HKSAR v. Lau Ka Fai and Another

HCMA308/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA308 OF 2005

(ON APPEAL FROM ESCC 2584 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge Line in Court

Date of Hearing : 6 July 2005

Date of Judgment : 6 July 2005

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J U D G M E N T

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1.There is no doubt in this case that on 9 May of last year at 4 o’clock in the morning, a group of persons left a karaoke in Jaffe Road.  The victim of the assault occasioning actual bodily harm of which you were both convicted was set upon by members of that group of people.  He had the injuries to establish that he was assaulted.

2.At the trial below it was quite clear that you two were there present when this occurred.  Both of you gave evidence to say that whilst being present you did not join in on the assault that had taken place.  The victim was able to identify you both, and the case really turned upon whether his identification of you two was either mistaken or correct.

3.The magistrate was impressed by the witness, and he said that the incident had taken place in a brightly lit street and that the identification of both you took place at virtually the same time as the assault had taken place.  In other words, the magistrate was saying he did not find the circumstances for mistake to be great because, in those circumstances, a man can say who has just hit him and he can be expected to get it right.

4.Not only that, there was very significant support for the victim which came from a police officer who came upon the scene, because that police officer saw the assault in progress and he was able to say that he saw the 1st Appellant here taking part in the assault upon the victim.

5.The attack the 1st Appellant makes upon that is that the officer said he was 50 metres away when he saw that.  That was obviously an estimate that the witness himself gave.  It would be unlikely that he would give that estimate if he was, in effect, too far away to see that which he swore he saw.  The distance does not raise any doubt in my mind as to the correctness of his identification and it did not in the magistrates’ mind.

6.It follows from that brief relation of those facts that there is a strong case against the 1st Appellant.

7.The 1st Appellant gave evidence, and if the magistrate had thought that he may have been telling the truth, he would have been acquitted.  The magistrate, who had the very considerable advantage of seeing and hearing the witnesses on both sides, came to the conclusion that he could not place that degree of weight upon what the 1st Appellant had said.

8.I rehear this case but instead of hearing the witnesses, the rehearing takes place on the papers, and I have to ask myself the same question that the magistrate asked himself at the end of the day, “Am I sure that the evidence proved the guilt of the 1st Appellant?”  Because I do not hear and see the witnesses, obviously, I rely on what the magistrate said about them.

9.So in order to challenge his findings of fact, an appellant needs to demonstrate that there was something awry with that:  the magistrate did not take into account what he should have done, or he took into account wrong things, or he just did not evaluate the evidence properly.

10.There is nothing in what I have heard today, or on the papers, which suggests anything of that nature occurred.  There is a very clear statement of findings which reaches reasoned and reasonable conclusions on the evidence available.  In those circumstances, I am sure that the conviction was right.

11.I dismiss the 1st Appellant’s appeal against his conviction.

12.The case against the 2nd Appellant has the same features as the first, save that the police officer did not identify him as joining in.  It was thus a question for the magistrate to resolve as between the identification by the victim and the denial made in evidence by the 2nd Appellant, although he was entitled to rely on the fact that the police officer had supported the victim in relation to the identification of the 1st Appellant.  That would have told the magistrate that the victim was someone who was able to make identifications which were supported by a disinterested third party, the police officer.  The magistrate was sure that the victim was able to say who had just hit him, and he trusted that evidence and acted upon it.  He was, having seen and heard the 2nd Appellant, not prepared to act upon the denials that he had given in evidence.  Again, just as in the case which I dealt with of the 1st Appellant, there is nothing that makes me doubt that his assessment was other than correct.

13.In those circumstances, I am bound to dismiss the appeal against conviction made by the 2nd Appellant.

14.The 2nd Appellant also appeals his sentence, which was 80 hours’ community service.  However, very frankly today, he says there is nothing wrong with the sentence if he is guilty of the crime and says that he really brought the appeal against sentence on the basis that he was not guilty of the offence.

15.The sentence of 80 hours’ community service in these circumstances was perfectly proper and the appeal against sentence is dismissed.

Mr Paul Ho, Senior Government Counsel, of the Department of Justice, for the Respondent

1st Appellant, Lau Ka-fai, (劉家輝), in person, present

2nd Appellant, Lo Kwok-kwong, (盧國光), in person, present