HKSAR v. Ng Kam Wai

HCMA295/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.295 OF 2004

(ON APPEAL FROM TWCC 4074 OF 2003)

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BETWEEN

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Before : Hon Burrell J in Court

Date of Hearing : 23 November 2004

Date of Judgment : 3 December 2004

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J U D G M E N T

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1.This is an appeal against a conviction for a common assault.  The appellant was convicted after a trial before permanent magistrate Mr J. Glass at the Tsuen Wan Magistracy on 23 February 2004.  He was represented at trial and also on appeal by Mr Kenny Chan of counsel.

2.The allegation was a very simple one.  It was alleged that the appellant struck his domestic helper (PW1 “Larasati”) three times by slapping the left and right sides of her face in the area of the lower jaw on the morning of 22 September 2003.

3.The trial took two days but only a small part of the evidence was directly related to the circumstances of the assault itself.  PW1 briefly described how she had been hit.  The defence was that the incident had been fabricated, that no assault had ever taken place and that any injuries she had sustained must have been self inflicted.  The vast majority of the evidence concerned events that had occurred on occasions before the alleged assault and afterwards.  The defence mounted a body of evidence which, it was argued, contained a number of discrepancies and inconsistencies which taken as a whole so dented PW1’s credibility that it would be unsafe to rely on her evidence concerning the assault.

4.Two witnesses were called for the prosecution, the victim and her friend, another domestic helper, who worked in the same block of flats.  The appellant elected to give evidence and called one witness, a security guard, who was witness to a meeting of the parties on the ground floor of the premises on the next day, 23 September.  PW1 had said in evidence that the appellant’s wife witnessed the assault on her on 22 September but she was not called to give evidence.  The main purpose of the security guard’s evidence was to say that when he saw PW1 on the morning of 23 September he did not notice any marks on the sides of her face.  Thus, for the assault itself it was PW1’s word against the appellant.

Grounds of appeal

5.In short, the appeal was based on the sole submission that PW1’s evidence should not have been relied on.  There were four separate grounds, namely that :

“(1) The Learned Magistrate failed to properly reconcile the discrepancies in evidence between the two prosecution witnesses, PW1 and PW2.

(2)   The Learned Magistrate failed to properly consider or evaluate the credibility of PW1 in all circumstances of this case that her evidences were inconsistent with the evidences of herself, PW2, DW1, Exhibits and his finding of facts, which rendered the conviction in this case unsafe and unsatisfactory.

(3)   The Learned Magistrate failed to consider properly the inconsistencies in the prosecution case which were in favour of the Appellant and he only chose to accept the part of the prosecution case which pointed to the Appellant’s guilt.

(4)   The Learned Magistrate erred in law and in fact in challenging the accuracy of the medical report (Exh. P2) which was produced by the prosecution and admitted under Section 65B of the Criminal Procedure Ordinance, Cap.221 without calling its maker.”

Ground 1

6.Under this heading the appellant referred to three discrepancies.

7.Firstly, PW1 said that on the day after the assault she met PW2 at her flat whereas PW2 said they had met on the ground floor.  On the day of the trial a complaint was also made that PW1 and PW2 had talked together during the lunch adjournment.  There were minor differences in PW1’s evidence after lunch (she was recalled because of the allegation) compared to her evidence before lunch in relation to matters of little significance.

8.There is no doubt that the evidence about where they first encountered each other on that morning and how many times PW1 had gone to PW2’s flat was confused.  The learned magistrate dealt with it in the following way.  He said :

“There was some discrepancy in PW1’s evidence upon how many times she had gone to the 38^th floor.  I found that PW1 had got a bit mixed up in this evidence and I found that her answers in re-examination confirmed the true situation.  I found the truth was that PW1 had gone to the 38^th floor looking for Kurstia and when she found that Kurstia herself was not in the flat, she had gone to the ground floor where she had met Kurstia.  They then together went back up to the 38^th floor.  Later PW1 had gone to the ground floor again intending to go the domestic helpers association but she had been intercepted by the defendant on reaching the ground floor.  I found that PW1 was very upset at the time she made these trips.  I found this mix up did not cause me to have any doubt upon the veracity and accuracy of PW1’s evidence on the material issues in the case.”

