HKSAR v. Lepcha Daniel Gyamtsho
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HCMA975/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 975 OF 2006 (ON APPEAL FROM TWCC 3171 OF 2005) --------------------------- BETWEEN
--------------------------- Before : Hon Nguyen J in Court Dates of Hearing : 9 and 12 February 2007 Date of Judgment : 21 March 2007 ----------------------- J U D G M E N T ----------------------- 1.The appellant was convicted by Mr John Glass sitting in Tsuen Wan Magistrates’ Court of the offence of assault occasioning actual bodily harm and was sentenced to 12 months’ imprisonment. He now appeals against the conviction. The facts of the case 2.On the day in question, the victim was walking along a street in Tsuen Wan at night when he was attacked from behind by three males. The learned magistrate said in his Statement of Findings that he found that when the attack began, there was a scattering of people with people running from the scene of the incident in different directions in order to protect themselves, and he found this had continued right up until the arrival of the police. 3.A lady (PW3) and her boyfriend were walking along the same street when they saw the victim walking slowly towards them. She saw three males rush out from behind the victim and began hitting him. One had a white stick-like object about 12 inches long, which he was using to attack the victim, and the others were using their fists. She believed the attackers were Asians but she did not know if they were Nepalese. She stepped backwards towards a shelter near a car park as she saw the victim escaping in her direction during the attack. When she stepped back again, she heard someone call the police. She saw one of the attackers run from the area of the attack towards a blue sign near a book shop and when she turned back several seconds later, she saw a male apprehended by the police under that blue sign. 4.A police officer also gave evidence to the effect that whilst patrolling that evening, he saw a woman point and shout and then he saw a male running in his direction. He chased this male for 15 to 20 steps and apprehended him under the blue sign. This male was the appellant. 5.The magistrate accepted that the police officer had concentrated on the male that he was chasing and he had not noticed other people at the time, but he did notice there was only one male running. The magistrate accepted that if there had been more than one person running in the same direction, the police officer would have noticed that because he would then have faced the dilemma of whom to chase. Grounds of appeal 6.Mr Mitchell on behalf of the appellant advanced five grounds of appeal. These were :
7.The police officer who arrested the appellant had not witnessed the attack, and hence was not able to assist the prosecution with identity. As regards PW3 it was said that she had agreed that the appellant had not been one of the attackers. How the magistrate dealt with that is as follows : he said that PW3 had assumed that the male apprehended by the police under the blue sign was one of the attackers who had run from the area of the attack towards the blue sign. The magistrate said : “[she] did agree in cross-examination it was not one of the defendants (sic). I did not accept this agreement in cross-examination, as I believe she misunderstood the question and had thus given the wrong answer. I believed she believed it was one of the attackers. I found the man PW3 saw running from the Kodak sign to the blue sign was the same man. PW3 also said, and I accepted, that the male was Asian, and I found that this meant he was not Chinese. I found that the defendant was a Nepalese and Asian, which matched what PW3 meant.” 8.All the grounds of appeal in fact revolved around PW3’s alleged agreement in cross-examination that the appellant was not one of the attackers. The grounds of appeal advanced are, with respect, ramifications of that vital question : Did she in fact agree that the appellant was not one of the attackers or was it as the magistrate put it, a case of the witness misunderstanding the question? 9.In trying to resolve this matter, with counsel’s agreement, the tape of PW3’s evidence and that of the police officer was played in court. I reproduce PW3’s evidence to show exactly what was asked and said :
10.My view of PW3’s evidence is that she was saying that one of the three assailants ran towards the blue sign and he was stopped by the police officer underneath that blue sign. There is no challenge of the interpretation of the answer “I think yes”, but my view is that the answer given in Chinese was just as capable of meaning “I think or I believe (that he was one of the assailants).” My view is also that her final answer could be construed as meaning that she was agreeing to the second half of the question namely “he was just a person stopped by the police” and that she was ignoring or had forgotten the first part of the question namely “he was not one of the persons who escaped”. 11.My view of the effect of PW3’s evidence is fortified by the fact that the prosecution was also relying on the police officer whose evidence was that he was on the street when he heard a woman shouting something and he saw a man wearing a brown top and trousers running towards his direction. He then chased the man and stopped him at Dun Fat Street. He said his attention was focused on the male who was running and he only saw one person running. How the magistrate dealt with the police officer’s evidence was as follows :
12.Ms Wan appearing for the respondent submitted that within a very short time frame, PW4 apprehended the appellant under the blue sign and PW3 had observed one of the attackers fleeing in that direction. She said it was not PW3’s evidence that she saw other persons running in the same direction as “the attacker”. She said it was not PW4’s evidence that he saw other persons running and he randomly chose to chase after the appellant. She said the link was clearly established and proved by evidence and she submitted that without any evidence to undermine, contradict and/or otherwise explain the prosecution’s evidence, an irresistible inference could be drawn, and it was rightly drawn, that the appellant was one of the attackers. 13.As regards PW3’s alleged agreement in cross-examination, Ms Wan submitted that the learned magistrate was there in court who heard all the evidence, including all the questions posed to and answered by PW3, and he observed how PW3 gave her evidence. She submitted that when placing the evidence in context, the learned magistrate was in the best position to make findings on PW3’s evidence and he did make a specific finding on this aspect of the evidence, that is, she misunderstood the question and accordingly gave a wrong answer. 14.I agree with those submissions by Ms Wan and I find that the magistrate was justified, in the light of the evidence, to come to the conclusion that the appellant had indeed been one of the attackers of the victim. My view is that the conviction is neither unsafe nor unsatisfactory. This finding by me effectively disposes of all the grounds of appeal. There were no other matters relied upon by counsel which can in any way substantiate the grounds of appeal. The appeal against conviction is therefore dismissed.
Ms Polly Wan, SGC of the Department of Justice, for HKSAR Mr Neil S. Mitchell, SC, assigned by the Director of Legal Aid, for the Appellant |