HKSAR v. Leung Man To Vincent

HCMA1022/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1022 OF 2004

(ON APPEAL FROM STCC 692 OF 2004)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 16 February 2005

Date of Judgment : 16 February 2005

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J U D G M E N T

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1.The appellant was convicted on 31 August 2004 of one charge of common assault, contrary to Common Law and section 40 of the Offences Against the Persons Ordinance.  He was, on 16 September 2004, fined the sum of $3,000.  He now appeals that conviction.

2.It was the prosecution case that on 25 April 2004, at a premises occupied by both the appellant and his wife at Shatin, the appellant assaulted his wife.  The circumstances alleged by the prosecution were that the appellant and his wife were in the bedroom of the premises when the topic of the rental of premises to be occupied after separation by the wife and the agency fees to be paid in respect of the acquisition of those premises was raised.  Tempers flared and an argument ensued.  As a result of that emotion, the appellant picked up a mobile phone which was the phone of the wife and the wife in retaliation picked up an expensive Rolex watch owned by the appellant.  The wife who was PW1 in the trial said that she would flush the Rolex watch down the toilet unless the appellant put down her mobile phone. 

3.It was the evidence of PW1 that the appellant then threw the mobile phone onto the bed and that she did the same with the watch.  She said the appellant was then still angry with her and held her upper arms with his hands and threw her against the wall.  As a result, medical reports indicated in the first instance on 25 April 2004, mild tenderness over both upper arm and back of the head region.  There were no fractures. 

4.Later on 27 April, the witness PW1 further attended Queen Mary Hospital and the medical report shows tenderness to the right shoulder and the axilla which is by the left shoulder together with bruising to the left hip.  The bruising and the tenderness were categorized as being fresh. 

5.The grounds of appeal, firstly, were that the magistrate had been diverted from a proper consideration of the evidence before her by the outstanding marital issues between the parties.  These issues are argued as being irrelevant to the finding as to whether the assault took place and, with that, I agree. 

6.Mr Choy, for the appellant points out that there is no allegation of bias against the magistrate and that the complaint is solely that by intervening at parts of the evidence to clarify issues concerning the marital dispute, the magistrate was evidently not fully concentrating upon the issue at hand.  Having read the transcript, I am satisfied that notwithstanding Mr Choy’s assurance that no complaint was made as to bias, that there was in fact no bias.

7.The examination-in-chief and the cross-examination took some two and a half hours and relatively few questions were asked concerning the marital problems.  Mr Choy says that whilst that is so, at least one or two of them occurred at points where the magistrate should have been concentrating on the issues at trial.

8.The magistrate is a professional judicial officer who has considerable experience in the matters which she hears.  To say that because she took an interest in a wider range relating to the parties than was strictly necessary for the resolution of the case against the appellant that she was unable to properly concentrate upon the issues at hand is to give her less than proper credit.

9.I do not accept that her interest in the issues relating to the resolution of the matrimonial dispute affected her proper consideration of the issues at trial and nothing in the reasons that she gives would bear out that complaint. 

10.In the course of this ground of appeal were raised a number of matters which whilst strictly being marital issues, did go to the relationship of the parties at the time the offence was said to have occurred : the reasons why the argument occurred; the reasons why there was such a level of emotion; and it could not be said that any of the questions asked by the magistrate were inappropriate.

11.Ground 2 : the appellant argues that the magistrate erred in finding and taking into account that the appellant had previously assaulted PW1.  The issue as to whether or not a previous assault had taken place was raised by questions asked by the solicitor defending the appellant at trial.  Those questions were intended to elicit evidence that she had on a previous occasion made a complaint to the police which alleged such an assault but failed to follow it up.

12.Mr Choy argues that it is admissible because by making such a complaint and failing to follow up, the credibility of the witness PW1 in this case is affected.  He said that the magistrate only having been given evidence that a complaint had been made about a previous assault, made a finding and took into account that the report made was the truth.  He points to a passage in the Statement of Findings. 

