HKSAR v. Ho, Kit-ho

HCMA992/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 992 OF 2005

(ON APPEAL FROM TWCC 1009 OF 2005)

BETWEEN

Before:  Deputy High Court Judge Line in Court

Date of Hearing: 2 March 2006

Date of Judgment:  2 March 2006

J U D G M E N T

1.This is an appeal against a conviction for an assault occasioning actual bodily harm and the sentence of detention centre that followed.

2.Very briefly, the victim, who was PW1 at trial, and his sister, who was PW2, along with others had gone to a karaoke in Tsuen Wan in March of last year.  They spent some five and a half hours there, having snacks, drinking beer and singing songs.  When it came the time to leave, PW1 bumped into someone in a lift; the lady that person with spoke on the telephone or at least appeared to do so; a group of young men soon surrounded and then commenced to attack the victim.  He said it started with fists.  He went to the ground.  He was kicked on the ground and lost consciousness. 

3.His sister, PW2, followed along and saw the incident at the stage where the two defendants were, she said, kicking her brother on the ground.  She grabbed hold of them and did not lose sight of them and/or still had hold of them in some way, such that they were in her presence when the police arrived.  The two men were arrested.  Both PW1 and PW2 said the arrested persons were the two who had been kicking PW1 on the ground.

4.At the trial in the magistrates’ court, PW2 made a dock identification and it was this identification primarily that the magistrate relied upon.  PW2 was not asked to make a dock identification but his evidence, which the magistrate accepted, was that the two people who were arrested were the two who had been assaulting him and there was an admission that the two people arrested were the defendants in the court below. 

5.The appellant and his co-accused elected not to give evidence.  They called one witness as to the facts.  The magistrate did not believe that witness, and gave good reasons for not doing so.  No one has mentioned that witness in this appeal.  So all I need to say is that her evidence was regarded as not being reliable and I continue in that view.  In a word, it was that her denial that she knew the identity of the two men at a certain stage of the proceedings was simply not to be believed when one must have been, looking at the rest of the evidence, her sworn son.

6.The main ground of attack in this appeal has been the degree of inebriation of PW1.  The evidence was he had been drinking in the karaoke and he put his consumption at either under or about 10 cans of beer over that time.  So it was a rate of consumption of about a pint of beer per hour by the look of it. 

7.Mr Grounds, who argued the appeal with his usual enthusiasm, took me to various parts of the evidence which he said indicated that so much drink had been taken by this witness that he should not have been relied upon, and he said that his no doubt respectable appearance while sober in the witness-box at trial might have misled the magistrate into failing to assess the degree of drunkenness at the time. 

8.One of the more important facts Mr Grounds referred to was that PW1 had bumped into someone in the lift and he agreed in his cross-examination that a lack of control due to drink caused that.  As pointed out in discussion between the bench and bar, it is a very big jump between some clumsiness due to drink and an incapacity to describe the important matters of an event such as being attacked.  The fact is it is commonplace in jurisdictions all over the world that people describe assaults upon themselves which occur after they have taken drink. 

9.Since the magistrate had found PW1 to be an honest witness, he was entitled to rely upon that man’s own estimation of how much drink he had taken, and a pint an hour is not sufficient, in my judgment, to render a man incapable of being able to describe the major details of an important event such as occurred here.  But I do not base that just on his own assessment of his condition or indeed his own estimation of how much he had drunk.  One has to look at all the evidence to make the judgment, and of course the evidence reveals him doing certain acts, responding to certain things in a way that demanded observation and recollection.  It would be tedious for me to list them and there is no need for me to do so thanks to the industry of Miss Winsome Chan, who appears for the respondent, because she has set out a whole list of such matters at paragraph 20 of her written submission.

10.I have an equally detailed and industrious perfected grounds of appeal supported by a written argument from Mr Grounds which sets out the matters he relies upon, and in this regard I ought to refer to paragraphs 10 and 11 of the magistrate’s statement of findings where it is clear that he had lent his mind to the question of the effect of drink upon the first prosecution witness.  The finding the magistrate made, that PW1 was not completely stable on his feet at the time but he was alert enough to know what was going on around him, was one that he was quite entitled to come to, and on the evidence that is available to me, I agree with it. 

11.In my judgment, there is no reason to doubt the finding that PW1 was a witness who could speak accurately to the important matters he described, albeit there would be matters of details on which he might be confused.  This was not a case that turned on small detail. 

12.PW2 was the witness upon whom the magistrate essentially relied in order to identify this appellant as one of the assailants.  He analysed her evidence carefully.  He went through all the issues that the case of Turnbull requires.  He analysed the evidence with care, and she impressed him as an honest and reliable witness, and he judged that her identification was one upon which it was safe to rely. 

