meeting came to be arranged and no matter how great the contradictions regarding the actual dialogue at the meeting the focal point of the discussion was the payment of money by the Appellant to PW5 if PW5 should fail to identify the Appellant after his arrest by the police. The learned magistrate found that PW5's account of what happened at this meeting was true.

24. Even if the learned magistrate did not accept his version of what happened at that meeting she could still rely on his account of the lobby incident and his identification of the Appellant because his evidence as to those matters was supported by other evidence which she was entitled to accept and did accept and act upon.

25. There is, of course, undoubted merit in the Appellant's submission that the identification parade which followed the July meeting was pointless. But the holding of a pointless identification parade did not affect the cogency of the evidence which confirmed the accuracy of the identification made in court.

26. The Appellant also relied on other matters in his attack upon the credibility of PW5. They were, however, unrelated to his evidence regarding the lobby incident and his identification of the Appellant. If the learned magistrate had found that she could not accept his evidence on those other matters it did not follow that she had to reject his evidence which bore upon the real issues in the case. She was still entitled to accept his evidence on those issues if there was other acceptable evidence supporting it. There was such evidence so there is no basis for disturbing the findings she made in relation to those issues.

27. The appeal therefore fails and is dismissed.

Representation:

Mr. Leclaire for the Crown.

Mr. F. Eddis, Q.C. and Mr. Andrew Kan (Poon & Sum) for the Appellant.