HKSAR v. Tsang Kin Wing

HCMA 319/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 319 OF 2013

(ON APPEAL FROM KTCC 6228/2012)

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R E A S O N S   F O R   J U D G M E N T

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1.The appellant was convicted after trial of one count of Assault Occasioning Actual Bodily Harm, contrary to common law and s 39 of the Offence against the Person Ordinance, Cap 212, and was sentenced to 3 months’ imprisonment. He abandoned his appeal against sentence at the hearing, and his appeal against his conviction was dismissed. I now give the reasons.

The prosecution case

2.PW2 (the victim) and the appellant were husband and wife whose relationship had turned sour at the material time.  The appellant was a serving police officer and on the day in question, after their maid took their daughter to school they had an argument.  It was alleged that the appellant poured hot tea into the front and back of the camisole that PW2 was wearing.  He further splashed water in another cup towards her face and grasped and punched her upper right arm a few times when she tried to call the police.

3.Later that day she was sent to the hospital and was treated by a Dr Chan.  The findings were as follows:

(1) Redness, tenderness, bruise and swelling in the right arm; and

(2) Erythema/first degree scald injury over neck and upper chest.

4.Dr Chan explained that although first degree scald injuries are of the mildest kind, it is more serious than the sort of redness caused by hot bath.

The defence case

5.The appellant testified that prior to this incidents there had been much quarrel with PW2, during which, PW2 had sometimes thrown dishes or splashed mouth rinser towards him.

6.He said that at the material time they quarreled and PW2 had a cup in her hand and looked angry. He feared that she would throw the cup at him, so he stretched his hand to try to grab the cup but the tea in the cup spilt accidentally on PW2.  He poured water on PW2 to help her cool down.

Grounds of appeal

7.The learned magistrate, in finding that PW2 was an honest and credible witness, failed to take into account the following:

(1) The self conflicting evidence of PW2; and

(2) The lack on scald injury to her back casts doubt on her version of event.

Respondent’s reply

8.Counsel for the respondent submitted that there is nothing in the magistrate’s reasoning to demonstrate that his findings of fact or determination of PW2’s credibility was “plainly wrong”. (HKSAR v Ip Chin Kei & Others [2012] 4 HKLRD 383)

9.In reply to the specific points raised, counsel submitted that PW2 had explained how her supplementary statement came into being there was nothing suspicious or sinister in that.  The magistrate was correct in concluding that the so‑called discrepancy between PW2 and PW3’s evidence was immaterial and not to the extent sufficient to shake PW2’s credibility.

10.Further, the absence of injuries on PW2’s back was not something which directly contradicts her version of event, taking into account that the back of her camisole was in fact extensively stained with milk tea which refutes the appellant’s allegation of an accident.

11.Finally, the appellant’s evidence had been fully evaluated and reasons for rejecting were elaborated in the Statement of Findings.

12.Counsel for the respondent submitted that the conviction is neither unsafe nor unsatisfactory and urged the court to dismiss the appellant’s appeal against conviction.

My Judgment

13.An appeal under s 113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court, and where the facts are concerned, the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first‑hand which the magistrate enjoyed.

14.Appellant’s counsel has highlighted a number of points from the transcript which he said, illustrated that PW2 was embellishing her evidence as she went along and was not a credible witness.  One of those was her evidence as to how many blows the appellant inflicted on her forearm: that in her first witness statement she mentioned “one hit” (AB 120N) but in her supplementary statement, she mentioned a number of punches (AB 123J). When being cross examined she said she was unable to count the number of blows, but the most painful were 5 to 6 amongst those blows.  It was submitted that the magistrate failed to take sufficient account of the fact that PW2 was once a police officer and wrongly accepted her explanation of signing on a witness statement which did not contain the accurate details.

