HKSAR v. CHAN YEE LAP

HCMA575/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 575 OF 2002

(On appeal from WSCC 13404 of 2001)

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J U D G M E N T

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1. The appellant in this case was convicted after trial of assault occasioning actual bodily harm and was sentenced to 15 months' imprisonment, to be served consecutively to another term he was then serving. He now appeals against both conviction and sentence.

2. The victim, Mr Wong Yik Tung, and his alleged assailants were all serving prisoners. It is alleged that on 15 September 2001, he was chatting with other prisoners in an activity room at Pak Sha Wan Correctional Institute when the appellant and a Mr Kwok Chun Ming ("Kwok") approached them. Mr Wong said that the appellant held him with an armlock round the head while Kwok stabbed him with a ball pen about the body and face. He managed to free himself and stepped away but was then further attacked by Kwok and Mr Wong Pak Hung ("Hung"). They punched and beat him. A correctional services officer intervened but the attack continued nevertheless. The victim said he managed to escape into another room where a Mr Ho Kin Kwok ("Ho") attacked him whilst the correctional services officers were controlling the others.

3. There were thus allegations of assault against four defendants. The 1st and 2nd of them pleaded guilty before a different magistrate and was sentenced to six months' imprisonment, of which four were to be served consecutively to the terms they were currently serving. The 3rd defendant was tried along with the appellant and was acquitted.

4. The appellant appeals against conviction on the following grounds :

(1) The conviction was against the weight of the evidence.

(2) The learned magistrate failed to make a proper and sufficient reasoned evaluation of the evidence.

(3) The learned magistrate erred in disregarding without good reason evidence from an independent witness which contradicted in material respects the evidence of the victim.

(4) The learned magistrate failed to resolve or to make any attempt to resolve a real and crucial conflict between the evidence of the victim of the alleged assault and the evidence of two independent witnesses.

(5) The learned magistrate failed to reconcile material inconsistencies between the victim's evidence at trial and his previous statements to the police.

(6) The learned magistrate failed to give any reasons for accepting the victim's explanations of why he had made prior statements inconsistent with his testimony at trial.

In all the circumstances of the case, said the appellant, the conviction was unsafe and unsatisfactory.

5. As the appellant had indicated, there were significant discrepancies in the prosecution evidence, principally, these were between what the victim said in court and what he had said in his earlier statement, and differences between what the victim said in court and what two prison officers observed. The magistrate plainly realized this and specifically referred to the discrepancies in his review of the evidence. Having done so, he moved on to his evaluation of the evidence. What he said was this :

"I have also directed myself to the inconsistencies between the evidence of PW1 and his earlier statements, which I have referred to above, and have given particular consideration to how those inconsistencies implicate the case against D4 [the appellant] and also, more generally, in regard to the effect that those inconsistencies have upon PW4's credibility.

....

... I have also addressed myself to his apparent inconsistency with the evidence of PW2 and, most particularly, his evidence which was inconsistent with the evidence of PW3."

He then indicated that he was satisfied to the required standard that the appellant had told the truth and that what he had said in court was an accurate and reliable account of the initial attack, which this appellant was allegedly involved in.

6. The appellant contends that more details should have been offered, that the magistrate should have explained in detail how he resolved the discrepancies. I do not agree that this is necessarily so. In the case of R. v. Sheik Abdul Rahman Bux and Others [1989] 1 HKLR 1, Roberts CJ said :

"In R. v. Chan King Man, this Court stated that a district judge's duty had been correctly set out by Blair-Kerr, J. in the following passage from R. v. R.E. Low [1961] HKLR 13 at p. 82 which is repeated again, for easy reference:

' It was contended by Mr. How that a district judge's statement of his reasons for verdict prepared in pursuance of s. 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 misapprehended 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 conclusions 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 he is not duty bound to set down precisely what he accepts, what he rejects and what weight he attaches 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 fact, 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 findings if, having regard to the whole of the evidence, such findings appear reasonable' ".

In R. v. Yeung Fu Hing (unreported), Mag. Cr. App. 1183/1988, Hooper J rehearsed the authorities concerned in this area and concluded :

"... that it is very much a matter of degree whether in the individual circumstances of each case the appellate tribunal will feel that the magistrate's statement of findings on the facts and other grounds for his decision are sufficient to rule out any suggestion that the decision is unsafe or unsatisfactory."

7. The magistrate in this case did what was required of him. In deciding whether or not he was right to make the findings of credibility he made in the face of such discrepancies, the following is helpful. In the case of Rossington Investments Ltd v. Lam Ping Kwong, CACV185/2002, Mayo VP referred with approval to the dicta of Bokhary PJ in Ting Kwok Keung v. Tam Dick Yuen & Ors [2002] 1 HKC 601 :

" Where the judgment turns on an issue of fact, the Court of Appeal must have regard to the nature of that issue of fact. And it must have regard to the advantages enjoyed by a trial judge who received the evidence on such an issue at first-hand, in other words, in whose presence the whole of the evidence unfolded in its living state. Such advantages can be, as Lord Shaw of Dunfermline put it in Clarke v. Edinburgh Tramways at p.36, 'sometimes broad and sometimes subtle'. The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong. The Court of Appeal should intervene if so satisfied. But if not so satisfied, the Court of Appeal should defer to the trial judge's conclusion even if in some doubt as to its correctness."

