HKSAR v. Wong Lai Ming

HCMA 921/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 921 OF 2004

(ON APPEAL FROM ESCC 66/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Dates of Hearing: 1 and 23 December 2004

Date of Judgment: 23 December 2004

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J U D G M E N T

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1.The Appellant was charged with common assault, and one charge of dangerous driving and after trial he was convicted.  The Appellant now appeals against his convictions.

2.The prosecution’s case really came from PW1 and PW2.  They were security guards responsible for directing traffic near the Citibank Plaza.  Their evidence was that the Defendant had driven his taxi into the Citibank Plaza area and stopped at the restricted zone. 

3.PW1 said he spoke and understood some Punti and English.  He had requested the Defendant to leave the restricted area and the Defendant had refused.  The Defendant had remained seated in his car but had held a rolling pin, Exhibit P3 and had displayed outside the driver’s window.  The Defendant waved his rolling pin at the witness and threatened to hit him.  Under those circumstances, PW1 then asked PW2 to come over and PW1 also called the management office.

4.PW2 came forward and stood at the front of the taxi.  Suddenly, the Defendant’s taxi moved forward slowly and pushed against PW2’s lower abdomen two times causing PW2 to fall to the ground.  PW2 then got up and put a traffic cone in front of the taxi to stop the taxi leaving.  He went over to the driver’s door and struggled with the Defendant.  The Defendant then closed the window and remained seated inside the taxi until the police arrived.

5.PW2’s evidence largely supported PW1’s evidence but denied that he ever struggled with the Defendant.  The police evidence came from PW4.  After he was apprised of the event he found a rolling pin under the driver seat of the Defendant’s taxi.  He also said that the Defendant had complained to him that his T-short was torn and he had suffered injuries on his neck and chest.  The Defendant also told him that he had never taken out his rolling pin and that he was the one who made the report to the police and that his rain-shield over the driver’s door had been damaged.  PW4 said he examined the Defendant but found no injuries on him.

6.In the hospital, apparently the Defendant had proposed to PW2 through PW6 that of PW2 compensated him the Defendant would not pursue the matter.  But PW6 did not relate this proposal to PW2.  After the prosecution witnesses have given evidence, the Defendant elected not to give evidence or call any witnesses. 

7.The learned Magistrate after considering the law relating to common assault subsequently then convicted the Defendant of only one charge of common assault but acquitted him on the 2^nd charge of common assault and convicted the Defendant of the 3^rd charge of dangerous driving.

8.The Appellant lodged the appeal and at the first hearing of the appeal, he had pointed out the discrepancy which the learned Magistrate had failed to notice that PW1 said that was a struggle between the Appellant and PW2 when PW2 said there was not any struggle.  The Appellant maintained that he did not move his taxi forward.

9.Thirdly, the Appellant then said that PW3’s evidence was ignored by the learned Magistrate and PW3’s evidence was totally different from the other two witnesses.  As the Appellant was in person, I allowed him to apply for a transcript of PW3’s evidence and also, out of caution, Ms Cheung applied for the transcript of the evidence of PW1 and PW2.  So the appeal was adjourned part heard in order for the transcript to be provided.

10.At the resumed hearing, the transcript being available, it is clear that PW3’s evidence was of no help at all to the court.  She indicated that she was reluctant to go to court to give evidence but she had been strongly persuaded to come to court to give evidence.  She said that she did not see anything because at the relevant time she was in the toilet.  At the end of the day, her evidence was of no assistance whatsoever to the court in deciding the truth of the matter and that explained why the learned Magistrate had not referred to her evidence in his Statement of Findings. 

11.The Appellant then again maintained that it was he also had reported the matter to the police.  The Appellant then said that the police initially was supposed to charge PW2 but at the end charged him.  While this is not matter that is a suitable ground of appeal because the police had the duty to investigate the whole incident and based on the evidence they collected they would make an ultimate decision as to whom to charge.

12.As for the witnesses drafting to each other, the court had warned that the witnesses should not talk about the case to each other.  There was no evidence before the learned Magistrate that these witnesses had discussed the case when they were told that they should not do. 

13.At the end of the day, as Ms Cheung pointed out the learned Magistrate in his Statement of Findings did consider all the relevant evidence from all the witnesses.  He was aware of the inconsistency and he was also aware that the Appellant did ask for compensation but that matter was not related by the police to PW2.  The learned Magistrate had properly considered the law in relation to the common assault and dangerous driving. 

14.At the end of the of the day, the crucial matter in this case is that the learned Magistrate believed PW1’s and PW2’s evidence about the event and in fact the learned Magistrate was satisfied with the evidence of PW1 as to his credibility and reliability. 

15.This is an appeal not a retrial or rehearing of the case.  The Defendant chose not to give evidence as was his right.  The learned Magistrate did not have the Appellant’s version of the events before him.  All he could consider was the evidence of the prosecution witnesses and make a finding at the end of the day if they were reliable and honest witnesses.

16.As to the language which the witnesses elected to give their evidence in, this was the witnesses’ right.  They are allowed to give evidence in the language in which they feel comfortable so that is not a suitable ground of appeal either.

17.At the end of the day, I have read the Magistrate’s Statement of Findings and the transcript in the case and I found that the learned Magistrate had not made any mistakes or errors in coming to his conclusion as to the guilt of the Appellant. 

18.I do not see that there are any merits in the grounds of the appeal that has been raised by the Appellant.  So the conviction is safe and satisfactory and the appeal is dismissed.

Ms Kathie Cheung Kit Yee, GC of the Department of Justice, for the Respondent

The Appellant, in person