CHENG SAI HUNG v. THE QUEEN

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1052 OF 1987

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J U D G M E N T

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1. The appellant was convicted on the 17th November, 1987 on one charge of claiming to be a member of a triad society and another charge of criminal intimidation. He was fined $600 on each charge. He appealed against his convictions.

2. The first prosecution witness (whom I shall refer to as "the complainant") gave evidence that on the 3rd September, 1986 he was driving a container lorry and a dispute arose between himself and the appellant concerning the latter's driving manner. The complainant admitted he was quite angry at the time. He testified that in the course of an argument the appellant said he was a Hung Chai of the Sun Yee On. It was not in dispute that "Hung Chai" is a "Red Pole" and Sun Yee On is a triad society. The complainant went back to his lorry, intending to leave but was prevented from doing so by the appellant who kept his right hand on the door of the complainant's lorry. The appellant used his portable telephone which he was holding in his left hand and told the complainant he was going to call someone to assault him, to make him lame. There were discrepancies in the complainant's evidence as to whether the appellant made his telephone calls when he, the complainant, was in his lorry or on the ground and there were discrepancies relating to the appellant holding the door of the complainant's lorry. On hearing the appellant's threats, the complainant apologized. The appellant got on to the lorry and took out the ignition key. The complainant did not actually see how the appellant climbed on to the cab but he 'inferred' the appellant held the portable telephone in his left hand with the thumb, index and, middle fingers and used the last two fingers to hold the rail and put one foot on the hub cap to get into the cab. Because the lorry was fuelled by diesel the engine kept running and the complainant then reversed and drove away fearing someone would come and assault him. The appellant gave chase. The complainant saw some police officers, stopped his lorry and made a complaint. When the appellant's car was seen by the police, it was stopped. No key to the complainant's lorry was found. The appellant appeared slightly angry.

3. The complainant denied there were any traffic lights at the junction but the appellant filed an affidavit exhibiting photographs showing that such lights in fact existed.

4. The appellant gave evidence and said, among other things, that the complainant was "very fierce". When he alighted from his car he had his portable radio with him - he said he received two telephone calls but made none himself. He denied saying he was a member of the Sun Yee On or that he would break the complainant's leg.

5. Mr Buchanan, counsel for the appellant; submitted that the magistrate had failed to consider properly or fully the discrepancies in the evidence of the complainant and erred in her assessment of the complainant as a witness of truth and also failed to particularize properly or at all the reasons for rejecting the appellant's account of events.

6. In R. v MA Kwai-ching (1968) H.K.L.R. 654 at 656 Huggins, J. said:

"It is submitted that this was not a sufficient statement of findings and that justice had not been seen to be done. It is suggested, in particular, that even if one can interpret the words used by the learned magistrate as indicating he believed the evidence given by the prosecution witnesses, it was still required of him to state what were the reasons for his belief. Mr Gunston has argued the matter on behalf of the appellant most forcefully. But I cannot accept that this is required under the statute. What is required is a Statement of Findings, and nowhere does it say that the magistrate is required to give reasons for his findings."

7. The learned judge went on to say:

"I do not say that in every case it is unnecessary for a magistrate to state why he believed a certain story. It may be that he comes to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and in such a case, if he does not give reasons which commend themselves to an appellate court, it may well be that the appellate court will come to the conclusion that his findings of fact was unsafe and may therefore quash the conviction.

8. However, in Reg. v CHAN King-man and others (1980) H.K.L.R. at page 113, the Court of Appeal quoted with approval what the Full Court had said in R. v R.E. LOW (1961) H.K.L.R. 13 at page 82:

"The duty of a District Judge was fully dealt with by the Full Court in R. v R.E. LOW (quoted in R. v Godber (1975) H. K. L. R. 340) the effect of which was to rule that a District Judge, in setting out his Reasons for Verdict, is under no obligation to set out his mental processes in full. At page 82, Blair-Kerr, J. deals with the question as follows -

It is contended by Mr. HOW that a District Judge's statement of his reasons for verdict prepared in pursuance of section 30 of the District Court Ordinance was comparable to a Judge's summing up to a jury. I do not agree with this view. The District Judge's only statutory duty is to record a short statement of the reasons for the verdict. There is no duty cast upon him to state the whole of the law applicable to the case or to review the whole of the evidence. Of course, if he chooses to state his views of the law, or any aspect of the law applicable to the case, and that view is held to be wrong, the position is precisely the same as when a Judge misdirects a jury on a matter of law. Similarly, if he chooses to review the evidence at length and it is clear from his statement that he has substantially mis-apprehended or misunderstood the true nature of that evidence, or any important part of it, it may well be that it would be open to an appellant to attack his conclusion on the facts before this court. But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and is not duty bound to set down precisely what he accepts, what he rejects and what weight he attached to every piece of evidence or the arguments of Counsel on the evidence or the whole of the workings of his mind in arriving at his conclusion.

