HKSAR v. Fu Kwok Hoi

HCMA451/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.451 OF 2006

(ON APPEAL FROM KTCC 7543 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 17 November 2006

Date of Judgment : 17 November 2006

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of assault occasioning actual bodily harm, contrary to common law and punishable under section 39 of the Offences against the Person Ordinance, Cap.212.  He was sentenced to 1-month imprisonment and a previously imposed 2-month suspended sentence was activated and ordered to be served concurrently.  He now appeals his conviction.

2.PW2, the victim, used to work for the appellant and on the material day, he went to the appellant’s residence to chase after outstanding wages.  He claimed to have been attacked by the appellant with a plastic pipe outside the management office.  He ran but the appellant gave chase and he received further blows.  He suffered abrasions over his upper back and posterior side of his left arm.

3.The appellant elected not to give evidence but called a colleague to give alibi evidence : that he was working with the appellant at the material time.

Grounds of appeal

4.I shall summarize and re-number the grounds as follows :

The magistrate erred in finding that the only discrepancy in the victim’s evidence was the amount he was owed but failed to take into account other discrepancies in the evidence of the victim.  She failed sufficiently to take into account discrepancies between his evidence in court and his witness statement and also ‘diluted versions of the event’ as related by him, and thus erred in finding that such did not cast doubt on his credibility.

In finding that difference between the victim’s evidence in court and his witness statement were insignificant, the magistrate took into consideration matters totally unsupported by evidence.

The magistrate, by saying that “the evidence of DW1 in no way raised any doubt”, erred in shifting the burden of proof onto the defence.  The magistrate, in rejecting the evidence of DW1 on the basis of the absence of any written note to refresh his memory, implied that a higher standard of proof was required of the defence evidence.

Respondent’s reply

5.Counsel for the respondent, in reply, submitted that :

(1)     The magistrate was entitled to place little weight on the so-called omission or inconsistencies, and found such to be of no real significance and concluded that the victim was an honest and reliable witness.  Dwelling on such minute unimportant matters is just a futile exercise of “failing to see the woods for the trees”.

(2)     The magistrate’s comments about witness statements was a general simple application of common sense and what she did was to give reasons as to why she found inconsistencies between witness statement of the victim and his evidence in court immaterial.

(3)     According to the evidence of the alibi witness, on the one hand he was able to remember from his memory without any memory refreshing aid as to what happened on the material day, but on the other hand, he was unable to remember when he was first asked to recall the incident on that day.  The magistrate was entitled to reject the evidence of the alibi witness, on the basis that his evidence was self-contradictory and against common sense.

My judgment

6.O’Connor J in Lam King Ming, CACC601/1979, set out the basic requirement of Reasons for Verdict, applicable to the Statement of Findings :

“      The reasons for verdict should, in manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated.  Significant inconsistencies and conflicts should be dealt with in such 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.”

7.Counsel for the appellant’s complaint that the magistrate had not taken into account discrepancies in PW1’s evidence is unjustified.  The fact that she did not refer to each and every one of them in her Statement of Findings does not mean that they were not considered.  I have no doubt that the magistrate was alive to these disparities as referred to in the defence final submission in great detail.  It does not matter whether they are called inconsistencies, discrepancies, diluted versions of events or omissions.  The magistrate, as the sole finder of fact, could decide whether they are true inconsistencies or disparities, whether they are material to the issues which the magistrate had to decide, or whether, on the other hand, they were simply peripheral, irrelevant and insignificant.  The magistrate was entitled to find those insignificant and cast no doubt on the credibility of the victim.  Ground 1 fails.

8.On the other hand, counsel also complained that the magistrate had taken into account matters where there was no evidence before the court in considering discrepancies between what was said by the victim in his evidence in court and his witness statement immaterial.  Counsel took issue as to the following paragraph in the Statement of Findings :

“… In my judgment, witness statements are not supposed to contain every single detail that occurred in relation to an incident.  It is an aide-memoire.  There are enormous differences between omissions and contradictions.  In my judgment there are no contradictions between PW2’s evidence in court and his witness statement.  There is a very simple reason why there are always some omissions between the evidence that is finally given in court and the witness statement taken by a police officer.  When police officers take witness statements, firstly they don’t ask the voluminous number of questions that counsel, both for the prosecution and the defence ask and sometimes the magistrate asks.  Secondly, the police do not know what the defence is going to be, and they don’t know what’s going to be important as a result of questions being asked.  Thirdly police may not realise that there is a need for clarification of some of the evidence.

Any omissions that there may have been in the witness statement as compared to the evidence given in court, in my judgment, were not of any importance and in no way affected the required standard of proof and in no way affected the credibility of PW2 or the required standard of proof.”

9.What the magistrate did was to apply common sense and daily experience in setting out her thinking process as to why she was of the view that omission between what was in the witness statement and the victim’s evidence were not matters of such importance as to affect the credibility of the victim.  There is nothing in Ground 2.

10.I now turn to Ground 3.  Counsel for the appellant complained that the magistrate, by saying that : “the evidence of DW1 in no way raised any doubt”, erred in shifting the burden of proof to the defendant.

11.The magistrate said this in her Statement of Findings :

“In determining the facts of the case I bore in mind that the prosecution had to prove the charge against the Appellant beyond all reasonable doubt and so that I was sure.  I bore in mind that if there was any doubt in my mind, the Appellant had to be given the benefit of that doubt.  The Appellant elected to remain silent, as was his right; I bore in mind that no adverse inference could be drawn.  The Appellant elected to call one witness, an alibi witness.  I bore in mind that there was no burden on the Appellant to prove anything.”  [my emphasis]

12.The phrase “the evidence of the defence in no way raised any doubt in the prosecution case” is a common usage.  I am indeed surprised that counsel for the appellant found this phrase objectionable.  What it means is simply that if the court should find the defence evidence true, or might be true, then there is obviously a doubt in the prosecution case and the defendant is entitled to be acquitted.  There is no implication of shifting the burden onto the defendant at all.

13.The magistrate gave reason as to why she rejected the evidence of the alibi witness called by the defence : namely, that he could remember this distinct occasion without the aid of any notes, any diaries, and his evidence that no note was ever made as to when he had carried out such work was simply hard to believe.  Counsel was misconceived in construing what was said by the magistrate to mean that a defence witness was required to keep a memory refreshing note and thus wrongly raised the standard of proof on the part of the defence.

14.This last ground fails as well.

15.This appeal is devoid of merit, is dismissed.  I affirm the conviction.

Mr David Leung, SGC of the Department of Justice, for the Respondent

Mr Benny Ho Siu Man, instructed by Messrs Philip K.H. Wong,  Kennedy Y.H. Wong & Co., for the Appellant