HKSAR v. POON SHUK KUEN

HCMA581/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.581 OF 1999

(ON APPEAL FROM NKCC 8257 of 1998)

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J U D G M E N T

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1. This is an appeal against conviction out of time. Leave to appeal out of time is granted. The fact that the notice of appeal against conviction was lodged late was because of a misunderstanding. I accept that it was always the appellant's intention to appeal her conviction.

2. The appellant was convicted on 26 April 1999 after trial at North Kowloon Magistracy of one offence of assault occasioning actual bodily harm and one offence of common assault. At an adjourned hearing, she was sentenced to one month's imprisonment and 14 days' imprisonment concurrently for the two offences, respectively.

3. The victim on the first charge was a 70-year-old female neighbour of the appellant. The common assault was on the 1st victim's granddaughter, a child of about four years old (the exact age was unclear). It was alleged that the appellant had come out of her flat and confronted the 70-year-old woman who was walking her grandchild home from school at about 1 p.m. It was alleged that the appellant slapped the child's face and then pushed the grandmother back against a wall, causing her to fall to the ground whereby she sustained relatively minor injuries. The only witness for the prosecution was the grandmother. The appellant and her younger brother gave evidence for the Defence.

4. In outline, the Prosecution case was that the appellant emerged from her flat just as the grandmother was about to enter her own flat. The appellant's brother followed her out. The appellant committed the two assaults having accused the child of knocking on the appellant's door. The Defence case was that when the appellant heard someone knock on her door, she went outside and saw the grandmother and the child already on the floor. They seemed to have lost their balance. When she got up, she declared herself to a member of the 14K Triad Society. The appellant never assaulted either the grandmother or the child.

5. Six grounds of appeal have been advanced. They are all criticisms of the learned magistrate's Statement of Findings. As recognized by the learned magistrate, this was a case of two starkly conflicting versions of a simple incident. One version was entirely consistent with guilt, the other entirely consistent with innocence. It was the magistrate's task to evaluate the evidence he heard given by the witnesses he saw. It was incumbent on him to make decisions as to the credibility of the witnesses. He adopted the correct approach when he said in his Statement of Findings :-

" In the course of my judgement I refer to various findings that I made. Each finding that I made was a finding that I was satisfied with, beyond reasonable doubt, on the admissible evidence pertaining to it. I made no findings until after the completion of the evidence and after the parties had had the opportunity of making a final address. In outlining my findings I did not repeat the whole of the evidence, but I kept it all in mind in reaching my verdict.

I reminded myself that the burden of proving each element of the offence charged rested on the prosecution throughout the trial, ... this meant that if the prosecution were unable to satisfy me beyond reasonable doubt of the guilt of the defendant, then she was entitled to an acquittal of the charge/s. ... Again, the defendant did not have to prove anything at all. She was entitled to put the prosecution to proof of their assertions."

6. It is the appellant's case that the conviction is unsafe and unsatisfactory because of certain deficiencies and flaws in the written Statement of Findings. I will deal briefly with each one.

7. Firstly, complaint is made that the magistrate erred in the way he rejected the evidence of the appellant and her brother. In particular, complaint is made of the fact that the magistrate said that the stories they gave to the court were "completely inconsistent with each other". It is submitted that, on a careful analysis, of their evidence their stories were in fact consistent. Complaint is also made that the Statement of Findings does not say what the inconsistencies were and that this was the only reason for rejecting their evidence.

8. Criticism of the expression "completely inconsistent" is clearly justified. Although there were some minor inconsistencies, the substance of their evidence was not inconsistent, certainly as far as material issues were concerned. However, the expression, although unwisely included in the statement, must be viewed in its context. It is preceded by "I did not believe what they told the court" and followed by "They lacked any kind of credibility whatsoever". The magistrate had made a clear and unequivocal assessment of the witness' credibility. Having followed the approach recited above, he had made a decision that they were lying. It is not correct to say that he gave no other reason (other than inconsistencies) for rejecting their evidence. He rejected it because he determined it to lack "any credibility whatsoever".

9. As to the complaint that the "inconsistencies" were not set out in the Statement of Findings, it is helpful if a magistrate does so but it is not essential, and a failure to do so will not be automatically fatal to the conviction. The remarks of Mills Owens J in R. v. Tam Tin Chung, Crim.App.607 of 1979 were cited with approval by Hunter JA in R. v. Cheung Yuen Hing [1988] 1 HKLR, at page 163 :-

" 'Obviously a tribunal must evaluate the evidence before it, and in the case of oral testimony must weigh it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such evaluation has in fact been made : the public interest, not only the interest of the parties, requires no less. Certainly there may be cases where the tribunal is left with the direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than to say which of the witnesses it believes.'

This passage we think contains valuable guidance as to the judges' duties in relation to evidence, with the recognition of the limitations, where as here, he is faced with a headlong clash between two groups of witnesses."

10. The second ground of appeal is that when he delivered his oral verdict after the trial, he said that he found the grandmother had been telling the truth and was a credible witness whose testimony could safely be relied on. However, he did not say that he rejected or disbelieved the appellant or why. There is no merit in this ground of appeal. When a case concerns directly opposing versions of a simple incident, the acceptance of one version given by a credible witness carries with it the rejection of the opposing version. It must follow that the court did not believe that version of events.