The court went on to approve what Godfrey JA said in Tang Kwok Ming v. Daxprofit Scaffolding Ltd [1999] 1 HKC 657 :

" The approach of an appellate court to appeals on fact is well-established. An appeal to this court is by way of re-hearing. Accordingly, it is the duty of this court to re-consider all the materials before the judge, to make up its own mind, not disregarding the judgment below but carefully weighing and considering it, not shrinking from overruling it, if on full consideration, it comes to the conclusion that the trial judge's finding was wrong.

But that does not mean that this court will re-try the case. The re-hearing is a re-hearing on the papers. This court will not usurp the function of the trial judge, i.e. to find the facts. It will certainly not disturb his findings of primary fact where these are based on the credibility of the witnesses or the preference of the evidence of one witness for that of another (although of course it may be willing to disturb inferences of fact drawn from the primary facts, because an appellate court is in as good a position as the trial judge to draw such inferences).

It is important for counsel and solicitors (and for the legal aid authorities) to remember the very limited extent to which this court will interfere in a case in which the appellant seeks to dispute the judge's findings of fact. If it is necessary to disturb an adverse finding of primary fact, the appellant has to demonstrate either (1) that there is no evidence to support it; or (2) that it is contrary to documentary or other incontrovertible evidence which the judge overlooked. It is not enough to show there is little evidence to support the judge's finding, or that it was 'contrary to the weight of the evidence'. The weight of the evidence is a matter for the trial judge. It does not matter how many witnesses say one thing, and how few say the contrary. The judge is perfectly entitled to prefer the evidence of the few to that of the many."

The Vice President concluded :

"We agree that these passages accurately state the law and that the threshold which has to be surmounted by a party seeking to upset findings of fact made by a trial Judge is a formidable one."

8. I note that the magistrate in this case indicated why his acquittal of the 3rd defendant did not affect his view of the victim's evidence. He recognized that the appellant was a convicted criminal, serving a six year sentence and he found that he was nevertheless left with a "strongly favourable impression of the evidence of PW1". This was, above all, a case where an experienced magistrate has watched the witnesses and heard what they had to say. He recognized and dealt with all the issues which arose.

9. The appeal against conviction is dismissed.

10. The appellant also appeals against sentence. The two co-accused pleaded guilty before a different magistrate and received sentences of six months, of which four were to be served consecutively to their current term.

11. I have seen what the sentencing magistrate in that instance said and it is clear that he took a starting point of nine months. The appellant in this appeal was sentenced to 15 months, all of which is to be served consecutively to his present term. He appeals that sentence on the ground of disparity complaining of the "glaringly different sentences".

12. Where two or more offenders are to be dealt with for the same offence, they would normally attract the same sentence subject to differences in their own involvement or personal circumstances. However, as Roskill LJ said in R.v. Stroud [1977] 65 Cr. App. R.150, the argument:

"... that because one inadequate sentence is wrong, the other prisoner must also get a glaringly inadequate sentence in order to produce what is said to be a proper adjustment between the two and to avoid disparity.

In the view of this Court that is quite wrong......"

Where different sentences are passed, the test is :

"... would right-thinking members of the public with full knowledge of relevant facts and circumstances learning of that sentence consider that something had gone wrong with the administration of justice."

Per Lawton LJ in R.v. Fawcett, 5 Cr. App. R. (S) 158, CA.

13. In this case, the respondent conceded before me that the appellant could have a legitimate sense of grievance at the sentence and suggests that the present sentence is "so glaringly disparate and is remarkable". I disagree with that view and I alerted counsel for the appellant to this fact before he addressed me. I have seen the facts on which the first magistrate sentenced the other two defendants, and I have also seen what the magistrate in this appeal said about the evidence he had heard. It is evident that the facts before the first magistrate were a very brief summary of what had happened and they presented rather a watered down account of what had happened. The trial magistrate in the instant case plainly formed a very much more serious view of what had happened from the evidence he had heard, as he was entitled to do. He said :

"...it is quite clear from all of the evidence that he was punched heavily about the body in the course of the attack and that, significantly, he was also stabbed with the point of a ballpoint pen or pens, which action caused several puncture wounds to various parts of his body, which included his head, as well as a wound just below the left side of his lower lip.

It is noted that this wound appears to have left a scar which will almost certainly be permanent without further surgery of a cosmetic nature."

14. This appellant held the victim's head in an armlock while some at least of these injuries were inflicted. The magistrate categorized the offence as "a most serious offence which was carefully planned and carried out". He continued :

"I consider that it is a circumstance of aggravation that this offence occurred in a prison setting and, as I have said the courts will spare no effort in our attempt to deter such conduct by the defendants specifically and by the prison community at large."

15. He was, with respect, on the facts of this case right to take this view, and if I may defer to the case of R.v. Fawcett again I am quite sure that informed members of the public would agree with the magistrate. The sentence in this case for this appellant on the facts which the trial magistrate found approved was appropriate and the appeal against the sentence is dismissed.

16. Before I conclude, may I make the following comment : Mr Bedford has appeared for the appellant pro bono on the instructions from the Bar. Without wishing to take anything from the sterling work of other counsel in this appeal, I should acknowledge the thorough job Mr Bedford has done both before me today and quite clearly in his preparation of the appeal.