HKSAR v. Wong Wai Keung

HCMA 1129/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1129 OF 2005

(ON APPEAL FROM STCC 4558 OF 2005)

____________________

BETWEEN

______________________

Before:  Deputy High Court Judge Line in Court

Date of Hearing:  22 February 2006

Date of Judgment:  22 February 2006

____________________

J U D G M E N T

____________________

1.This is an appeal against conviction, the appellant having been convicted of an offence of criminal intimidation and two offences of common assault. 

2.The background was that there was trouble, over the affections of a young lady, between the appellant and the 1st prosecution witness.  The appellant sought out that witness and found him in the company of a friend who was the 2nd prosecution witness. 

3.It was the combined evidence of those two young men that the appellant uttered threats and, on two occasions separated by a couple of hours, laid hands aggressively on the 1st prosecution witness. 

4.The appellant gave evidence and he also called a psychiatrist to speak to mental problems that he had been having.  The appellant admitted that he had gone to seek out the 1st prosecution witness, in effect, to remonstrate with him, and his case was that the bodily contact between the two was instigated by the 1st prosecution witness and, as to the words, he could not remember saying them.  The issue was thus one of credibility.  The magistrate believed the two prosecution witnesses and disbelieved the defendant. 

5.Two points are taken on appeal.  The first is that there was sufficient conflict and inconsistency between the accounts given by the two prosecution witnesses that no court should rely on them as witnesses of truth.  The second point was that the magistrate should have expressed herself to say that she would take into account the appellant’s clear record. 

6.Let me deal with the second point first.  At the commencement of the appellant’s evidence-in-chief, his counsel asked if he was of clear record and the appellant said, “That’s right.”  But some four questions later, the appellant said that he wanted to add something and what he said was this, that:  “About several years ago, I was charged with telephone nuisance and I was fined $500.” 

7.It is thus apparent from the evidence that the appellant gave that he must have been convicted of an offence.  I am told in court that, in fact, the prosecution had no record of this below and that the respondent has none here.  Of course, there is a world of difference between a man having no conviction and there being no record of his conviction.  The appellant is the man who is likely to know best and his evidence was clear and it was to the effect that he had this matter against him.  What the magistrate said was that:

“Several years ago, the appellant had been fined for telephone nuisance but I put this from my mind when I evaluated the case.”

8.That seems to me to be an appropriate and fair thing to do because the fact of it was not really going to help resolve the issues that had arisen before her.  The effect was to remove that one blemish on his record and to leave the evidence that to the appellant otherwise had a clear record.  This was an experienced magistrate who would have known full well the effect of that. 

9.I reject the suggestion that in these circumstances, she should have then gone on to write out in her statement of findings that she therefore used the state of his character in the usual two ways that go to propensity and credibility. 

10.Let me deal with the first point now, which was the nature and extent of the inconsistencies and conflicts between the two witnesses.  There is no one single bull point relied upon.  It is a cumulative argument that is made and the points have been helpfully set out in a way that makes them clear by the differences being italicised in the first nine paragraphs of the appellant’s skeleton argument. 

11.It was clear that the magistrate was aware of the differences but her resolution of them was basically to find the accounts to be consistent with each other but that, perhaps most importantly, where the words relating to the threat were uttered, where those were different, she noted that but determined that the meaning behind the words was similar. 

12.The respondent, represented by Miss Yam today, makes the good point that when one looks at the transcript that we have, that what the witnesses said, especially in their evidence-in-chief about the incident, was really very brief and she makes the good point that merely because a witness does not mention something, it does not mean that that thing did not take place. 

13.The question is, do the differences shake one’s faith in the two witnesses such that they should not be believed?  The magistrate who had the obvious advantage of hearing and seeing those witnesses, clearly came to the opinion that they could be believed.  The appellant is entitled to argue the same ground again in front of me today but he is going to need a good argument to upset the help I receive from the magistrate’s finding as to credibility, bearing in mind the advantage she had. 

14.In my judgment, the differences here - the conflicts or the inconsistencies - are not such that it would raise a reasonable doubt in my mind as to the good faith of those two prosecution witnesses.  Such matters are explicable by witnesses not being asked specifically about certain things and by the fact that different people describe the same incident in a different way and that, in this summary trial which rightly concentrated on the issues, the real issue was who laid hands upon whom, and on that topic, there was no inconsistency or conflict that could be argued to demonstrate bad faith by these two young men, or such inconsistency that they were not to be relied upon as accurately describing what, in truth, occurred. 

15.In those circumstances, the order I make is one confirming the conviction and I thus dismiss the appeal. 

Ms Sally Yam, Government Counsel, of the Department of Justice, for the Respondent

Mr William Allan, instructed by Chong, Fu & Co., for the Appellant