11. The third ground concerns the following extract from the Statement of Findings : -

" It was submitted that the victim was making the incident up and that in fact some other, unknown person/s had carried out the assault upon here and her granddaughter."

The argument on appeal is that, in fact, the defence never suggested that some other unknown person or persons must have inflicted the assaults. It was always the defence case that the grandmother and granddaughter were already on the floor when the appellant emerged. It was presumed they had lost their balance. This, it is submitted, demonstrates that the magistrate misunderstood the defence case to an extent that his judgment generally must be regarded as being flawed.

12. The fourth ground makes a similar point. I will deal with them together. The fourth ground is that the magistrate made an error of fact when he stated that the appellant heard "someone" speaking to the grandmother when she emerged from her flat, when in fact the appellant's evidence was that the person she heard speaking to the grandmother was her own brother. The complaint being that this mistake may have fuelled the magistrate's misunderstanding that it was suggested that an unknown person had committed the assaults prior to the appellant arriving on the scene.

13. It is correct to say that the defence did not put forward any theory that an unknown person had inflicted the assaults. However, the defence, according to their own case, were not in a position to give any explanation as to how the injuries were sustained. It was their case that, the injuries must have been sustained before they came on the scene. They could not say whether it was as a result of an accidental fall or at the hands of someone other than herself. It must have been one of the two. The magistrate either expressly or impliedly rejected both.

14. More importantly, the complaint that the magistrate must have or may have misunderstood the defence case because of these matters are groundless when one looks at his summary of the defence evidence in his Statement of Findings. In his recital of the evidence, there are no mistakes or misconceptions. This ground must fail.

15. The fifth ground states that the magistrate failed to deal with some "salient features" in the evidence before convicting the appellant. Some examples of those features are as follows. There was some difference in PW1's evidence as to whether her injuries were caused by colliding with the wall or falling to the ground. The grandmother at one time said she referred to her granddaughter as Ng Tin Yan but later said she had called her "Yan Yan". PW1's medical report did not mention some of the minor injuries she said she had suffered. The handwritten hospital note referring to the child did not mention a bleeding lip which PW1 had said she had seen.

16. Individually these are all relatively minor aspects of the evidence. It would be unusual if in a case like this, there were no such features. There is no special duty on the magistrate to list and deal with every such item. Even collectively they do not add up to a ground of appeal which renders the conviction unsafe. The learned magistrate had prefaced his findings with these words - "In outlining my findings I did not repeat the whole of the evidence, but I kept it all in mind in reaching my verdict".

17. The sixth and final ground is really another example of the fifth ground. Whereas the evidence of the defence was that PW1 had claimed to be a triad member, the magistrate said in his statement : "to suggest she was a triad ... was absurd". I have already dealt with differences such as this above.

18. For all the above reasons, I am satisfied that the learned magistrate was fully aware of all the issues and the starkly contrasting versions concerning those issues. I find the complaints about his Statement of Findings do not cause this court to conclude that the conviction may be unsafe or unsatisfactory. I dismiss the appeal.

Sentence

19. The appellant has withdrawn her appeal against sentence. Given that this was a minor assault case arising out of a neighbour dispute and the appellant is a 35-year-old woman with no previous convictions, and given the fact that she was given an immediate (albeit short) prison sentence, it is, to say the least, surprising that she has withdrawn her appeal. I am informed that the withdrawal was not on legal advice. It must therefore have been either for tactical reasons or sheer stubbornness.

20. In any event, section 119(1)(d) of the Magistrates Ordinance, Cap.227 provides : -

"... powers of the judge on appeal

(1) In the case of any appeal to which section 105 or 113 applies -

(d) the judge may by his order confirm, reverse or vary the magistrate's decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate;" (emphasis added)

21. This confers wide powers on the appellate court. In this case, the appellant's unwise decision (for whatever reason) to withdraw her appeal against sentence could result in an outcome which is not just. It is the duty of this court to ensure against such an outcome. I will therefore consider the question of sentence which I consider to be at large on an appeal against conviction only.

22. Although this was a nasty assault because a four-year-old (approximately) child was slapped on the face and a 70-year-old woman was pushed against a wall, I consider an immediate prison sentence to have been too severe. After conviction, the appellant failed to co-operate with those persons who had been asked by the court to prepare Probation and Community Service Reports, as a result she spent 14 days in custody awaiting sentence. She was then sentenced to one month's imprisonment in total.

23. In all the circumstances, I do not think that immediate imprisonment was appropriate after her 14 day incarceration for reports. A sentence of imprisonment was just about merited but it should have been suspended. The sentence of this court is that the sentences of one month and 14 days' imprisonment will be suspended with effect from today for a period of 1 year concurrently.

24. The appellant is informed that this means that if she commits any other offence punishable with imprisonment during the operational period of the suspension, she will be liable to serve these sentences in addition to whatever term is imposed for the offence which has put her in breach of this order.