9.Secondly, complaint was made about the circumstances in which two photographs of PW1’s injured face came into existence.  Two photographs had been taken of PW1 by a friend either on 22 September or 23 September.  However, PW1 had never mentioned them to the police.  The first reference to their existence was when PW2 volunteered the information during her evidence at trial.

10.The learned magistrate dealt with this issue as follows :

“There was some discrepancy about the taking of the photographs and that their taking was not reported to the police.  I found after considering the answers given by the witness, that the true reason PW2 had said she was alone in the flat with PW1 was because she knew when questioned the photographer had already left Hong Kong.  Whilst this was not a proper answer to the question, I believed it was the true reason for her answer and therefore I gave no weight to this discrepancy.  I did not find she was deliberately lying.  I further found the evidence of the non-reporting of the photographs to the police convinced me that PW1 and PW2 had not set up a situation for deliberately causing injury to PW1 and using the photographs taken as evidence against him.  I believed if that had been the case the photographs would have been reported to the police and not overlooked in the interviews.”

11.Thirdly, there were some discrepancies concerning the reason that PW1 went to the ground floor on the morning of 23 September where she later encountered the appellant and the security guard and PW2 and where a conversation took place.  A disproportionate amount of time was spent in evidence on this matter.  The learned magistrate nonetheless did not overlook it and dealt with it in the passage quoted above on page 4.

12.As to the allegation about PW1 and PW2 talking about the case over the lunch break the learned magistrate said :

“I found that I was satisfied beyond reasonable doubt that PW1 had not breached my order not to speak to PW2 during the lunch adjournment as I found that it was not surprising that both PW1 and PW2 being Indonesian nationals should want to lunch in the only local Indonesian restaurant.  I found they had not spoken and had sat completely separately.”

13.It can be seen that the learned magistrate did not overlook those evidential issues about which complaint was made.  In my judgment the complaint that he failed to properly reconcile them is not made out .  Not every discrepancy has to be separately reconciled.  The question to be addressed in this — if there are discrepancies which are important and relevant and may bear on the issue of credibility has the magistrate in his Statement of Findings demonstrated that he was alive to them and dealt with them or disposed of them in a sufficient and judicial way?  I am satisfied that he did.

Ground 2

14.In support of this ground that the learned magistrate failed properly to evaluate PW1’s credibility a number of inconsistencies are relied on.  Some do not merit consideration as they are either trivial or immaterial or both.  Nonetheless the learned magistrate referred to almost all the inconsistencies.  He certainly dealt with all the more important ones.  There were a number of instances, many of them of only minor significance, where the evidence did not fit together.  On appeal the court’s primary task is to consider the way in which such evidential difficulties were dealt with rather than to revisit every discrepancy, large or small.  In his Statement of Findings the learned magistrate set out how he approached his task.  In relation to the prosecution witnesses he said :

“When considering the prosecution evidence, I gave myself a warning that if I found I disbelieved a witness on any material issue I should exercise caution and be slow in accepting her evidence on any other material issues.  I also looked carefully for evidence of PW1 having caused the injuries to herself but found that I was satisfied beyond reasonable doubt that the injuries had not been self-induced.  I also looked to see if there had been any collaboration between the witnesses to make up evidence against the defendant or to coordinate their evidence to be given in court.  I found this had not happened.  I also looked for material discrepancies within their evidence and between their evidence and when I found a material discrepancy I looked to see if I could reconcile it, and if not, I considered whether I could accept the witness’s evidence with the discrepancy/discrepancies found and whether I could accept the prosecution as a whole.  There were a number of discrepancies in their evidence and these confirmed to me that the witnesses were giving evidence from their own perception of the incident and not from any prearranged agreement.

I found that the prosecution witnesses impressed me with their evidence and I found that they were honest and reliable witnesses and that I could accept most of their evidence.”

