HKSAR v. LAW WAI TUNG

HCMA 1182/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1182 OF 2005

(ON APPEAL FROM TWCC 2009/2005)

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J U D G M E N T

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1.  The appellant together with 3 other defendants was charged with assault occasioning actual bodily harm contrary to Common Law and punishable under section 39 of the Offences Against the Person Ordinance, Cap. 212.  The appellant was the 2^nd defendant at the trial.  The 1^st defendant had pleaded guilty and the 2^nd, 3^rd and 4^th defendants in the case had pleaded not guilty.

2.  The appellant was convicted after trial and sentenced to 4 months imprisonment.  He now appeals against the conviction and sentence.

3.  The prosecution case was not difficult in that the evidence came from one witness.  PW1 was an off-duty police officer, he had been sitting in Victoria Park and he had gone into the public washroom in Victoria Park.  He was confronted inside that washroom by the 1^st defendant who accused him of staring at his girlfriend.  Later as PW1 was leaving the washroom, the 1^st defendant appeared in front of him again.  And this time, the 1^st defendant had 5 to 6 men standing behind him.  There followed a short interchange of words, and during this time, PW1 told that group that he was a police officer.  D1 then pushed PW1 and shouted the words “Police so fucking what, go ahead with the assault”, and then the men rushed forward towards PW1 who managed to get past his attackers and ran until he was pushed over near a concrete barrier outside the toilet.  He was then kicked and punched whilst he was on the ground.  The group of attackers then went back to sit in the area where they had been before.  PW1 then called for police assistance.  When the police arrived, he pointed out the defendants as having participated in the attack.

4.  After the prosecution had closed its case, the 2^nd defendant, who is the appellant here, elected to give evidence. His evidence was that he was drinking beer in Victoria Park.  He had gone into the public toilet about 6 pm and saw two men quarrelling, one of whom was the 1^st defendant.  At one stage, when he was inside the toilet, he believed that he heard the 1^st defendant telephoning the police to report his suspicion that a male was impersonating a police officer.  After he had gone about his business inside the toilet, he returned to his sitting place in the southern pavilion when subsequently PW1 pointed him out as having been involved in an attack.  The 2^nd defendant had also denied his involvement when he was cautioned.

5.  He called as his witness the 1^st defendant.  The 1^st defendant gave evidence basically supporting the evidence of the 2^nd defendant in that he said the 2^nd defendant was not involved, and that he had not seen the 2^nd defendant, and it was only he who had struggled with PW1.

6.  The 3^rd Defendant gave evidence and he denied that he was involved in the assault and maintained that he was in the changing room.  The 3^rd Defendant again said that he did not know PW1 before the incident and he had no grudges against him.

7.  The learned Magistrate had borne in mind that the identity of the 2^nd defendant was not in issue, but it became clear that in relation to the assault it was, and therefore he proceeded on that basis.  So the learned Magistrate very properly considered the identification of the 2^nd defendant and reminded himself of the Turnbull directions even though PW1 said he had seen the 2^nd defendant before and it was more of a recognition than an identification.  And, as Ms Lam very properly pointed out, the learned Magistrate was not wrong to remind himself of the Turnbull directions. 

8.  The learned Magistrate was fully aware of the fact that the witness, PW1, did not pick out the 2^nd defendant/appellant in court because he could not remember the rest of the assailants.  The only thing he said was that he remembered that the 1^st defendant, “character A”, was not in court, because the 1^st defendant had pleaded guilty.

9.  The learned Magistrate dealt with the lighting in his Statement of Findings and found that at the end of the day that PW1 had no difficulty whatsoever when he pointed out the 2^nd defendant to the police.  The learned Magistrate was also well aware that PW1 was unable to say which particular defendant had administered which particular blow or kick, and because it was a group attack, PW1’s identification he felt was sound.

10.  The learned Magistrate had reminded himself of the fact the 2^nd defendant had a clear record, but at the end of the day when he considered the 2^nd defendant’s evidence, he was not impressed with his evidence.  The learned Magistrate also disbelieved the 1^st defendant who was called as a witness because the learned Magistrate found that when the 1^st defendant had pleaded guilty, he had clearly agreed the brief facts of the case which was read out to him and the different version he gave in court as witness was therefore in contradiction to what he had admitted in court, so the learned Magistrate did not believe him.