13.The main thrust of Mr Grounds’ attack upon her, though not exclusively the only one, was that she had exaggerated and that her description of the assault was not borne out by the agreed medical findings.  The agreed medical finding was that the victim had haematoma and abrasion on both sides of his face, cheek and periorbital region, being more severe at the right side.  The point is a valid one to make, but I regret to say it is not one to which I accord any great weight, and that is because it is commonplace in cases of this nature that such a disparity exist. 

14.Witnessing violence is a truly shocking thing, especially to people who are not used to seeing it, and descriptions of it tend, for innocent and human reasons, to be of a nature and extent that would suggest there would be greater injuries than in fact are recorded in reality.  The shocking nature of the incident observed is one reason for that.  The other is of course that not all blows which are struck land, and if they do land, do not land in a way or in a manner or at a place that will cause visible injury.

15.In particular, Mr Grounds relied upon the fact that the witness was cross-examined on the basis that there might have been a stomp as opposed to an ordinary kick.  When one looks at the passage in the transcript, the witness does not in effect warrant that it must have been a stomp.  But even if you read it in that way, there is certainly nothing to suggest that the stomp landed on a place that would leave an obvious injury such as the man’s nose. 

16.I can see no reason to doubt the magistrate’s reliance on the evidence of PW2, and accordingly, I rely on it.  The fact is that there was good evidence from two prosecution witnesses which directly implicated the appellant.  And whilst his failure to give evidence was no indication of guilt, it left those allegations unanswered and unexplained by evidence from someone said to be involved and who was at the scene.

17.Of course, a defendant is entitled to say that the quality of the evidence, especially after cross-examination, is not up to discharging the burden of proof that lies upon the prosecution.  In my judgment, this case was very far indeed from being such a case, and the suggestion made in cross-examination that it may have been the foot of any defendant at the trial that was exploring the well-being of PW1 prone on the floor amply demonstrates that to be so.  

18.Before I leave PW2, exaggeration not the only matter raised.  All I need to say is that those matters set out in the perfected grounds of appeal, which were matters that went to the issue of credibility of PW2, were not ones that raised any doubt in my mind as to the correctness of the finding made by the magistrate in that regard.  They did not raise any doubt in my mind that PW2 was a witness to be trusted.

19.The final ground of appeal was the claim that there was a material irregularity in the course of the trial.  This is based on what appears at page 185 of the appeal bundle as the transcript there reveals this exchange.  Counsel says, “Excuse me, Sir.  The defendant would like to use the toilet if he would be allowed.”

“COURT:  Well, yes.  Go quickly.  Yes, well, you are here representing him.  I think we can continue just for those few seconds.”

Then:

“MISS LAI:  Yes, Sir.”

20.The transcript does not indicate when he came back. It is said that this was a material irregularity because the trial continued in the absence of the appellant.  Absence for such a short time in those circumstances would not, in my judgment, amount to a material irregularity,   especially so where counsel for the missing defendant agrees to the suggestion and remains in court to represent his interests.  But even if it was a material irregularity, it has no impact upon the function of this court today because this is an appeal by way of rehearing where the matter is at large.  It would only have an impact if the incident said to be the material irregularity affected the findings of the magistrate upon which I have relied, and that clearly cannot be the case.

21.In those circumstances, the appeal against conviction is dismissed. 

22.The appellant was sentenced to a term in a detention centre.  His co-accused was likewise sent off for a detention centre report but was found to be obese.  He received a sentence of 6 months’ imprisonment.  There is no suggestion that a sentence of detention in a detention centre is in any way inappropriate for someone found guilty of kicking a man on the ground. 

23.The sole ground of appeal is that there is a disparity that makes the sentence of detention centre unjust because 6 months’ imprisonment with remission would result in only 4 months’ incarceration for the obese defendant when experience shows that the average length of time spent by a man over 21 in detention centre is about 7 months.  The time the appellant can be kept in a detention centre is between 3 and 12 months, it being of course an indeterminate sentence.

24.I appreciate there is a difference, but in my judgment, the disparity between detention centre with its indeterminate length but with the span I have just described and a sentence of 6 months imprisonment is not so disparate that a court would be bound to reduce the sentence of detention centre to something else when it was otherwise appropriate.

25.The appeal against sentence is also dismissed.

Ms Winsome Chan, Senior Government Counsel of the Department of Justice, for the Respondent

Mr Christopher Grounds, instructed by Messrs Lo, Chan & Leung, for the Appellant