The Queen v. Wong Chi Kin

HCMA000249/1986

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 249 OF 1986

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BETWEEN

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Coram: de Basto J.

Date of hearing: 21st April, 1986.

Date of delivery of judgment: 12th May, 1986.

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JUDGMENT

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1. The appellant was charged with assaulting Madam KU Lan on the 1st December of last year at the corridor outside Room 1246, Block A, Un Chau Estate in Kowloon. The appellant was unrepresented but the magistrate explained to the Appellant his rights.

2. Madam KU testified that on the 1st of December of last year she saw the appellant walking to and from outside her door, looking into her premises. He did this from about 6 p.m. to 6.30 p.m. She closed the door. At about 6.40 p.m. she caused her door to be open as she was cooking fish causing smoke. The appellant was still walking up and doom the corridor. Madam KU asked him what he was doing and why he looked at her. She was still in her flat- the appellant did not reply. She again closed the door. After her dinner she opened her door at 7.55 P.M. to take back her rubbish bin. She opened the iron grille and suddenly the appellant punched her in the eye and ran away. Later when the police arrived one of them (PW2) noticed Madam KU had red marks on her nose arid near her eyes. Madam KU said her eye turned black at the hospital. In cross-examination the appellant did not suggest that he was not walking up and down the corridor looking into her flat. He did not suggest that at 6.40 p.m. when she re-opened the door he was still there nor did he suggest that she never asked him what he was doing and that he did not reply. He did not suggest that when at 7.55 p.m. she again opened the door to take her rubbish bin in he suddenly punched her and that after that he ran away. He did, however, suggest that the whole of her evidence was lies. But the learned magistrate no doubt took into account he was unrepresented and he made no point that the  salient features of Madam KU's evidence were unchallenged.

3. PW2, PC21823 gave evidence that the appellant said he did not hit her and that at 7 p.m. he happened to look outside and he saw Madam KU who accused him of starring at her and that she abused him. He told the constable that after he and his relations had finished their meal and were about to leave and when they opened their door Madam KU argued with the appellant's father-in-law and gave one of his relations a kick.

4. PW3, PC22333 arrested both the appellant and Madam KU who were charged with common assault.

5. The appellant said that at 7 p.m. his sister-in-law asked  him to open the door as her cooking was causing smoke. The door was subsequently closed. They had their meal and at about 8 p.m. they all left together. He had his child in his arms He reached the 11th floor and heard loud noises above. He went back to the 12th floor -his children were crying and a group of people were arguing. He said, in effect, his wife did not see the incident. It was his sister-in-law who told him. When he got there Madam KU was arguing with his mother-in-law, his sister-in-law, his wife and father-in-law. He didn't hear the details - he didn't try to calm them down because they were women. He didn't know what it was about. He said he did not tell the police Madam KU accused him of starring or peeping at her. He said Madam KU accused them of starring at her and making loud noises.

6. Madam YIP Yam-lai said she heard a shout for help, she looked through the iron grille and she saw Madam KU throw a rubbish bin at the appellant's father-in-law. She saw the appellant there with his child. Under cross-examination she said she was 100 feet away at the time and didn't really see clearly. She said she could not recognize Madam KU's voice - she said she knew the appellant's family quite well, for ten years.

7. The third defence witness, Madam SIU Lai-wah was a relation of the appellants. She heard some women arguing. It was very noisy. She heard a woman shout for help. Shortly after she saw the appellant he was holding a child in his arms. She said she saw the appellant after "they" had finished arguing. She could not see where he had come from. She only saw a child injured - then she said she didn't see that - she only heard it from others. She did not see any fighting or assault.

8. In my view the learned magistrate was perfectly entitled to say that DW2 and DW3 did not see the incident.

9. The fourth defence witness Madam YAN Lai-kuen was the appellant's sister-in-law. At 8 p.m. they opened their door. Madam KU's door was closed. The appellant went down the stairs first followed by his wife and her. Suddenly a woman came from behind and abused her. There is no evidence, that if Madam KU did go down the stairs whether she went down one or more steps. Madam KU said they were making a noise which mar getting on her nerves. She was still on the 19th floor - she saw Madam KU turn around and rush towards her father-in-law. She saw Madam KU pick up a bucket and throw it at her father-in-law - her younger sister warded it off. She said Madam KU said, "Who dialled 999 will be chopped by me". No other defence witness had mentioned this. She said she did not hear Madam KU accuse anyone of starring or peeping at her. She denied making a statement to the police that Madam KU accused the appellant of peeping at hero She was asked to look at her statement and she replied, "She accused us of looking at her". She was asked whether she had told the police that "Madam KU abused all of us because the defendant had peeped at her". She replied she had not said that. She was asked whether she signed the statement and she then said she told the police Madam KU accused the appellant of looking at her. This is at variance with the appellant's evidence. She said. Madam KU asked her son to bring her a knife. No other defence witness had mentioned this.