11.  At the end of the day, the learned Magistrate was satisfied beyond reasonable doubt that the 2^nd defendant was guilty.

12.  In dealing with the sentence, the learned Magistrate decided to treat the 2^nd defendant as having a clear record, although he had a previous conviction in 1986 of theft.  The learned Magistrate was well aware of the background of the 2^nd defendant.  The learned Magistrate, however, took the view that this group attack on the witness, who was an off-duty police officer, in a public place was a serious offence and found that an immediate custodial sentence was appropriate.

13.  I want to say here that this sort of attack on a person who was alone by a group of hostile men of 5 to 6 persons, certainly is a very serious offence, whether the witness is an off-duty police officer or whether he is a bus driver, or a businessman, whatever occupation the victim had it is still a serious offence.  It was an unjustified, unprovoked attack on a person, who was minding his own business, with the flimsy excuse that the victim was staring at one of the assailants’ girlfriend.  I have no doubt at all that learned Magistrate was right to say that in this sort of case, an immediate custodial sentence was appropriate, even in the case where the particular defendant has a clear record.

14.  The learned Magistrate then took a starting point of 4 months imprisonment after considering that the 2^nd defendant had a clear record, and he found there were no special circumstances to reduce the sentence.  He was of the view that this sort of offence was too serious to suspend the sentence, or for a community service order or probation.

15.  On appeal, Ms Ma who represents the appellant, advanced several grounds of appeal.  Initially, Ms Ma advanced the ground that the learned Magistrate had erred in reminding himself of the Turnbull directions as this was a case of recognition.  But very properly, Ms Ma agreed with the submission of Ms Lam and do not further pursue that ground.

16.  The next ground is one of identification.  Ms Ma tried to persuade this court that PW1 was a trained police officer, and yet had failed to recognise or identify the appellant in court.  It showed that there was something wrong with PW1’s evidence and that therefore it created a lurking doubt as to the rest of his evidence.  And Ms Ma also pointed out that PW1 had managed to say that character A, who was the 1^st defendant, was not in court.

17.  I do not agree.  This offence took place, as Ms Ma says, 4 months prior to the trial, and PW1 had at the time in front of the defendants and the police picked out the defendants at the scene.  Human memory is a very funny thing.  Some people may remember a face forever, some people may have a shorter memory.  And it is to PW1’s credit that he did not say he recognised the defendants in the dock, and that fact shows that he was indeed being honest to the court when he admitted that he could not remember.  So I do not agree with the submission that there is a lurking doubt created about his evidence.

18.  Ms Ma goes on to ask this court to consider the inconsistency of PW1, it was pointed out at the trial that PW1 did not mention the altercation at the toilet entrance in his witness statement.  He only mentioned or gave an account of the assault which happened near the concrete barrier.  PW1’s evidence was that he was too tired at the time when he gave his witness statement and therefore did not disclose the altercation at the toilet door.  In re-examination, he said that he felt that the actual assault had taken place at the concrete barrier and so he did not say it in his witness statement.

19.  The learned Magistrate had very fairly dealt with this in his Statement of Findings.  He said that he did not believe that PW1 did not say about the altercation at the toilet door because he was tired.  But he found that the reason PW1 had not included the start of the incident in his witness statement was because he had not considered it was part of the main assault at the concrete barrier.  The learned Magistrate said that PW1 believed that it was during the assault that he had sustained his main injury and this assault was the main basis of his complaint to the police.

20.  The learned Magistrate had considered at the end of the day whether the inconsistency had caused him to doubt the honesty and reliability of PW1’s evidence.  But he found that they did not, because he accepted the rest of PW1’s evidence, and accepted him as an honest and reliable witness.

21.  Ms Ma said that this is very clearly an indication of PW1 changing his evidence.  I do not agree, because there was evidence that after he had been so viciously attacked by this group of people, he had made the statement, he must have been tired after having undergone such a dramatic event, and what he said in re-examination is also correct in that he is saying that he felt that the actual assault was at the concrete barrier and therefore did not mention the toilet door altercation in his witness statement, so the two does not necessarily cancel each other out.  The learned Magistrate had properly considered it and at the end of the day, he felt that it did not affect PW1’s reliability or honesty as far as the rest of his evidence was concerned.  I do not see in any way that the learned Magistrate was wrong.