Of course, to the extent to which he chooses to discuss the evidence to that extent does he disclose how 'the mind of the jury' was working; and an appellate court is therefore in a stronger position to review his conclusions than it is in regard to a jury verdict. But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of facts, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's finding if, having regard to the whole of the evidence, such findings appear reasonable." (emphasis added).

9. And see The Queen and CHENG Chung-hai and CHAN Kam-fai, Cr. App. No. 401 of 1987. Both that case and CHAN King-man (above) refer to District Court decisions.

10. Section 80 (formerly section 30) of the District Court Ordinance provides:

"Before pronouncing judgment, a judge shall record his verdict and, at the same time or so soon thereafter as may be, shall also place on record a short statement of the reasons for the verdict. "

11. Section 114(b) of the Magistrates Ordinance provides that

"When a notice of appeal has been given to the magistrate's clerk the magistrate whose conviction, order or determination is the subject of the notice of appeal shall prepare a signed statement of his findings on the facts and other grounds of his decision ...... "

12. Whilst section 80 of the District Court Ordinance refers to district judges having to give "reasons for the verdict", section 114(b) of the Magistrates Ordinance makes no such provision. I share the view expressed by Hug gins, J. in R. v MA Kwai-ching (above).

13. It is by no means unknown for there to be honest differences between witnesses recounting the same event. It is one of the realities of life that many, if not most, people do not remember and/or recount the same incident; especially the details thereof, in the same way.

14. When witnesses are testifying to some event that took place some weeks, sometimes months before, I think it should be remembered that two main factors are involved - the faculties of observation and recollection. Some witnesses have good powers of observation but comparatively poor powers of recollection and vice versa. Sometimes a witness may leave some matter or matters out because they are not in the forefront of his mind but under the probe of questioning, he may recall some matter or detail which he had previously forgotten.

15. Also when some people are suddenly and unexpectedly confronted with, or projected into, a traumatic situation, their faculties of observation and/or recollection may be less acute, in matters of detail, than they might otherwise have been. And this is especially so when the matter or incident occurred in a very short space of time.

16. I am not suggesting, for one moment, that discrepancies may not provide a valuable method in the evaluation of credibility but the tribunal ought to consider whether such discrepancies (and these apply to the evidence whether adduced by the Crown or the Defence) are not more apparent than real and whether they can be explained by faulty memories, lack of perception or conscientiousness for matters of details, or whether they indicate or suggest fabrication.

17. The learned magistrate set out the evidence in some nine typed pages (including the evidence of the prosecution and defence witnesses which evidence disclosed certain discrepancies). The magistrate said she had carefully considered the discrepancies in the complainant's evidence and stated she found they were of little or no consequence and that they caused her no anxiety. I agree with the learned magistrate's view, in effect, that the inconsistencies were not of a significant nature. The magistrate then dealt with her Finding of Facts for a further three typed pages. She found, having listened to the appellant's evidence and seen his demeanour, that he was not a truthful and honest witness. On the other hand, she found the complainant and the second prosecution witness to be honest and reliable witnesses and accepted their evidence. .

18. The learned magistrate had the unestimable advantage of seeing and hearing the witnesses. The evidence adduced at the trial lasted less than a day and the magistrate gave her verdict in which she made a brief reference, inter alia, to the discrepancies in the complainant's evidence, on the same day. She found as a fact the appellant had said he was a Hung Chai of Sun Yee On and that he told the complainant he was going to call someone to come and assault the complainant and make him lame, causing him to become frightened. She also found the appellant to have been the aggressor.

19. The grounds of appeal stated that the verdict was unsafe and unsatisfactory. In such cases it is for the appellant to establish that the verdict was unsafe and unsatisfactory (see The Queen and YEUNG Kwok- kuen, Cr. App. No. 78 of 1985). The appellant has not so persuaded me and the appeal is dismissed.