HKSAR v. LEUNG MAN YEE

HCMA 786/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 786 OF 2009

(ON APPEAL FROM TMCC 2154/2009)

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BETWEEN

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J U D G M E N T

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1.  The Appellant was convicted by Magistrate Mr Stephen Smout after trial, of one count of Common Assault, contrary to section 40 of the Offences against the Person Ordinance, Cap. 212.  The particulars of the charge were that on 31 March 2009 inside the gate of Vianni Cove, at Tin Shui Wai, the Appellant assaulted a boy.  She was convicted and given a conditional discharge.  She appealed against conviction only.

Prosecution Case

2.  The victim was an 11-year-old boy (PW1) who gave unsworn evidence that he had had a quarrel with a schoolmate when he was going home on the bus.  The boys alighted at the same stop and the schoolmate went to complain to the Appellant, his mother.

3.  Thereafter the Appellant approached PW1 and scolded him, asking him about the quarrel and the name-calling that had ensued.  The Appellant followed PW1 through the gate.  She was very angry and kept on scolding him, pointing at him with her right index finger, poking him 3 to 4 times on the upper part of his chest area.

4.  PW1 said he felt painful and took a step backwards at the time.  He was wearing a short-sleeved shirt and shorts.  He was not wearing a jacket and had no undergarment beneath his shirt.  He said he was touched with medium force by the Appellant.  Subsequently he returned home and his mother examined his chest.  She saw three linear red marks that looked like scratch marks.  PW1 said they had not been there before the incident.

5.  There was no independent witness who saw all that had happened.  PW2 was the domestic helper who worked for PW1’s family.  She had met him at the gate.  She told the court she heard the Appellant scolding the boy and saw that she was pointing a finger at him, but she did not see her finger touching the boy’s chest as she was standing behind him and her view was blocked because the boy was taller than she was.  She said the Appellant was about 18 inches away from PW1 when she pointed her finger at him.

6.  Later, the same day, PW1 was examined at the A&E Department of Pok Oi Hospital.  The doctor reported that he saw three superficial scratch marks on PW1’s chest about 7 cm in length.  The doctor said these were compatible with scratching by a pointed object, an object which could be fingernails.

Defence Case

7.  The Appellant elected not to give evidence and called one witness, a security guard (DW1) who was on duty at the gate at the time.  He however had not seen anything of the incident.  He said he heard a woman lecturing someone outside his booth, but did not see what was happening.  Later he came out of the booth to ask PW1 whether he had had a quarrel with the Appellant, but received no reply.  The next day he said he viewed a CCTV tape which showed the Appellant and PW1, but that he could not see the Appellant touching PW1’s chest with her finger.  He said he did not see any movement of the hands of the Appellant.  According to him the boy, PW1, was wearing a long-sleeved garment.  That was about the extent of his evidence.

8.  The Magistrate having considered the evidence in detail, accepted the evidence of PW1 and convicted the Appellant.

9.  The Perfected Grounds of Appeal, overall, attacked the way the Magistrate had treated the evidence of DW1, the security guard and alleged the Magistrate had erred in not finding a reasonable doubt in the prosecution case.  It was the Appellant’s submission that as the Magistrate had found the security guard to be an honest witness, the Magistrate should have had doubts about the evidence of PW1, because of what the security guard told the court.

10.  Ground 2 alleged that the Magistrate may have erred in finding that DW1 could not see the incident.

11.  Ground 3 was a complaint that the Magistrate had failed to consider sufficiently or at all that the boy’s unsworn evidence was uncorroborated in a material particular.  In this regard, Mr Albert Poon, who appeared for the Appellant, submitted that the court should have given a corroboration warning in respect of PW1’s evidence. 

12.  Ground 4 was a complaint that the Magistrate had failed to consider sufficiently or at all whether there was a lurking doubt, or whether the conviction was unsafe and unsatisfactory.

13.  The Magistrate considered the evidence of DW1 very carefully.  He noted that he did not see any physical actions or any motion of the Appellant’s hands.  He said during his observation of the content of the CCTV tape the Appellant did not raise her hands.  PW1 was in the vicinity of his booth when the Appellant met the boy.  He himself came out from his booth after he heard the talking or the scolding.  He said PW1 and his domestic helper made no complaint to him.  He said he did not see the Appellant poke the boy in the chest with her finger.  Unfortunately by the time the police asked to seize the tape the relevant footage had been erased. 

14.  DW1 confirmed that the CCTV camera had a fixed position and did not move around to capture other areas in the vicinity.  The area it covered was limited to about 1 metre’s distance from the gate.  He said he did not know at what stage PW1 and PW2 moved into the area.  He agreed that the lecturing of children was very common and he did not pay attention to such lecturing.  He had noted that the Appellant was very agitated and shouted loudly at the time he came out from the booth.

15.  The Magistrate dealt with DW1’s evidence in detail at B16 of his Statement of Findings.  He said he was prepared to accept that DW1 as an honest witness, although he found that it was very surprising that DW1 would claim to remember such a trifling detail as that PW1 was wearing a long-sleeved upper garment.  Both PW1 and PW2 gave evidence that PW1 wore P.E. kit, a short-sleeved shirt and shorts.

16.  He noted that DW1 did not witness anything that transpired between the Appellant and PW1.  He had come out to observe only after the scolding, or lecturing.  He did not pay continuous attention to them.  As for the CCTV footage that he saw subsequently, it did not capture all the events that took place.  DW1 agreed that the CCTV camera only captured a limited area of the walkway. 

17.  The Magistrate stated:

“The evidence of DW1 does not cause me to doubt the credibility of the PWs 1 and 2 and the reliability of their testimony.  I am sure that PWs 1 and 2 testified honestly.  It does not surprise me that a poking action of a finger might cause scratch marks.  This could be caused by a fingernail sliding down the chest wall.  I do not believe that the medical evidence detracts from the credibility of PW1.

I accept the testimony of the prosecution witnesses.”

18.  It is clear that although he treated DW1 as an honest witness, the Magistrate did not consider him a reliable witness because he had seen nothing pertinent to the alleged offence.  The CCTV footage, even if available was inconclusive, because of the limited range of the CCTV camera and also because the CCTV footage did not have any soundtrack.  Nor was there any way to tell at which point of the incident the parties had come into range of the camera.

19.  In relation to the unsworn evidence of PW1, which was uncorroborated as to the actual assault, the Magistrate was quite aware of the need for caution.  He was under no obligation to give himself a corroboration warning, although he would have to be careful in assessing the evidence of PW1 given the circumstances of the incident and the age of PW1.

20.  However, it is quite clear he found the boy was a truthful witness.  His evidence was supported to a certain extent, by the evidence of PW2, whom he also found reliable and honest.

21.  With respect to Mr Poon, this appeal is an attempt to re-try the case by re-visiting evidence which was properly and carefully considered and ruled on by the Magistrate at trial.  I can see no flaw in the way the Magistrate dealt with the case and I do not find that any of the grounds of appeal have been substantiated. This appeal is dismissed.