22.  Ms Ma also submitted that it was unusual for the group to stay after an assault, and the normal thing was for the group to run away.  That may be.  I do not know what the normal circumstances would be in an assault like this.  There could be also some other reasons which I am not prepared to speculate here.  But in any event, this was submitted to the learned Magistrate who did not consider it unusual.

23.  In submitting that there was material irregularity, Ms Ma made a very serious accusation that the learned Magistrate was acting dishonestly when he gave his oral verdict because, initially, he had said that the 2^nd defendant did not give evidence and then when he was reminded that the 2^nd defendant did, the learned Magistrate said it was a typographical error and he had meant the 4^th defendant.  Ms Ma claimed that this would show to an uninterested observer that the learned Magistrate had decided to convict.  First of all, I would like to say that all assertions by counsel that a magistrate was dishonest should never be made unless counsel has evidence to back him or her up.  It is clear from a reading of the transcript that the mistake was made at the outset when the learned Magistrate started to deal with the defence case.  At that time, he was reminding himself that the defendant had a right to remain silent and other necessary directions.  It was at that stage that he made the mistake of saying the 2^nd defendant did not give evidence.

24.  Ms Ma who represented the appellant in the trial very properly reminded the learned Magistrate of his error.  The learned Magistrate then corrected himself and explained that he had meant the 4^th Defendant.  I do not see here any indication that learned Magistrate had, because of that mistake, been dishonest and had decided to convict.  When the learned Magistrate gave his oral verdict, he had already decided what to do with the case, whether to acquit or convict in any event.  So, I do not understand how this mistake would indicate to an observer that the learned Magistrate had failed to consider properly the defence case, because the learned Magistrate when giving his verdict would have already considered all the evidence in the case, otherwise he would not have been ready to deliver his oral verdict.

25.  Ms Ma posited therefore that in view of this there was a lurking doubt in the conviction of the appellant.  I do not agree.  I do not agree that there was any basis for thinking that there is any lucking doubt in this case.  I find that there are no grounds at all to say that the conviction was unsafe and unsatisfactory.  And so the appeal against conviction is dismissed.

26.  Turning to the appeal against sentence. Ms Ma said the sentence is manifestly excessive, and that the learned Magistrate was wrong to consider the fact that the victim was an off-duty police officer, and she prayed in aid the cases where she said lesser sentences were given.  The Queen v So Kam Ming, HCMA 201/1996, that was a case where Leong J deliberately stated in his judgment that there were special circumstances pertaining to that case and therefore 4 months imprisonment was handed down.  And in that case also, the defendant had pleaded guilty.  There were special circumstances in the background of that Appellant and therefore that case cannot assist the appellant in this case.

27.  Ms Ma pointed out that in the case of R v Wong Ka Ching & Others, HCMA 1124/1990, the case was a revenge attack on a police officer because of his past execution of duty.  That is nothing to do with the present case.  The learned Magistrate did not sentence on the basis that the assault was because of the victim’s past execution of duty.  Ms Ma referred to the case of R v So Ming, HCMA 264/1998.  That was a case where it is what is commonly termed “road rage” and, here we are talking about an unprovoked attack on a victim by 5 to 6 men.  That is an aggravating factor of itself.  The victim was going about his own business when he was unreasonably accused of staring at the 1^st defendant’s girlfriend which was a flimsy excuse for the attack upon him.  He was pushed to the ground and kicked and punched by these men.  So this is clearly a case which calls for an immediate custodial sentence, and although 4 months imprisonment can be considered a serious sentence, but in the circumstances of the case, it cannot be said to be excessive.  The sentence has to reflect the court’s concern that citizens going about minding their own business should not be attacked by groups of men without any provocation at all, so the sentence should carry some form of deterrence.  I therefore consider that the sentence in this case is not manifestly excessive and not even excessive at all.  So the appeal against sentence is also dismissed.