In relation to the defendant’s evidence he said :

“I listened carefully to the evidence given by the defendant and I gave myself both limbs of the ‘Berrada’ directions when so doing, as I believed the defendant being an auxiliary policeman would have a clear record.  However even after so doing, I found that I was not impressed with his evidence and I found he was not telling the truth.  I therefore rejected his evidence when it conflicted with the prosecution witnesses’ evidence.”

15.He then went on to refer to specific issues which in his judgment merited particular mention and recorded his findings in respect of each one.

16.Apart from one issue, which I shall refer to under Ground 4, I find it unnecessary to analyse the learned magistrate’s evaluation of the evidence any further.  He made a number of findings of fact on the many collateral issues which formed the bulk of the evidence and with which this court sees no reason to interfere or criticize.

Ground 3

17.Under Ground 3, submissions were made which were a repeat of submissions made at trial about the quality of the evidence which had been rejected by the learned magistrate.  They amount to a complaint that the prosecution evidence was accepted and the appellant’s evidence was rejected.  Given the remarks made above under Ground 2 and given this court’s satisfaction with the way the learned magistrate approached his task, this ground does not advance the matter any further.

Ground 4

18.Ground 4 concerns the medical report which was admitted into evidence under section 65B of the Criminal Procedure Ordinance, Cap.221.

19.PW1 had been examined by a doctor of Queen Elizabeth Hospital at 22:15 hours on 23 September 2003.  The report stated :

“Claimed slapped on face and pulled on hair by employer.

Physical examination was unremarkable except bruises over lower jaw.”

20.Two points arise from this report.  The first is a point of little merit.  The appellant submits that the learned magistrate challenged its accuracy even though it had been admitted under section 65B.  PW1 had said in evidence that she had not told the doctor that her hair had been pulled whereas the report suggests that she had.  The matter is referred to in the Statement of Findings in the following way :

“I found a material discrepancy between PW1’s evidence and the medical report.  I found that PW1 had not been able to speak directly with the doctor because of the language barrier at the time and I found a friend had interpreted what PW1 had said to the doctor.  I found after considering this discrepancy that I believed PW1 had not mentioned her hair being pulled when she saw the doctor and I believed the discrepancy had arisen because of some misunderstanding between PW1 and the doctor.”

21.The learned magistrate’s approach cannot be faulted.  He does no more than recognize a minor discrepancy and resolves it.  He was not obliged to accept every single word of a section 65B statement.

22.The second point concerns the relationship between the findings in the medical report and the only other documentary evidence concerning PW1’s injuries, namely the two photographs which emerged during PW2’s evidence-in-chief.

23.The timing of the production of those photographs, which are both dated 23 September 2004, has already been dealt with.  What remains is an argument that the injuries shown on those photographs are not consistent with the assault as described by PW1.  The defence case was that the bruises must have been self inflicted.

24.The only evidence as to how the injuries were sustained came from PW1 who was believed.  The learned magistrate made specific reference to the submission that had been made as follows :

“I rejected the defence counsel’s final submissions.  In particular, I rejected his assertion the injuries were self-induced pinch injuries and PW1 had made up her story.  I also rejected his assertion that the differing descriptions (i.e. face and chin) for the positioning of the slaps was material.”

25.This court should not and will not substitute a different conclusion because any different conclusion could only be based on a speculative non-expert opinion that the injuries as shown on the photograph were not the injuries caused by the assault. 

26.Finally, the appellant reminded this court that the security guard had not noticed any injuries on PW1 on the morning of 23 September.  Again, the learned magistrate made a specific finding about this :

“I found the injuries seen on PW1’s face were not of such severity that they might cause the defendant to hide PW1 from public viewing.  I found in this respect that DW1 did not notice these injuries, but I believed she would have done if her attention had been drawn specifically to them.”

27.The appeal is dismissed.

Miss Mickey Fung, GC of the Department of Justice, for the Respondent

Mr Kenny W.K. Chan, instructed by Messrs Terry Yeung & Lai, for the Appellant