10. In his Statement of Findings the learned magistrate said that Madam KU was very clear that she was assaulted by the appellant. She said she treated her evidence carefully bearing in mind that she might have been minded to make up a false story because of previous difficulties between herself and the appellant and his family. He said he thought Madam KU threat a bucket at the appellant's father-in-law afterwards but he did not find it surprising that Madam KU made no mention of this. He said, quite rightly, that DW2 and DW3 had witnessed the argument after it had started. He said DW4 had followed the appellant out of the flat and went downstairs and then, she heard Madam KU behind. He said "If I accepted her evidence it would mean the assault could not have been committed by the appellant but by someone else". He said he did not believe her evidence or that of the appellant. He believed Madam KU when she said she was assaulted by the appellant.

11. He said DW4 had been very reluctant to agree that Madam KU had accused the appellant of   looking or starring at her which, as the magistrate said, was according to Madam KU the start of the trouble. DW4 had only conceeded that when confronted by the statement she had made to the police. The magistrate said the appellant did not strike him as a truthful witness and he rejected his evidence. He was left in no doubt that the appellant did assault Madam KU by punching her face. The magistrate said he reminded himself that he was not to find the appellant guilty simply because he did not believe him.

12. In his Ground of Appeal the appellant said the learned magistrate had failed to consider sufficiently or at all eight matters which are set out in the Grounds of Appeal. I am not going to deal with those individually and all I wish to say is that the magistrate said in his Statement of Findings he considered all the evidence and I am not persuaded that the learned magistrate did not do just that. I must say, with respect, that some of the matters alleged not to have been considered by the magistrate were lacking in merit. The magistrate's first finding was that Madam KU's evidence was essentially uncorroborated. This is inconsistent with the ground 1(d) that the magistrate had not considered or sufficiently considered that Madam KU had not called her husband or son to corroborate her evidence.

13. Ground 1(c) said there was no evidence as to who had called the police. Madam KU said she told her son to call the police - PC21823 was told a relation of the appellant had called the police. The sister of the appellant did not give evidence. Ground 1(f) said there was no medical evidence before the court that Madam KU's injuries were caused by a punch rather than by some other cause. Is it seriously suggested that a doctor or a forensic pathologist should have been called to give their opinion on such a matter? Ground 1(g) has me confused -there is no evidence that Madam KU assaulted the appellant -why should evidence have been called, presumably by the Crown, that the appellant did not need medical treatment or attention. The second Ground of Appeal was that the evidence of Madam KU was inherently improbably and/or that the evidence before the learned magistrate did not prove the appellant's guilt beyond reasonable doubt - again, 8 reasons were given for that ground. Some of these overlapped with Ground 1. For example Ground 1(b) vas that Madam KU's evidence provided no reason why the appellant should hit her. Ground 2 (3) was that Madam KU's evidence provided no reason for the appellant striking her. The Crown does not have to prove motive although the magistrate in his Findings makes reference to the previous difficulties between Madam KU and the appellant and his family who lived immediately opposite her.

14. In my view there was ample evidence for the magistrate to come to the conclusions he did having regard to his Findings on the credibility of the witnesses called before him.

15. As regards Mr Allman-Brown's comments on the evidence I would like to refer to the judgment of the Privy Council reported in the case of Valarshak v. Standard Coal Company reported in the All India Reporter, Volume 30, 1943 at p 161 p and c. The headnote reads : -

"The appellate Court should not ordinarily interfere with the trial Court's opinion as to the credibility of a witness as the trial Judge alone knows the demeanour of the witness; he alone can appreciate the manner in which the questions were answered, whether with honest candour or with doubtful plausibility, and whether after careful thought, or with reckless glibness; and he alone can form a reliable opinion as to whether the witness had emerged with credit from a cross-examination."

16. There was sufficient evidence before the learned magistrate to come to the conclusion he did and I see no reason to disturb his verdict. The appeal is dismissed.

Representation:

Mrs A. Harris, Crown Counsel for Crown.

Mr Allman-Brown assigned by D.L.A. for Appellant.