13.The magistrate set out in some detail the evidence given by PW1, the wife, in these proceedings.  During the course of some, three pages of findings she sets out that evidence.  She makes in those three pages no finding as to whether any of that evidence was the truth nor does she say that she took into account any of that evidence as being true.  This paragraph then appears :

“In cross examination, the Wife said that the Appellant grabbed her for about a minute.  He looked at her angrily with deep breathing.  It was further revealed that the Appellant had previously assaulted the Wife and they were separated between 27/4/2002 – 30/7/2003.”

14.From that passage Mr Choy draws the conclusion that the magistrate not only considered the evidence that a complaint had been made of a previous assault, but further determined that the previous assault had in fact taken place and, further, that she was relying upon it in her findings as to the guilt of the appellant.

15.This cannot be so.  The words “It was further revealed” can mean no more than a continuation of the recitation by the magistrate of the evidence given in-chief and in cross-examination by the witness without any comment as to whether she found that evidence to be true and as to whether she used that evidence in coming to her conclusion.  This ground fails. 

16.The third ground of appeal is that in the medical evidence contained in the medical report dated 27 April 2004, the doctor stated that the injuries he saw on that day were fresh injuries.  The magistrate in her findings said :

“We all know bruises does not appear or surface immediately; it all takes time.”

17.This ground argues that the magistrate placed herself in the position of a medical practitioner in reaching that conclusion and came to the conclusion that the freshness of the injury strengthened the evidence of PW1.

18.The magistrate, in her findings, refers to a piece of evidence :

“Two days later, she found a patch of big bruise on her left thigh.  She therefore went to the Queen Mary Hospital on 27/4/2004 for further examination and treatment.”

She does not at that point say whether she accepts that evidence or whether she uses it.  However, when later in her findings orally she said :

“….When she was cross-examined by the counsel representing you, as to which part of her body fell onto the ground first, she said that it was the left side; and it was for this reason that she went to see the doctor two days later, after the incident.  And, therefore, in P2 – the medical report from the Queen Mary Hospital – in a gist, that report say she had left-hip bruising. 

We all know bruises does not appear or surface immediately; it all takes time.”

That is clearly a reference to the evidence of the wife that she discovered the bruise had emerged on her body two days after the events that she claimed took place on 25 April and were therefore fresh on her body on that day.  

19.I do not consider that the magistrate has gone too far in drawing a common sense conclusion from the evidence of the medical report and the evidence of the witness.

20.The fourth ground of appeal argues that the magistrate failed to resolve various inconsistent versions offered by the wife as to how the assault took place.

21.Mr Choy argues that if the magistrate could not be sure which version offered by the witness was true and could not rationalize why a version she believed not to be true had been put forward that she could be regarded as credible. 

22.The magistrate did, in her Statement of Findings, deal with various issues of inconsistency.  She dealt with whether the appellant grasped her by the shoulder or her upper arms; whether she put down the watch before the appellant grabbed her.  She did not deal however with two matters : the duration of the grasping by the appellant and whether she lost her balance or was thrown against the wall. 

23.Both of these matters were raised during cross-examination and both of these matters were argued in no uncertain terms by the solicitor representing the appellant before the magistrate in his closing address.  It cannot be said that these arguments were not before the magistrate.  At the best it can be argued that they having been placed before her and she clearly having borne them in mind that she should have mentioned them in her Statement of Findings. 

24.I am satisfied that they were not of sufficient importance as to have made her findings unreliable because she did not specifically deal with them.  There is nothing in this ground of appeal. 

25.I am further satisfied that the magistrate properly considered the facts in the law applicable to this matter and that nothing in these grounds of appeal can give me any concern or doubt as to the reliability of her judgment.  The appeal against conviction is dismissed.

Ms Lily Wong, SGC of Department of Justice, for HKSAR

Mr Edwin Choy, instructed by Messrs Haldanes, for the Appellant