15.Another such discrepancies, counsel submitted, was what PW2 said to her helper, PW3, when PW3 took her daughter to school: whether she said “Mm, you come back quickly.  I am afraid Ah Sir will hit me again”; or “Maid you immediately -- come back quickly”. (AB 334)

16.The magistrate was alive to these criticisms on PW2’s evidence.  PW2 had explained why she initiated a supplementary statement (AB 120Q), and why it was not taken until a week later.  (Statement of Findings, paragraph 20(ii)).  The magistrate took into account the chronology of event including initial hope of mending the relationship with the appellant which dissipated after she was arranged to stay in a shelter home (AB 122, Statement of findings paragraph 20(iv)(a)). The magistrate is entitled to accept PW2’s explanation as to why a second statement was required and that due to her mental and physical condition of the time when the first statement was taken from her, he found that it was understandable that PW2 failed to notice the discrepancy between the witness statement and the truth.

17.In that regard of whether she was hit by the appellant on her arm causing the bruises I have referred to the photographs showing a large patch of bruises and the two marble‑shaped injury marks on the back of her right arm.  Whilst counsel submitted that the bruising could well be the result of the war games, it is clear that they are of a completely different nature.  Further, PW3’s evidence confirming that she was aware that PW2 had sustained only those two mark wounds when she came back from the air‑gun activity organized by the employer earlier (AB 490, paragraph 13, Statement of Findings) was uncontradicted.  Counsel conceded that it was never put to PW2 at the trial that the bruises were caused not by punching but by the war games.  In fact, the evidence of the appellant was that after the incident, he did grabbed her hand/arm and asked her to calm down (AB 366).  Undoubtedly a mere grabbing could not have caused that size of bruises and such could only be the result of a number of hard and forceful punches.  In my view, the complaint by appellant’s counsel of such as illustration of her embellishment of her evidence holds no water.

18.Now turning to what PW2 said to PW3 when PW3 was about to leave home with PW2’s daughter, counsel for the appellant submitted that the discrepancy was another illustration of embellishment.  When assessing their evidence, we have to bear in mind that PW3 was relating to the court what she thought was said to her by PW2, whilst PW2 was trying her best to tell the court what she recalled to have said to PW3. Given what happened at the time involved verbal abuse, spilling or pouring of hot and cold drinks, that must have been a highly chaotic and shocking experience.  It was only understandable that PW2 was unable to narrate the exact wording used.  The magistrate was right in finding that this did not amount to material discrepancy, and certainly not something which discredit her credibility or lending support to the allegation of embellishment.

19.I shall now deal with the lack of scald wound on PW2’s back.  PW2’s evidence was that she was sure that the appellant pulled open the front of her camisole to pour hot tea in but not sure about the back, as all those pouring and splashing took place within split of a second, during which she was petrified and motionless (AB 289). Counsel for the respondent rightly drew the court’s attention to the fact that PW2 was in the same sitting position during the whole incident.  The chair as shown in the photographs was one with a back and so could well provide an explanation as to the lack of injuries to her back.  The fact that the camisole was heavily stained on both the front and the back was not inconsistent with her allegation of how the matter happened, but rather, goes against the allegation of accidental spilling by the appellant.

20.The appellant’s evidence was that he “stretch out his hand to grasp her cup” when he saw that PW2 held the cup and looked at him in a fierce way.  One simply wonders why he would fight over the cup knowing full well it contained hot liquid rather than to adopt the natural reaction of dodging.  His evidence as to his picking up a cup of cold water to pour it over her intending to help her lower the temperature was again unthinkable.  Whilst he said that PW2 brushed or slapped his cup with her hand causing the cold water to spill, his empathy as to whether the water spilt over her face or her head was also something which is hard to understand (AB 365).  The appellant’s evidence was simply devoid of common sense and logic.

21.I do not find anything perverse about the magistrate’s reasoning.  She is entitled to conclude that the discrepancies were immaterial and not affect the credibility of the Prosecution witnesses, and that the appellant’s evidence was so devoid of logic and common senses to lack any truth in it.  She was entitled to reject his evidence, even after giving herself the necessary direction as to his good character.  This ground fails as well.

22.The appeal against conviction is dismissed, and since the appellant has been granted bail, he is to serve the remaining of his sentence forthwith.

Mr Martin Hui, DDPP (Ag), leading Ms Noelle Chit Aileen, SPP (Ag), of the Department of Justice, for the respondent

Mr John Marray leading Mr Kevin Wong, counsel instructed by Wong & Co, for the appellant