HKSAR v. Lam Tin Yuen, Martin

HCMA 662/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 662 of 2009

(ON APPEAL FROM KTCC 8/2009)

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BETWEEN

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Before: Hon. Wright J in Court

Date of Hearing and Judgment: 18 February 2010

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JUDGMENT

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1.The appellant was convicted after trial by Daniel Tang Esq, deputy magistrate, of a single charge of assault occasioning actual bodily harm. He was sentenced to pay a fine of $6000. The appellant was represented at trial and again before me by Mr. Richard Donald of counsel.

2.The appeal originally came before His Honour Judge Longley sitting as a Deputy Judge of the High Court. The hearing was adjourned to enable a full transcript to be made available for the purposes of the appeal given the nature of the offence and the grounds of appeal. That is now to hand. I have read it.

3.It is not disputed that the events that gave rise to the charge occurred one morning when the complainant and the appellant's mother bumped into one another whilst out walking.

4.The complainant testified that he was then berated by the appellant's mother to the extent that he walked off to a nearby toilet without speaking to her: after he emerged, he observed her talking to 2 males, one of whom was her husband and the other the appellant, her son; the appellant approached him and punched him; in order to try to ward off the attack, he grabbed hold of the appellant’s wrists; the appellant pushed him as a result of which the complainant moved backwards, and then fell backwards into a flowerbed dragging the appellant down with him; appellant straddled him and continued to try to punch him; after a short while the appellant got up and walked off with his parents to a nearby block of flats; the complainant picked himself up, went after them and shouted at the appellant to the effect that he was trying to make off after having assaulted him, the complainant; the appellant then emerged from the lift lobby where he had been with his parents and started to pursue the complainant in circles, punching him on several occasions on the back; a security guard intervened; the police arrived.

5.The appellant’s version is that his mother had been walking some way behind him and his father, had hailed them and then the three of them had stood whilst the mother reported how the complainant had bumped into her and then set about abusing her with foul language; they were standing close to the drain, less than two feet away, at this stage; the complainant emerged from the toilet and then sought to pass through the narrow space between them and the drain; the complainant suddenly starting to abuse the mother; the complainant was waving his arms around and then poked the appellant's mother in the shoulder; the appellant had grabbed the complainant's arm who had stepped into the drain and started to fall backwards; the complainant grabbed the sleeve of the appellant's jacket and had then fallen to the ground dragging the appellant with him; they had rolled around on the ground: the complainant had kicked him on the leg; they had separated and he had walked off with his parents to the lift lobby of their apartment block; the complainant had arrived at the entrance to the lift lobby and cursed them; the appellant had gone out to speak to the complainant who had started moving away from him "very fast", backwards; the appellant had continued to walk towards him but without striking any blows; security guards arrived and separated them; the police arrived.

6.The magistrate had the opportunity, which I do not share, of seeing and hearing the witnesses. He explained why he rejected the defence version. He was fully entitled to do so. I feel constrained to say on this occasion that, even when read from the transcript, the appellant's version is contrived.

7.I am mindful, too, of the fact that at no stage was it suggested to the complainant in cross-examination that he had poked the appellant's mother's shoulder, the single factor which the appellant claims gave rise to everything that followed. Further, it is not in dispute that the complainant did sustain injuries to his face - a lip abrasion and nose contusion: those injuries are consistent with his version of events but remain unexplained on the appellant's version and the testimony of his father.

8.The appellant relies upon four grounds of appeal: first, that the magistrate erred in law in relying on the evidence of the second prosecution witness "as corroboration" of the complainant; second, that the magistrate erred in law in taking into account as a factor "he could use against the appellant" that the two defence witnesses called by him had not made statements to the police; third, erred in law when he granted witness expenses to the prosecution witnesses but not to the defence witnesses; and, fourth, the magistrate failed to take into consideration that the complainant was, at the time of the events which gave rise to the charge, subject to orders are binding him over to keep the peace consequent upon previous altercations in which he had been involved.

9.With respect, these grounds merely direct criticism at the magistrate rather than dealing with the real issue, which is that an appeal from a magistrate is a rehearing on the evidence before the magistrate together with such other evidence as this Court may permit. As Mr Donald accepts it is for me to make a decision based on that evidence, not whether the magistrate was right or wrong. That said, as a courtesy to counsel I propose to deal with each of the grounds advanced: it is possible to do so briefly.

10.The first ground mis-characterises the magistrate’s finding regarding the evidence of the witness concerned: first, the magistrate found that her evidence "supported" that of the complainant not "corroborated" it; and, secondly, he found that it did so to a limited extent that some form of "chase" had occurred and that the complainant sustained injuries. It is sufficient to dispose of this submission by pointing out that neither of these matters was disputed by the appellant during cross-examination of the complainant or in the course of the appellant’s testimony.

11.Ground 2: the magistrate did not use the failure of the witnesses to make witness statements "against the appellant" but rather as a factor relevant to his assessment of their credibility given that they were his parents; the incident had started after the complainant and the appellant's mother had bumped into one another; both witnesses had been present at the scene throughout; it was the appellant, their son, who was arrested; it was their case that the complainant had been the aggressor; and that both the appellant and his mother asserted initial assaults against them by the complainant. The magistrate properly regarded this as a feature which he was entitled to take into account in considering the witnesses’ credibility.

12.Ground 3: I have difficulty with the proposition that the magistrate's refusal to grant witness expenses to the defence witnesses can be said in any way to impugn his decision, unless it be suggested that that refusal manifested bias on his part against the appellant. Mr. Donald does not seek to go that far but says that it is indicative that the magistrate had rejected the evidence of the witnesses before hearing all of the defence case. I do not accept that to be so: the magistrate seems to have been somewhat confused as to whether defence witnesses are entitled to witness fees but finally reserved his decision whether to award them, revealing that decision only after he had delivered his verdict.

13.Ground 4: the magistrate specifically indicated in his Statement of Findings that he had taken into account the fact that the complainant had a history of being bound over and that the appellant had a clear record; he needed to have said no more than he did.

14.I am not persuaded that I should differ from the magistrate insofar as the rejection of the appellant’s version and that of his witnesses is concerned. There remains the evidence of the prosecution witnesses. I bear in mind the complainant’s track record of being bound over and the fact that he pursued the appellant and his family after emerging from the flower bed: there is support for the submission that he may be quick tempered but that does not necessarily make him untruthful. Notwithstanding that and even disregarding the testimony of the second witness I am satisfied that the complainant’s evidence should be accepted and relied upon. It establishes the commission of the offence charged.

15.I would add this as it seems there is still some variation in practise in the magistracy insofar as payment of witness fees is concerned: witness fees are payable for attendance at court to any person called to testify on behalf of a party, be that prosecution or defence. They are payable for the attendance at court and are not dependant upon giving truthful testimony. The magistrate erred when he refused to award witness fees to the appellant’s witnesses because he was satisfied that they had made up a story as he put it, but that had no effect on his decision or mine.

16.The appeal is dismissed and conviction confirmed.

Mr. Richard Donald, instructed by Messrs Wat & Co. for the Appellant

Ms Anna LAI, Senior Public Prosecutor of the Department of Justice, for the HKSAR