HKSAR v. Tong Kwan Yee, David

HCMA 298/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 298 OF 2006

(ON APPEAL FROM ESCC 1812/2005)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 12 September 2006

Date of Judgment: 12 September 2006

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J U D G M E N T

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1.The Appellant was convicted after the trial of one charge of attempted theft and one charge of common assault.  He was sentenced to a suspended sentence.  The Appellant appealed against his conviction and sentence.

2.He is represented by Mr Hung of counsel on his appeal against conviction and he appeals in person as regards the sentence. 

3.First of all, dealing with the appeal against conviction, this was, indeed, a rather unusual case as the learned Magistrate had observed in his Statement of Findings.  The prosecution called two civilian witnesses.  The first witness was a security guard and was the victim in the case.  His evidence was that he had collected his winnings at the Jockey Club and as he came out of the Jockey Club, he was holding the money in his hand.  And at that time, the Defendant apparently suddenly, rushed at him, and snatched his money, there was, then a struggle.

4.At one stage in the struggle, the Defendant apparently managed to grab part of the money he was holding, and subsequently a money note dropped on the ground.  PW1 said that he then knocked the Defendant, the Defendant fell on to the goods van and the Defendant was arm-locked by the driver of that goods van who was PW2.

5.PW1 then said that he managed to snatch his money back and even knelt down on the ground to pick up the note that had fallen.  PW1 said he then put the money in his wallet and into to his waist bag.  And at that time, he said PW2 was holding on to the Defendant, and the Defendant tried to leave, and, in the course of that, he kicked PW1 and this is the subject matter of the second charge.

6.And then subsequently, the driver, PW2 had to leave the scene thus he released the Defendant.  The Defendant ran away, he chased after the Defendant and in the course of the chase, the Defendant had thrown something at him and also had threatened him, in fact, using triad words.  Saying words to the effect that he was the bully boy of the area and that he could beat him in the future if he saw him again.  That was the evidence of PW1.

7.PW2 was called and PW2’s evidence was quite straightforward.  He was sitting in the driver’s seat when he heard a quarrel.  He looked in the direction where the quarrel was coming from and he saw PW1 counting his money and the Defendant was standing next to him.  He said he heard PW1 ask the Defendant what was going on, the Defendant did not respond.  Then he said he saw PW1 still holding the money in his hand push the Defendant to the front of his van and then the Defendant kicked PW1.  PW2 said that he did not arm-lock the Defendant and he remained sitting inside the van.  He did not see the Defendant holding any bank note nor did he see PW1 bend down to pick up any money.

8.He said he saw PW1 put the money into a wallet and then put the wallet into a rucksack.  He said the Defendant actually remained at the scene, for about five minutes and he did not go away.  In fact, his evidence from the transcript was that the Defendant was walking around the vicinity of the scene while PW1 was calling the police reporting the matters to the police and he eventually he said his colleague came back and he drove off.  He said the last thing he saw was the Defendant walking at a normal pace but when he saw PW1 was following him he quickened his pace.  That was his evidence.

9.In brief, PW1 had been cross-examined about the fact that his allegation about the Defendant throwing metal object at him during the chase and swearing at him in foul language using triad language and threatening him was not in his statement.  PW1 alleged that he did say all these things to the statement taker, PW4, but the statement taker had told him that it was not necessary to write them down.

10.The prosecution, very properly, tendered PW4 for cross-examination.  PW4’s evidence as I can read from the transcript is also very straightforward.  He was given the responsibility of taking a statement from PW1.  He never told PW1 that there was no necessity to write something down.  He just took down what PW1 said, he was clear that PW1 had not mentioned the evidence which he had said in court to him.

11.The learned Magistrate faced with these discrepancies had to resolve these discrepancies.  The learned Magistrate after considering the evidence, decided to believe the evidence of PW1 and not believe the evidence of PW4.  But in dealing with this, the learned Magistrate failed to explain why he thought PW4 was not telling the truth. 

12.It would, indeed, have been unusual for a trained police officer taking a witness statement to have omitted the crucial facts related by a victim, who alleged that an arrested Defendant had used foul language and triad language to threaten to beat him up because he was the local bully boy.  Now as Mr Hung had pointed out that could have given rise to other charges.  Thus the police officer would certainly have been remiss in his duty.  He would have been very careless, indeed, if he had in fact told the victim that it was not necessary.  But in any event, that matter was not resolved by the learned Magistrate in a satisfactory way.

13.As for the discrepancies between PW1 and PW2, Ms Cheung very properly argued that the magistrates are often faced with discrepancies as it is accepted that a witness observing the same event from a different perspective from another may give evidence containing discrepancies with the other, this I agree.  It has been pointed out by Mr Hung that the discrepancies in this case are very serious indeed and they go right to the heart of the matter in this case, in fact it actually impinges on the credibility of PW1 and PW2.

14.One glaring example is the fact that, PW1 alleged that at the time PW2 had arm-locked the Defendant, PW2 categorily denied that.  There was no explanation from the learned Magistrate as to why he considered that this was not relevant.  It is also glaringly obvious from the evidence of PW2 and PW1 that PW2’s description of what he saw was obviously quite different from what PW1 said had happened.  In fact, PW2 never saw any money in the hands of the Defendant.  He saw PW1 push PW2 on to the front to his van, and at that stage he saw the Defendant kick PW1.  PW1 had said that PW2 had arm-locked the Defendant when the Defendant was kicking.  Other matters which I have already spoken of in the evidence of PW1 and PW2, I need not repeat here, but these are glaring examples which the learned Magistrate in his findings should have resolved.

15.And this brings me back to the words of O’Connor J. in the case of R v. Chong Kam Sau,MA 859 of 1985, relied upon by Mr Hung in his able submissions:

“the reasons for verdict should, in a manner appropriate to the circumstances in the case, illustrate the salient points in the case and demonstrate that the evidence had been evaluated.  Significant inconsistencies and conflicts should be dealt with in such a manner as to indicate how those matters were resolved.  There is no simple formula for what ought to be in a judgment, as it must be related to the circumstances of the particular case.  The Magistrate should state his reasons, to such an extent as will inform the parties as to how and why the particular verdict was arrived at, and furthermore, will enable an appellate court to perform its duty.”

16.In this case, as I have said to Ms Cheung, if the learned Magistrate had said that he had considered the conflict in the evidence between PW1 and PW2, and if he had said that he had considered that PW2 perhaps was trying to dissociate himself and he did not want to be involved and therefore refused to admit to his physical participation perhaps that would be an indication as to why the learned Magistrate ultimately rejected the evidence of PW2, but there was nothing of this sort said. 

17.The learned Magistrate only observed that there were discrepancies and he mentioned them and the submissions of Defence counsel but at the end of the day he said he had decided that PW1 was the person to be believed. 

18.Having read the evidence, as Mr Hung has pointed out, I am unfortunately left with a lurking doubt as to the propriety of the conviction in view of the fact that the matters I have just mentioned have not been properly resolved, and obviously the benefit of doubt should be given to the Appellant in this case.

Ms Kathie Cheung, GC, for the Respondent

Mr Andy Hung, instructed by Messrs Jonnie Yam, Jacky Lee & co., assigned by D.L.A. for the Appellant